Echo Powerline v. OSHC, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-60695

E
CHO POWERLINE, L.L.C.,

Petitioner,

versus

O
CCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
EUGENE SCALIA, SECRETARY, U.S. DEPARTMENT OF LABOR,

Respondents.

Petition for Review of the Occupational
Safety & Health Review Commission
OSHRC Dkt. No. 17-1188

Before D
AVIS, GRAVES, and DUNCAN, Circuit Judges.
S
TUART KYLE DUNCAN, Circuit Judge:
Rehanging downed powerlines poses obvious risks of electrocution
and death. To minimize those dangers, an OSHA regulation requires power
companies to use “the tension-stringing method, barriers, or other
equivalent measures.” 29 C.F.R. § 1926.964(b)(1). The point of these
precautions is to keep slack, deenergized lines from whipping up and
contacting nearby energized lines.
Tragically, though, that is just what happened here. Two employees
of petitioner Echo Powerline, L.L.C. (“Echo”), were electrocuted when a
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2020

Lyle W. Cayce
Clerk
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2
line they were rehanging whipped up into an energized line carrying deadly
amounts of electricity. The crew had been using Echo’s standard
precautions—which primarily involve extending a bucket truck’s arm as a
barrier beneath the energized line. The Occupational Safety and Health
Administration (“OSHA”) found this inadequate and cited Echo for
violating the tension-stringing regulation, and an Administrative Law Judge
(“ALJ”) upheld the citation. Echo now asks us to overturn the citation,
arguing the regulation is unconstitutionally vague. Alternatively, Echo argues
it satisfied the regulation because its truck-barrier method is industry custom.
We sometimes require OSHA to prove an employer failed to adhere
to “the general practice in the industry.” S&H Riggers & Erectors, Inc. v.
OSHRC, 659 F.2d 1273, 1285 (5th Cir. 1981). But this treatment is only
necessary “to flesh out generally worded [OSHA] regulations in order to
avoid notice problems under the due process clause.” Brock v. City Oil Well
Serv. Co., 795 F.2d 507, 511 (5th Cir. 1986). Here, the tension-stringing
provision is sufficiently precise to repel Echo’s vagueness challenge, and
evidence of industry custom was unnecessary to establish Echo’s violation.
We deny the petition for review.
I.
In January 2017, Echo was hired to restore powerlines downed by an
ice storm in Beaver, Oklahoma. One Echo crew was charged with rehanging
three, quarter-mile-long parallel lines. These were “distribution lines,”
which deliver electricity at a relatively low voltage. The lines were
deenergized but crossed beneath energized “transmission lines” carrying
nearly ten times the electricity. Once restored, the downed lines would have
sat only about four feet below the transmission lines.
The crew rehung each line by anchoring one end to a bucket truck near
a pole and then using a non-conductive sling to pass the other end to a worker
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in a truck near the next pole. This allowed the line’s free end to drag along
the ground before being rehung. The crew took three precautions to prevent
downed lines from contacting transmission lines. First, to keep a line from
catching on the ground and “whipping” into the transmission line, a truck
was parked at the pole nearest the transmission line, with its arm and bucket
extended over the distribution line. The bucket itself was not situated directly
beneath the transmission line because there was a lineman in the bucket and
Echo’s safety procedures called for a fifteen-foot space between a lineman
and an energized transmission line. Second, the crew shortened the pole from
which the distribution line hung that was nearest to the transmission line,
such that the distribution line, once rehung, would sit a few feet farther from
the transmission line. Third, the crew were given personal protective
equipment, including gloves rated to withstand the electricity that normally
runs through distribution lines.
The crew successfully rehung two of the three distribution lines. The
third line, however, caught on an obstacle on the ground—likely a barbed-
wire fence—and whipped up, hitting the transmission line. The resulting
shock electrocuted two workers who were pulling the line along the ground.
One suffered severe burns, and the other died.
Echo immediately reported the incident to OSHA. After an
inspection, OSHA cited Echo for violating 29 C.F.R. § 1926.964(b)(1) (the
“tension-stringing provision”):
(1). Tension stringing method. When lines that employees are
installing or removing can contact energized parts, the
employer shall use the tension-stringing method, barriers, or
other equivalent measures to minimize the possibility that
conductors and cables the employees are installing or removing
will contact energized power lines or equipment.
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Echo contested the citation. An ALJ held a hearing in July 2018 and
subsequently affirmed the citation.
As relevant here, the ALJ rejected Echo’s argument that the method
its crew used, sometimes called “hand-lining,” constitutes the tension-
stringing method. Although hand-lining does involve “the simple application
of tension while re-hanging lines,” the ALJ reasoned that the “tension-
stringing method requires wires to be kept off the ground and clear of
energized circuits.”
1
According to the ALJ, this accords with industry usage
of the term “tension-stringing method,” which typically involves a
mechanical device called a “tension stringer.” A tension stringer releases
powerlines from a spool while keeping them under constant tension, in order
to keep them above the ground. The ALJ held that to qualify as tension
stringing, the method in question must keep the line off the ground and clear
of all energized lines. Here, Echo’s method involved stringing the lines out
on the ground and applying tension only to lift them up to the poles.
The ALJ also rejected Echo’s argument that its bucket truck served as
a “barrier.” The ALJ acknowledged Echo’s evidence, including expert
testimony, that “the industry uses bucket trucks” as barriers, and it found
that “under certain circumstances,” a bucket truck can serve as a “barrier”
under the tension-stringing provision. But the ALJ found that, as situated,
Echo’s truck failed to “minimize the possibility” of contacting the
transmission line because it “was not directly between” the downed line and
the transmission line. The truck was positioned fifteen feet from the
intersection of the distribution and transmission lines and far closer to one
end of the downed line than the other, leaving “ample space for the cable to

1
Echo develops no argument that the ALJ erred in this conclusion, and we express
no view on it.

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rebound upwards” as well as “an ample amount of cable capable of
rebounding.” The ALJ suggested that the crew should have instead had
rubber blankets, sometimes called “guts,” hung on the transmission lines.
2

Finally, the ALJ held Echo failed to implement any “equivalent
measure” to minimize risk of contact. The only additional measure Echo
used—providing groundmen with rubber gloves not rated for transmission-
voltage contact—was insufficient.
The Occupational Safety and Health Review Commission
(“OSHRC”)
3
denied discretionary review of the ALJ’s decision. Echo now
petitions for our review.
II.
We have jurisdiction over Echo’s petition under 29 U.S.C. § 660.
“Though the ALJ’s order became final only when the Commission declined
to conduct discretionary review, we apply the same standard of review to the
final decision here as we would if the Commission had directly issued its own
decision.” Sanderson Farms, Inc. v. OSHRC, --- F.3d ---, 2020 WL 3867380,
at *2 (5th Cir. July 9, 2020) (quoting Excel Modular Scaffolding & Leasing Co.
v. OSHRC, 943 F.3d 748, 753 (5th Cir. 2019)). We conclusively accept the
ALJ’s findings of fact “if they are supported by ‘substantial evidence on the
record considered as a whole.’” Southern Hens, Inc. v. OSHRC, 930 F.3d 667,
674 (5th Cir. 2019) (quoting 29 U.S.C. § 660(a)). We review the ALJ’s legal

2
The crew used this method on another set of live distribution lines that
intersected the downed line at the opposite end of the worksite. But because the crew was
not qualified to work on the transmission lines, it could not have applied the same method
to them. “Thus,” the ALJ found, Echo’s method was used “in lieu of hiring someone to
barricade the transmission lines.”

3
Where appropriate, the term “OSHA” refers to the OSHRC and the Secretary
of Labor, who are the respondents.

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conclusions only “to determine whether they are ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” Id. at 675
(quoting 5 U.S.C. § 706(2)(A)).
III.
To establish a violation of the Occupational Safety and Health Act
(“OSH Act”), OSHA must prove by a preponderance of evidence that
(1) the cited standard applies, (2) the employer failed to comply with the
standard, (3) the harmed employee had access to the noncompliant
conditions, and (4) the employer had actual or constructive knowledge of the
violation. Southern Hens, 930 F.3d at 735 (quoting Sanderson Farms, Inc. v.
Perez, 811 F.3d 730, 734 (5th Cir. 2016)). On appeal, Echo raises two related
arguments. First, it argues that, as applied here, the tension-stringing
provision is unconstitutionally vague. Second, it argues that the ALJ erred by
ignoring evidence that its use of a bucket truck as a precautionary measure
adhered to industry custom.
4
These arguments overlap somewhat because,
as we explain below, our court looks to evidence of industry practice to avoid
vagueness problems with certain generally worded OSHA regulations. See,
e.g., S&H Riggers, 659 F.2d at 1285; B&B Insulation, Inc. v. OSHRC, 583 F.2d
1364, 1367 (5th Cir. 1978). For clarity’s sake, however, we address each
argument separately.
A.
We first consider Echo’s vagueness challenge and conclude the
tension-stringing provision is not unconstitutionally vague.

4
As the ALJ noted, this evidence is extensive, including testimony from several
experienced linemen that they had used the method “multiple times” with Echo and other
employers. OSHA offered only the testimony of its own inspector, which the ALJ rejected.

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Due process requires OSH Act standards to “carry[] ‘sufficiently
definite warning as to the proscribed conduct when measured by common
understanding and practices.’” B&B Insulation, 583 F.2d at 1368 (quoting
United States v. Petrillo, 332 U.S. 1, 8 (1947)). Because the OSH Act is
“remedial civil legislation” and no First Amendment–protected activity is
involved, “the vagueness charge must be considered in light of the
regulation’s application.” Id. (citing United States v. Nat’l Dairy Products
Corp., 372 U.S. 29, 36 (1963); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d
230, 233 (5th Cir. 1974)). “[T]he regulation[] will pass constitutional muster
even though [it is] not drafted with the utmost precision; all that due process
requires is a fair and reasonable warning.” Faultless Div., Bliss & Laughlin
Indus., Inc. v. Sec’y of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982) (citation
omitted).
Echo contends the tension-stringing provision is unconstitutionally
vague because “[i]t is unclear . . . what the regulation requires in the absence
of the tension-stringing method.” According to Echo, the provision could
require: “(1) other measures equivalent to the tension-stringing method; or
(2) other measures equivalent to barriers; (3) or a combination of barriers and
other measures to produce an equivalent method to the tension-stringing
method.” We disagree.
Contrary to Echo’s strained reading, the provision does not leave an
employer guessing at what “equivalent measures” are. The provision
specifies that an “equivalent measure” is a precaution—like tension
stringing or barriers—that “minimize[s] the possibility that conductors and
cables the employees are installing or removing will contact energized power
lines or equipment.” 29 C.F.R. § 1926.964(b)(1). We are satisfied this
express language afforded Echo “sufficiently definite warning” of the
conduct required. B&B Insulation, 583 F.2d at 1368; see also, e.g., Ryder Truck
Lines, 497 F.3d at 233 (finding OSHA regulation survives due process
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challenge “[s]o long as [it] affords a reasonable warning of the proscribed
conduct in light of common understanding and practices”).
5
Moreover, the
ALJ’s findings showed that deploying an “equivalent” precaution in this
situation was no mystery. As the ALJ explained, Echo could have hung
rubber “guts” on the transmission lines, serving as an equivalent to tension
stringing in its ability to minimize the risk of contact with the transmission
line. Indeed, Echo used just this kind of precaution in another part of the
worksite.
Finally, Echo’s arguments ignore that any vagueness problems with
the provision would be cured by Echo’s actual knowledge of its obligations
under the provision. See Peterson Bros. Steel Erection Co. v. Reich, 26 F.3d 573,
576 (5th Cir. 1994) (OSHA may avoid proving adherence to industry custom
by proving employer had actual knowledge of requirement).
6
As OSHA
points out, Echo’s own safety rules required its crew to deploy a barrier to
prevent contact with the transmission line, in terms quite similar to the
OSHA provision. The problem was not that Echo’s crew lacked notice of
what the provision required; rather, as the ALJ found, the problem was that
the precaution the crew used was ineffective at minimizing contact with the
transmission line.
7

5
This also disposes of Echo’s erroneous argument that, because there is no
“equivalent” to the “highly-specific, machine-driven” tension-stringing method, the
provision “creates an impossible standard.” To the contrary, the provision expressly states
the standard against which an “equivalent” method is measured: it must “minimize the
possibility that conductors and cables the employees are installing or removing will contact
energized power lines or equipment.” 29 C.F.R. § 1926.964(b)(1).

6
See also, e.g., Corbesco v. Dole, 926 F.2d 422, 427 (5th Cir. 1991) (same); Cotter &
Co. v. OSHRC, 598 F.2d 911, 914 (5th Cir. 1979) (same).

7
Given our resolution of the vagueness issue, we need not reach OSHA’s
arguments that Echo had constructive notice of the provision’s requirements. See Faultless,
674 F.2d at 1185 (“The constitution does not demand that the employer be actually aware
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In sum, we reject Echo’s argument that the tension-stringing
provision is unconstitutionally vague.
B.
Echo next argues the ALJ erred by failing to consider evidence that
the precautionary measure Echo used adhered to customary practice in the
powerline industry. We again disagree.
We sometimes use “industry custom . . . to flesh out generally worded
regulations in order to avoid notice problems under the due process clause.”
Brock, 795 F.2d at 511; see id. & n.8 (citing inter alia B&B Insulation, 583 F.2d
1364; Cotter & Co. v. OSHRC, 598 F.2d 911 (5th Cir. 1979); S&H Riggers, 659
F.2d 1273). We have read otherwise-vague regulations “to require only those
protective measures which the knowledge and experience of the employer’s
industry, which the employer is presumed to share, would clearly deem
appropriate under the circumstances.” B&B Insulation, 583 F.2d at 1367;
accord Cotter, 598 F.2d at 914 (concluding “the Commission’s disregard of
demonstrated industry custom [was] improper”). This standard corresponds
with “the tort law concept of the ‘reasonable man.’” B&B Insulation, 583
F.2d at 1369. Regulations that require this treatment are sometimes called
“performance standards,” as opposed to “specification standards,” which
must be adhered to strictly and without reference to industry custom. See,
e.g., Sanderson Farms, 2020 WL 3867380, at *6; see also Thomas Indus.
Coatings, Inc., 21 BNA OSHC 2283 (No. 97-1073, 2007), 2007 WL 4138237,
at *4 (distinguishing “performance” from “specification” standards); Lowe
Constr. Co., 13 BNA OSHC 2181 (No. 85-1388, 1989), 1989 WL 223356, at *3

that the regulation is applicable to his conduct or that a hazardous condition exists.”).
Similarly, we need not reach OSHA’s argument that Echo waived reliance on the
vagueness doctrine by failing to raise it to the OSHRC.

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(same). To cite an employer for violating a performance standard, OSHA
must prove that the employer either failed to adhere to “the general practice
in the industry” or “had clear actual knowledge” that the precaution in
question “was necessary under the circumstances.” S&H Riggers, 659 F.2d
at 1285; see also, e.g., Wal-Mart Distrib. Ctr. #6016 v. OSHRC, 819 F.3d 200,
204 n.3 (5th Cir. 2016) (“Performance-oriented [OSHA] provisions are
interpreted in light of a reasonableness standard.” (citing Thomas Indus.
Coatings, 2007 WL 4138237, at *4)).
We recently identified two hallmarks of performance standards. See
Sanderson Farms, 2020 WL 3867380, at *6. First, a performance standard
“establishes an end result that the employer chooses how to work toward.”
Id. By contrast, a specification standard “does not set a goal for an employer
to meet with flexible methods.” Id.; see also Lowe Constr. Co., 1989 WL
223356, at *3 (explaining that “[t]he entire purpose of a performance
standard is to allow flexibility not available in specification standards”).
Second, a performance standard “is so general as to require definition by
reference to industry standards for the regulation to be reasonable.”
Sanderson Farms, 2020 WL 3867380, at *6 (citation omitted). Specification
standards, in contrast, are “explicit and unambiguous” and provide “fair
notice on [their] own.” Id. (quoting Corbesco, Inc. v. Dole, 926 F.2d 422, 427
(5th Cir. 1991)). “Many[] if not most” OSHA regulations “are sufficiently
specific concerning the circumstances in which safety precautions must be
taken that adequacy of notice is not a significant problem” and thus are not
treated as performance standards. S&H Riggers, 659 F.2d at 1280; accord
Faultless, 674 F.2d at 1186 (industry custom relevant “only when a specific
standard of expected employer conduct is proposed to be derived from a very
general” provision (emphasis added)).
A review of our precedents demonstrates reluctance to treat most
OSH Act regulations as performance standards. We first adopted this
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practice in 1978, in a case involving 29 C.F.R. § 1926.28(a) (the “PPE
provision”), which provides that all employers must require “the wearing of
appropriate personal protective equipment [“PPE”] in all operations where
there is an exposure to hazardous conditions.” B&B Insulation, 583 F.2d at
1368–70. Citing a 1975 First Circuit case involving a related provision,
8
we
“rescue[d]” the provision “from unconstitutional uncertainty,” looking to
“the tort law concept of the ‘reasonable man.’” Id. at 1369; see id. at 1369–70
(citing Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148
(1st Cir. 1975)). We reasoned that an employer who conforms to industry
custom and “whose activity is not yet addressed by a specific regulation . . .
should generally not bear an extra burden” to comply with a vague standard.
Id. at 1371.
In the forty-odd years since B&B Insulation, we have never extended
this principle beyond the PPE provisions it specifically addressed. See Owens-
Corning Fiberglass, Corp. v. Donovan, 659 F.2d 1285, 1287–88 (5th Cir. 1981)
(applying B&B Insulation to § 1910.132(a)); S&H Riggers, 659 F.2d at 1282
(same as to § 1926.28(a)); Cotter, 598 F.2d at 913 (same as to § 1910.132(a));
Power Plant Div. v. OSHRC, 590 F.2d 1363, 1364 (5th Cir. 1979) (same as to
§ 1926.28(a)). And we have twice refused to expand B&B Insulation to other
regulations. In Brock, we declined to refer to industry custom to construe a
regulation requiring that “[r]espirators shall be provided by the employer
when such equipment is necessary to protect the health of the employee.”
Brock, 795 F.2d at 511. We found that regulation sufficiently “precise,” such
that there was no need “to avoid notice problems under the due process

8
See 29 C.F.R. § 1901.132(a) (employers must provide certain kinds of protective
equipment “wherever it is necessary” to prevent certain hazards); see also Cotter & Co. v.
OSHRC, 598 F.2d 911, 913 (5th Cir. 1979) (recognizing § 1901.132(a) and § 1926.28(a) as
analogous).

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clause.” Id. Most recently, we refused to extend B&B Insulation to 29 C.F.R.
§ 1910.119(j)(4)(i) (the “inspection provision”), which provides that in order
to “prevent[] or minimiz[e] the consequences of toxic, reactive, flammable,
or explosive chemicals[,] . . . [i]nspections and tests shall be performed on”
certain equipment. Sanderson Farms, 2020 WL 3867380, at *6. We
acknowledged that another portion of the same regulation—which instructed
employers merely to “ensure . . . a safe operating condition” for certain
equipment—constituted a performance standard. Id. at *6 (quoting 29
C.F.R. § 1910.217(e)(1)(i)) (alteration in original). But because the inspection
provision prescribed specific methods and goals and was “explicit and
unambiguous,” we refused to treat it as a performance standard. Id.
9

Here, ignoring our reluctance to treat regulations as performance
standards, Echo argues that the tension-stringing provision is vague enough
to require this treatment, at least when tension stringing is unavailable.
OSHA disagrees, characterizing the regulation as a specification standard,
albeit “with a performance-oriented exception” for barriers and other
methods. Accordingly, OSHA argues that Echo’s evidence of industry
custom is irrelevant to its violation.
We agree with OSHA that industry custom is unnecessary to cabin the
tension-stringing provision. At the outset, as discussed above, the tension-
stringing provision is not unconstitutionally vague. It follows that evidence
of industry custom, which is merely a cure for an otherwise–vague regulation,
see B&B Insulation, 583 F.2d at 1367, is unnecessary to the provision’s
construction.

9
We have also twice acknowledged that 29 C.F.R. § 1926.105(a), which requires
use of safety nets in all workplaces when other safety measures are “impractical,” may
require industry-custom evidence in the absence of proof of actual or constructive
knowledge. See Peterson Bros., 26 F.3d at 576–77; Corbesco, 926 F.2d at 426–27.

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Moreover, the tension-stringing provision bears neither of the
characteristics of performance standards we recently identified in Sanderson
Farms. Like the inspection provision at issue in that case, the tension-
stringing provision identifies a specific goal (“minimiz[ing] the possibility
that conductors and cables . . . will contact energized power lines or
equipment”) and how employers must achieve it (by “us[ing] the tension-
stringing method, barriers, or other equivalent measures”). As to the second
Sanderson factor, we find that like the inspection provision, the tension-
stringing provision is adequately “explicit and unambiguous.” 2020 WL
3867380, at *6. Indeed, if anything, the tension-stringing provision is less
ambiguous: the inspection requirement provides only that “[i]nspections and
tests shall be performed on” certain equipment. By contrast, the tension-
stringing provision instructs the employer about specific methods to use in
order to comply.
10

Our conclusion is consistent with two Seventh Circuit decisions that
denied performance-standard treatment to provisions much vaguer than the
tension-stringing provision. In United States v. Pitt-Des Moines, Inc., the
Seventh Circuit rejected a vagueness challenge to a regulation requiring
certain loads to be secured “with not less than two bolts, or the equivalent at
each connection.” 168 F.3d 976, 987 (7th Cir. 1999) (quoting 29 C.F.R.
§ 1926.751(a)). The court thus upheld the district court’s rejection of
industry custom to determine an employer’s compliance with the provision.
Id. at 991. And in Faultless, the same court held industry custom was
irrelevant to a provision requiring that “[o]ne or more methods of machine

10
The same can be said for Brock, in which we refused to extend B&B Insulation to
a regulation requiring that “[r]espirators shall be provided by the employer when such
equipment is necessary to protect the health of the employee.” 795 F.2d at 511.

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guarding shall be provided to protect the operator” and providing three non-
exclusive examples of such methods. 674 F.2d at 1181 n.2.
The OSHRC, whose opinions we look to as persuasive authority,
11
has
reached similar conclusions. In H.E. Wiese, the OSHRC rejected the
argument that a regulation mandating use of “[a]n access ladder or
equivalent safe access” was a performance standard to which industry
custom may be relevant. H.E. Wiese, Inc., & Indus. Elec. Constr. Co., 10 BNA
OSHC 1499 (Nos. 78-204 & 78-205, 1982), 1982 WL 22605, at *4. The
OSHRC has similarly treated as a “specification standard” a regulation
providing that “[a] welder or helper working on platforms, scaffolds, or
runways shall be protected against falling” and that “[t]his may be
accomplished by the use of railings, safety belts, life lines, or some other
equally effective safeguards.” Marion Power Shovel Co., Inc., 8 BNA OSHC
2244 (No. 76-4114, 1980), 1980 WL 10690, at *1 n.1. Accordingly, OSHA did
not need to meet the heightened burden of proof for “performance
standards.” Id. at *1. Finally, in Tunnel Electric Construction Co., the OSHRC
rejected a vagueness challenge to a regulation that required electric cable to
be “elevated or covered,” without defining or providing examples to give
meaning to the term “covered.” 8 BNA OSHC 1961 (No. 76-1803, 1980),
1980 WL 10644, at *2. The OSHRC noted that “resort to a ‘reasonable
person’ test to clarify the term ‘covered’ is unwarranted.” Id.
12
By
comparison to the provisions in those casses, the tension-stringing provision
provides more notice and is thus even less in need of “rescue” by evidence
of industry custom.

11
See, e.g., Sanderson Farms, 2020 WL 3867380, at *6 (citing Thomas Inds. Coatings,
Inc., 2007 WL 4138237, at *4).

12
Even though OSHA relied on all the above-cited cases in its brief, Echo makes
no effort to address or distinguish any of them.

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These cases also dispel Echo’s argument that the provision’s
allowance for “barriers” and “other equivalent methods” as alternatives to
tension stringing transform it into a performance standard. Several of these
cases involve exceptions for measures that are “equivalent” to explicitly
enumerated precautions. See Pitt-Des Moines, 168 F.3d at 987 (exception for
“equivalent” of two bolts “at each connection”); Faultless, 674 F.2d at 1181
n.2 (providing three non-exhaustive examples of acceptable preventive
methods); H.E. Wiese, 1982 WL 22605, at *4 (mandating use of “[a]n access
ladder or equivalent safe access”); Marion Power Shovel Co., 1980 WL 10690,
at *1 n.1 (protection from falling “may be accomplished by the use of railings,
safety belts, life lines, or some other equally effective safeguards”). As the
Seventh Circuit put it in Pitt-Des Moines, “[t]he addition of an alternative,
less specific means of compliance does not make [a] regulation
unconstitutionally vague.” 168 F.3d at 987.
Echo relies on four cases for the proposition that industry custom is
relevant to the tension-stringing provision. See B&B Insulation, 583 F.2d
1364; Power Plant Div., 590 F.2d 1363; Cape & Vineyard Div., 512 F.2d 1148;
Century Steel Erectors, Inc. v. Dole, 888 F.2d 1399 (D.C. Cir. 1989). But three
of those cases—including the only two from our court—involved the same
two PPE provisions at issue in B&B Insulation, which, as discussed above,
involve generally worded standards applicable to all workplaces. See B&B
Insulation, 583 F.2d at 1368; Power Plant Div., 590 F.2d at 1364; Cape &
Vineyard Div., 512 F.2d at 1150. The fourth case involved another, similarly
Case: 19-60695 Document: 00515512927 Page: 15 Date Filed: 08/03/2020

No. 19-60695
16
general provision
13
applying to all employers. See Century Steel Erectors, 888
F.2d at 1405.
14

In short, the tension-stringing provision identifies a specific risk to be
addressed and instructs employers how to address it. It is therefore not a
performance standard, and the ALJ did not err by declining to consider
evidence that Echo’s method complied with industry custom.
15

* * *
The petition for review is DENIED.

13
See also 29 C.F.R. § 1926.105(a) (requiring use of safety nets in all workplaces
when other safety measures are “impractical”).

14
Echo argues that the ALJ held § 1926.964(b)(1) “imposed a performance
standard under the circumstances.” We disagree with this characterization of the ALJ’s
opinion. In reality, the ALJ described § 1926.964(b)(1) as a “hybrid
specification/performance standard[],” which requires tension stringing as a specification
standard and “becomes a performance standard” only when tension stringing is
unavailable. In support of that proposition, the ALJ cited only a case “describing” the
different categories of standards. See Warnel Corp., 4 BNA OSHC 1034 (No. 4537, 1976),
1976 WL 6296. But the ALJ provided no legal authority for the proposition that
§ 1926.964(b)(1) actually has a performance “component,” and, as Echo acknowledges,
she did not apply the industry-custom standard to the present case. We need not resolve
this confusion, though, because Echo does not argue § 1926.964(b)(1) is a “hybrid”
standard. And, in any event, we agree with OSHA that the provision—however
characterized by the ALJ—does not require evidence of industry custom.

15
Because we conclude the tension-stringing provision is not a performance
standard, we need not resolve OSHA’s contention that Echo waived its argument that the
ALJ erred by failing to consider evidence of industry custom.

Case: 19-60695 Document: 00515512927 Page: 16 Date Filed: 08/03/2020