BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No:  SH91294

					)  

 	Plaintiff			)  CITATION NO.  V1589-079-91

NORTHWEST NATURAL GAS			)

	Defendant			)  ORDER



	The above-captioned case involves an appeal by Northwest
Natural Gas (NWNG) of a citation issued to it on August 15, 1991
by the Oregon Occupational Safety & Health Division of the
Department of Insurance and Finance (OR-OSHA).  A hearing
concerning NWNG's appeal was scheduled for February 2, 1993 in
Portland, Oregon before the undersigned referee.  Representing
NWNG in this matter is its attorney, Roger Luedtke. 
Representing OR-OSHA is its attorney, Kevin Shuba.  Prior to the
February 2 hearing counsel advised that before proceeding with
the hearing they wished to obtain a ruling regarding NWNG's
legal challenge to Items 1-1 and 1-2 in the citation.  Counsel
agreed that they would submit stipulated facts and written
arguments regarding NWNG's legal challenge to Items 1-1 and 1-2.
Based upon counsels' agreement, the February 2 hearing was
cancelled.  Counsel thereafter submitted said stipulated facts
and written arguments.



	On August 26, 1993 I held a teleconference with both counsel. 
At that time I advised them that I had reviewed the stipulated
facts and their written arguments and had determined that NWNG's
legal challenge to Items 1-1 and 1-2 was well-founded.  Counsel
then agreed that they would confer with their clients and each
other and then advise me as to how they wished to further
proceed with the case.  On September 23, 1993 counsel advised by
joint letter that the parties had reached a settlement
concerning Items 1-3, 1-4, 1-5, 1-6, and 2-7 in the citation,
but that they had been unable to reach a settlement concerning
Items 1-1 and 1-2.  They requested the issuance of an Order
setting forth my ruling concerning Items 1-1 and 1-2 and
confirming the parties' agreement concerning the other items in
the citation.  Counsel advised that the parties agreed that the
previously-submitted stipulated facts should be considered
final, not conditional, with respect to my Order and that my
ruling regarding Items 1-1 and 1-2 could be based fully and
unconditionally upon said stipulated facts.  Counsel also
advised that the parties had agreed that in the event my Order
in this matter is appealed and my ruling regarding Items 1-1 and
1-2 is reversed by the Court of Appeals, the parties would
expect to present additional evidence at a hearing on remand
concerning the merits of Items 1-1 and 1-2.



	NWNG contends that Items 1-1 and 1-2 in the citation are
improper as a matter of law and should be set aside.  The
stipulated facts previously submitted by counsel, and on which I
rely in making the following ruling regarding NWNG's legal
challenge to Items 1-1 and 1-2, are as follows:



	1. Northwest Natural Gas Company (NWNG) is an Oregon utility
engaged in the transmission and supply of natural gas which at
times requires NWNG crews to do excavation to locate, move or
remove underground gas lines.



	2. On June 24, 1991 NWNG employees were doing a "tie-in" of
lines that had been moved as part of a grading replacement on
the Tualatin-Sherwood Highway.



	3. At the time of the alleged violation a NWNG crew was using a
crane to move a piece of equipment called a "Mueller" from a
truck bed into an excavation that had been dug by NWNG employees.



	4. During the moving of the piece of equipment the crane
operator caused the boom to move close to or make contact with
electrical transmission lines; where upon electrical current
from the lines traveled down the boom of the crane, jumped to a
nearby guy wire and into the ground.



	5. An Oregon Occupational Safety and Health (OR-OSHA)
inspection followed after which OR-OSHA issued a citation to
NWNG alleging in pertinent part violations of OAR 437-3-047(1)
and OAR 437-3-047(4)(a).



	Item 1-1 alleges a violation of OAR 437-03-047(1).  That rule
provides as follows:



	"No employer shall require or permit any employee to enter or
to perform any function in proximity to high-voltage lines,
unless danger from accidental contact with said high-voltage
lines has been effectively guarded against."



The employer contends that a more specific rule in the safety
code covers the factual situation presented herein (regarding
the hazard and the equipment being operated), that the general
rule is inconsistent with the specific rule, and, therefore,
that the general rule is not a proper basis for the citation.  I
agree.



	29 CFR 1926.550 specifically applies to crane operations and
sub-section (a)(15) of that rule specifically addresses the
operation of cranes proximate to power lines.  Sub-section (15)
provides that "except where electrical distribution and
transmission lines have been deenergized and visibly grounded at
point of work or where insulating barriers, not a part of or an
attachment to the equipment or machinery, have been erected to
prevent physical contact with the lines," the equipment must be
operated in accordance with certain requirements.  These
requirements include minimum clearances between the power lines
and any part of the crane or load, and the provision of a person
to observe clearance of the equipment and provide timely warning
for all operations where it is difficult for the equipment
operator to maintain the desired clearance by visual means.



	In short, 29 CFR 1926.550(a)(15) specifically addresses the
hazard (exposure to electrical power), the work activity
(operating a crane near a power line), and the specific things
an employer must do to make the work environment safe.  In
contrast, OAR 437-03-047(1), although addressing the same
hazard, deals with worker exposure in general to high-voltage
lines.  It does not specifically address crane operation near
power lines.  More importantly, the rule is not specific at all
as to what the employer must do to render the work environment
safe.  The rule simply provides that the employer must make sure
that danger from accidental contact with high-voltage lines has
been "effectively guarded against".  The rule gives no
indication as to what said phrase specifically means with regard
to safety precautions.  



	The Court of Appeals' decision in APD v. Gorsage, Inc., 97 Or
App 504 (1989), is instructive herein.  In that case a citation
was based on a rule requiring guard rails on scaffolding at
construction sites.  The rule pertained to all kinds of
scaffolding and ladders.  The Board vacated the citation because
there was a more specific rule -- pertaining to tubular welded
frame scaffolds -- that the Board concluded should have been
used as a basis for the citation.  The Court held that the use
of the more general rule as a basis for the citation was
allowable in that case because it contained specific
requirements necessary to the implementation of the more
specific rule that the Board had concluded should have been the
basis for the citation:  that is, the rule that was actually
cited prescribed the use of guard rails, as did the more
specific rule that the Board concluded should have been cited. 
The Court concluded that the two rules were complementary and
that citation of either rule would have been adequate to inform
the employer of the violation with which it was charged.  Such
is not the case herein.  As noted earlier, OAR 437-03-047(1)
does not specifically inform the employer of what it must do
with regard to safety precautions when operating a crane near a
power line.  Only 29 CFR 1926.550(a)(15) does that.  I conclude
that the two rules are not complementary, as was the case in
Gorsage.1  OAR 437-03-047(1) is a general rule that
may well be a proper basis for a citation where the work
activity in question is not addressed by a more specific rule in
the safety code.  But in this case the work activity -operation
of a crane near a power line -- is specifically covered by 29
CFR 1926.550(a)(15).  If OR-OSHA's investigation revealed facts
which it felt established a violation of the specific
requirements of 29 CFR 1926.550(a)(15), then a violation of that
rule should have been cited.  In that event the employer would
know exactly what it allegedly did wrong and could determine if
it has a defense to the charge.  But if no factual basis exists
for a violation of 29 CFR 1926.550(a)(15), then it is not proper
-- in fact, it is fundamentally unfair -to charge a violation of
the general language contained in OAR  437-03-047(1).  I
conclude that Item 1-1 in the citation must be vacated.



1The two rules are inconsistent in that an employer could do all that is required by 29 CFR 1926.550(a)(15) and if an accidental contact with a power line nonetheless takes place, the employer could still face a violation of OAR 437-03-047(1) for not "effectively" guarding against the contact, without knowing what "effectively guarded against" specifically means. On the other hand, if, as OR-OSHA contends in its brief, full compliance with 29 CFR 1926.550(a)(15) would preclude a violation of OAR 437-03-047(1), then the latter rule is simply, at least vis-a-vis crane operations near power lines, superfluous.
ITEM 1-2 in the citation alleges a violation of OAR 437-03-047(4)(a). That rule provides as follows:
"When any operations are to be performed, tools or materials handled, equipment is to be moved or operated within 10 feet of any high-voltage line, the person or persons responsible for the work to be done shall promptly notify the operator of the high-voltage line of the work to be performed, and shall be responsible for the completion of the safety measures as required before proceeding with any work which would impair the aforesaid clearance."
The portion of this rule which the employer has been alleged to have violated is the notification requirement. As with Item 1-1, the employer contends that this rule is not a proper basis for a citation because a more specific rule, 29 CFR 1926.550(a)(15), addresses the factual circumstances in this case, and the more general rule cited by OR-OSHA is inconsistent with 29 CFR 1926.550(a)(15). Again, I find the employer's argument persuasive. As noted earlier, 29 CFR 1926.550(a)(15) specifically covers the work activity involved in this case: the operation of a crane near a power line. OAR 437-03-047(4)(a) is more general: it applies to equipment operation in general, as well as to any situation where tools or materials are handled near a power line. The latter rule contains a specific requirement which the employer has been charged with violating in this case: prompt notification of the operator of the high-voltage line prior to proceeding with the work to be performed. Unlike the situation in Gorsage, I am not persuaded that this rule is complementary to 29 CFR 1926.550(a)(15) -- that is, it does not supply something that is needed or lacking so as to make the latter rule complete. Rather, OAR 437-03-047(4)(a), when applied to the operation of a crane proximate to a power line, imposes a requirement -- notification of the power line operator -- that is superfluous if the specific requirements of 29 CFR 1926.550(a)(15) are satisfied. As noted earlier, 29 CFR 1926.550(a)(15) provides that "except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines" equipment (including a crane) shall be operated proximate to power lines only in accordance with certain requirements. Such requirements include minimum clearance distances between the power lines and any part of the crane or load, and the provision of a person to observe clearance of the equipment and give timely warning where it is difficult for the crane operator to maintain the desired clearance by visual means. Further, 29 CFR 1926.550(a)(15)(vi) provides that "any overhead wire shall be considered to be an energized line unless and until the person owning such line or the electrical utility authorities indicate that it is not an energized line and it has been visibly grounded". Thus, per the scheme set up by 29 CFR 1926.550(a)(15), if communication between the employer doing the crane operation and the owner/operator of the power line establishes that the power line is not energized and has been visibly grounded, then there is no hazard and the several safety precautions set forth in the rule are not needed. Absent such communication, the employer is required to assume that the power line is energized and the specific safety precautions set forth in the rule must be followed unless insulating barriers have been erected in accordance with the rule. Either way, the notification requirement of OAR 437-03-047(4)(a), at least with respect to the operation of a crane near power lines, is superfluous -that is, it is not necessary if the specific requirements of 29 CFR 1926.550(a)(15) are satisfied. Thus, in contrast with the situation in Gorsage, the notification requirement in the rule cited by OR-OSHA herein, OAR 437-03-047(4)(a), is not a specific requirement necessary to the implementation of 29 CFR 1926.550(a)(15), the specific rule in the safety code dealing with the operation of cranes near power lines. The two rules are not complementary. Rather, they are inconsistent, in that the employer could be in full compliance with the requirements of the rule that specifically deals with the operation of cranes near power lines, yet have to face an allegation of non-compliance with a more general rule that addresses a variety of work operations near power lines. As with Item 1-1, if OR-OSHA felt, per its investigation, that the employer had violated the requirements of 29 CFR 1926.550(a)(15), it should have cited the employer per that rule. OAR 437-03-047(4)(a), while perhaps an appropriate basis for a citation where the work activity in question is not covered by a more specific rule, is not a proper basis for a citation in this case. I conclude that Item 1-2 in the citation must be vacated. In sum, based upon the stipulated facts and the applicable law, and for the foregoing reasons, I conclude that Items 1-1 and 1-2 in the citation must be vacated. As noted earlier, the parties have settled their dispute regarding the other items in the citation. ORDER IT IS THEREFORE ORDERED that Items 1-1 and 1-2 in citation no. V1589-079-91 issued by OR-OSHA to Northwest Natural Gas on August 15, 1991 are vacated. Based upon the parties' agreement, as set forth in the September 23, 1993 joint letter from counsel for the parties, IT IS FURTHER ORDERED that Items 1-3 and 1-6 in the citation are withdrawn by OR-OSHA, and Items 1-4, 1-5 and 2-7 in the citation are affirmed. NOTICE TO ALL PARTIES: You are entitled to judicial review of this Order. Proceedings for review are to be instituted by filing a petition in the Court of Appeals, Supreme Court Building, Salem, Oregon 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial review is prescribed by ORS 183.480 and ORS 183.482. ENTERED at Salem, Oregon Oct 14, 1993 WORKERS' COMPENSATION BOARD By John P. McCullough Referee