“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-3166 HARRY PEPPER & ASSOCIATES, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 16, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thismatter is before the Commission on interlocutory appeal of Administrative LawJudge James D. Burroughs? ruling denying the petition of Florida Power andLight Company (FP&L) to intervene in this proceeding. For the reasons thatfollow, we conclude that the judge erred; we reverse his ruling and remand.??????????? Followinga fatal accident at Respondent?s worksite, Complainant cited Respondent forviolation of ? 5(a)(1) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651?678 (?the Act?), alleging that Respondent, while digging anexcavation or trench for the installation of a sewer line, allowed a backhoe tobe used within 10 feet of electrical transmission lines without taking adequateprecautions for employee protection, such as deenergization of the lines,relocating the lines, or providing barrier guards.[*] Complainant furtheralleged that Respondent employed approximately 17 workers at the jobsite inquestion, all of whom were affected by the alleged violation.??????????? Respondentdenied that it had violated the Act as alleged and also raised a number ofspecific defenses. Among others, it contended that it had taken ?such steps asit reasonably could to request Florida Power & Light Company to de-energizeor otherwise protect the lines.???????????? Thereafter,FP&L timely filed its petition for leave to intervene under Commission Ruleof Procedure 21, 29 C.F.R. ? 2200.21.[?] FP&L asserted thatRespondent was working adjacent to energized lines belonging to FP&L at thetime of the accident which resulted in this proceeding and that an FP&Ldistribution line was involved in the accident. In FP&L?s view, the allegedviolation raises important questions of law and fact involving not only theinterests of Respondent but those of FP&L as well. Specifically, theoutcome of this case could directly affect FP&L?s future work practices andprocedures concerning the performance of any work adjacent to energizedtransmission and distribution lines. Even more specifically, FP&L contendedthat the outcome of this case will bear on the manner in which it will be ableto service its customers in the state of Florida with respect to its ability tomaintain uninterrupted electrical service when work is performed adjacent toits lines. Lastly, FP&L asserted that its participation would assist theCommission in resolving the issues in the case and would not cause unnecessarydelay.??????????? Inhis order denying FP&L?s petition, Judge Burroughs noted FP&L?sallegations that the case raised issues of law and fact which would involve itsinterests and that the outcome would affect the manner of its delivery ofelectrical service. He denied the petition, however, solely on the ground thatFP&L ?has no employees involved in this proceeding.? FP&L then filed arequest under Commission Rule 75 to appeal the judge?s ruling. We granted thatrequest and stayed further proceedings.??????????? FP&Lagrees that the judge was correct in stating that FP&L employees were notinvolved in the fatal accident. Nevertheless, says FP&L, the requirementsof the citation that lines be deenergized, relocated, or guarded would directlyaffect its property rights as well as the operation of its power lines.Therefore FP&L?as well as Respondent?is properly concerned about thepotential abatement that this case might require both in terms of workpractices that it might have to adopt in the future and its ability to maintainelectrical service to its customers when work is performed adjacent to itslines.??????????? Complainantbefore us renews the objections to intervention he had made to the judge.Specifically, Complainant contends that FP&L was not cited for anyviolation of the Act, had no employees working at Respondent?s job site, andwas not in privity of contract with Respondent. Furthermore, Complainantasserts that deenergization is only one of several methods by which Respondentcould have prevented the accident and that FP&L?s only possible interest inthis case is potential liability in third-party civil actions that are beyondthe Commission?s jurisdiction. Therefore, Complainant concludes thatparticipation by FP&L will unduly delay the hearing and complicate andconfuse the issues. In any event, Complainant contends in the circumstances thejudge did not abuse his discretion.??????????? Havingconsidered the arguments both of Complainant and FP&L,[?] we conclude thatFP&L?s petition for intervention should be granted.??????????? Wehave held that the matter of intervention in Commission proceedings is governedexclusively by the Commission Rule of Procedure 21, 29 C.F.R. ? 2200.21. Brown& Root, Inc., 79 OSAHRC ___\/___, 7 BNA OSHC 1526, 1979 CCH OSHD ?23,731(No. 78?127, 1979); appeal filed, No. 79?2802 (5th Cir. Aug. 1, 1979). Thatrule requires an applicant for intervention to set forth its interest in theproceeding and demonstrate that its participation will assist in determinationof the issues in question and not cause unnecessary delay.[?] FP&L has satisfiedthese requirements.??????????? Theparties do not dispute FP&L?s assertions that Respondent was workingadjacent to its energized lines and that one such line was involved in thefatal accident in question. Moreover, the abatement methods prescribed by thecitation?deenergization or relocation of the lines or the provision of barrierguards?plainly contemplate direct action with respect to FP&L?s linesthemselves rather than modifications to Respondent?s work practices that wouldnot be of concern to FL&L. Since these measures involve actions to beperformed directly on property belonging to FP&L?its power lines?we agreewith FP&L that it has an interest in this proceeding sufficient to satisfythe first requirement of our rule.[**] See Pennsylvania TruckLines, Inc., OSHRC Docket No. 77?3050 (Sept. 19, 1979).??????????? Havingconcluded that FP&L has shown a sufficient interest in this proceeding, wenow consider whether FP&L has satisfied the second requirement of ourrule?that its participation will assist in the determination of issues in thecase. As we have indicated, actions specifically involving power linesbelonging to FP&L are among the abatement methods contemplated byComplainant. Respondent is defending in part on the ground that it had made areasonable effort to have FP&L institute such measures, thereby puttinginto issue the feasibility or appropriateness of the abatement methods suggestedby Complainant. Indeed, in cases arising under 29 U.S.C. ? 654(a)(1), theappropriate abatement method is necessarily in issue. National Realty &Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).[??] Because FP&Lpresumably is familiar with the physical arrangement of its power lines and thecircumstances under which they are energized, it is reasonable to conclude thatFP&L would be able to assist substantially in the development of a recordand in the presentation of arguments with respect to the question whetherabatement methods suggested by Complainant could in fact have been instituted.Therefore, FP&L?s participation would aid in the adjudication of an issuein the case.[??]??????????? Finally,we agree with FP&L that in the circumstances its intervention would notcause unnecessary delay. In determining whether intervention should bedisallowed on the grounds of delay, it is proper to consider the nature of theintervenor?s interest and the degree of its assistance to adjudication of theissues. Brown & Root, supra. In this case, FP&L?s interestextends not only to the abatement methods involved in this case but also towork practices that may have to be instituted in future work situations of asimilar nature. Because FP&L may be able to assist substantially in thedetermination of abatement methods both retrospectively and prospectively weconclude that its intervention in this proceeding will not be a source of unduedelay.??????????? Nevertheless,we caution that proceedings before the Commission are not to be used as a forumfor litigating matters totally unrelated to the citations alleging violationsof the Act on which our proceedings are predicated: We are confident, however,that objections to the admission of extraneous evidence and the judge?s rulingsthereon will be adequate to insure against abuse of Commission procedures.??????????? Accordingly,the judge?s order on appeal is set aside, and this matter is remanded withinstructions that FP&L be permitted to intervene. The stay previouslyentered is hereby dissolved.?So ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: OCT 16, 1979?\u00a0COTTINE, Commissioner, concurring:??????????? FloridaPower and Light Company (?FP&L?) owns the electrical transmission linesinvolved in this case. As a consequence, any abatement required by theCommission?s order could materially affect its work practices and its abilityto maintain uninterrupted electrical service to its customers when work isperformed adjacent to the power lines. Nevertheless, the majority determinesthat FP&L must seek permission to intervene order Commission Rule 21, 29C.F.R. ? 2200.21.??????????? FP&Lhas demonstrated a specific interest in the subject of this enforcement action.Moreover, an abatement order in this case may as a practical matter impair orimpede its ability to protect that interest. Finally, there is no affirmativedemonstration that the existing parties will adequately represent or protectFP&L?s interest. Accordingly, FP&L is entitled to intervention of rightunder Fed. R. Civ. P. 24(a)[??] rather than thepermissive intervention extended by the majority under Commission Rule 21. See Brown& Root, Inc., 79 OSAHRC ___\/___, 7 BNA OSHC 1526, 1979 CCH OSHD ?23,731(No. 78?127, 1979) (concurring opinion), appeal filed, No. 79?2802 (5thCir. Aug. 1, 1979). Also Pennsylvania Truck Lines, Inc., OSHRC DocketNo. 77?3050 (September 19, 1979) (concurring opinion).[*] Section 5(a)(1) ofthe Act, 29 U.S.C. ? 654(a)(1), requires that every employer ?furnish to eachof his employees employment and a place of employment which are free fromrecognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.?[?] This rule providesas follows:(a) A petition for leave to intervene maybe filed at any stage of a proceeding before commencement of the hearing beforethe Judge.(b) The petition shall set forth theinterest of the petitioner in the proceeding and show that the participation ofthe petitioner will assist in the determination of the issues in question, andthat the intervention will not unnecessarily delay the proceeding.(c) The Commission or the Judge may granta petition for intervention to such an extent and upon such terms as theCommission or the Judge shall determine.[?] Respondent filedno response either to FP&L?s petition for intervention before the judge orto its request for permission to file an appeal from the judge?s denial of itspetition.[?] See note 2 supra.[**] We are notunmindful of Complainant?s argument that deenergization is but one means bywhich Respondent could have prevented the conditions resulting in the citation.Furthermore, we recognize that the means of abatement specified in the citationare stated only as examples. However, Respondent is affirmatively defending onthe ground that it had unsuccessfully attempted to have FP&L take specificactions with respect to the lines themselves. When the merits of this case areheard, it may well develop that Respondent could in fact have prevented thealleged violation by taking measures unrelated to the lines themselves, such asaltering its work practices or improving its safety program. At this point,though, it would be purely speculative for us to anticipate that action byFP&L will not be a proper issue in this case. Similarly, it would bespeculative to infer at this time as would Complainant that FP&L?s onlyinterest is in the avoidance of potential tort liability.Wealso note that Complainant moved before the judge to amend the citation andcomplaint to allege in the alternative a violation of the standard at 29 C.F.R.? 1926.600(a)(6). This standard requires that when certain mechanized equipmentincluding excavating equipment is working or being moved in the vicinity ofpower lines or energized transmitters it must comply with 29 C.F.R. ?1926.550(a)(15). The latter standard requires as follows:Except where electrical when certainmechanized equipment have been deenergized and visibly grounded at point ofwork or where insulating barriers, not a part of or an attachment to theequipment or machinery, have been erected to prevent physical contact with thelines, equipment or machines shall be operated proximate to power lines only inaccordance with . . . [certain clearance distances specified depending on theamount of voltage]Sincethe judge has not as yet ruled on this motion, we express no opinion at thistime on whether amendment would be proper. We do, however, observe that directaction with respect to the power lines themselves is a permissible means ofabatement under the standard to which Complainant seeks to amend as well asunder the ? 654(a)(1) charge alleged in the citation and complaint.[??] See note 5 supraand accompanying text.[??] We also are notpersuaded by Complainant?s further contention that FP&L was not in privityof contract with Respondent. The requirements for intervention under our Rule21 do not depend on any contractual relationship between the existing partiesand a petitioner seeking to intervene. See Brown & Root, supra.[??] Fed. R. Civ. P. 24(a)provides:Rule 24. Intervention.(a)intervention of Right. Upon timelyapplication anyone shall be permitted to intervene in an action: (1) when astatute of the United States confers an unconditional right to intervene: or(2) when the applicant claims an interest relating to the property ortransaction which is the subject of the action and he is so situated that thedisposition of the action may as a practical matter impair or impede his abilityto protect that interest, unless the applicant?s interest is adequatelyrepresented by existing parties.”