“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS 13946 & 14056 D & R BUILDERS AND R. P. MATZINGER D\/B\/A M & M READY MIX, \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0February7, 1977?DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review. The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1975?76 CCH OSHD para. 20,428 (No. 9507, 1976);Crane Co., 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); seealso Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3dCir. 1976). The order for review in this case describes no compelling publicinterest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975?76 CCH OSHD para.20,387 (No. 4090, 1976).?It is ORDERED that the decision be affirmed.DATED: February 7, 1977FOR THE COMMISSION:William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Concurring in Part, Dissenting inPart:??????????? Iagree with the affirmance of the citation in Docket No. 13946. However, I wouldvacate the citation in Docket No. 14056 because the Judge?s finding that M& M Ready Mix did not possess the ?prerequisite knowledge? requiresvacation of the citation rather than a mere reduction in the severity of thecharge from serious to nonserious. Brennan v. OSAHRC and Raymond Hendrix,d\/b\/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975). Furthermore, forthe reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss,Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with themanner in which my colleagues are disposing of this case and with their viewsregarding the significance of decisions rendered by Review Commission Judges.??????????? Sincemy colleagues do not address any of the matters covered in Judge Morris?decision, his decision is attached hereto as Appendix A so that the law in thiscase may be known.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS 13946 & 14056 D & R BUILDERS AND R. P. MATZINGER D\/B\/A M & M READY MIX, \u00a0 ????????????????????????????????????????????? Respondents. \u00a0 \u00a0FINAL ORDER DATE: July 1, 1976APPEARANCES:James H. Barkley, Esquire, Office of HenryC. Mahlman, Associate Regional Solicitor, U. S.Department of Labor, Denver, Colorado, for the Complainant,\u00a0Lyman H. Bennett, Jr., Esquire, Bennett& Bennett, Attorneys at Law, of Bozeman, Montana, for Respondent D & RBuilders, Inc.,\u00a0Joseph B. Gary, Esquire, Landoe & Gary, Attorneys at Law, of Bozeman, Montana, for Respondent R. P. Matzinger d\/b\/a M& M Ready Mix.?DECISION AND ORDERMorris, Judge:??????????? Citationsallege violations of the Occupational Safety and Health Act of 1970 (29 U.S.C.651 et seq., hereafter, the ?Act?). Complainant asserts the violations occurredJune 12, 1975. Separate citations were issued June 25, 1975.??????????? Anotice of contest was received by complainant from D & R Builders, Inc., (D& R), on July 2, 1975; a similar notice was received from R. P. Matzinger, d\/b\/a M & M Ready Mix (M & M), on July7, 1975.??????????? Thecitation in each case alleges a serious violation of 29 CFR 1910.180(j)(1)(i) and it reads:On or about June 12, 1975, at the M &M Ready Mix Plant in Belgrade, Montana, an employee was working with and inclose proximity to a Prentice clam (D600) log heel boom truck crane operatingless than 10 feet from an energized electrical distribution and transmissionline operating at 7200 volts which had not been de-energized and grounded orprovided with insulating barriers to prevent physical contact with the line.?Proposed civil penalty each case: $500.??????????? Thecited standard reads:? 1910.180 Crawler locomotive and truckcranes.(j) Operating near electric powerlines-(1) Clearances. Except where the electrical distribution and transmissionlines have been deenergized and visibly grounded at point of work or whereinsulating barriers not a part of or an attachment to the crane have beenerected to prevent physical contact with the lines, cranes shall be operatedproximate to, under, over, by, or near powerlines only in accordance with thefollowing:(i) For linesrated 50 kv, or below, minimum clearance between thelines and any part of the crane or load shall be 10 feet.?JURISDICTION??????????? RespondentM & M owns 14 trucks and employs 10 persons in a ready mix concretebusiness (Tr. 38, 39, 42). The trucks, which cost a substantial sum, aremanufactured in various states including Michigan, Kentucky, Colorado, andIdaho (Tr. 39, 60).??????????? Thefirst issue for determination is whether the Commission has jurisdiction over M& M. In short, does respondent M & M engage in a business affectingcommerce? Section 652 of the Act defines ?commerce? as:?. . . ?trade, traffic, commerce,transportation, or communication among the several States, or between a Stateand any place outside thereof, or within the District of Columbia, or apossession of the United States (other than the Trust Territory of the PacificIslands), or between points in the same State but through a point outsidethereof . . ..????????????? Section651(a), the Congressional findings and purposes of the Act, indicates:?. . . Congress finds that personalinjuries and illnesses arising out of work situations impose a substantialburden upon, and are a hindrance to, interstate commerce in items of lostproduction, wage loss, medical expenses, and disability compensation payments.?Section 651(b) declares:?. . . it to be its purpose and policy,through the exercise of its powers to regulate commerce among the severalStates and with foreign nations and to provide for the general welfare, to assureso far as possible every working man and woman in the Nation safe and healthfulworking conditions and to preserve our human resources . . .????????????? Thesecongressional findings and declarations indicate an intent to vest the broadestjurisdictional scope constitutionally permissible under the commerce clause.Section 652 does not rely upon the common test of ?engaging in interstatecommerce?, but seeks a broader scope by defining an employer as a personengaged in a business ?affecting commerce? and having employees. Judicialinterpretation of the term ?affecting commerce? indicates it includestransactions or goods moving directly in interstate commerce, and furtherincludes indirect activities which in isolation might be deemed to be merelylocal, but which nonetheless affect commerce, N.L.R.B. v. Suburban LumberCompany, 121 F.2d, 823 (3rd Cir., 1971; 50 ALR 2d, 1228, 1235). In thiscase respondent uses in its business trucks manufactured in other states. Thetransportation of such equipment and its subsequent use by respondent?semployees in the course of respondent?s business are sufficient to ?affectcommerce? thereby conferring jurisdiction on the Commission as to M & M. Tolike effect see Secretary v. Billings Heights Construction Company,Docket No. 7246, 20 OSAHRC 276.??????????? RespondentD & R admits coverage (Tr. 15?16, 20, 21, 27, 31, 168).EVIDENCE??????????? Onthe date of this accident M & M requested D & R to break out a septictank from M & M?s mold and move it elsewhere on M & M?s property (Tr.33, 44?45, 62). This request had never been made before; the owners (friends)did not discuss compensation. D & R was working several blocks awayconstructing a house (Tr. 33?35, 45, 60, 61, 65).??????????? D& R used a modified truck crane, known as a Prentice loader (D600 clam lockheel boom truck) to break out the tank (Tr. 32, 134, 135). M & M did notdirect placement of the tank (Tr. 46, 50, 63, 99). The M & M propertyoffered ample space to place the tank in the open area of some two hundred feetbetween the forms and the power lines. However, D & R attempted to depositthe tank under the power lines and adjacent to reject tanks left by a priormanufacturer (Tr. 44, 47?49, 56, 70, 139; compl?s.ex. 1).??????????? MontanaPower Company maintains 25 to 30 foot high uninsulated power lines 40 feet fromthe railroad tracks. This line was not shut off or otherwise insulated withbarriers (Tr. 70?71, 78, 84, 131, 134). A nearby sign warns of high voltageline danger (Tr. 79; compl?s. ex. 5).??????????? The M& M plant manager saw D & R?s truck under the power line. He observedthe 20 to 30 foot crane boom contact the power linecausing the death of Robert Cooper (Tr. 72, 86, 87, 98).??????????? An M& M employer had been instructed to assist D & R remove the cables (Tr.86?88, 91, 101, 108). He could have been electrocuted if he had touched thecables (Tr. 109?110); he was at the site several minutes before the accident(Tr. 91?92).HEARSAY??????????? Respondentsobjected to the hearsay in complainant?s case establishing the amount ofelectricity in the power transmission lines at 7000 volts to ground and 14 Kv phase to phase (Tr. 114?115, 141).??????????? Inhis post-trial brief complainant concedes the hearsay nature of the evidencebut argues that proof of voltage is not a necessary element in establishingviolation of a standard. In other words, no matter what voltage a transmissionline carries, no crane equipment may come closer than 10 feet. When the voltagein the line increases the prohibited distance proportionately increases. In thealternative complainant argues that uncorroborated testimony is admissible andmay prove an element in the case if it is not contradicted by other evidence.In support of these propositions complainant relies onSecretary v. Metro-Mechanical, Inc., No. 3518, 19 OSAHRC 89 and Secretaryv. Milprint, Docket No. 513, 4 OSAHRC 1207.??????????? Thestandard in issue prohibits cranes within ten feet where the lines are rated?50 Kv or below?. The wording of the standard rendersthe amount of electricity in a power transmission line irrelevant in the proofof a violation of Part 1910.180(j)(i). See, also, AmesCrane and Rental Service, Inc., infra. It is accordingly not necessary torule on complainant?s alternative argument.??????????? M& M contends none of its equipment came within 10 feet of the power line;in fact, none of M & M?s equipment could reach the power line. In additionM & M argues that it did not direct placement of the septic tank hence M& M could not reasonably anticipate the activities of D & R.??????????? M& M?s principal arguments are misplaced. The standard does not restrictcompliance to the operators of a crane. A violation occurred when the cranecame within 10 feet of the power line and upon exposure of an M & Memployee. He received instructions to assist D & R. Such assistance wouldinclude removal of the chains. He was present at the site before the accident;as stated in Secretary v. Frohlick Crane Service,Docket No. 890, 9 OSAHRC 531, 557?558: ?The duty . . . to furnish a safe placeto work is a duty personal to the employer and cannot be avoided by delegationto another.???????????? Complainantmakes a colorable argument for a serious violation by asserting M & M couldhave anticipated D & R would deposit the tank in close proximity to thepower line because other septic tanks were located in a similar position. In Secretaryv. Winslow Crane Service, Inc., Docket No. 831, 3 OSAHRC 1023, 1042 (1972)the writer constructed the meaning of the 10 foot clearance distance requiredby Part 1910.180(j)(i) stating:*4 The better view is that minimumclearance should include that area measured by drawing a line laterally 10 feetfrom the power line then intersecting the lateral line with a line drawn atright angles thereto and perpendicular with the ground. The line perpendicularto the ground should extend upward beyond the power line.???????????? SeeJudge?s Design 2 attached to this decision (as it was attached to Winslow). Thewriter specifically rejected respondent?s contention in Winslow that the tenfoot clearance should be calculated as that area encompassed by and measured ona 10 foot radii from the power line. (Illustrated in Judge?s design 1 attachedto this decision.) On July 23, 1973 the three Commissioners of the ReviewCommission affirmed the decision without commenting on the 10 foot measurement.It accordingly became the safety requirement on that issue.??????????? OnSeptember 27, 1974 complainant issued a field memorandum concerning thisstandard and subsequently modified the interpretation on November 21, 1974 toconsider the ?forbidden zone? to be that zone within a 10 foot radii of anypart of an energized power line. Further, no crane operator may pass any partof his crane or attached load over any energized power line. Usingcomplainant?s designation his interpretation is attached hereto as ?Design 1A.?This Judge recognizes the interpretative rule-making authority of the Secretaryand is not so presumptive as to overturn the Secretary?s determination. Itaccordingly follows that a crane operator may operate under a power line as inthe instant case. In this circumstance respondent M & M could not have theprerequisite knowledge feature required by 29 U.S.C. 666(j).??????????? Theunfortunate continuation of electrocutions appears to illustrate theproposition that working with a crane under an energized power line can beexceedingly dangerous. In Secretary v. Lidstrom,Docket No. 3433, (March, 1976) Judge Alan M. Weinman reviewed a number ofelectrocution cases. Recasting these cases with a view to the position of thecrane, or the equipment, we find:Eller Brothers, Inc., Docket No. 406,1 OSAHRC 638 [Removing large rock with a crane under a power line].?Winslow Crane Service, Inc., Docket No. 832,3 OSAHRC 1023 [Removing blind flanges stored under power line].?Frohlick Crane Service, Docket No. 890,9 OSAHRC 531, [Position of crane not factually developed as parties stipulatedthat a violation occurred].?F. F. Green Construction Company, Inc., Docket No.1015, 5 OSAHPC 329, [Nearest wire transmission 35 feet from the centerline ofthe ditch and 29 feet above the ground].?Wayne Taysom & Eli Taysom, d\/b\/aTaysom Construction Company, Docket No. 1141, 15 OSAHRC 506, [Crane load within10 feet of power line while unloading ready mix cement; exact position cannotbe determined].?White Oak Corporation, Docket No. 1320,10 OSAHRC 560, [Crane operator prepared to move crane from area and swungheadache ball into high tension wires].?Weicker Transfer andStorage Company,Docket No. 1362, 15 OSAHRC 80, [Concrete closet units below were stored under astring of electrical wires].?Delmarva Power & Light Company, Docket No. 1416,8 OSAHRC 685 [Relative positions not indicated but utility company wastransferring conductors from 30 foot poles to 40 foot poles when boom struckenergized line].?Devco Building Company, Docket No. 2536,4 OSAHRC 1379, [Crane cable attached to gable stored under power line].?Ames Crane & Rental Service, Inc., Docket No.2578, 18 OSAHRC 441, [Crane being operated apparently parallel and within 8feet of power lines].?Butler Lime and Cement Company, Docket No. 855,11 OSAHRC 819, [Apparently deceased unloading from under power line].?A & W Drill Rentals and Leroy Crandalland Associates,Docket No. 271 and 726, 13 OSAHRC 427, [Drill rig positioned underneath?Floyd S. Pike Electrical Contractor, Inc., Docket No.3069, 15 OSAHRC 302, [As new transformer was raised into position hoist loadline contacted energized line].?Lidstrom, Inc., Docket No.3433, [Position not fully developed but crane apparently working parallel topower lines].???????????? Query:In how many of the above cases would death or injury have occurred if the cranehad not been under an energized power line? The placement, storage, andunloading of material under power lines constitutes a prerequisite to seriousand often fatal injuries.CIVIL PENALTIES??????????? 29U.S.C. 666(i) provides:The Commission shall have authority toassess all civil penalties provided in this section, giving due considerationto the appropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the good faith ofthe employer, and the history of previous violations.???????????? TheCommission has repeatedly ruled that the purpose of monetary penalties is tosecure compliance with the Act. Secretary v. Creguson?sNursery, Inc., Docket No. 1646, 15 OSAHRC 451. In this case a friendattempted to accommodate a friend; in the process the son of one of the men waskilled. Both respondents are small companies and have no prior adverse history.The assessments of a monetary penalty in this unique situation would notaccomplish the Congressional purpose. On the other hand the Act requires acivil penalty under certain circumstances, 29 U.S.C. 666(b). Considering allthe facts a civil penalty of $1.00 should be assessed.??????????? Therecord establishes coverage of the Act and based on the essentiallyuncontroverted evidence the undersigned enters the following:ORDERCase Number 13946, D & R Builders:??????????? 1.Citation 1 is affirmed.??????????? 2.The proposed civil penalty of $500 is vacated and a civil penalty of $1.00 isassessed.?Case Number 14056, M & M Ready Mix:??????????? 1.Citation 1 is affirmed as a nonserious violation.??????????? 2.The proposed civil penalty of $500 is vacated and a civil penalty of $1.00 isassessed.John J. MorrisJudge, OSAHRC?\u00a0\u00a0”