THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

Some personal identifiers have been redacted for privacy purposes.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

|                        |
|------------------------|
| SECRETARY OF LABOR,    |
| Complainant,           |
| v.                     |
| MASTEC SERVICES, INC., |
| Respondent.            |

 DOCKET NO.20-0559

Appearances:

Josh Bernstein,Esq.,U.S. Department of Labor, Office of the Solicitor,Dallas, Texas

For Complainant

Jonathan L. Snare,Esq.,Jason S. Mills, Esq., Morgan, Lewis & Bockius LLP,Washington,D.C.

For Respondent

Before: Administrative Law JudgeBrian A. Duncan

DECISION AND ORDER

Procedural History

Following aninjury accidenton October 3, 2019,theFort WorthArea Officeof the Occupational Safety and Health Administration (“OSHA”)openedan investigationof Respondent,MasTec Services, Inc.(“MasTec”).(Tr.335-36,493-94;Ex. C-1). OSHAAssistant Area Director (“AAD”)Timothy Minorinitiated theinspectionand investigation oftheincident.(Tr.335-37). He later assignedCompliance Safety and Health Officer (“CSHO”)Willie Coxto complete the investigation. (Tr. 492-95). OSHA determined that two employees had been exposed tohigh-voltageelectrical hazardswhen they were tasked with cleaning an undergroundelectricutility vault in Fort Worth,Texas. (Tr. 508-10, 515-17, 519-21, 523-24, 527-32; Ex. C-1). At the time of theaccident,[redacted]and[redacted], under the supervision of Marshall Cisneros, were instructed to clean the vault. (Tr.103-06, 173-74). While attempting to clean the top of a13,200 voltelectricalreactor1within the vault, Mr.[redacted]sustained an electric shock resulting in severe burns to both of his arms,requiring one to beamputated. (Tr. 95-96; Ex. C-10). OSHAconcluded thatMr.[redacted]approached energized parts closer than the Minimum Approach Distance (“MAD”) allowedby regulation, without rubber gloves and sleeves, leading tohissevere injuries. (Tr. 95-96, 807-12; Exs. C-10, C-43 p.49, C-48 p.35).

Following theinvestigation, OSHA issued asix-itemCitation and Notification of Penalty(“Citation”), alleging serious violations of 29 C.F.R. § 1910.269(c)(2);29 C.F.R. § 1910.269(l)(3)(iii);29 C.F.R. § 1910.332(b)(2);29 C.F.R. § 1910.333(c)(5);29 C.F.R. § 1910.333(c)(9);and a willful violation of 29 C.F.R. § 1910.335(a)(1). The total proposed penaltiesfor the violationswere $202,407. Respondent timely filed aNotice of Contest,which brought this case before the Occupational Safety and Health Review Commission (“Commission”) pursuant to Section 10(c)of theOccupational Safety and Health Act of 1970 (“the OSH Act”).

A trial was conductedonFebruary 1-2, 2022 and May 3-4, 2022,2in Dallas, Texas. The parties agreed, and the Court accepted, several stipulations at the beginning of the trial. (Tr. 63). Eightwitnessestestifiedat trial: (1)[redacted](“[redacted]”),the injured employee; (2)[redacted](“[redacted]”),Respondent’s second alleged exposed employee; (3)Robert Oaks, theNorth Dallas Transmission Manager for Oncor; (4)Timothy Minor,OSHA Area Director for the Fort Worth Area Office;(5)James Roberts,a former MasTec Construction Manager; (6)Willie Cox,OSHA Compliance Safety and Health Officer; (7) Rodney Fry, Respondent’s Safety Training Director; and (8) Jarrett Quoyle, Respondent’s Senior DirectorofSafety and Health. The partiesfiledpost-trial briefsforthe Court’sconsideration. 

In accordance with Commission Rule 90(a)(1), 29 C.F.R. § 2200.90(a)(1), the Court now issues thisDecision and Ordersetting forth its findings of fact and conclusions of law. 

Jurisdiction& Stipulations

The partiesstipulatedthatthe Commission has jurisdictionover this proceedingpursuant to Section 10(c) of theOSHActandthatRespondent was an employer engaged in a business affecting interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5).(Tr.63).See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

FactualBackground

I.Respondent’sVault CleaningOperations

MasTec is a company engaged in the business of electrical transmission and distribution (“ET&D”)services. As part of its regular business, MasTec contracts with Oncor Electric Delivery Company (“Oncor”) to provide electrical vault cleaning in the Dallas-Fort Worth area. (Ex.C-54 p.10).

At all times relevant to this case,Respondent’sprocess for electricalvaultcleaning involved a crew of three employees,[redacted],[redacted], andtheir foreman,Marshall Cisneros(“Cisneros”). (Tr. 99-103, 172-76). Mr.[redacted], Mr.[redacted], and Mr. Cisneros were part of Respondent’s underground electric group based out ofitsDallas Leston Yard. (Tr. 659). This particular crew wastasked with, at various times of the year,cleaningelectricalvaults, digging lines for cables, and occasionally running risersup poles. (Tr. 659-60).

Mr.[redacted]and Mr.[redacted]routinelyand frequentlycleanedunderground electrical vaults under the supervision of Mr. Cisneros. (Tr. 173-75, 853).Respondent provided Mr. Cisneros additional training as a supervisor under their ET&D trainingprogram. (Tr. 853; Ex. C-37 p.1-3). Foreman Cisneros was restricted to light duty tasks at the time of the accident. (Tr. 101). Beforehewaslimited tolight duty, he would occasionally enter the vaultshimselfto help[redacted]and[redacted]clean. (Tr. 101, 179-82). After going on light duty, he would remain outside of the vaults, butwould still observe and supervise the crew while they worked. (Tr. 258-61). 

This three-mancrewhadworked togetherfor several years,and cleanedelectrical equipment inmanyundergroundvaults,based on an assignment list provided toForeman Cisnerous. (Tr.99-100, 175-78; Exs. C-52, C-53).The underground vaults containedhigh-voltageelectrical reactors, conductors, transformers, and wiring whichoftensupplied electricity to nearby buildings. (Ex. C-12). They alsooccasionallycleaned residential, above-ground transformers. (Tr. 162-164). 

Mr.[redacted]testifiedthat they originally cleaned theundergroundvaults with aleafblower, but were told byForemanCisnerosthat was no longer allowed, and they hadtoswitch to brushesand rags. (Tr. 103-06, 124-25). Mr.[redacted]testified that thevaults and electrical equipment needed to be cleaned periodicallybecause theybecamevery dustyand dirty over time(often located underneath downtownsidewalks and wire grates). (Tr.78,180-82; Ex. C-12). If the reactors were too tall to clean the topsfrom the vault ground level, they useda ladderto reach the tops of reactors,which wascarried to each worksitein Mr. Cisneros’struck. (Tr. 105-06). All of the tools and equipment the crew needed, including brushes,rags,theladder, etc.,werecontained inMr. Cisneros’struck. (Tr. 101-06,119-20,180-81). Mr.[redacted]testified that thecrewalso had aninsulated blanket and he wasissuedinsulatedrubber glovesand sleeves, but they would usually leave themin the truck while they cleaned the vaults. (Tr. 188-89).

Mr.[redacted]testified thathe and Mr.[redacted]typicallycleanedthe vaults by sweeping the floors with a broom, cleaning theelectriccables on the walls with a brush taped to the end of a pole, and cleaning the tops of reactorsand conductorswith hand-held brushesfroma ladder. (Tr. 109-13, 129-33; Exs.C-10, p.5,C-11).Mr.[redacted]testified thathe knew what he was supposed to clean each day becauseForemanCisneros told him whatto clean. (Tr. 103-06). Mr.[redacted]corroborated Mr.[redacted]’s testimony– thatthey were assigned to clean everything in the vaults, including the walls,electricalreactors, conductors, andelectricalcables. Healso confirmed that theyoftenusea brush taped to the end of a pole to clean the cables, reactors, andallaround reactor bushings. (Tr. 181-82, 209-12;Exs.C-10,C-11 pp.2-4). 

II.TheIncident

At the time of the accident giving rise to theinvestigation,Respondenthad contracted withOncor,an electric utilitycompany,to clean and remove dust/dirt/trash/leavesfrom their electrical vaults. (Tr. 573-74; Ex. C-54 p.10). Pursuant to the contract, Oncor providedRespondentwith a“Vault Maintenance Route,”whichidentifiedthe specific vaults to be cleaned. (Tr. 294-97; Exs. C-52, C-53, C-54 p.13).Oncor also providedRespondentwith a“Statement of Work”and a“Vault Inspection List”which wereintended to act as vault cleaning guidelines for the crew. (Tr.293-300;Exs.C-52, C-53, C-54 pp.10-11).

The actual site of theaccidentwas referred toas“MunicipalVault No.2130”because it was located under a municipal building anddeliveredpower to the building.(Tr.309-12;Exs.C-52, p.1, C-53 p.203). Oncor’s schematic for Municipal Vault2130provided the layout of the reactorsinsideand identified the maximum voltage as 13,200-volts. (Tr. 293-95; Ex. C-54 p.12). At trial, Mr. Oakes testifiedthatthe 13,200-volts refers to the voltage coming into and out of the reactors within the vault. (Tr. 296-98).He further testified that the other vaultswhich Respondent’screwpreviouslycleaned containedsimilarequipmentwith energized parts coming in and going out,with the potential for those energized parts to be exposed. (Tr.318-20). The record shows all of the vaultsRespondentcleaned, regardless of the vault configuration, whetherreactors or transformers, had the potentialfor live,energized parts insidethem. (Tr. 318-26).

On October 3, 2019, Mr.[redacted], Mr.[redacted], andForeman Cisnerosarrived at the jobsiteto clean Municipal Vault 2130. (Tr.99-103,162, 172-76, 309-12). Mr. Cisneros, as a result of being onlight duty,remained above the vault in his truck. (Tr. 101-03, 178-79). He could still see the crew workinginside the vault from his vantage pointinthe truckwith the door open. (Tr. 258-61). At the time of the accident, Mr.[redacted]was in the vault alone while Mr.[redacted]was up top-out of the vault. (Tr. 178). Mr.[redacted]testified on the date of the incident he had briefly gonedowninto the vault once, but onlyto urinateout of view of the street. (Tr. 276-77).

While in the vault, Mr.[redacted]used a broom to sweep the floors, a brush taped to the end of a pole to clean the cables on the walls, and a ladder and hand-held brush to clean the tops of the reactors. (Tr. 108-12; Ex. C-11 pp.1-6). Mr.[redacted]was wearing ordinary work gloves,which were not rated for electricity,as he cleaned. (Tr. 115-16, 188-89). He had previously been issued insulatedrubbergloves and sleeves by MasTec, butthey had been taken from him by Respondentfor testing purposes and had not been reissuedbythe time of the incident. (Tr. 115-17, 120, 750-51).

While attempting to clean thebushings ontop of a 13,200-volt reactor within the vault, Mr.[redacted]sustained an electric shock resulting in permanent and disabling injuries to both of his arms, one of which had to be amputated. (Tr.87,95-96, 134-35;Ex. C-10). Fromoutsidethe vault, Mr.[redacted]heard a noise, went into the vaultto see what had happened, picked Mr.[redacted]up off the floor, and began yelling for help. (Tr. 197-98). Mr. Cisneros heard the yelling from his truck and called an ambulance. (Tr. 198-99). 

III.OSHA’s Investigation and Citation

Following theaccident, OSHA assigned the case to CSHO Cox to investigate the matter. (Tr. 493). During his investigation,CSHO Coxdecidednot go insidethe vault because he did not have the proper certifications. (Tr. 494-95). He explained that in orderfor him toenterthe electricalvault, he would need to be given knowledge and training on thespecificvaulthazardsfrom the vault’s owners(Oncor).(Tr. 493-95). 

As part of his investigation, CSHO Coxtook photographs of Mr.[redacted]’s injuries. (Tr. 494-95; Ex. C-10). He also received photographstaken insidethe vaultfrom Rich Taylor,Respondent’sDallas Training Manager at the time. (Tr. 494-98; Exs. C-10, C-12). Additionally, CSHO Cox requested and reviewedRespondent’sowninvestigativedocuments. He also interviewed severalof Respondent’semployees, including Mr.[redacted], Mr.[redacted], Mr. Cisneros, Mr. Roberts, Mr. Fry, Mr. Cox, Mr. Tarango and Mr. Taylor. (Tr. 494-99,537-38; Exs. C-23,C-24, C-26,C-28).

After conducting his investigation, CSHOCox determinedthat Respondent’s employees had been exposed tonumerouselectrical hazards whileworkinginsidethe vault. (Tr. 518-20).Specifically,heconcludedthatemployees were exposed to electrical hazards when they approached exposed energized parts within theMinimumApproachDistance (“MAD”)of the reactorswithout proper training or equipment. (Tr. 516-18).As relevant tothe violations proposed in this case, CSHO Coxdeterminedthat Mr.[redacted]wasan“unqualified” employee,while Mr.[redacted]wasa“qualified”employeeper the cited regulation’s termsand definitions. (29 C.F.R. § 1910.331(a);Tr.67-71,502-08). 

CSHO Cox testified that Citation 1,Item 1 was recommended due to Respondent’s failure to provideanadequate safety briefingbefore the assigned job.(Tr. 508-10). The parties agreed that Citation 1,Item 1 is based only on exposure of Mr.[redacted]– as a “qualified” employee.(Tr. 67-69;Sec’y Br. 32-33, Resp’t Br. 18,29-31).CSHO Coxtestified that Citation 1,Item 2 wasalso specific toRespondent’s“qualified”employee, Mr.[redacted],forentering theMinimumApproachDistance(MAD)for the13,200-voltreactor on the day of the accident,and other electrical equipmenton prior jobs. (Tr. 516-18). Citation 1,Item 3 wasissuedfor allowingMr.[redacted], an“unqualified”employee,who wasunfamiliar with electrical safety practices,to work insidethe vault. (Tr. 519-21). CSHO Cox testified that Citation 1,Item 4 wasissuedforRespondent’s failure to provide protective shields, barriers, or insulating material to preventMr.[redacted], an“unqualified”employee, frominadvertentlycontactingexposed energized parts. (Tr. 523-26). Citation 1,Item 5 wasissuedfor Respondent’s“unqualified”employeeperforming housekeeping duties insidetheMinimumApproachDistance. (Tr. 527-29). Lastly, Citation 2 Item 1 was recommended forRespondent’sfailure to provide the proper personal protective equipment(PPE)toMr.[redacted], an“unqualified”employee,while working near potential electrical hazardsand actually contacting high-voltage equipment. (Tr. 529-31).

As a result of the CSHO’sinvestigation,Complainantissued RespondentaCitationandNotification of Penaltyfor fiveallegedserious,and oneallegedwillful violations of the Act,with a proposed total penalty of$202,407. 

Discussion

To establish a violation of an OSHA standard, Complainant must prove: (1) the standard applied to the work being performed; (2) the employer failed to comply with the terms of the standard; (3) employees were exposed to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e., the employer knew or, with the exercise of reasonable diligence, could have known of the violative condition). Atlantic Battery Co.,16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). 

Complainant has the burden of establishing each element by a preponderance of the evidence.See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a factbut by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary(10th ed. 2014).

Citation1, Item 1

Citation1,Item 1alleges aseriousviolation of 29 C.F.R. § 1910.269(c)(2)as follows:

29 C.F.R. § 1910.269(c)(2) The employer did not ensure job briefing cover at least the following subjects: hazards associated with the job, work procedures involved, special precautions, energy-source controls, and personal protective equipment requirements.

On or aboutOctober 3, 2019, and at times prior thereto, the employer did not ensure the job briefing; covered hazards associated with the job, work procedures involved, special precautions, energy-source controls, and personal protective equipment requirements.

The Cited RegulationApplied to the Condition

Commission precedent dictatesthatprovingthe application ofthe cited standard pertains to the citedworkconditions, not the particular cited employer. Ryder Transp. Servs., 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary has failed to establish that the cited general industry standard appliesto the working conditions here”);Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)(finding “that the confined space standard applies to the cited conditions” because “the vault was a confined space”);Arcon, Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 2004)(“In order to establish a violation, the Secretary must show that the standards applied to the cited conditions.”).

Respondent is a company that providedsupport services in the field ofelectrical transmission and distribution, including the cleaning of electrical vaults, at the time the violation occurred. (Tr. 99-103, 172-76).The electrical vault cleaning servicesRespondentperformed fallsunder the purview of Part 1910, Subpart R, § 1910.269 - Electric power generation, transmission, and distribution. The scope of the aforementioned “section covers operation and maintenance of electric power generation, control, transformation, transmission, and distribution lines and equipment.” 29 C.F.R. § 1910.269(a)(1)(i). The standard continues by stating that it applies to the, “[p]ower generation, transmission, and distribution installations, including related equipment for the purpose of communication or metering that are accessible only to qualified employees.”3 29 C.F.R. § 1910.269(a)(1)(i)(A). 

It is undisputed that Respondent was hired by Oncor, the local electric distribution utility company, to provide cleaning services in the vault. (Tr. 99-103, 172-76,340,344-47; Ex. C-54 p.10).It is undisputed that the vault is a distribution vault for electricity. (Tr. 345-46). Further,the parties agreedMr.[redacted]was a“qualified”worker– who wascovered by the cited regulation. (Sec’y Br. 27-27, Resp’t Br. 3-4). The cited standard at 29 C.F.R. § 1910.269(c)(2) appliedto Respondent’s workactivities, specifically with regard to Mr.[redacted].

RespondentFailed toComply withthe Standard

Section 1910.269(c)(2) requires pre-job briefings to cover, at minimum, “hazards associated with the job, work procedures involved, special precautions, energy-source controls, and personal protective equipment requirements.”Whilethe parties seem to acknowledgethat some form of pre-job briefing occurred, there is significant disagreement over the adequacy of the briefing. (Sec’y Br. 37-38, Resp’t Br. 27-29).Complainantargues the pre-job briefing was inadequatebecause the oral discussion and written documentation failed to includeinformation pertaining to electrical hazards,MinimumApproachDistances, or electrical personal protective equipment. (Sec’y Br. 37-38). Respondent argues theyexceeded the regulation’s requirementsby putting the pre-job briefing in writing. They contend that because the crew was performing a routine job that had been completed hundreds of timesbefore, an informal briefingwas permitted under the standard.4 (Resp’t Br. 27-29).

The record revealsthatthe pre-job briefingin this instance, for the task of cleaning a 13,200 volt electrical reactor in an underground vault,was inadequate. (Tr. 509-14; Ex. C-32). The pre-job briefingfailed toidentify anyelectricalhazards within the vault. (Ex.C-32). The pre-job briefing onlyvaguelyidentifiedtraffic andslips/tripsas potential hazards. (Ex.C-32). On the date of the incident,no instructions were given concerning the PPE required, work procedures to be used, special precautions to take, or potential energy sources within the vault. (Tr. 119-22, 182-83, 187-89; Ex. C-32). Mr.[redacted]testified that Mr. Cisnerosjust told them to“be careful with what we were doing.” (Tr. 182).Assuming,arguendo, Mr. Cisneros’spre-jobcomment “to be careful”was sufficient for aroutine job,5therecord shows that the assigned task and electrical equipment in this vaultwasnotroutine. (Tr.107, 182, 188,533-54, 786-90). 

Although the crew had cleaned manyelectricalvaults together before, this vaultwas unique in designand contents. (Tr. 553-54, 786-90). The crew had neveractually cleaned this particular electricalvault before the day of the accident. (Tr.313-15, 332). Oncor’sschematicidentifiedthe layout of the underground vault andthe maximum voltageof the equipmentas 13,200-volts. (Tr. 293-96; Ex. C-54 p.12). Mr. Oakes testified that the vaultspreviouslycleaned by the crew contained transformers, not reactors like thevault in question here. (Tr. 318-20). The vaults typically cleanedby the crewcontainedtransformers whichwere alsosquare in shape,withenclosedwhereas thereactor being cleaned on the day of the accident was tall and cylindrical, with a different wiring configuration. (Tr.87,207-09,278, 285-87,441-42, 524; Exs.C-10;C-12). Both Mr.[redacted]and Mr.[redacted]testified thattheOctober 3, 2019vault contained equipment they were unfamiliar with. (Tr. 132,207-09,278,285-87). Mr.[redacted]had even warned Mr.[redacted]that theyhad “never cleaned something like that” beforewhen referring to the reactor in this particularvault. (Tr. 277-78). Clearly, the pre-job briefing, which listedonlynearby vehicle traffic, tripping hazards, and an oral admonition to “be careful” was insufficient.

The Court finds Complainantestablished, by a preponderance of the evidence, that Respondent’s pre-job briefings failed to identifyhazards associated with the jobwithin the vault,requiredwork procedures involved, special precautionsto take,orenergy-sourceslocatedwithin the vault.Accordingly,Complainant has proven a violation of the cited standard.

Respondent’sEmployee wasExposed to a Hazardous Condition

“The Secretary always bears the burden of proving employee exposure to the violative conditions.” Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). The Commission’s test for hazard exposure requires the Secretary to “show that itis reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” Gate Precast Co., 2020 WL 2141954 (OSHRC, April 28, 2020).

The zone of danger is the “area surrounding the violative condition that presents the danger to employees.”Boh Bros. Constr.Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013) (citingRGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger is determined by the hazard presented by the violative condition,and is normally the area surrounding the conditionwhichpresents the danger to employeesthatthe standardwas intended to prevent. RGM Constr., 17 BNA OSHC at 1234; Gilles& Cotting, Inc., 3 BNA OSHC at 2003.

Respondent’s“qualified”employee,[redacted],wasexposed tothehazardous condition.Here, Mr.[redacted]had access to the electrical vault andtheelectrical hazards within. Although Mr.[redacted]was nothelping Mr.[redacted]clean the electrical equipment in the vaultat the time of the accidentonOctober 3, 2019, Mr.[redacted]was exposed to the electrical hazardswhen he went into the vault tourinate out of view of the street. (Tr. 180; Sec’y Br. 32-33, Resp’t Br. 18, 30-31).As such, the Court findsthatComplainant established employee exposuretothehazardous conditionaddressed in the cited regulation. 

Complainant EstablishedEmployer Knowledge

“To meet [his] burden of establishing employer knowledge, the Secretary must show that the cited employer either knew or, with the exercise of reasonable diligence, could have known of the presence of the violative condition." Pride Oil Well Serv.,1992 WL 215112 (OSHRC, August 17, 1992). An employer is required to make a reasonable effort to anticipate the particular hazards to which its employees may be exposed during the course of scheduled work. Automatic Sprinkler Corp. of Am., 1980WL 10595 (OSHRC, May 9, 1980). When determining whether an employer has been reasonably diligent, the Commission considers “several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.” Precision Concrete Constr., 2001WL 422968 (OSHRC, April 25, 2001). An employer’s awareness may be shown through actual or constructive knowledge ofthe condition. It is not necessary to show the employer knew or understood the condition was hazardous– just knowledge of the condition. Phoenix Roofing, Inc.,1995 WL 82313 (OSHRC, Feb. 24, 1995).

The Secretary contends that Respondent hadactualknowledgeof this condition throughMr. Cisneros’s close supervision at the jobsite. (Sec’y Br.36-37). The actual or constructive knowledge of a foreman or supervisorisgenerally imputed to the employer. Tampa Shipyards,1992 WL 52938 (OSHRC, March 10, 1992). It is undisputed that Mr. Cisneroswastheforemanof this crew, actingin a supervisory role for Respondent. (Tr. 853;Sec’y Br. 36-37, Resp’t Br.36-37). The Court finds thatMr. Cisneros directed the actions of the crew, knew exactly what they were doing, the type of equipmentassigned tobe cleaned,and thelevel of briefingwhichhad(or had not)occurred. (Tr. 101-03, 177-80, 258-61,509-514,853).

Here,Mr.[redacted]and Mr.[redacted]both testified that Respondent did not provide any work rules or training specific to vault cleaning, for this oranyother previous vault cleaning jobs. (Tr. 105-07,182-83). Mr. Fry admitted that although he personally taught some classes to Respondent’s employees, he did not provide any specific vault cleaning training and didnot have any knowledge of anyoneelsespecifically providing vault cleaning training toRespondent’s employees. (Tr. 837-40; Ex. C-37). Mr. Roberts provided corroborating testimony when heacknowledgedthat Respondent neverdeveloped,neverprovided him, and never provided thiscrewwith anytraining on how to safely and properly cleanunderground electricalvaults. (Tr. 419-24).

For the purpose of employer knowledge, it is also worth briefly discussingRespondent’s general handling ofpre-job briefing documents. The record shows that once a pre-job briefing was completed, the briefing documentationwasturned over to Respondent’s safety department for review. (Tr. 514-15; Exs. C-32, C-33). Mr. Tarango or Mr. Roberts collected the briefingdocumentsand were supposed to review them,to inform the crew if everything had been done correctly/incorrectly. (Tr. 454-58, 514-15, 800-01). If any of thepre-job briefings contained deficiencies pertaining to,inter alia, electrical hazards, PPE, hazardous energy sources, energized parts, or voltage, it would have been ahigher levelsupervisor’s responsibility tocorrect andmentor the crew on thedeficiencies. (Tr. 454-58, 775-78, 801-02; Ex. C-33). 

After the pre-job briefingswere collected and reviewed by supervisors, theywerealsosent to safety managers,includingMr. Cox. (Tr. 442-43, 802-03). Mr. Coxwasalsosupposed to pointout any deficiencies. (Tr. 802-03). However,no one ever pointed out anypre-job briefingdeficiencies to thiscrew. (Tr. 454-58, 802-03; Ex. C-32). Instead, Respondent’s supervisors and safety personnel,who audited Mr. Cisneros’s worksitesand pre-job briefings, gave Mr. Cisneros a score of 100% on every single audit. (Tr. 779-81; Exs. C-56, C-57). It was only after this accident thatMr. Fry found thecrew’spre-job briefings to be inadequate, missing informationabout potential electrical hazards, exposed energized parts, work procedures and assignments, PPE, hazardous energy sources, voltage,andrequired clearances. (Tr. 454-58, 752-53,765-66,774-78, 800-03, 853; Exs.C-32, C-33). The Court finds that Foreman Cisneros had actual knowledge of thedeficiencies in the pre-job briefing, and Respondent’s managers to whom previous pre-job briefings were submitted, had constructive knowledge of their deficiencies. Their knowledge is imputed to Respondent. Ga. Elec. Co. v. Marshall, 595 F.2d 309, 321 (5th Cir. 1979);N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d Cir. 1996);Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999);Tampa Shipyards,15 BNA OSHC at*6.

Citation 1, Item 1Serious Classification

The Secretary classifiedCitation 1, Item 1asaseriousviolation of the Act. A violation is serious under the Act if “there is substantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). The Secretary need not show there was a substantial probability an accident would occur, only that if an accident did occur, death or serious physical harm could result. Mosser Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010);Wal-Mart Stores, Inc.,v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 2005);Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C. Cir. 1985).

The record is clear that hazardous conditions existed in the vault on the day of the incident which could, and did, result in serious physical harm toone ofRespondent’s employees. However, the cited regulation in Citation 1, Item 1, only applied to “qualified” employee[redacted]– not injured “unqualified” employee[redacted].(Tr. 95-96; Ex. C-10). The Court finds that Mr.[redacted], due to the deficient pre-job briefing, could have also been seriously injured, or killed. The Court also notesRespondent’s counsel’s statement at trial:“I don’t believe there’s a dispute about a serious injury.” (Tr. 496). Citation 1, Item 1 was properly characterized as a serious violation of the Act. Citation 1, Item 1 will be AFFIRMED.

Citation 1, Item 2

Citation 1, Item2alleges aseriousviolation of 29 C.F.R. § 1910.269(l)(3)(iii)as follows:

29 C.F.R. §1910.269(l)(3)(iii):The employer did not ensurethat no employee approached or took any conductive object closer to exposed energized parts than the employer’s established minimum approach distance, unless provisions described in (l)(3)(iii)(A)-(C) were followed:

On or about October 3, 2019, and at times prior thereto, the employerallowed employees to approach closer to exposed energized parts than the employer’s established minimum approach distance (MAD), exposing employers to electrical hazards.

The Cited Regulation Applied to the Condition

As previouslydiscussed, the electrical vault cleaning services Respondent performed would fall under the purview of Part 1910, Subpart R. Hazardsassociated withelectric power generation, transmission, and distributionfall within the scope of this subpartincluding its relevant sections. 29 C.F.R. §1910.269.

As with Citation 1, Item 1 above, the cited standard at 29 C.F.R. §1910.269(l)(3)(iii)appliedto Respondent’s“qualified” employeework activities– namely Mr.[redacted].It is undisputed that Respondent was hired by Oncor, the local electric utility company, to provide cleaning maintenance services in theelectrical distributionvault. (Tr. 99-103, 172-76, 340, 344-47; Ex. C-54 p.10).Further, it is undisputed that Mr.[redacted]was a“qualified”worker. (Sec’y Br. 27-27, Resp’t Br. 3-4). Therefore, thecited standard at 29 C.F.R. §1910.269(l)(3)(iii)appliedtothe work activities of Mr.[redacted]as a“qualified”employee because he was part of the crew assigned to clean 13,200-volt electrical equipment in an underground vault. 

The Record Fails to Show Respondent Violated the Standard

In Citation 1, Item 2, the Secretary alleges thatRespondent violated thestandard when Mr.[redacted]entered theMinimumApproachDistance(MAD)of the 13,200-volt reactoron October 3, 2019, when he entered the vault briefly to urinate. (Sec’y Br. 30-35). However, there was no evidence that Mr.[redacted]ever cleaned or contacted the reactor. Nor was there evidence of the precise distance Mr.[redacted]came within the reactor while he was briefly inside the vault. Complainantalso argues that even if Mr.[redacted]did not encroach the MAD for this particular reactor, heviolatedMAD restrictionsin other vaultson other jobsprior toOctober 3, 2019. (Sec’y Br. 30-35). Respondent argues therewas no evidencein the recordto supportComplainant’stheory. (Resp’t Br. 29-32). 

TheCourtfindsthat there is not sufficient evidence in thisrecordto conclude thatMr.[redacted]enteredthe MADfor the 13,200 volt reactorwhen he briefly entered the vaulton the day in question. (Tr.180, 276-77, 588-89).There was no evidence that heevercleaned or approachedthereactor.CSHO Coxconceded that he didnot have any knowledge of Mr.[redacted]violating the MAD while he was in the vault. (Tr. 588-89). CSHO Cox testified:

Q. Do you have any knowledge at all of Mr.[redacted]violating the MAD in connection with this vault?

A. No, sir.

(Tr. 588).

Similarly, there was nocredibleevidenceto establishthat Mr.[redacted]entered the MADfor electrical equipmentat otherpreviousvaults. (Tr. 131-33, 178-79, 188-89, 285-86). The record shows that many of the prior vaults, which were not investigated byOSHA, were actually configured differently, with different voltages,than the vault in question here. (Tr. 131-33, 178-79, 188-89, 560-61). TheCourt findsthat thisrecord lacksany specificity concerning Mr.[redacted]’s possible encroachment within the MAD on other jobsites.Therefore,the Court finds Complainant hasnotprovena violation ofthe cited standard.Citation 1, Item 2 will beVACATED. 

Citation 1, Item 3

Citation 1, Item 3 alleges aseriousviolation of 29 C.F.R. § 1910.332(b)(2) as follows:

29 C.F.R. § 1910.332(b)(2): Employees, who were not qualified persons, were not trainedin and familiar with electrically related safety practices not specifically addressed by 29 C.F.R. § 1910.331 through 29 C.F.R. § 1910.335, but which were necessary for their safety:

On or about October 3, 2019, and at times prior, the employer did not ensure that employees, who were not qualified persons, were trained in and familiar with electrically related safety practices.

This item was issuedunder regulations applying to “unqualified” employees engaged in electrical work activities. Therefore, unlike Citation 1, Items 1 and 2 above – which dealt exclusively with Mr.[redacted]’s work activities(as a “qualified” employee),this item and theremainingproposedviolations described in Citation 1, Items 4, 5, and Citation 2, Item 1,deal only with Mr.[redacted]’s work activities.(Tr. 67-68).Tower Maintenance Corp., 2016 WL 3746572 (No. 13-0777, May 16, 2016).

The Cited RegulationApplied to the Condition

The Secretary arguesthat29 C.F.R. § 1910.332(b)(2) appliedto Mr.[redacted]’s work activitiesonly-as an“unqualified”employee. (Sec’y Br. 27-30).Respondent argues the standard does not apply to Mr.[redacted], because they argue hewas a“qualified”employeeunder the regulations, just like Mr.[redacted]. (Resp’t Br. 2-12, 21-27, 32-34).Thedefinition of a“qualified person”can be found in 29 C.F.R.§ 1910.399:

(a) Qualified person. One who has received training in and has demonstrated skills and knowledge in the construction and operation of electric equipment and installations and the hazards involved.6

The regulations at29 C.F.R.§ 1910.331also distinguish “qualified” and “unqualified” workers for these electrical regulations. A “qualified” person includes “those who have training in avoiding the electrical hazards of working on or near exposed energized parts.” An “unqualified” person includes “those with little or no such training.” The regulations at29 C.F.R.§ 1910.269(a)(2) further detail the training requirements for a “qualified” person.

The record reveals that althoughRespondent produced a list of training courses for Mr.[redacted], hecompletely failed todemonstrate competent skills or knowledge inbasic electrical safetyat trial. (Tr. 668-76; Exs.C-29, C-30, C-31, C-39,R-1). While discussing the tools and ladder used to clean the13,200 voltreactor, Mr.[redacted]wasasked whether he knew which equipmenthe was using/contactingwas considered conductive. (Tr. 112-13). After a few questions the Court asked Mr.[redacted]to clarify hisanswers:

Q: Mr.[redacted], I’m sorry to interrupt, but I want to ask a question. But do you know what he means when he says “conducting?”

A: Not exactly.

(Tr. 113).

Mr.[redacted]further testifiedthat he did not know what“conducting” or “conductive”meantin the context of electrical work,and could not determine whether hisladder, hand-held brushes,orthe brush taped to the end ofapole, were conductiveornonconductive. (Tr. 112-14, 503-04, 544-45, 549-50).He did not even understand the concept of Minimum Approach Distance (MAD). (Tr. 114). Mr.[redacted]alsodemonstratedvery littleknowledgeregardingthe type of protectiveglovesthatshould be used to protect an employee from certain voltages, when or whetherhe was required to wearsuch gloves,or evendescribe thetype of electrical hazards heshould have beenprotecting himself against. (Tr. 112-19).

Q: Do you know what the phrase “MAD” means:

A: No, sir.

Q: Do you know what the phrase “Minimum Approach Distance” means?

A: No, sir.

Q: Do you know how to determine the Minimum Approach Distance in a vault?

A: No, sir. Everything is together there, I can’t measure.

Q: Before you went into the vault on the date of the incident, did Marshall [Foreman Cisneros] tell you what the MAD was?

A: No, sir.

Q: On a typical day before you would go into the vaults, would Marshall [Foreman Cisneros] tell you what the MAD was?

A: I don’t remember if he ever told us. But, no, no – I’m not sure.

Q: How did you know if you did your job correctly?

A: Well, we just tried to get the transformers and the floors as clean as possible.

...

Q: Do you know the difference between Class 0; 1, 2 and 3 insulated gloves?

A: No, sir.

Q: Do you knowwhat the limitations are of yourregulargloves to protect against electrical hazards?

A: No, sir.

Q: Do you know what the limitations are ofClass 0; 1, 2 or 3 gloves to protect against electrical hazards?

A: No, sir.

(Tr. 118).

...

Q: Do you know what arc, a-r-c, flash hazards are?

A: No, sir.

(Tr.114,119).

...

Q: Do you knowwhat nominal voltage means?

A: No, sir.

(Tr. 147).

...

Q: Do you knowwhat phase-to-phase means?

A: No, sir. 

Q: Do you know what phase-to-ground means?

A: No, I don’t remember.

(Tr. 147-48).

CSHO Cox testified thatduring his investigation,Mr.[redacted]was unable to answereven the mostbasic questions about electrical hazards,MinimumApproachDistances, and had a hard time understandingvariousbasicelectrical terminologies. (Tr. 502-05, 544-45, 548-50).CSHO Cox’sinvestigative interview with Mr.[redacted], as well as hisreview of Mr.[redacted]’s employment and training file,convinced him that Mr.[redacted]lacked basicskills and knowledge in electrical matters. (Tr. 502-07, 544-45, 548-50, 840-46; Exs.C-29, C-30, C-31,C-39). CSHO Cox’s impression of Mr.[redacted]’s complete lack of knowledge concerning basic electrical safety concepts was confirmed at trial by Mr.[redacted]’s own testimony. 

As previously discussed,Respondentis a company that provides electrical transmission and distribution services, including the cleaning ofundergroundhigh-voltageelectrical vaults. (Tr. 99-103, 172-76). Mr.[redacted]was part of Respondent’s crew hired to help cleanhigh-voltageelectrical equipment inunderground vaults. (Tr.103-06, 173-74). Mr.[redacted]was not adequately trained in,norfamiliar with,electrical-related safety practices. (Tr. 502-05, 544-45, 548-50, 840-46; Exs. C-29, C-30, C-31, C-39).The record convinces the Court thatMr.[redacted]was “unqualified” as he couldnot demonstrateeven the most basicknowledgeof electrical safety, electricalequipment, electric installations,orelectrical hazards. (Tr. 502-05, 544-45, 548-50, 668-76, 840-46; Exs. C-29, C-30, C-31, C-39). Thus, thecited standard at29 C.F.R. § 1910.332(b)(2)for “unqualified persons”applied to this condition.

Respondent Failed to Comply with the Standard

Section1910.332(b)(2)requiresworkers “who are not qualified persons” to “be trained in and familiar with any electrically related safety practicesnot specifically addressed by§§1910.331 through 1910.335 but which are necessary for their safety.”The explanation above, as to why Mr.[redacted]was “unqualified”is incorporated into this discussion of why the cited regulation was violated. Mr.[redacted]’s electrical knowledge not only fell short of the definition of a “qualified” person, but also fell short of the less-stringent training requirements for “unqualified persons” in 29 C.F.R.§§1910.331-335. Respondent argues that Mr.[redacted], who required a Spanish interpreter at trial, wasprovided extensive training, including its Cardinal Electrical Rules Training, covering all aspects of MAD, PPE, and electrical safety awareness, some of which wasin Spanish. (Tr. 668-76; Ex. R-1; Resp’t Br. 2-12, 21-27, 32-34). However, it is unclear from the record whichsubjectswere in Spanish,though it was clearthatnot all were. It was also unclearhow effectively translatedthetraining courseswere. (Tr. 668-78). Mr.[redacted]testified that when he tookcourses andquizzes in English,that he would just copy someone else’s answersbecause he did not understand English. (Tr. 95-96, 148-49, 155-56). 

Respondent argues it would use quizzes and field assessments to evaluate how much of thetraining Respondent’s employees understood and retained. (Tr. 679-85, 840-49; Resp’t Br. 5-11). However, Respondent failed to produce any quizzes or field assessments for any of the crew members, including Mr.[redacted]. (Tr. 840-46; Exs. C-38, C-39, C-40).All that was produced wasMr.[redacted]’s personnel file and a spreadsheet with a summarylist of courses Mr.[redacted]attended. (Exs. C-37, pp. 79; C-39). Despite this long list of training courses, the Court weighsMr.[redacted]’s trial testimony more heavily than the training course spreadsheet, for establishing that Mr.[redacted]was not adequately “trained in and familiar with electrically related safety practices” per the requirement of the standard. As discussed earlier, Mr.[redacted]was unable to answerthe mostbasic questions about electrical hazards,minimum approach distances, conductivity, voltage,and other basicelectricalconcepts. (Tr. 107-124). 

The record is clearfromMr.[redacted]’s testimony, and CSHO Cox’s description of their investigative interview,that[redacted]was not adequately trained in,or familiar with,electrical related safety practicesfor the work he was performing (cleaning, with brushes,rags, and poles, 13,200 volt reactors which supplied electrical power to downtown buildings). (Tr. 668-76; Ex. C-29, C-30, C-31, C-39). Accordingly, the Court finds Complainant has proven a violation of the cited standard.

Respondent’s Employee wasExposed to a Hazardous Condition

The Commission has long held that exposure is met by an employee’s mere access to a hazardous situation.Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976). Here it is undisputedthatMr.[redacted]was inside the undergroundelectrical vaultcleaninglive 13,200-volt electrical equipment on October 3, 2019. (Sec’y Br. 30-36, Resp’t Br. 2-4, 17-19).Unfortunately, the risk of injury is not theoretical in this instance, ashe was severelyshocked by the reactor, resulting in the amputation of one arm and severe damage to the other. (Tr. 95-96, Ex. C-10).Actual exposure to the hazardous conditionwithresulting injuriesclearlyestablishes exposure. See S & G Packaging, Co., LLC(S&G), 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001). 

Complainant Established Employer Knowledge

The discussion addressing employer knowledgeaboveequallyapplies tothis violationand is incorporated herein. Foreman Cisneros supervised Mr.[redacted]anddirected the crew’sworkin this and other vaults. He was fully aware of Mr.[redacted]’s level of training and experience, as well asthe specific contents of the vaults they were tasked with cleaning. (Tr.101-03, 178-79, 258-61 853; Sec’y Br. 36-37, Resp’t Br. 36-37). 

In addition to Mr. Cisneros’sactualknowledge, Respondentwas specifically aware ofMr.[redacted]’slack oftrainingand familiaritywithregard toelectricalsafety practices. (Tr.419-24,837-40; Ex. C-37). Mr. Fry and Mr. Roberts both testified that no work rules or training specific to underground electrical vault cleaningwaseverprovided to Mr.[redacted]. (Tr. 419-24, 837-40). Mr. Roberts specifically testified as follows:

Q: Did you ever receive any training from MasTec on how to safely and properly clean vaults?

A: No. 

Q: Did you ever provide any training to this crew; Cisneros,[redacted],[redacted]on how to safely and properly clean vaults?

A: No.

(Tr.421).

...

Q: After Mr. Cox did this assessment, did MasTec create any policies or procedures concerning vault cleaning?

A: No. 

Q: DidMasTec develop any training specific to vault cleaning?

A: No.

(Tr.422).

Mr. Fry corroborated Mr. Roberts’testimony concerning Respondent’s lack of specificelectrical safety training for thevault cleaningcrew.(Tr. 838-39). Mr. Fry, who taughtsafety classes himself,testified:

Q: Is it true that you did not provide any specific vault cleaning training to this crew?

A: During those trainings?

Q: Ever?

A: No. No, I did not provide any.

Q: And it is true that you do not have any personal knowledge of anyone specifically providing vault cleaning training to this crew; is that true?

A: Yeah, that’s true.

(Tr.839).

TheCourt is convinced thatRespondent did not provideMr.[redacted]with anytraining specific to vault cleaningor the electrical hazards involved in that work. (Tr. 105-07, 182-83, 419-24, 837-40; Ex. C-37). Complainant establishedRespondent’sknowledge of the violative condition. 

Citation 1, Item 3Serious Classification

TheSecretary classified Citation1, Item 3asaseriousviolation of the Act. As previously discussed, a violationis classified as serious if “there isasubstantial probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). Here, the record shows thatMr.[redacted]’slack of training and familiarity with electrical safety could,and did,lead to serious injuries. (Tr. 95-96; Ex. C-10). Citation 1, Item 3 was properly characterized as a serious violation of the Act. Citation 1, Item 3 will be AFFIRMED.

Citation 1, Item4

Citation 1, Item4alleges aseriousviolation of 29 C.F.R. § 1910.333(c)(5)as follows:

29 C.F.R. §1910.333(c)(5): When an employee worked in a confined or enclosed space (such as a manhole or vault) that contained exposed energized parts, the employer did not provide and/or the employee did not use protective shields, protective barriers, or insulating materials as necessary to avoid inadvertent contact:

On or about October 3, 2019, and at times prior thereto, the employer didnot ensure that employees used protective shields, protective barrier or insulating materials as necessary to avoid inadvertent contact to exposed energized parts.

The Cited RegulationAppliedto the Condition

In Citation 1, Item 4, the Secretary allegedthat Respondent violated 29 C.F.R. § 1910.333(c)(5). The standardprovidesin full:

(c) Working on or near exposed energized parts—

(5) Confined or enclosed work spaces. When an employee works in a confined or enclosed space (such as a manhole or vault) that contains exposed energized parts, the employer shall provide, and the employee shall use, protective shields, protective barriers, or insulating materials as necessary to avoid inadvertent contact with these parts. Doors, hinged panels, and the like shall be secured to prevent their swinging into an employee and causing the employee to contact exposed energized parts.

29 C.F.R. § 1910.333(c)(5).

Onthe day of theaccident,therecord clearly establishesthatMr.[redacted]was cleaning electrical equipment in an underground vault. (Tr.99-103, 172-76). The vault containedlive13,200-volt reactors which supplied power to nearby buildings. (Tr. 309-12; Exs. C-52, p.1, C-53 p.203). The cited standard clearly applied to the working conditions. 

Respondent Failed to Comply with the Standard

The regulation requires that, while Mr.[redacted]was cleaning the 13,200 volt reactor in the underground vault, Respondent was required to provide, and ensure the use of,protective shields, protective barriers, or insulating materials to avoid inadvertent contact with any exposed energized parts. However, Respondent failed to ensure Mr.[redacted]used any of the aforementionedmethods ofprotection,resultingin his severe electrical shock. (Tr. 95-96, 101-06, 119-20, 180-81).

Respondent arguesthatthe vault cleaning was notactuallyelectrical work, should nothavebeen performed on or near energized parts, anddid not require PPE ortheprotective barrierslisted in this regulation. (Resp’t Br. 34-36). The Court rejects Respondent’s argument that Mr.[redacted]should not have been working on or near energized parts whenthe record clearly establishes that he was specifically tasked withdustingand cleaninga 13,200-volt reactor and its connected electrical wiring.

Duringhis investigation, CSHO Cox learned thatForemanCisneros hadaninsulatedblanketinhis truck. (Tr. 524-26). However, the crew was not using theblanketto prevent accidental contact withenergizedelectrical parts. (Tr. 524-27). Mr.[redacted]testified thatalthough there wasan insulatedblanket in Mr. Cisneros’struck, they never used itwhen cleaning vaults, no oneevertold them to use it,andtheywerenot usingit on the dayhe was exposed tothe bushings on the 13,200 volt reactor. (Tr.95-96,101-06,119-20, 180-81).Mr.[redacted]alsoconfirmed that theywouldroutinelyleave the insulated blanket in the truck whentheywent into the vaultsto clean. (Tr. 188-89).

The record is clear,Mr.[redacted]wasworking inthe precise type of confined space referenced in the regulation (undergroundvault)with exposed energized partsona 13,200-volt reactorwithout any protective barriers or insulating blankets to prevent inadvertent contact with those parts. (Tr. 95-96, 101-06, 119-20, 180-81, 325-26). Accordingly, the Court finds Complainant has proven a violation of the cited standard.

Respondent’s Employee wasExposed to a Hazardous Condition

As discussed in detail above,Mr.[redacted]was working insidetheundergroundelectrical vault, cleaning a 13,200 volt reactor. (Sec’y Br. 30-36, Resp’t Br. 2-4, 17-19). Further,the record clearly establishesthatMr.[redacted]wasnot using any type of protective barrier, shield, or insulated blanket while performing his work. Respondent’s employee was exposed tothehazardous condition.

Complainant Established Employer Knowledge

Mr. Oakes, Oncor’s North Dallas Transmission Manager,testifiedthattheundergroundvault Respondent was hired to clean had the potentialforexposed energized parts. (Tr. 325-26). He further testified that each current limiting reactor within the vault had 13,200-volts coming into it and 13,200-volts coming out of it. (Tr. 297-98). The reactors within the vault provided electricity to an entire municipal building. (Tr. 311-12). CSHO Cox testified that the reactor in the vault had bushings on top and had some phases going in and some going out. (Tr. 524). Heexplained thatthese phases werethe exact typeof electrical parts you would want to coverwith barriers or shieldsto prevent inadvertent contact. (Tr. 524-25). The list of vaults Respondent’s crew was assigned to clean came from Oncor, and was distributed through Respondent’smanagementemployees, down to this crew’s foreman, Cisneros.(Tr. 292-300; Ex. C-54).

The Secretaryarguesthat Respondent hadactualknowledgeof this conditionimputedthroughMr. Cisneros’sdirectsupervision at the jobsite. (Sec’y Br.36-37).On the day of the incident, Mr.[redacted]rode to thejobsite (theundergroundvault)inMr. Cisneros’struck. (Tr. 101). Mr. Cisnerosspecifically assigned Mr.[redacted]to go into the vault to clean the reactor, knowing that he did not use the insulated blanket in the truck, nor any other type of protective shield or barrier.(Tr. 101, 103-06, 119-20, 180-81). The Court finds thatComplainant establishedRespondent’sactualknowledge of the violative condition.

Citation 1, Item 4Serious Classification

The Secretary classifiedCitation 1, Item4asaseriousviolation of the Act. The record establishes that in this instance,failure to use protective shields, barriers, orotherinsulating materials whilecleaning a 13,200 volt reactor could result in serious injuries or death. As stated earlier, Mr.[redacted]did in fact experiencea severe electric shock,resulting inextremeburns and the amputation of his left arm.(Tr. 95-96, 109-13; Ex. C-10 p.1-2). Citation 1, Item 4 was properly characterized as a serious violation of the Act. Citation 1, Item 4 will be AFFIRMED.

Citation 1, Item5

Citation 1, Item5alleges aseriousviolation of 29 C.F.R. § 1910.333(c)(9)as follows:

29 C.F.R. §1910.333(c)(9): Where live parts presented an electrical contact hazard, employees performed housekeeping dutiesatsuch close distances to the parts that there was a possibility of contact:

On or about October 3, 2019, and at times prior thereto, the employerallowed employees to perform housekeeping duties at close distances to parts where there was an electrical contact hazard.

TheRegulatoryRequirements,FactualCondition, andAbatementMethodsReferenced

in Citation 1, Item 5 areIdentical to Citation 1, Item 4

Thecitedstandardin Citation 1, Item 5provides:

(c) Working on or near exposed energized parts—

(9) Housekeeping duties. Where live parts present an electrical contact hazard, employees may not perform housekeeping duties at such close distances to the parts that there is a possibility of contact, unless adequate safeguards (such as insulating equipment or barriers) are provided. Electrically conductive cleaning materials (including conductive solids such as steel wool, metalized cloth, and silicon carbide, as well as conductive liquid solutions) may not be used in proximity to energized parts unless procedures are followed which will prevent electrical contact.

29 C.F.R. § 1910.333(c)(9).

The cited regulation applies to employees performing housekeeping (cleaning/dusting/sweeping) duties near live electrical parts where there is a possibility of contact, without using safeguards such as insulating equipment or barriers. This hazardand method of abatement appear identicaltothe cited hazard in Citation 1, Item 4–failing to use protective shields or barriers when working near energized parts. The same methods of abatement would correct the hazards in both Citation 1, Item 4,and Citation 1, Item 5. SeeFlint Engineering & Const. Co., 1992 WL 394727 (OSHRC, Dec. 21, 1992);Capform, Inc.,1989 WL 223320 (OSHRC, April 26, 1989)(finding violations duplicative where abatement of one item will necessarily result in abatement of the other item as well). Accordingly, Citation 1,Item 5 will be VACATED as duplicative of Citation 1, Item 4.

Citation2, Item 1

Citation2, Item 1 alleges awillfulviolation of 29 C.F.R. § 1910.335(a)(1)as follows:

29 C.F.R. §1910.335(a)(1): Employees working in areas where there were potential electrical hazards were not provided with, and did not use, electrical protective equipment that is appropriate for the specific partsof the body to be protected and for the work to be performed:

On or about October 3, 2019, and at times prior, the employer did not ensure that employees working in areas where potential electrical hazards existed used appropriate electrical protective equipment.

The Cited RegulationApplied to the Condition

In Citation2Item1, the Secretary allegedRespondent violated 29 C.F.R. § 1910.335(a)(1). The standard states in relevant part:

(a) Use of protective equipment—

(1) Personal protective equipment.

(i) Employees working in areas where there are potential electrical hazards shall be provided with, and shall use, electrical protective equipment that is appropriate for the specific parts of the body to be protected and for the work to be performed.

29 C.F.R. § 1910.335(a)(1)(i).

Complainantarguesthat29 C.F.R. § 1910.335(a)(1) appliedto Mr.[redacted]as an“unqualified”employee. (Sec’y Br. 27-30). Respondent arguesthatthe standarddidnot apply to Mr.[redacted]becausehe was a“qualified”employeeand therefore Subpart Sin its entirety didnot applyto him. (Resp’t Br. 2-12, 21-27, 32-34, 38-39). As previously discussed, the Court finds that Mr.[redacted]was “unqualified” to perform work near or onenergizedelectrical equipment.Therecord established thatMr.[redacted]was not adequately trained in,andcould notdemonstrate,basic electrical safetyskills or knowledgesufficientto be labeled a“qualified”electricalworker. (Tr. 502-05, 544-45, 548-50, 668-76, 840-46; Exs. C-29, C-30, C-31, C-39). The recordalso established thatMr.[redacted]wasspecificallytasked with cleaning an underground electrical vaultcontaining13,200-volt reactors. (Tr. 104-06, 124). Mr.[redacted]was directedto completethis taskwithoutthe appropriate electrical protective equipment-specifically electrically rated rubber glovesandsleeves. (Tr.115-17, 120, 750-51). Thus, thecitedregulationappliedto the condition.

Respondent Failed to Comply with the Standard

Section1910.335(a)requiresthat employees“working in areas where there are potentialelectricalhazards” to be “provided with, and shall use, electrical protective equipment...” 29 C.F.R. § 1910.335(a)(1)(i).ComplainantarguesthatRespondent should have providedMr.[redacted]withthe appropriate PPE, including Mr.[redacted]’s previously issued rubber gloves and sleeves,in areas where there were potential electrical hazards. (Sec’y Br. 43).Respondent argues thatvault cleaningdid not require insulatedrubbergloves and sleeves becauseMr.[redacted]should have neverentered the Minimum Approach Distance for the 13,200 volt reactor. (Resp’t Br. 38-39). As discussed above, Respondent’s argument is rejected because Mr.[redacted]was specifically assigned the duty of cleaning(and therefore contacting)the 13,200 volt reactor and connected wiring inside the vault. The Court notes that this was not only his assigned task in this vault, but he and[redacted]apparentlyperformed this exact same type of cleaning duty on live electrical equipment in previous vaults.(Tr. 100).Cleaning and dusting everything in these vaults was their primary, daily, assignedtask.

The recordclearly established that Mr.[redacted]worked in an electrical vault withactual 13,200-voltelectrical hazards. (Tr. 293-98, 309-12, 318-26; Exs. C-52 p.1, C-53 p.203, C-54 p.12). Mr. Fry and Mr. Quoyle both knew the vaultsbeingcleanedhad the potential for electrical hazards. (Tr. 771-74,886-91, 904-06). Mr. Fryspecificallyacknowledgedthat all of the vaults the crew cleaned potentially contained exposed energized parts. (Tr. 773-74).

Q: Sure. The Oncor rep who testified in this courtroom testified that every single vault on the MasTec vault cleaning list had the potential for containing exposed energized parts in the vaults. Do you agree with that?

A: Yes.

Q: So in that – is that one of the reasons why these vaults are restricted access in addition to being owned by someone because there’s the potential for having exposing energized parts inside?

A: That would be one of them.

(Tr.773).

Healso testified that Respondent’s policies specifically required the use of insulated rubber gloves and sleeves any time an employee encroaches the Minimum Approach Distance (MAD),even for live equipment under 600 volts. (Tr. 809-811; Ex. C-43, p. 43).The equipment Mr.[redacted]was cleaningwas rated for 13,200 volts. Mr. Fryfurther testified that Respondent’s training and policies requiredeverything in an electrical vault to be considered energized until proven otherwise. (Tr. 813-15).

Through his investigation, CSHO Cox learned thatMr.[redacted]hadpreviouslybeen issuedinsulatedrubbergloves and sleeves by Respondentfor his work,that they were taken away from him, and that he hadnot been re-issueda new pairbefore the time of theaccident – despite the fact that he continued to clean and contact high voltage equipment. (Tr. 115-17, 120,513,530-531,627-628,750-51). On the day of the incident, Mr.[redacted]waswearingcommonordinary work gloves which were not rated at all for electricity. (Tr. 115-16, 188-89). 

The record revealsthat[redacted]’s co-worker,Mr.[redacted],had been issuedinsulatedrubber gloves and sleeves prior to the accident as well. (Tr. 188-89, 199). Respondent took both Mr.[redacted]’s and Mr.[redacted]’srubbergloves and sleevesaway becausethey needed to be tested andre-issued based on their PPEexpiration dates. (Tr. 457-63, 750-751;Ex. C-41). However, Respondent only reissuedrubbergloves and sleevesto Mr.[redacted],despite knowingthathe and Mr.[redacted]did the exactsamework. (Tr. 461-63,530-32; Ex. C-24). Mr. Roberts, who was in charge of exchanging employees’ rubber gloves and sleeves, testified:

Q: Was it your understanding that Mr.[redacted]and Mr.[redacted]performed the same types of cleaning tasks in these vaults?

A: Yes.

Q: And it was your understanding that Mr.[redacted]had gloves and sleeves and Mr.[redacted]did not?

A: That’s correct.

(Tr.462).

When Mr.[redacted]asked Foreman Cisneros about getting replacement insulated rubber gloves, “he just said that they weren’t giving any more, that only one person in the crew would have them.” (Tr. 116).The record is clearthaton October 3, 2019,Mr.[redacted]wasworking in an undergroundvault withpotential electrical hazardswithoutthe proper PPE,specifically electrically rated, insulated,rubber glovesandsleeves. (Tr. 95-96, 101-06, 119-20, 180-81, 325-26, 807-12; Exs. C-10, C-43 p.49, C-48 p.35). Accordingly, the Court finds Complainant has proven a violation of the cited standard.

Respondent’s Employee wasExposed to a Hazardous Condition

For the same reasonsrepeatedlydiscussed above,Mr.[redacted]wasexposed to a hazardous condition while cleaning the 13,200 volt reactor inside the underground vault. (Sec’y Br. 30-36, Resp’t Br. 2-4, 17-19). Further, it is undisputed that he was severely injured whilecleaning the high-voltagereactorwithoutusing insulated, rated,rubber glovesandsleeves. (Tr. 95-96, 101-06, 119-20, 180-81, 325-26, 807-12; Exs. C-10, C-43 p.49, C-48 p.35;Sec’y Br. 1-2, 30-36, Resp’t Br. 2-4, 17-19). Mr.[redacted]’sassigned workand resulting injuriesclearlyestablishedemployeeexposureto the cited condition. See S & G Packaging, Co., LLC(S&G), 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001).

Complainant Established Employer Knowledge

Theprevious discussion ofRespondent’s knowledge ofMr.[redacted]’s work activitiesappliesandis incorporated herein. Complainantcontends that Respondent hadknowledgeof Mr.[redacted]working on and near high-voltage equipment without insulated rubber gloves and sleeves,imputedthroughMr. Cisneros’sspecific knowledge andclose supervision at the jobsite. (Tr.102-107,115-116,538, 619,Sec’y Br.36-37). Additionally,ComplainantarguesthatMr. Roberts’s knowledge that Mr.[redacted]’srubbergloveswere taken away and never re-issuedshouldalsobeimputed to Respondent. (Tr. 457-62, 803-806; Ex. C-41;Sec’y Br. 12-15). AlthoughMr. Roberts’ testimony has already been discussed above, the Court notes again that heacknowledged that he knew both Mr.[redacted]and Mr.[redacted]performed the samecleaningtasks inunderground high-voltage electricalvaults,andthat only Mr.[redacted]wasreissuednewgloves and sleevesduring the change-out. (Tr. 460-63; Ex. C-41). Both Mr. Cisneros’ and Mr. Roberts’ knowledge is imputed to Respondent. Complainantestablished thatRespondent hadactualknowledge of thisviolative condition. 

Willful ClassificationCitation 2, Item 1

The Secretary classified Respondent’s violationin Citation 2, Item 1asawillfulviolation of the Act.Willfulness is described inA.E. Staley Manufacturing Co.,19 BNA OSHC 1199, 1202(Nos. 91-0637 & 91-0638, 2000) as follows:

A willful violation is one “committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.” Falcon Steel Co.,16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA ¶30,059, p. 41, 330 (No. 89-2883, 1993)(consolidated);A.P. O’Horo Co.,14 BNA OSHC 2004, 2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of evil or malicious intent is not necessary to establish willfulness. Anderson Excavating and Wrecking Co.,17 BNA OSHC 1890, 1891, n.3, 1995-97 C.H. OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997),aff’d131 F.3d 1254 (8th Cir. 1997). A willful violation is differentiated from a non-willful violation by an employer’s heightened awareness of the illegality of the conduct or conditions and by a state of mind,i.e.,conscious disregard or plain indifference for the safety and health of employees. General Motors Corp., Electro-Motive Div.,14 BNA OSHC 2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated).

ComplainantarguesthatRespondentwillfullyfailed to comply with the regulation because theyissuedMr.[redacted]electrically rated, insulated rubber gloves for his assigned work of cleaning live,high-voltage equipment inside undergroundvaults,knowingtheyhadpotential electrical hazards,then took his insulatedrubber glovesaway for inspection, never reissued him new ones, and continued to assign him the task of cleaning live, high-voltage electrical equipment. (Sec’y Br. 42-44). Respondent arguesitacted in good faith, and was not plainly indifferent to employee safety, on the beliefthat the vault cleaningdutiesdid not requirework inside Minimum Approach Distances, nor the use ofinsulatedrubbergloves and sleeves. (Resp’t Br. 41-44). Respondentfurther argues thatit is an industry leader in electrical safety, cooperates with OSHA to establish its training programs under the ET & D Partnership, and takes significant action to ensure its employees are adequately trained. (Resp’t Br. 44-45). 

The Courtis persuaded by Complainant’s arguments based upon this record. The Court concludes thatRespondentpossessed aheightened awareness of theillegality of its conduct based on the following: (1) Respondent’s clear knowledge ofpotentialand actualelectrical hazardsintheundergroundvaults,(2)thatMr.[redacted]was specifically assignedto clean the live high-voltage equipment in the vaults,(3) that his assigned duties required him torepeatedlyapproach (and contact) high-voltage equipmentinside the Minimum Approach Distances for the equipment,(4)that Respondent hadpreviouslyissued Mr.[redacted]insulated rubber gloves forpersonal protection during thisdangerouswork,(5) thatRespondent latertook theinsulated rubber glovesaway from himand Mr. Gonzales, so the gloves could be inspected and re-certified,(6) that Mr. Gonzales, who performed the exact same high-voltage cleaning duties as Mr.[redacted], was re-issued rubber gloves and sleeves, (7) that Mr.[redacted]was never re-issued replacement rubber gloves and sleeves, (8) that despite never being re-issued rubber gloves and sleeves, Mr.[redacted]continued to clean (and contact) high-voltage equipment as assigned by Respondent– resulting in severe injury when he was shocked, and (9) that Respondent’s supervisors Cisneros, Roberts, and Fry were specifically aware of these facts. (Tr. 101-03,107, 115-17,178-79,182, 188-89, 199,258-61, 457-63,530-32, 750-51,802-14, 853, 920-24; Ex. C-41). These facts also evidence a voluntarydisregardfor the requirements of the Act, and plain indifference toward Mr.[redacted]’s safety.Respondent’sargument that willfulness should be negated because itacted in good faith with respect to the cited conditionsis REJECTED. Citation 2, Item 1will be AFFIRMEDas aWILLFULviolation of the Act.

Respondent Failedto Prove the Affirmative Defense of Unpreventable Employee Misconduct

Respondent plednumerous defenses in itsAnswer. Thosedefenses were not raised further at trial, nor inRespondent’sPost-Trial Brief. Affirmative defenses not raised at the trial aregenerallydeemed waived and abandoned. Corbesco, Inc. v. Dole,926 F.2d 422, 429 (5th Cir. 1991) (affirmative defenses not argued waived);Ga.-Pac. Corp.,15 BNA OSHC 1127, 1130 (No. 89-2713, 1991) (“Commission declines to reach issues on which the aggrieved party indicates no interest.”). The Court finds all of Respondent’s pled affirmativedefenses are rejected because they either lack merit,have been abandoned, or both. 

Although not specifically argued in Respondent’sPost-Trial Brief,Respondentdid makea few cursory statements concerning Mr.[redacted]’s failure to follow Respondent’s training and to “unknown misconduct.” (Resp’t Br. 37, 39). Therefore, the Court will briefly address the defensive concept of unpreventable employee misconduct.

In order to prevail on a claim of unpreventable employee misconduct, Respondent must show: (1) it established work rules designed to prevent the violation; (2) it adequately communicated those rules to its employees; (3) ittooksteps to discover violations of the rules; and (4) it effectively enforced the rules when violations were detected.Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). In other words, it is incumbent upon Respondent to “demonstrate that the actions of the employee were a departure from a uniformly and effectively communicated and enforced work rule [sic].”Archer-Western Contractors Ltd., 15 BNA OSHC 1013 (No. 87-1067, 1991). 

None of the elements required for a showing of unpreventable employee misconduct were establishedin this case. There was no work rule requiring Mr.[redacted]to wear rubber gloves and sleeves to clean the 13,200 volt reactor in the underground vaulton October 3, 2019. On the contrary,Respondent maintained at trial (though rejected by this Court) that Mr.[redacted]did not need such PPE because he was not supposed to encroach the Minimum Approach Distance for the high-voltage equipment he was cleaning. Mr.[redacted]and Mr.[redacted]testified that they never received anyrules or trainingon how to safely clean the underground electrical vaults. Foreman Cisneros simply told them which vaults to clean each day, to “be careful”, never discussed required use of PPE, never discussed Minimum Approach Distances, and never required them to use rubber gloves or the insulated blanket in the truck. Mr.[redacted]’s testimony evidenced the simplicity of his assigned duties: “we just tried to get the transformers and the floor as cleanas possible.” (Tr. 114). EvenMr.Roberts and Mr.Fry admittedtheydid not provide any specific vault cleaning training,and didnot have any knowledge of anyoneelsespecifically providing vault cleaning training to[redacted]or[redacted]. (Tr.420-423,839). There was no evidence of any established work rule requiring Mr.[redacted]to wear insulated rubber gloves while cleaning high-voltage equipment; nor any communication of such a rule to Mr.[redacted]; nor any steps to discover violations of such a rule; nor any disciplinary measures to enforce such a rule. Accordingly,even if Respondent’s comments in itsPost-Trial Briefcould be construed as pursuing an unpreventable employee misconduct defense for Citation 2, Item 1, it is REJECTED. 

Penalty Determination

CommissionJudgesmust determine a reasonable and appropriate penaltybased upon§ 17(j) of the Act. The amount proposed by Complainant, however, merely becomesadvisory when an employer timely conteststhematter. Brennan v. OSHRC, 487 F.2d 438, 441–42 (8th Cir. 1973);Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 17]”, which it determinesde novo. 29 U.S.C. § 666(j);see also Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995).Section 17(j) requires the Commission to give “due consideration” to four criteria when assessing penalties: (1) the size of the employer's business; (2) the gravity of the violation; (3) the good faith of the employer; and (4) the employer's prior history of violations.29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury.J. A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993).

Complainantproposed a $13,494 penalty for eachof theaffirmed serious violations in Citation 1, Items 1, 3, and 4. Complainant proposed a $134,937 penalty for thewillfulviolation described inCitation 2, Item 1. CSHOCoxtestifiedthatOSHAbelieved the gravityof all four violationswas“high”because of thehigh-severity andgreater-probability of serious injury, permanent disability,electrocution,or death from exposure tohigh-voltageelectrical hazards. (Tr.514, 535-36). The record supports finding that the gravity of the violations warrants ahighpenalty as serious injuryfrom contacting live 13,200 volt equipment could, andactuallydid,occur. (Tr.95-96, 514, 535-36;Ex. C-10). The CSHOrepeatedlydiscussed exposure oftwoemployeesto all of the proposed violations, forthree or four months priorto theaccident. (Tr.536). However, therecord established that Citation 1, Item 1 only applied to one employee ([redacted]) and Citation 1, Items 3 and 4, and Citation 2, Item 1, only applied to one employee ([redacted]).There was only summary evidence concerning exposure to these violative conditions on other jobsites prior to October 3, 2019. No reductionintheproposed penaltieswas made forRespondent’s violationhistory because Respondent hadnot been previously inspected by OSHA. (Tr.537). Nor were anyadjustmentsmade fortheemployer’ssize because Respondentemploys approximately20,000workers,according to CSHO Cox. (Tr.537).

Based on the totality of circumstances discussed above,Citation 1, Item 1will bereducedto $5,000 based onMr.[redacted]’s exposure to the condition. Despite the deficient job briefing,[redacted]onlyentered theelectricalvault briefly,and did not perform any cleaningof theelectrical equipment. The penalties for Citation 1, Items 3 and 4 will be maintained at $13,494 each due to the high probability of serious, if not fatal, injuries from the violative conditions. The penalty forCitation 2, Item 1will be maintained at $134,937 based on the facts discussed above in analyzing the willfulness of the violation.

Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDEREDthat:

1.Citation 1, Item 1is AFFIRMEDas a SERIOUS violation of the Act, with anassessedpenalty of $5,000;

2.Citation 1, Item 2is VACATED;

3.Citation 1, Item 3is AFFIRMED as a SERIOUS violation of the Act, with an assessed penalty of$13,494;

4.Citation 1, Item4is AFFIRMED as a SERIOUS violation of the Act, with an assessed penalty of $13,494;

5.Citation 1, Item5is VACATED;and

6.Citation 2, Item1 is AFFIRMED as a WILLFUL violation of the Act with an assessed penalty of $134,937.     

SO ORDERED.

|                     |
|---------------------|
| /s/ Brian A. Duncan |

Date:March 7, 2023Judge Brian A. Duncan

Denver, ColoradoU.S. Occupational Safety and Health Review Commission

----

1 Throughout the trial both parties used the term “reactor” and “transformer” interchangeably. The parties agree the proper terminology is “reactor.” (Tr. 297-98, 319, 568-69).

2 The original trial was delayed due to a winter storm in Dallas. The conclusion of the trial was rescheduled based on the parties’ and Court’s availability.

3 The standard further states:

“Note to paragraph (a)(1)(i)(A): The types of installations covered by this paragraph include the generation, transmission, and distribution installations of electric utilities, as well as equivalent installations of industrial establishments. Subpart S of this part covers supplementary electric generating equipment that is used to supply a workplace for emergency, standby, or similar purposes only. (See paragraph (a)(1)(i)(B) of this section.)” 29 C.F.R. § 1910.269(a)(1)(i)(A). 

4 Respondentreferences29 C.F.R. § 1910.269(c)(4)(i) in support of its argument. 29 C.F.R. § 1910.269(c)(4)(i) states “[a] brief discussion is satisfactory if the work involved is routine and if the employees, by virtue of training and experience, can reasonably be expected to recognize and avoid the hazards involved in the job.”

5  29 C.F.R. § 1910.269(c)(4)(ii)(A) requires a “more extensive discussion shall be conducted [i]f the work is complicated or particularly hazardous.” Here, the electrical hazards are particularly hazardousas it was a new type of electrical equipment not cleaned before andexposure could result in serious injury, electrocution, or death. (Tr. 514, 535-37). 

6 The following notes are added to help quantify a qualified person.

Note 1 to the definition of “qualified person:” Whether an employee is considered to be a “qualified person” will depend upon various circumstances in the workplace. For example, it is possible and, in fact, likely for an individual to be considered “qualified” with regard to certain equipment in the workplace, but “unqualified” as to other equipment. (See 1910.332(b)(3) for training requirements that specifically apply to qualified persons.)

Note 2 to the definition of “qualified person:” An employee who is undergoing on-the-job training and who, in the course of such training, has demonstrated an ability to perform duties safely at his or her level of training and who is under the direct supervision of a qualified person is considered to be a qualified person for the performance of those duties.

Section 29 C.F.R. § 1910.331.