WHEELING-PITTSBURGH STEEL CORP., WHEELING CORRUGATING COMPANY, DIVISION OF WHEELING-PITTSBURGH CORPORATION
OSHRC Docket Nos. 10611; 11327; 14366; 13320
Occupational Safety and Health Review Commission
May 12, 1977
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Regional Solicitor
Patrick W. Ritchey and Henry J. Wallace, Jr., for the employer
George Raynovich, Jr., Office of the General Counsel, Wheeling-Pittsburg Steel Corp., for the employer
Joseph Commiso, Vice President, United Steelworkers of America, Local # 2256, for the employees
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: These consolidated cases are before this Commission for review pursuant to 29 U.S.C. § 661(i). At the outset we note that in directing review of the Judge's decision in Docket No. 11327, Commissioner Moran inadvertently directed review of the accompanying case, Docket No. 10611, both of which were consolidated before the Judge below. The charge in that case was settled by the parties at the hearing, and respondent therein withdrew its notice of contest. Since the direction for review was mistakenly issued, we will not disturb the settlement agreement, and we hereby approve it in all respects.
On September 29, 1975, Review Commission Judge Donald K, Duvall affirmed Item 11, Citation Number 2, in Docket No. 11327, which alleged noncompliance [*2] with 29 C.F.R. § 1910.179(g)(2)(i). On December 31, 1975, and February 17, 1976, respectively, Review Commission Judge Ben D. Worcester vacated Item 38 of the citation in Docket No. 13320 and Item 4 of the citation in Docket No. 14366, in which respondents were also cited for noncompliance with 29 C.F.R. § 1910.179(g)(2)(i). In Docket No. 14366 Judge Worcester also vacated Item 12 of the citation which alleged noncompliance with 29 C.F.R. § 1910.179(e)(6)(i). For reasons that follow, Judge Duvall's decision is reversed and Judge Worcester's decisions are affirmed.
Both of the occupational safety standards here in issue apply to overhead and gantry cranes. Section 1910.179(g)(2)(i) provides that:
"Electrical equipment shall be so located of enclosed that live parts will not be exposed to accidental contact under normal operating conditions."
Section 1910.179(e)(6)(i) provides that:
"Exposed moving parts such as gears, set screws, projecting keys, chains, chain sprockets, and reciprocating components which might constitute a hazard under normal operating conditions shall be guarded."
The applicability of these standards is governed by the regulation codified at 29 C.F.R. § [*3] 1910.179(b)(2) which provides in pertinent part as follows:
"All new overhead and gantry cranes constructed and installed on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967. Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to those design specifications by February 15, 1972. . . ." (Emphasis added.)
Relying on this provision, the respondents contend that the guarding requirements of the standards codified at 29 C.F.R. § 1910.179 are advisory, rather than mandatory, as to the cited cranes since all were installed prior to August 31, 1971.
In Secretary v. United States Steel Corporation, OSAHRC Docket No. 10825, April 25, 1977, we held that 29 C.F.R. § 1910.179(g)(2)(i) is a design specification standard within the meaning of 29 C.F.R. § 1910.179(b)(2) and is advisory, rather than mandatory, as to overhead and gantry cranes installed prior to August 31, 1971. That decision is dispositive of § 1910.179(g)(2)(i) charges now before us and the reasoning therein is equally applicable to the § 1910.179(e)(2)(i) charge. [*4]
The overhead and gantry cranes standards codified at 29 C.F.R. § 1910.179 are derived from the American National Standards Institute (ANSI), ANSI B.30.2.0-1967, Safety Code for Overhead and Gantry Cranes. 29 C.F.R. § 1910.189. The ANSI standards, as first published made compliance mandatory as to all new construction and installations, but was advisory only as to installations made prior to the effective date of the Code. n1 Similarly, 29 C.F.R. § 1910.179(b)(2) provides that new cranes constructed and installed after August 31, 1971, must comply with ANSI "design specifications," but these requirements are advisory only as to cranes constructed prior to August 31, 1971. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 See Section IV, New and Old Installations, in the introduction to to the ANSI Code. B30.2.0-1967.
n2 A comparison of 29 C.F.R. § 1910.179(b)(2) with its ANSI source indicates that the decisive date for mandatory compliance with the standards was changed by the Secretary of Labor from May 4, 1967, the effective date of the source ANSI standard, to August 31, 1971, the effective date of the corresponding occupational safety standards.
[*5]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Both of the standards in the instant cases originated as construction and installation standards under Chapter 2-1 of the ANSI Code. These construction and installation standards were advisory only as to cranes installed prior to the effective date of the Code. As explained in detail in United States Steel, the term "design specifications" employed in 29 C.F.R. § 1910.179(b)(2) coincides with the "construction and installation" requirements of Chapter 2-1 of ANSI B30.2.0-1967 to accurately reflect its ANSI source. Thus, since § 1910.179(e)(6)(i) and § 1910.179(g)(2)(i) are the same as the standards contained in § 2-1.7.7(a) and § 2-1.9.2, respectively of Chapter 2-1, ANSI B.30.2.0-1967, they are design specifications.
Therefore, § 1910.179(b)(2) makes the guarding requirements of § 1910.179(e)(6)(i) and (g)(2)(i) advisory only as to overhead and gantry cranes installed prior to August 31, 1971. Since all of the cranes involved in these cases were installed prior to August 31, 1971, they are exempt from the guarding requirements of the cited standards. n3
- - - - - - - - - - - - - - - - - [*6] -Footnotes- - - - - - - - - - - - - - - - - -
n3 Respondent's cranes were not even subject to the mandatory requirements of ANSI standard B30.2.0-1967 since they were constructed before May 4, 1967.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly, the Judge's decision in Docket No. 11327 is reversed and Item 11, Citation No. 2 and the $45 penalty assessed therefor are vacated; the Judge's decisions in Docket Nos. 13320 and 14366 are affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, CONCURRING:
I concur in the disposition of this case. I agree with the majority that the decision by a divided Commission in United States Steel Corp., Nos. 10825 & 10849 (April 25, 1977) is dispositive of issues involving the standard at 29 CFR § 1910.179(g)(2)(i). The issues involving 29 CFR § 1910.179(e)(6)(i) are controlled by the decision of a divided Commission in Pittsburgh-Des Moines Steel Co., No. 13708 (May 5, 1977). These are our precedents. They should be adhered to in the interest of reasonable expectancy in the application of the standards involved. This does not mean that the precedents are right or ought to have been made in the first [*7] instance. For my position on the correct disposition of the issues raised in these cases, see my opinions in United States Steel Corp., supra, and Pittsburgh-Des Moines Steel Co., supra.