On June 7, 2012, FERC provided guidance to PJM Interconnection, L.L.C. (“PJM”) on whether there was a responsibility to oversee worker safety under its Open Access Transmission Tariff (“OATT”) and whether the OATT’s limited liability clause precludes a negligence tort claim by an injured utility worker.  The Commission determined that PJM is not responsible for maintaining workers’ safety during maintenance procedures.  FERC also clarified that the OATT’s limited liability clause applies to a recent claim by a worker injured while performing maintenance for a transmission owner on the PJM system.

PJM sought a declaratory order on these two issues in response to a claim filed in Pennsylvania state court by an electrician injured while working at a substation (see March 19, 2012 edition of the WER).  PJM is the only defendant remaining in the state court suit.
In the June 7 order, the Commission explained “PJM lacks direct, physical control over the transmission grid, particularly during construction and maintenance, and that Transmission owners physically operate the grid in response to PJM’s directions.”  In addition, PJM performs a planning and scheduling function to ensure reliability.  As such, once PJM has established a maintenance schedule to address reliability concerns, the transmission owner is responsible for physically performing maintenance and ensuring safety.  Further, PJM as an RTO is not responsible for ensuring maintenance procedures are implemented safely by transmission owner employees.  FERC highlighted that PJM’s manual requires transmission owners to comply with relevant Occupational Safety and Health Administration standards.

With regard to PJM’s limited liability provisions under its OATT, FERC first clarified that PJM’s limited liability clause: 1) applies to third parties such as transmission owner employees, and 2) is not limited to service interruptions.  Therefore, PJM’s limited liability clause in its OATT also covers the incident that gave rise to the suit in Pennsylvania. This would then preclude PJM from liability unless acts of intentional misconduct and/or gross negligence were involved.

A copy of the Commission order is available here.