DELTA FIELD ERECTION, INC.

OSHRC Docket No. 76-4153

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Horace A. Thompson, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The issue in this case is whether Delta Field Erection, Inc. ("Delta Field") committed a serious violation of the electrical standard for construction work at 29 C.F.R. 1926.401(j)(4). n1 This section prohibits the operation of portable electric lighting at more than 12 volts in moist and/or other hazardous locatios. We conclude that the Secretary of Labor ("the Secretary") failed to establish that Delta Field had knowledge of the violative condition and reverse the administrative law judge's finding of a violation.

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n1 29 C.F.R. 1926.401(j)(4) provides:

1926.401 Grounding and bonding.

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(j) Temporary lighting.

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(4) Portable electric lighting used in moist and/or other hazardous locations, as for example, drums, tanks, and vessels shall be operated at a maximum of 12 volts.

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Delta [*2] Field is a general construction firm which had subcontracted with the Tennessee Oil Company ("Tenneco") to replace damaged parts in an ethyl benzene storage tower in Chalmette, Tennessee. Delta Field's assignment was to bolt back into place metal trays which had been removed from the tower for repair. Delta Field's employees used ratchets and wrenches to bolt the trays onto metal racks.

In preparation for this work, Tenneco had purged the tower of ethyl benzene and closed off all natural gas pipelines leading into the structure. It had also, prior to Delta Field's arrival at the tower, installed a system of portable electric lights. This system included an undetermined number of 32-volt lights and one 110-volt drop cord, all connected by extension cords to portable transformers outside the tower. All but two of the light fixtures were the explosion-proof type.

While Delta Field's employees were engaged in replacing the metal trays, a Tenneco employee opened one of the natural gas lines leading into the structure under the mistaken impression that he was opening a fresh air line. Shortly thereafter the atmosphere inside the tower exploded; thirteen men were killed and others [*3] injured. The record does not indicate whether the lighting system contributed to the explosion.

In order to prove that an employer committed a violation, the Secretary must show, inter alia, that the employer knew, or in the exercise of reasonable diligence, could have known of the violative condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 (No. 13732, 1981). We conclude, based on the record before us, that the Secretary has not made out a prima facie showing that Delta Field knew or in the exercise of reasonable diligence could have known that the lights were being operated in excess of the permitted voltage.

The only evidence bearing on Delta Field's actual knowledge regarding voltage is the testimony of its two supervisory employees. The night superintendent testified variously that the transformers were "supposed" to be marked for voltage, that "some were not marked," that none was marked, and that he was not sure whether any were marked. n2 The day superintendent testified that he had never looked at the transformers [*4] so could not say whether they were marked, but that in any case he would not have understood the significance of any markings because he has no electrical expertise. Tenneco's own electrician testified at the hearing that the system had included both 32 and 110-volt wiring but was never asked how he made that determination. Consequently, his testimony provides no basis for an inference that the equipment was visibly marked for voltage.

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n2 Delta Field's night superintendent testified as follows:

Q. Would you know what wattage the lights were?

A. Twelve volts.

Q. Excuse me, I didn't hear your answer?

A. I am sure that they were 12 volts.

Q. You say that you are sure. Do you know that they are 12 volts?

A. I don't know if I was sure. They were connected to the boxes outside, and I am pretty sure that they were 12 volts.

Q. Did you examine those light fixtures to determine what they were?

A. Yes, you could.

Q. How could you tell what the voltage was from those light fixtures?

A. It's suppose [sic] to be marked on the boxes that they are plugged into because they are a reducer box. They are plugged into one thing and they are reduced down to 12 volts.

Q. Did you ever look at the boxes to determine whether they were 12 volts?

A. No, I didn't, but I would assume they were. That's what they were suppose [sic] to be.

Q. Could you have looked at those boxes to determine whether they were reducing boxes?

A. Yes, sir. I'm not sure if its [sic] marked on there or not. Some of the boxes don't have any markings on them.

Q. But the question is, "Were these boxes available to you so that you could tell what was on them?"

A. Yes, they were.

[*5]

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Nor did the Secretary prove that Delta Field failed to exercise reasonable diligence to discover the voltage at which the lights were operating. A contractor entering another employer's facility would not ordinarily be concerned with the voltage of the lights, n3 and the Secretary has not established any reason why Delta Field should not reasonably have relied on Tenneco, which controlled the facility and employed electricians, to assure that the lighting system was operating at an appropriate number of volts. n4

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n3 We note that the general industry standards regulate electrical equipment and wiring in hazardous locations but set no limit on voltage per se in such locations. See 29 C.F.R. 1910.307 and the National Electrical Code, NFPA 70.

n4 The record indicates that it was Tenneco's practice to provide all equipment and tools used by Delta Field on Tenneco's premises and that Delta Field was contractually prohibited from bringing electricians to the refinery.

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Accordingly, we vacate the citation n5 on the ground that the Secretary failed to establish Delta Field's knowledge of the violative condition. n6 SO ORDERED.

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n5 Commissioner Cottine dissents to the Commission decision in this case. Commissioner Cottine notes that under the Occupational Safety and Health Act each employer is principally responsible for the safety of its own employees. Central of Georgia R.R. Co. v. OSHRC, 576 F.2d 620 (5th Cir. 1978); Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975); Sam Hall & Sons, Inc., 80 OSAHRC 106/A2, 8 BNA OSHC 2176, 2179 n.8, 1980 CCH OSHD P24,927 at p. 30,744 n.8 (No. 76-4988, 1980); Camden Drilling Co., 78 OSAHRC 33/A2, 6 BNA OSHC 1560, 1978 CCH OSHD P22,687 (No. 14306, 1978); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976). This statutory duty cannot be transferred, assigned, or contracted away. Central of Georgia R.R. Co. v. OSHRC, supra; Frohlick Crane Service, Inc. v. OSHRC, supra; Sam Hall & Sons, Inc., supra. "It is no defense that someone else . . . agreed to look out for the employee's job safety." Bayside Pipe Coaters, Inc., 74 OSAHRC 67/B14, 2 BNA OSHC 1206, 1206-7, 1974-75 CCH OSHD P18,677 at p. 22,578 (No. 1953, 1974).

Delta Field has a regular maintenance crew working at the Tenneco refinery on a year-round basis. Both Delta Field superintendents on the Tower 103 job had prior experience working in vessels similar to Tower 103 and were accustomed to dealing with Tenneco's electricians, who were readily available for consultation. The provision of electric lighting was integral to the work Delta Field's employees were performing within the tower. Under these circumstances, the exercise of reasonable diligence would have required, at a minimum, that Delta Field inquire whether the electrical equipment supplied by Tenneco for use by Delta Field's employees in a hazardous location complied with the requirements of the Act.

n6 Delta Field has raised other objections to the judge's disposition of this item, but inasmuch as our ruling is dispositive of the case, we will not consider them here.

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