“SECRETARY OF LABOR,Complainant,v.GULF STATES UTILITIES COMPANY,Respondent.INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, AFL- CIO,LOCAL UNION 2286,Authorized Employee Representative.OSHRC Docket No. 82- 0867_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION.This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(1), 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 under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Gulf States Utilities Company (\”Gulf States\”) is a public utility thatsupplies electricity in parts of southeastern Texas and southwesternLouisiana. On July 8, 1982, a Gulf States line crew was changing certaininsulators for a Power line at a site near Vinton, Louisiana. On onepole supporting the power line some of the line-to-pole insulators hadbeen damaged by vandalism. The Gulf States crew was replacing thedamaged porcelain insulators with new epoxy ones, which are lesssusceptible to damage than porcelain. There were two other sets ofinsulators on the same pole, but the crew was not replacing theseinsulators because they were not damaged.The crew consisted of five employees, including a foreman, asecond-class lineman, and a third-class lineman. When the crew arrivedat the worksite, they received a clearance order indicating that thepower lines had been deenergized. The foreman then discussed with thecrew the procedure by which they would ground the lines at the worksite.Even though the lines had been deenergized, it was necessary to groundthem on both sides of the pole so that any voltage induced in adeenergized line by a parallel energized line would flow to ground atthe worksite and not present a hazard to the employees working at thepole. The crew used grounding chains, first attached to a neutral orgrounded line (or the ground) and thereafter attached to aconductor–the deenergized power lines. The crew used insulated tools toattach the grounding chains to the conductor.After the damaged insulators had been replaced with new insulators, thecrew proceeded to remove the grounding chains. They were to be removedin the reverse order of installation–the last conductor grounded wouldbe the first ungrounded, and so forth. The crew was to use insulatedtools to detach a grounding chain from a conductor. All of theseprocedures were discussed by the crew just prior to the start of work onthe lines.In previously grounding one conductor to another already-grounded onethe crew had spliced two grounding chains together to form one longenough to make the connection. During the process of removing thegrounding chains, the conductor end of this spliced chain was properlydetached from the conductor with an insulated tool. As a result of anerror, however, another grounding chain was removed out of order.Because of this error, the spliced chain was no longer attached to agrounded line and one of the linemen, who was holding the spliced chainin his lap while trying to unsplice it, was electrocuted by a flow ofcurrent induced in the no-longer-grounded line.After the accident, the Secretary conducted an inspection and issued acitation to Gulf States. The citation alleged that, on or about July 8,1982, Gulf States violated 29 C.F.R. ? 1926.954(e)(2) by failing toremove grounding cables in the reverse order of installation and byfailing to use an insulated tool while uncoupling the two splicedgrounding chains.[[1]] Section 1926.954(e)(2) appears in 29 C.F.R. Part1926, Subpart V, which governs the \”construction\” of electrictransmission and distribution lines and equipment. [[2]]Gulf States argued to the judge and now argues to the Commission thatthe cited standard is inapplicable because the work its employees wereperforming on electric power lines was not \”construction\” but, rather,was maintenance work. Gulf States points out that the legislativehistory of Subpart V and Commission precedent indicate that maintenancework is not subject to Subpart V. Judge Sparks concluded that thestandard was applicable because Gulf States’ employees were engaged in\”improvement\” rather than maintenance of existing electric transmissionand distribution lines and equipment. Review was directed on thisissue.[[3]] We reverse Judge Sparks’ decision and vacate the citation.We find that the work performed on the power lines was maintenance workand therefore not subject to Subpart V of Part 1926.Section 1926.950(a)(1) states that Subpart V applies to construction andindicates that construction includes improvement. The preamble to thestandard makes clear, however, that the drafters of Subpart V did notintend construction to cover maintenance work, see 37 Fed. Reg. 24882(1972),[[4]] and the Commission has long upheld this position in itsdecisions. See Mississippi Power & Light Co., 79 OSAHRC 109\/D12, 7 BNAOSHC 2036, 2038, 1980 CCH OSHD ? 24,146, p. 29,330 (No. 76-2044, 1979);Consumer Power Co., 77 OSAHRC 73\/E8, 5 BNA OSHC 1423, 1425, 1977-78 CCHOSHD ? 21,786, p. 26,190 (No. 11107, 1977); Pacific Gas & Electric Co.,75 OSAHRC 40\/B9, 2 BNA OSHC 1692, 1693, 1974-75 CCH OSHD ? 19,431, pp.23,191-92 (No. 2821, 1975), aff’d mem., 554 F.2d 1070 (9th Cir. 1977).The Secretary does not dispute that the standard is inapplicable tomaintenance work; he takes issue only with Gulf States’ characterizationof the work as \”maintenance\” rather than \”improvement.\” The question,then, is whether the work performed by Gulf States was improvement ormaintenance.In arguing that the work on the day of the alleged violation was\”improvement,\” the Secretary first maintains that replacing damagedinsulators is \”improvement\” per se. The Secretary asserts that because adamaged insulator [[4]] does not perform its function of insulating aconductor from its support structure, the work of installing areplacement insulator of even the same sort would \”improve\” thestructure. Alternatively, the Secretary argues that the replacement ofporcelain insulators with epoxy insulators upgraded the electric linesand thus was itself an \”improvement.\”[[5]]We disagree. The Secretary’s first argument–that the replacement ofdamaged insulators with insulators of any type \”improves\” the lines–isso broad as to make every imaginable sort of maintenance an\”improvement.\” To adopt it would give no effect to the Secretary’s ownrulemaking decision to exclude maintenance from Subpart V, a decisionthat the Secretary’s review brief neither mentions nor acknowledges.Replacing damaged insulators is analogous to replacing spark plugs orlight bulbs as they are damaged or wear out–tasksthat are plainly maintenance. The replacement of the damaged insulatorshere did not change the capacity or function of the power lines.Instead, the lines were simply maintained in the same condition theywere before the insulators were damaged. This precisely fits theordinary meaning of \”maintenance\” as \”[t]he work of keeping something inproper condition.\” American Heritage Dictionary 787 (1976).The Secretary’s alternative argument–that the replacement of porcelaininsulators with epoxy insulators is itself an \”improvement\”–alsomischaracterize the nature of the work being done here. The tasksinvolved in installing replacement epoxy insulators were identical tothose for installing replacement porcelain insulators. The insulationlevel remained the same with the installation of epoxy insulators. Theepoxy insulators did not alter or improve the transmission line’scurrent-carrying capacity, power-transfer capabilities, voltage ratingor any other function.That the epoxy insulators are more damage-resistant does not take thework of Gulf States’ employees out of the category of maintenance. Theporcelain insulators were not replaced because they were moresusceptible to damage, but because they were actually damaged. They werenot replaced as part of a systematic plan for upgrading the porcelaininsulators. In fact on the pole in question the linemen replaced onlythe one insulator which had been damaged, making no change in twoundamaged porcelain insulators on the same pole. Clearly the mainpurpose of the work was maintenance or upkeep, not improvement. To holdthat the simple replacement of the damaged insulators in this case wasimprovement would have the practical effect of nullifying any exclusionin the standard for maintenance work.[[6]]In conclusion, since the work performed in this case involvedmaintenance, and not construction, of electric transmission anddistribution lines, section 1926.954(e)(2) does not apply. The citationis vacated.FOR THE COMMISSIONRAY H. DARLING, JR.DATED: November 20, 1985————————————————————————FOOTNOTES:[[1]] The cited standard states:?1926.954 Grounding for protection of employees.(e) Attaching grounds. (1) When attaching grounds,the ground end shallbe attached first, and the other end shall be attached and removed bymeans of insulated tools or other suitable devices.(2) When removing grounds, the grounding device shall first be removedfrom the line or equipment using insulating tools or other suitable devices.[[2]] Section 1926.950(a)(1) provides:? 1926.950 General requirements.(a) Application. The occupational safety and health standards containedin this Subpart V shall apply to the construction of electrictransmission and distribution lines and equipment.(1) As used in this Subpart V the term \”construction\” includes theerection of new electric transmission and distribution lines andequipment, and the alteration, conversion, and improvement of existingelectric transmission and distribution lines and equipment.[[3]] Review was directed on the issues of (1) whether the replacementof the insulators was maintenance or improvement; (2) whether the citedstandard requires an insulated tool to uncouple spliced grounding chainsafter the chainshave been removed from the conductor; and (3) whether Gulf States -couldhave reasonably anticipated that one of its experienced employees wouldhave removed grounding chains out of sequence, thus creating the hazardof electrocution that occurred here. Since we vacate the citation on theground that the replacement of the insulators was clearly maintenance,and thus the cited standard is inapplicable, it is not necessary toreach the other issues directed for review.Chairman Buckley would note the following: The record indicates that aninsulated tool was used to remove the spliced grounding chain from theconductor, but not to unsplice the chains. Gulf States contended thatthe cited standard requires only that an insulated tool be used fordetaching the chain from the conductor and that it does not cover anyother task, including other handling of the chain. It argued that thepurpose of detaching the grounding chain from a conductor is so that itcan be handled without an insulating tool. Gulf States also contendedthat its safety procedures call for the grounding procedure required by? 1926.954(e) and it could not have reasonably anticipated the employeeerror (removing the ground out of order) that made it unsafe for thedecedent to handle the spliced cables. The judge found that Gulf Statesuniformly and effectively communicated and enforced its work rulerequiring that grounding chains be removed in the inverse order of theirplacement.[[4]] When the Secretary adopted Subpart V, he explained itsapplicability as follows:Applicability. The proposed occupational safety and health standardscontained in Subpart V are applicable to the construction of electrictransmission and distribution lines and equipment. Some comments werereceived which recommended that the standards be extended to maintenancework. The comments go beyond the subject matter of this proceeding whichis addressed to the erection of new electric transmission anddistribution lines and equipment, and the alteration, conversion, andimprovement of existing transmission and distribution lines and equipment.[[5]] The Secretary also argues that because the crew had been changingpoles and wires as well as insulators during the three or four monthspreceding the accident, the employees were engaged in work forconstruction and \”improvement.\” We reject this argument. The Secretary’scitation alleged that a violation of the cited standard occurred on orabout July 8. 1982, at which time the crew was only replacing damagedinsulators. The Secretary did not make any charge or present anyevidence suggesting that this crew violated any safety standards duringthe conduct of work of a different nature and at other times. In theabsence of evidence that the crew failed to abide by these regulationsat other times and on other sites, we limit our inquiry into whether aviolation occurred on or about the date set forth in the citation.[[6]] The Secretary cites several Commission cases in support of hisposition, but the cases are clearly distinguishable All involved farmore substantial alterations to the electric power transmission systemsthan is involved in this case. In Mississippi Power, a crew wasreplacing an entire utility pole with a new larger pole. In Pacific Gas,a crew was replacing a rotted wooden pole with a new one, transferringthe power lines to the new pole, replacing two secondary conductors witha duplex conductor, and installing one new transformer in place of twoold ones. This reduced the number of lines and transformers needed inthe system. In the case before us, only broken porcelain insulators onone side of a pole were being replaced with epoxy insulators.”