“SECRETARY OF LABOR,Complainant,v.GATES & FOX COMPANY, INC.,Respondent.OSHRC Docket No. 78-2831_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor (\”Secretary\”) under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(C).Gates & Fox Company, Inc. (\”Gates & Fox\”) was a subcontractor engaged inthe construction of a portion of the Washington D.C. subway system. Thetwo citation items on review concern whether Gates & Fox’s Drott Model2500 truck crane was operated too close to power lines in violation of29 C.F.R. ? 1926.550(a)(15)(i) and whether Gates & Fox failed to complywith 29 C.F.R. ? 1926.800(b)(3) by not providing self-rescuers in thetunnel area serviced by a shaft at Brandywine Street. AdministrativeLaw Judge Henry K. Osterman affirmed both of the citation items andfound that the violations were willful under section 17(a) of the Act,29 U.S.C. ? 666(a).[[1]]The two participating Commission members[[2]] have reached oppositeconclusions as to whether Gates & Fox violated the Act with respect tothe items on review. However, they agree that if the violationsoccurred they were not willful.The Secretary alleged that at the time of the inspection Gates & Fox’scrane was operating within 10 feet of power lines in violation ofsection 1926.550(a)(15)(i). That standard states:? 1926.550 _Cranes and derricks_.(a) _General Requirements_.* * *(15) Except where electrical distribution and transmission lines havebeen deenergized and visibly grounded at point of work or whereinsulating barriers, not a part of or an attachment to the equipment ormachinery, have been erected to prevent physical contact with the lines,equipment or machines shall be operated proximate to power lines only inaccordance with the following:(i) For lines rated 50 kV. or below, minimum clearance between the linesand any part of the crane or load shall be 10 feet;During the inspection, compliance officer John Wiseman observed Gates &Fox’s Drott Model 2500 truck crane operating close to power lines. Thepower lines were about 30 feet above the ground, and the boom of thecrane was two or three feet higher than the power lines. The powerlines carried 4,000 volts and were not insulated or visibly grounded. Wiseman determined that the crane’s boom and load line were within 10feet of the power lines and that mats coming from, I laid my rule acrossand looked straight in the air, using a plane, to took at the lines.\” He later added: \”I took my foot when I looked overhead and I make amark right where the crane line was swinging and that’s one of the waysI got my measurement.\”The crane operator, Howard Lane, testified that he did not observe themeasurement being made and that the crane was never within 10 feet ofthe power lines on the day of the inspection. He also stated that hehad no trouble keeping the crane more than 10 feet away from the powerlines while picking up and unloading the mats. Joseph Griffith, Gates& Fox’s project manager, testified that he had told Lane to keep thecrane 10 feet away from the power lines. Lane had assured him that thecrane was 10 feet away from the power lines, but Griffith was notconvinced, so he had climbed onto the boom of the crane to check forhimself. He then was satisfied that the crane was more than 10 feetaway from the power lines. Griffith did not specify when he made thischeck.In his decision, the administrative law judge affirmed this item of thecitation as willful and assessed a $3,000 penalty. The judge noted theconflicting testimony as to whether the crane came within 10 feet of thepower lines and then concluded: \”I accept the CO’s testimony that themeasured the distance from the crane’s cable to the power lines despitethe testimony by the crane operator who stated that he did not observethe measurement being made. The statement of these two witnesses arenot inconsistent with my conclusion that the violation was ‘willful’ . .. .\”Commissioner Cleary would affirm the judge’s finding of a violation. Commissioner Cleary would accept the judge’s credibility finding thatthe compliance officer measured the crane’s distance from the powerlines. _C. Kaufman, Inc_., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297,1977-78 CCH OSHD ? 22,481, p. 27,099 (No. 14249, 1978). He furtherfinds that the compliance officer’s measurement is entitled to greatweight. Commissioner Cleary notes that the compliance officer made amark where the crane line was swinging and from that made hismeasurement. He concludes that such a procedure is reasonablycalculated to give an accurate determination of the distance between thecrane or load and lines, particularly where, as here, the mats were inviolation of the cited standard by a distance of seven feet.Commissioner Cleary would find that the violation of section1926.550(a)(15)(i) with respect to the Drott Model 2500 truck crane wasnot willful. To establish that a violation was willful, the Secretarymust prove that the violation was committed with intentional disregardof or plain indifference to the Act’s requirements. _Cedar ConstructionCo. v. OSHRC_, 587 F.2d 1303 (D.C. Cir. 1978); _D.A. & L. Caruso, Inc_.,84 OSAHRC ____, 11 BNA OSHC 2138, 1981 CCH OSHD ? 26,985 (No. 79-5676,1984). Where the record reveals that the employer who knew of thehazardous condition took some precautions to protect its employees, eventhough not entirely effective or complete, the employer’s conduct lacksthe element of intentional disregard or plain indifferencecharacterizing willful conduct. _Mobil Oil Corporation,_ 83 OSAHRC_____,11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 4802, 1983).Gates & Fox’s supervisor, Griffith, was aware of the 10-foot clearancerequirement and told the crane operator to maintain that distance fromthe power lines. Griffith also climbed onto the boom of the crane tocheck the distance and was satisfied that the crane was more than 10feet away. Furthermore, the crane operator believed that he kept thecrane more than 10 feet from the power lines. No evidence was presentedshowing that it was necessary for the crane to come within 10 feet ofthe power lines to accomplish its assigned tasks. Accordingly, theevidence does not establish that Gates & Fox intentionally disregardedor acted with plain indifference to employee safety.In Chairman Buckley’s view, the evidence is insufficient to establishthat the crane was operated within 10 feet of power lines on the day ofthe inspection. Because the crane boom and power lines were at least32 and 30 feet, respectively, above the ground when the complianceofficer made his measurements, Chairman Buckley finds there was asignificant margin for error. He further concludes that themeasurements were not as accurate as possible, since the crane wasperforming work at the time, and therefore moving. Chairman Buckleywould give greater weight to the testimony of the crane operator thatthe crane never came within 10 feet of the lines than he would to themeasurements of the compliance officer. The crane operator had beenoperating cranes since 1941 and was aware of the 10-foot clearancerule. The crane operator knew the location of the lines. He statedthat in his work he had learned to pay attention to power lines and beenwarned by foremen on all jobs to be careful of them. The crane operatoralso testified that he would know if he was \”getting close\” to thelines. Accordingly, Chairman Buckley concludes that the Secretary hasnot established a violation. [[3]]The Secretary also alleged that Gates & Fox willfully violated section1926.800(b)(3) by failing to provide self-rescuers in the tunnel areaserviced by the Brandywine Street shaft.[[4]] Section 1926.800(b)(3)provides:1926.800 _Tunnel and shafts_.* * *(b) _Emergency provisions_.* * *(3) Bureau of Mines approved self-rescuers shall be available near theadvancing face to equip each face employee. Such equipment shall be onthe haulage equipment and in other areas where employees might betrapped by smoke or gas, and shall be maintained in good condition.The judge affirmed the alleged violation as willful, holding thattestimony by the compliance officer \”supports a finding thatRespondent’s employees were at work blasting and drilling on an’advancing face’ . . . .\”[[5]] It is undisputed that Gates & Fox didnot provide self-rescuers in the subway tunnel area serviced by theBrandywine Street shaft. However, the compliance officer testified thatthere was no advancing face at the Brandywine worksite. Moreover, theonly evidence about blasting at a tunnel face related to the IngomarStreet worksite, a different location an undetermined distance from theBrandywine Street site. On review, Gates & Fox argues that it did notcommit a violation since there was no advancing face at the BrandywineStreet worksite, and the standard only requires that self rescuers beavailable near the advancing face. The Secretary agrees there was noadvancing face at the Brandywine Street worksite, but contends thatself-rescuers nevertheless were required because the second sentence ofthe standard imposes an independent requirement that self-rescuers shallbe provided \”in other areas where employees might be trapped by smoke orgas.\”Commissioner Cleary would affirm the judge’s finding of a violation. Heagrees with the Secretary that the second sentence of the standard isnot intended to be restricted to the \”advancing face\” but applies to anyareas in tunnels or shafts where there is \”haulage equipment\” or where\”employees might be trapped by smoke or gas.\” The standard’s use of theword \”other\” in the phrase \”and in other areas where employees might betrapped by smoke or gas . . \”. indicates that the standard is intendedto apply to areas beyond the advancing face, and that employees can beendangered in such areas. The phrase \”other areas where employees mightbe trapped by smoke or gas\” would be superfluous unless interpreted toapply to areas that are not near the advancing face. _See_, _e.g_.,_Kroehler Manufacturing Co_.,78 OSAHRC 88\/B9, 6 BNA OSHC 2045, 1978 CCHOSHD ? 23,110 (No. 76-2120, 1978) (interpretations that leave termsdevoid of content are to be avoided if possible).Commissioner Cleary also observes that the Commission has held that whena standard is subject to two plausible interpretations, the properinterpretation is the one that will better achieve the Act’s objectiveof providing a safe and healthy workplace for employees. _Marshall v.Western Electric, Inc_., 565 F.2d 240 (2d Cir. 1977). _Wright & Lopez,Inc_., 81 OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCH OSHD ? 25,728 (No.76-256, 1981). To accept Gates & Fox’s narrow reading of section1926.800(b)(3) one would have to conclude that the drafters of thestandard were concerned only with the safety of employees at the face ofthe tunnel, and were indifferent to or did not provide for the safety ofother employees. Yet at the same time they recognized there were otheremployees who could be endangered. In Commissioner Cleary’s view thedrafters of the standard could not have intended such a result,therefore, the second sentence of the standard should not be limited tothe advancing face.Finally, Commissioner Cleary would find that the cited area was alocation where employees \”might be trapped by smoke or gas.\” He notesthat at the time of the inspection Gates and Fox was performing blastingat another location in the tunnel project. A few days after theinspection, a cave-in occurred after a blast, and employees had to beevacuated. Gates & Fox was also using drilling machinery at theBrandywine Street worksite. Thus, Gates & Fox’s work activities couldhave created instabilities in the rock formation resulting in a cave-inand requiring the use of self-rescuers.Commissioner Cleary would find that the violation with respect to thelack of self-rescuers at the Brandywine Street worksite was notwillful. A violation is not willful if an employer’s failure to complyis the result of a good faith misinterpretation of the terms of thecited standard. _General Electric Co_., 77 OSAHRC 88\/A2, 5 BNA OSHC1448, 1977 CCH OSHD ? 21,853 (No. 11344, 1977). Commissioner Clearywould find that Gates & Fox misinterpreted the standard in good faithand thus did not act with intentional disregard of or plain indifferenceto the Act’s requirements when it did not provide self-rescuers at theBrandywine Street location.Chairman Buckley would vacate the alleged violation because he concludesthat section 1926.800(b)(3) requires that self-rescuers be madeavailable only near the advancing face. A standard should be construedto give effect to the natural and plain meaning of its words and shouldnot be construed \”to mean what an agency intended but did not adequatelyexpress.\” _Donovan v. A.A. Beiro__Construction Company, Inc_., Nos. 83-2008 & 83-2053, slip. op. at 20(D.C. Cir. Oct. 26, 1984), _quoting_ _Kent Nowlin_ _Construction Co. v.OSHRC_, 593 F.2d 368, 371 (10th Cir. 1979); _see_ _also_ _LisbonContractors, Inc_., 84 OSAHRC _______, 11 BNA OSHC 1971, 1974, 1984 CCHOSHD ? 26,924, p. 34,500 (No. 80-97, 1984)(\”A construction of a standardthat bears no reasonable relationship to the standard’s plain wordscannot be expected to guide employers in their conduct.\”)Chairman Buckley concludes that to construe the two sentences asimposing completely separate requirements would be a tortuous reading ofthe standard. It is a well-established rule of statutory constructionthat a part or a section of a regulation should be construed with everyother part or section so as to produce a harmonious whole. 2A_Sutherland Statutory Construction_ ? 46.05 (4th ed. 1973). In theabsence of language indicating that the second sentence of the standardis intended to stand by itself as an independent requirement, the twosentences of section 1926.800(b)(3) should be considered together. _See_ _Schwarz-Jordan, Inc_., 84 OSAHRC _____, 11 BNA OSHC 2145, 2147,1984 CCH OSHD ? 26,989, pp. 34,713-14 (No. 81-2738, 1984) (effect mustbe given to language of standard within the context in which thelanguage appears); _Spot-Bilt, Inc_., 84 OSAHRC _____, 11 BNA OSHC 1998,2001, 1984 CCH OSHD ? 26,944, pp. 34,551-52 (No. 79-5328, 1984)(twosentences of emergency egress standard at 29 C.F.R. ? 1910.36(b)(4)should not be read in isolation to impose independent requirements). When the standard is considered as a whole, it is clear that the secondsentence of the standard merely specifies the locations near theadvancing face where the self-rescuers required by the first sentenceare to be placed, and that such equipment \”shall be maintained in goodcondition.\” Therefore, Chairman Buckley concludes that in the absenceof any advancing face, section 1926.800(b)(3) is not applicable.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken with the affirmative vote of at least two members. To resolvetheir impasse on the merits of the two items at issue and to permit thiscase and the matters now stayed in the court of appeals to be resolved,the Commission members have agreed to affirm that portion of the judge’sdecision finding violations with respect to the two items on review, butto accord the judge’s decision no precedential value. _See_ _LifeSciences Products Co_., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCHOSHD ? 22,313 (No. 14910, 1977), _aff’d sub nom. Moore v. OSHRC_, 591F.2d 991 (4th Cir. 1979). In view of the Commission’s decision to avoidan impasse by affirming the judge’s findings of violations and hisposition that no violations occurred, Chairman Buckley joins withCommissioner Cleary in ruling that the judge erred in finding willfulviolations and in reducing the penalties assessed by the judge. Thatportion of the judge’s decision finding \”willful\” violations istherefore reversed, and a penalty of $500 is assessed for each item.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: NOV 30 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] This case was consolidated with Docket No. 78-2830 for trialbefore the judge. Following the issuance of the judge’s decision,Gates & Fox petitioned the Commission for review of items affirmed bythe judge with respect to both docket numbers. The Commission,however, did not grant review of No. 78-2830 and specifically limitedreview of No. 78-2831 to two alleged violations. Gates & Fox thenpetitioned the United States Court of Appeals for the District ofColumbia Circuit (\”D.C. Circuit\”) for review of No. 78-2830 and of theitems in No. 78-2831 for which the Commission did not grant review. TheD.C. Circuit subsequently stayed its proceedings pending completion ofCommission review.[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Presently, the Commissionhas two members as a result of a vacancy.[[3]] Assuming the accuracy of the compliance officer’s measurements,the citation should nevertheless be vacated because there is no evidencethat Gates & Fox had knowledge of the violative conditions. Commissionlaw precludes affirmance of a violation unless it is established by theSecretary that the employer knew or, with the exercise of reasonablediligence, could have known of the violation. _See_, _e.g_., _SasserElectric & Manufacturing Co_., 84 OSAHRC ___, 11 BNA OSHC 2133, 2135-36,1984 CCH OSHD ? 26,982, pp. 34,684, 34,685 (No. 82-178, 1984). _See__also_ _Pennsylvania Power & Light Co_., 737 F.2d 350, 357-58 (3rd Cir.1984). In this case neither the operator of the crane nor any Gates &Fox supervisor was aware of any breach of the 10-foot clearance limit. In fact, Gates & Fox specifically measured to assure compliance andwarned the operator not to come within 10 feet. These facts establishthat the employer did not know and could not have known of the allegedviolation.[[4]] A self-rescuer is a device through which an employee may breathein the event of a cave-in or other emergency that causes a loss of oxygen.[[5]] The compliance officer defined the \”advancing face\” as the\”penetrating, unopened portion of the tunnel.\” At the Brandywine Streetworksite, the subway tunnels had been completely excavated and shaftsgave access to the surface.”