X. Edison's Defenses

A. Nondelegable Duty

In some instances where Edison has contracted its duties to comply with GOs to independent contractors, Edison argues that it is not liable for a violation of the GOs because it is not responsible for the failure of its contractor to properly perform contracted work. We disagree.

Edison is responsible for complying with these safety GOs and cannot escape this responsibility by delegating it to independent contractors. This responsibility is consistent with California law and Commission precedent.

In Snyder v. Southern California Edison Company (1955) 44 Cal.2d 793, the California Supreme Court held that the duty imposed on Edison by Pub. Util. Code § 702 and GO 95 could not be delegated to an independent contractor so as to insulate the utility from liability.

In Snyder, the plaintiffs were linemen and employees of the independent contractor J. W. Wilson Company, which Edison hired to repair and construct power lines. Plaintiffs were injured when the wire-supporting pole they had climbed fell to the ground. The pole was less than 6 ½ feet into the ground, while Rule 49.1C of GO 95 required the poles be set at least 6 ½ feet into the ground and even deeper where, as in this case, the soil was not firm.

The Court reasoned as follows:

"Utility companies, either electric, telephone or telegraph, are responsible for nearly all pole installations. In the law relating to such utilities there is no express provision that such duties may be delegated. The requirements in section 702 of the [Public] Utilities Code that the utility must do everything necessary to secure compliance with the law and rules by its agents and officers is nothing more than an additional precautionary measure to prompt the utilities with regard to compliance by those persons. It does not mean that it may evade the duty by the independent contractor device or limit the scope of its duties thereby. It does not negate the existence of a nondelegable duty." (Snyder, 44 Cal.2d at 801-802.⁹)

In reaching its holding, the Court relied on the common law principle to impose liability upon franchised common carriers, reasoning that the "effectiveness of safety regulations is necessarily impaired if a carrier conducts its business by engaging independent contractors over whom it exercise no control." (Snyder, 44 Cal.2d at 798.) The Court described another group of cases that predicate liability on the part of the employer of an independent contractor for the misconduct of the latter in the performance of certain "intrinsically dangerous" work. (Id. at 800.)

The Commission has similarly held that utilities have a nondelegable duty to comply with all applicable safety codes and regulations in certain instances. In D. 00-06-038, the Commission held that Southern California Gas Company has a nondelegable duty under state and federal law to comply with all applicable safety codes and regulations governing its gas lines and cannot avoid the duty of compliance by allowing independent contractors to install earthquake valves on the utility's side of the meter. The Commission reasoned that California case law, GOs, and federal law supported this result.

In summary, the safety GOs in question establish certain duties and standards that Edison must meet to ensure adequate service and safety. California case law and prior Commission precedent require that the responsibilities imposed by the GOs are nondelegable.

B. Employees' Violation of GOs

As a general matter, to the extent that Edison is liable for the violation of the GOs by its own employees, it is also liable for violations by the employees of Edison's independent contractors.

In some of the 37 accidents listed below, CPSD alleges Edison violated the "due care" rule, which requires owners and employees of electrical systems to reduce to a minimum the hazard of accidental injury to their own or fellow employees, to the public and to other utilities.¹⁰ Edison urges the Commission to adopt the "independent employee act defense," which Cal/OSHA recognizes when an employee is spontaneously negligent (i.e., a rogue employee).¹¹ Edison argues that since it is liable under tort law to third parties who may be harmed by such employee conduct, it has the incentive to minimize the negligence of its workforce.

For purposes of the "due care" obligations in GO 95 and 128, if, despite Edison management's best efforts at achieving on-the-job safety as defined in the Cal/OSHA criteria listed above, an employee is spontaneously negligent, we would find no violation of the utility's "due care" obligations under these GOs. We apply this principle to the accidents described below.

C. GO 165 Does not Shield Edison from
GO 95 or 128 Violations

GO 165 requires that utilities inspect their distribution facilities as often as necessary to ensure reliable, high-quality and safe operation, and establishes a minimum level of inspection frequency with which a utility must comply. A utility conducting only the minimum level of inspections required by GO 165, when more frequent inspections are necessary to ensure reliability, may be found to violate this GO because, under GO 165, utilities are required to use their judgment and conduct inspections as often as necessary to ensure a safe and reliable operation.¹²

Furthermore, the plain language of GO 165 states that the GO's requirements are "in addition to the requirements imposed upon utilities under GO 95 and 128 to maintain a safe and reliable electric system. Nothing in this GO relieves any utility from any requirements or obligations that it has under GO 95 and 128." Thus, nothing in GO 165 can shield a utility from a finding of a GO 95 or 128 violation.

D. Inspection Intervals

CPSD alleges Edison has violated GO 165 numerous times because the maximum period between certain inspections exceeds the time intervals specified in GO 165, Appendix A. For instance, according to Appendix A, the maximum period between patrol inspections of overhead conductors in urban areas is one year. CPSD believes that pursuant to this requirement, these inspections must occur every 12 months, i.e., no more than 12 months may elapse between inspections.

In contrast, Edison believes it is in compliance if the required inspections to occur in successive calendar years, i.e., for a patrol conducted on January 1, 2000, the next patrol could be conducted almost two years later (December 31, 2001) consistent with the one-year requirement. Edison argues that it is reasonably interpreting the GO, that it is completing 93% of its circuit patrols within CPSD's definition, and that some flexibility is necessary and customary in the industry to facilitate efficient workforce scheduling. For example, GO 165 permits circuit patrols to be carried out in the course of other company business. Edison argues that it would be more difficult to synchronize the circuit patrols with other company business if the Commission adopts CPSD's interpretation of GO 165. Moreover, Edison points out that the above example (where inspections occurred almost two years apart) could only occur once. If Edison conducted its annual circuit patrol on December 31, 2001, its next annual inspection would have to occur no later than December 31 of the following year, or 12 months later.

In interpreting GO 165, we first look at the language of this GO. Appendix A sets forth a grid of the maximum allowable inspection intervals for certain parts of a utility's distribution facilities (i.e., overhead and underground transformers, wood poles, etc.) GO 165, Section IV states that each utility shall conduct inspections of its distribution facilities as necessary to assure reliable, high-quality, and safe operation, "but in no case may the period between inspections (measured in years) exceed the time specified in the attached table." (71 CPUC2d at 479.) This language plainly means that the maximum interval between inspections is measured in years (i.e., 365 day increments). If the Commission intended for a utility to have much greater leeway (i.e., up to two years to conduct an annual inspection) it would have said so. Edison's interpretation renders inspection more uncertain, not less so. This is not consistent with the purpose of GO 165 which endeavors to make more certain the periods of inspection.

E. Subjectivity of CPSD Inspectors

Edison also argues it is unfair to require it to comply with all provisions of the GOs because these GOs are often subject to reasonable disagreement among CPSD inspectors. For instance, according to Edison, some CPSD inspectors find a cracked high voltage sign or ground moulding to be a violation of GO 95 and others do not.

Although there may be some subjectivity among CPSD inspectors, the record also demonstrates subjectivity among Edison employees as to what constitutes compliance with the GOs. The record demonstrates this is not a pervasive problem, and Edison did not specifically protest CPSD's audit findings at the time they were made. We therefore do not excuse Edison's violations of the GOs based on this defense.

F. Former CPSD Staff's Interpretation of the GOs

Edison argues that it has not violated the GOs, in part, based on its understanding of former CPSD staff's interpretation of these GOs. Edison argues that the CPSD safety audit letters described Edison's conduct as "nonconforming conditions," "variances," or "noncompliances," but never as a GO "violation." According to Edison, past Commission settlements regarding tree-trimming cases permitted other utilities up to 14 days to resolve tree-trimming "nonconformities," and that therefore its conduct cannot be deemed a violation.¹³

We disagree. Based on our discussion above, failure to comply with a GO is a violation of that GO. While CPSD's past interpretation of GO compliance may be relevant in setting appropriate penalties, staff's interpretation of what is or is not a GO violation is not binding on the Commission. Edison's reference to past Commission-approved settlements is not persuasive because Rule 51.8 of the Commission's Rules of Practice and Procedure states that our approval of settlements does not constitute approval of, or precedent regarding, any principle or issue in the proceeding or in any future proceeding.

G. Achievable Standards

Edison argues that the Commission should not find a failure to comply with these safety GOs a violation, because neither Edison, nor any other utility, can meet the "perfectionist" standard of maintaining its system in complete conformance with the GOs. According to Edison, at any given moment, on any electric distribution system of significant size, there will be scores of nonconforming conditions. Edison believes that when a standard cannot be met in the real world, it ceases to be a meaningful standard at all.

As discussed above, a failure to comply with a GO, as with any Commission order, is a violation. In determining whether to penalize Edison for these violations, and in what amount, we recognize that 100% compliance with these GOs at all times is not realistic. However, because these GOs concern safety, we want to be sure of compliance with them.

The Commission resolves investigations on a case-by-case basis, and determining the appropriate penalty is situation specific, according to the criteria set forth in D.98-12-075. In this case, as more fully discussed below, we assess penalties for the accidents where a GO violation has a nexus with an accident involving death, injury, or property damage. We also assess penalties where Edison failed to find GO safety violations in its detailed inspections, because we want to ensure that the detailed inspection programs are thorough and identify outstanding GO violations for repair.

For other observed GO violations that do not have a nexus with an accident causing damage, we do not assess penalties here. In future similar investigations, we strongly encourage CPSD to demonstrate whether the cumulative effect of such multiple GO violations on a utility's system compromises the system's safety, or to otherwise place the number of violations in some sort of context.