UNITED STATES STEEL CORPORATION

OSHRC Docket Nos. 10825; 10849

Occupational Safety and Health Review Commission

April 25, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Lloyd H. Shenefelt, III, United States Steel Corp., for the employer

Charles A. Maniccia, President, Local Union No. 1219, United Steelworkers of America, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Respondent (U.S. Steel) violated a safety standard promulgated pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to enclose resistor banks on overhead cranes at its Edgar Thomson Works, Braddock, Pennsylvania. Complainant (Labor) alleges that U.S. Steel violated 29 C.F.R. 1910.179(g)(2)(i), which applies to overhead and gantry cranes, and provides that "electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions." U.S. Steel claims that its employees have access to the resistor banks only while performing maintenance work, and that such work is not a "normal operating condition" within the meaning of the standard. Judge Donald K. [*2] Duvall agreed with Labor that, under the circumstances of this case, the performance of maintenance work is a normal operating condition, and he found U.S. Steel in violation. We disagree in part with the Judge's interpretation of the standard, and adopt his decision only to the extent it is consistent with the following.

BACKGROUND OF THE CASE

The U.S. Steel plant uses nine electrically operated overhead cranes in the production of steel and steel products. Each crane basically comprises two parallel bridge spans some 60 feet in length located 40 to 50 feet above the floor of the plant. The travel and hoisting mechanisms of the crane, including the operator's cab are suspended from the bridge spans. A walkway approximately eight feet wide is located on each bridge span. Various types of equipment required for the operation of the cranes, including the resistor banks, are located on the walkways and the walkways are narrowed in the equipment areas. The resistor banks are not enclosed.

The resistors are part of the control circuits which supply electric power to the motors of the cranes. The resistors are therefore energized electrically only when power is supplied to [*3] the motors. The motors are used to operate the cranes' travel and hoisting mechanisms. When the cranes are used for production purposes, the crane operator is in the cab, and employees are not permitted on the walkways.

The cranes frequently malfunction. When they do, the crane operator contacts a maintenance worker, who ascends to one of the walkways to diagnose and correct the problem. Prior to performing such "troubleshooting," the power to the crane is locked out, and the maintenance worker discusses the difficulty with the crane operator. If the maintenance worker determines that it is necessary to activate the electrical system in order to perform troubleshooting, then the lockout is removed. If necessary, the crane operator operates the various crane mechanisms under instructions from the maintenance worker. During such operation, the resistors are energized, and the maintenance worker may be exported to electrical shock.

Occasionally, the crane is used in regular production operations while a maintenance worker is on a walkway performing troubleshooting. In such cases, only minor repairs are required, and the crane is under the control of the operator rather than [*4] the maintenance worker.

On the average, each crane requires maintenance two to three times per week.

In addition to production operations, the cranes are also used to change lightbulbs on the ceiling of the plant. While this work is per formed, one maintenance employee is on a walkway while the crane is positioned under the light being changed. On certain cranes, the employee on the walkway is within five feet of the resistors while the crane is being positioned, and while the resistors are thus energized.

In arguing the case before the Judge, the parties presented differing interpretations of the term "normal operating conditions" as used in 1910.179(g)(2)(i). U.S. Steel contended that the term refers only to regular production operations, and not to maintenance work. It pointed out that the standard permits isolation as an alternative to enclosure of electrical equipment, and contended that the resistors were located so as to preclude accidental contact during production operations. U.S. Steel also argued that, if the standard had been intended to apply to maintenance work, its application would not have been limited to normal operating conditions.

U.S. Steel further contended [*5] that its suggested interpretation accorded with the intent of the drafters of the standard. It pointed out that the standard is derived from a standard first published by the American National Standards Institute, ANSI B30.2.0 - 1967, Safety Code for Overhead and Gantry Cranes (hereinafter "the ANSI standard"). It relied on a letter (hereinafter "the ANSI letter"), dated February 19, 1975, expressing an interpretation of the standard by the ANSI B30 Committee. n1 The letter supports U.S. Steel's contention that the standard does not apply to maintenance work. Its rationale for reaching this conclusion is as follows:

Since maintenance personnel would have to remove covers or open doors in order to inspect or adjust devices, enclosures for this type of electrical equipment provide no additional protection for such personnel. In fact, the need to remove covers for inspection and adjustment introduces the possibility of additional hazards for personnel on the floor below if any loose parts should accidentally fall from the crane. It must also be realized that the power must be on and electrical devices exposed in order for the maintenance personnel to make proper adjustments to [*6] the crane. Therefore, whenever any maintenance personnel board a crane, this crane is no longer operating or performing functions within the scope of its intended original design.

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n1 The letter was addressed to me in my former capacity as Manager of Safety and Workmen's Compensation for the Bethlehem Steel Corporation, and was sent in response to a request by the Bethlehem Steel Corporation for an interpretation of the standard by the ANSI B30 Committee. In view of this circumstance, I have given serious consideration to disqualifying myself from participating in the decision of this case. I have decided to participate, however, and have furnished the parties with a statement of my reasons for reaching that decision. A copy of that statement is attached to this decision as Appendix A. I also note that my colleagues are divided on the issues presented in this case as indicated by their separate opinions, and my failure to participate would prevent the resolution of these issues. See FTC v. Cement Institute, 333 U.S. 683,701 (1948).

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Labor contended that, because maintenance work on U.S. Steel's cranes is performed on a regular and frequent basis, it is therefore a normal operating condition of the cranes. Since employees were on the walkways performing maintenance work at times when the resistors were energized, Labor argues that U.S. Steel violated the standard by failing to enclose the resistors.

Judge Duvall agreed with Labor. He concluded that the standard should be interpreted to protect all employees who may be near energized resistor banks. He therefore found U.S. Steel in violation of the standard based on the occasions when maintenance workers performed troubleshooting with the cranes out of production, as well as those instances when troubleshooting was performed with the cranes in production and when lightbulbs were changed. He assessed a penalty of $60.

APPLICABILITY OF THE STANDARD

For the first time on review, U.S. Steel raises the issue of whether the cited standard is applicable to its cranes. As noted above, 1910.179(g)(2)(i) is derived from the ANSI standard. It was adopted as an occupational safety and health standard pursuant to Section 6(a) of the Act, [*8] which authorined Labor to promulgate national consensus standards under the Act without using the rulemaking procedures of Section 6(b). 36 Fed. Reg. 10466, 10620 (May 29, 1971).

U.S. Steel's contention of inapplicability is based on Sections IV and V of the introduction to the ANSI standard, which provide:

Section IV. New and Old Installations

After the date on which this Code becomes effective, n2 all new construction and installations shall conform to its rules. Equipment installed prior to that date should be modified to conform to its rules unless administrative or regulatory authorities deem that the equipment as installed cannot economically be altered and that the equipment substantially complies with the requirements of the Code. (Emphasis added).

Section V. Mandatory and Advisory Rules

Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.

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n2 The ANSI standard became effective on May 4, 1967.

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In view of these provisions, U.S. Steel contends that the ANSI standard was only advisory as to old or prior equipment. U.S. Steel further contends that Labor itself recognized the advisory nature of the ANSI standard as applied to old equipment in promulgating 1910.179 by including the following provision at 1910.179(b)(2):

New and existing equipment. 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, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section. (Emphasis added).

As further evidence that Labor intended to adopt only the mandatory provisions of the ANSI standard, U.S. Steel points to Labor's preamble to the adoption of the standards in Part 1910, in which the Secretary stated:

I do hereby designate [*10] as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association. The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910. 36 Fed. Reg. 10466 (May 29, 1971).

Finally, U.S. Steel points out that, although the original version of 1910.179(b)(2) adopted by Labor did not distinguish between old and new equipment, it was later amended to its present version with the following explanation:

Section 1910.179(b)(2) has been revised in order to give some time for the modification of existing overhead and gantry cranes, and to reflect accurately the American National Standards Institute (ANSI) standard from which the provision is derived. 36 Fed. Reg. 15101 (Aug. 13, 1971) (Emphasis added).

Thus, according to U.S. Steel, Labor explicitly provided [*11] that the requirements of the ANSI standard, from which 1910.179(g)(2)(i) is derived, are mandatory only for cranes installed after August 31, 1971. U.S. Steel further contends that the burden is on Labor to prove that its cranes were installed after that date, that Labor failed to offer any proof regarding the dates of installation, and that it is evident from the record that the cranes were installed many years prior to 1971. n3

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n3 U.S. Steel does not provide specific citations to the record in support of this latter contention. The only evidence we have found which bears on the age of the cranes is testimony of U.S. Steel's employee Scott, who stated that he operated the No. 11 and No. 12 cranes ten years previously. There is no evidence concerning the dates of installation of the remaining seven cranes.

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The essence of U.S. Steel's argument is that 1910.179(g)(2)(i) is a design specification standard and Labor limited the applicability of 1910.179(g)(2)(i) by its adoption of 1910.179(b)(2). Labor argues that [*12] 1910.179(b)(2) and 1910.179(g)(2)(i) contain completely independent requirements, and that 1910.179(b)(2) therefore has no bearing on the applicability of 1910.179(g)(2)(i). n4 Labor contends that the scope of 1910.179(g)(2)(i) is determined solely by 1910.179(b)(1), which provides:

(b) General requirements - (1) Application. This section applies to overhead and gantry cranes, including semigantry, cantilever gantry, wall cranes, storage bridge cranes, and others having the same fundamental characteristics . . .

Labor also contends that, by its terms, 1910.179(b)(2) applies only to the "design specifications" of the ANSI standard, not to the other requirements found in 1910.179. We assume that Labor is in essence saying that 1910.179(g)(2)(i) is not a design specification standard. It therefore argues that in promulgating 1910.179 it did not promulgate ANSI's design specification standards.

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n4 Labor also contends that the Commission should not decide this issue because it was untimely raised. U.S. Steel's argument, however, pertains to whether the cited standard is applicable to its cranes, and thus relates to the merits of the alleged violation. Normally, we do not decide issues that have not been raised before the hearing judge. See: Contract Production Services, 17 OSAHRC 577, BNA 3 OSHC 1152, CCH OSHD para. 19,599 (1975). Here, however, the issue goes to the very heart of the case; it has been extensively briefed; and we believe it should be finally resolved.

[*13]

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Labor thus attempts to draw a sharp distinction between the "design specifications" of the ANSI standard and the provisions of the ANSI standard it explicitly adopted in 1910.179. As discussed above, however, all of the provisions in 1910.179 were adopted from the ANSI standard, and some of the provisions of 1910.179 are unquestionably design specification standards. See e.g. 1910.179(d) and (e) concerning footwalks, ladders, steps, guards and the like. Similarly 1910.179(g)(2)(i) has the characteristics of a design specification. The record shows that U.S. Steel's cranes are large pieces of equipment which contain substantial numbers of electrical components. The decision whether to protect against accidental contact with live electrical parts by locating them on the crane so that they cannot be contacted or by enclosing them clearly must be made, at least in large part, when the cranes are designed.

Furthermore, Labor itself apparently recognized that the ANSI source standard for 1910.179(g)(2)(i) was a design specification when it promulgated 1910.179. The distinction between old and new equipment [*14] originated in Section IV of the Introduction to ANSI standard, and applied to the "construction and installation" requirements of the ANSI standard. The ANSI standard contains four Chapters, of which Chapter 2-1 is entitled "Construction and Installation." Section 1910.179(g)(2)(i) is identical in wording to Section 2-1.9.2 of the ANSI standard, which is within Chapter 2-1. Thus, 1910.179(g)(2)(i) originated as a construction and installation requirement of the ANSI standard.

As noted above, in amending 1910.179(b)(2) to its present form, Labor stated that the amendment was intended to reflect accurately the ANSI standard from which 1910.179(b)(2) was derived. Obviously, 1910.179(b)(2) was derived from Section IV of the Introduction to the ANSI standard, for that is the only provision of the ANSI standard which distinguishes between old and new equipment. Thus, in using the term "design specifications," Labor must have intended that term to coincide with the "construction and installation" requirements of the ANSI standard. Otherwise, 1910.179(b)(2) would not "reflect accurately" its ANSI source. As demonstrated above, 1910.179(g)(2)(i) was a "construction and installation" [*15] requirement of the ANSI standard. Thus, 1910.179(g)(2)(i) is a "design specification" of the ANSI standard as that term is used in 1910.179(b)(2).

Having reached this conclusion, it would be anomalous to hold that 1910.179(g)(2)(i) constitutes a requirement independent of 1910.179(b)(2). Both subsections relate to the same subject matter, and must be read together in order to arrive at a consistent interpretation. See Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, BNA 4 OSHC 1289, CCH OSHD para. 20,782 (1976). Reading the provisions together, 1910.179(b)(2) must be construed as a limitation on the applicability of 1910.179(g)(2)(i). Were we to conclude that 1910.179(g)(2)(i) is independent of 1910.179(b)(2), old and new equipment would be treated alike. In 1910.179(b)(2), however, Labor explicitly distinguished between the design specifications for old and new equipment. In order to give effect to both provisions, 1910.179(b)(2) must be read as limiting the applicability of 1910.179(g)(2)(i). Accordingly, we conclude that the requirement of 1910.179(g)(2)(i) is qualified by the second sentence of 1910.179(b)(2) with respect to old equipment.

Labor also contends, [*16] however, that even if 1910.179(b)(2) is pertinent to this case, that section in any event is mandatory with respect to old installations as well as new. In support of this contention, Labor first points to its statement, quoted above, (p. 7) that it adopted only mandatory requirements of ANSI in Part 1910. Thus, Labor contends that any ANSI standard it adopted in Part 1910 must be mandatory because it said that only mandatory standards were adopted.

This contention must be rejected. Part 1910 clearly contains at least some advisory provisions adopted from ANSI standards. See, e.g. Edward Hines Lumber Co., 76 OSAHRC 126/A2, BNA 4 OSHC 1735, CCH OSHD para. 21,136 (1976). Furthermore, having recognized that ANSI standards contain advisory provisions, Labor cannot arrogate to itself the authority to determine that some such provisions are mandatory even though couched by ANSI in advisory term. See Brennan v. OSHRC (Bill Echols Trucking Co.), 487 F.2d 230, 234, n.6 (5th Cir. 1973).

Labor also argues however, that even though 1910.179(b)(2) uses the word "should" in referring to old installations, the entire thrust of that section is mandatory. That is, Labor argues [*17] "should" must be read as "shall". Labor argues that such a mandatory thrust can be gleaned from the provision that old installations conform by February 15, 1972, and from the phrase which qualifies the requirement with respect to cranes which cannot feasibly or economically be altered. We again note, however, that 1910.179(b)(2) was intended to accurately reflect the ANSI standard. n5 The ANSI standard plainly states that "should" is used in an advisory manner, and distinguishes advisory provisions from mandatory requirements. To say that "should" means "shall" under the circumstances would require that the explicit ANSI definition of "should" be ignored.

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n5 Were we to conclude that 1910.179(b)(2) did not accurately reflect the ANSI standard, the question would arise as to whether Labor exceeded its authority in promulgating 1910.179(b)(2) by substantively amending the standard without resort to the rulemaking proceedings prescribed by Section 6(b) of the Act. See Kennecott Copper Corp., 76 OSAHRC 81/A2, BNA 4 OSHC 1400, CCH OSHD para. 20,860 (1976), pet. for review filed, No. 76-1735 (10th Cir. Aug. 13, 1976). By interpreting 1910.179(b)(2) to be consistent with the ANSI standard, we negate any possibility that 1910.179(b)(2) was invalidly promulgated.

[*18]

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Furthermore, we do not think that the qualifying phrase in the ANSI standard detracts from its advisory nature with respect to old installations. The advisory provision obviously contemplates that some employers will choose to follow the advice and modify their cranes accordingly. The qualifying phrase is therefore no more than additional advice to employers who do choose to voluntarily comply. n6 It does not alter the advisory nature of the provision.

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n6 In interpreting the qualifying phrase of the ANSI standard in this manner, we are mindful that it refers to a determination by "administrative or regulatory authorities." Section 2-0.2.2.1 of the ANSI standard, however, defines "administrative or regulatory authority" is "governmental Agency or the Employer in the absence of governmental jurisdiction." Thus, under the ANSI standard, the determination under the qualifying clause could be made by the employer. This fact alone makes it clear that the "should" must have its ordinary meaning.

Furthermore, regarding the meaning of the qualifying phrase as it appears in 1910.179(b)(2), in another case we accepted Labor's contention that a provision in an ANSI standard directed to the "enforcing authority" was an explanatory note or instruction rather than a substantive part of the standard. Noblecraft Industries, Inc., 75 OSAHRC 5/A2, BNA 3 OSHC 1727, CCH OSHD para. 20,168 (1975), pet. for review filed, No. 76-1106 (9th Cir., Jan. 9, 1976). The qualifying phrase is therefore not a substantive part of 1910.179(b)(2), and cannot be construed as converting an advisory provision into a mandatory one. See Underhill Const. Co. v. Secretary of Labor, 526 F.2d 53, 57 (2nd Cir. 1975).

[*19]

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We therefore conclude that 1910.179(g)(2)(i) is only advisory with respect to cranes installed prior to August 31, 1971. We disagree, however, with U.S. Steel's contention that the citation should be vacated because Labor failed to prove that its cranes were installed after August 31, 1971. On its face, 1910.179(g)(2)(i) is a mandatory requirement applicable to all overhead and gantry cranes pursuant to 1910.179(b)(1). Section 1910.179(b)(2), however, exempts cranes installed prior to August 31, 1971 from this mandatory requirement. The burden of proving it is entitled to an exemption lies with the party claiming the benefit of the exemption. Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, BNA 4 OSHC 1702, CCH OSHD para. 21,120 (1976). As noted above (n. 3), the record establishes that two of the cranes were installed prior to August 31, 1971. We will therefore, vacate the citation with respect to those two cranes. The record is silent, however, as to whether the remaining seven cranes are old or new equipment. U.S. Steel therefore failed to prove that those cranes are exempt from 1910.179(g)(2)(i), [*20] and we must consider whether the standard was violated with respect to those cranes.

INTERPRETATION OF THE STANDARD

As discussed above, the basic dispute between the parties concerns whether maintenance work is a "normal operating condition" of the cranes. The parties advance arguments based on the language of the standard as well as what they conceive to be the intent of the standard to support their respective positions. Additionally, Labor contends that, as the promulgator of the standard, its interpretation, if reasonable, must be accepted as controlling even though that interpretation might not be the most reasonable interpretation of the standard's language. In support of this argument Labor relies on a number of court decisions, principally Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). Thus Labor would preclude us from using our expertise (29 U.S.C. 661(a)) as an administrative agency to determine what is the most reasonable interpretation to be given to the language of the standard. Labor therefore views our role as being limited to applying Labor's reasonable interpretations of standards to the facts of controversies we [*21] decide.

The decisions cited by Labor in support of its argument are based on the general principle that courts will defer to interpretations which are within the areas of special expertise of administrative agencies. As stated by the Supreme Court in Udall v. Tallman, 380 U.S. 1 (1965):

Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt . . . (T)he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. 380 U.S. 16-17, quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414 (1945).

This Commission is itself, however, an administrative agency with expertise in the area of occupational safety and health. 29 U.S.C. 661(a). Several courts have held that it is the Commission's interpretations of the Act and the standards promulgated thereunder to which they will accord deference. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1261-1262 (4th Cir. 1974); Brennan v. OSHRC (Ron [*22] M. Fiegen, Inc.), 513 F.2d 713, 715 (8th Cir. 1975); Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196, 1199 (7th Cir. 1974); See also Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1344 (2d Cir. 1974). As noted by Labor, other courts accord deference to its interpretations, e.g. Brennan v. Southern Contractors Service, supra. n7 There is thus a conflict among the circuits concerning whether the Commission's or Labor's interpretations are entitled to the type of deference to which the Supreme Court referred in Udall v. Tallman, supra. But in any event, that deference applies only on judicial review of an administrative decision. The criteria for judicial review of a decision by an agency are substantially different from those applied by the agency in reaching its decision. Compare 5 U.S.C. 557 with 5 U.S.C. 706. See Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 282-284 (1966). In reaching our decisions, we must apply the criteria applicable to administrative decisionmaking. 29 U.S.C. 659(c). Thus, the court decisions cited by Labor on the principle of judicial deference have no direct application to our proceedings. [*23]

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n7 We note that in advancing its argument Labor does not refer us to any official interpretation of the cited standard made by the Occupational Safety and Health Administration (OSHA), Department of Labor. We note further that OSHA publishes its official interpretations and makes them available to the public through a subscription service. Consequently we doubt whether the interpretation of the standard advanced by Labor as discussed hereinafter is in fact the kind of interpretative rule to which reviewing courts would accord deference. Indeed, the interpretation may amount to nothing more than the opinion of Labor's counsel advanced solely for the purpose of this litigation.

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Furthermore, we think it would be inconsistent with the intent of Congress for us to limit our role to one of merely determining whether Labor's interpretation of a standard is reasonable. Congress established the Commission to assure fairness and impartiality at the administrative decision making level. See: Staff of the Senate Subcommittee [*24] on Labor, 92nd Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, pgs. 463, 464, 470 (Senator Javits), 1147 (Senator Williams) (Committee Print 1971). Specifically, it was concerned about "the climate in which things are done" (id at page 463) and it wanted to assure the business community that Labor who was to promulgate standards and investigate and prosecute violations did not also decide violations in contested cases.

But, if we were to accept Labor's limitation on our interpretative role then Labor's interpretation of a standard would essentially control the decision of whether a violation exists. We would essentially be limited in function to determining the facts in controversy and to determining whether Labor's interpretation was merely a reasonable interpretation.

Any number of cases that have already been before us illustrate the point. For example, Labor in a number of cases interpreted 29 C.F.R. 1926.500(d)(1) as requiring that open-sided flat roofs be guarded by standard railings. The Commission accepted the interpretation, but it could just as well have decided that a more reasonable interpretation would have precluded [*25] the application of 29 C.F.R. 1926.500(d)(1) to flat roofs. The latter interpretation was made by reviewing courts. Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1975); Langer Roofing & Sheet Metal, Inc. v. OSHRC, 524 F.2d 1337 (7th Cir. 1975). Also see the Commission and reviewing court decisions in Uriel G. Ashworth, 15 OSAHRC 174, BNA 2 OSHC 1552, CCH OSHD para. 19,296 (1975), aff'd in pertinent part, 538 F.2d 562 (4th Cir. 1976); Ron M. Fiegen, Inc., 9 OSAHRC 999, BNA 2 OSHC 1070, CCH OSHD para. 18,204 (1974), aff'd, 513 F.2d 713 (8th Cir. 1975) where the Commission rejected Labor's interpretations of other standards for not being the most reasonable interpretations.

In all such cases Labor's interpretation was arguably reasonable as indicated by the various opinions of the Co issioners. Were we to have accepted Labor's position concerning deferral to his reasonable interpretations we would necessarily have been limited to the role of a fact finder in the cases cited above. We think the Congressional purpose is better served by using our expertise to determine for ourselves the most reasonable interpretation to place on a standard. This is not to say [*26] we will ignore an interpretation advanced by Labor, but it is to say that we will exercise our own independent judgment to determine whether a proposed interpretation is the most reasonable.

In determining the meaning of a standard we will apply the usual rules of statutory interpretation. Thus when the language of a standard is ambiguous, it is appropriate to look to the intent of the drafter of the standard to resolve the ambiguity. See GAF Corp., 75 OSAHRC 3/A2, BNA 3 OSHC 1686, CCH OSHD para. 20,163 (1975), pet. for review filed No. 76-1028 (D.C. Cir., Jan. 13, 1976). In this case, the standard was drafted by the ANSI B30 Committee as it was constituted in 1967. n8 The record does not contain contemporaneous evidence concerning the intent of the Committee when it issued the standard. The record does, however, contain an interpretation of the standard by the ANSI B30 Committee at a later date. U.S. Steel asks that we accept this interpretation as representing the intent of the drafters as of the time the standard was promulgaged by ANSI.

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n8 Labor's argument that its interpretation should be given controlling weight because it promulgated the standard involved in this case is not well taken. The standard was written by ANSI, not Labor. Labor issued the standard, without resort to rulemaking, in compliance with a congressional mandate. See Legislative History, supra at pages 421, 422, 1217, 1218. Accordingly, Labor's intent at the time of promulgation may have been only to comply with the mandate. The record before us is void of any evidence as to Labor's intent concerning the scope of application of the standard when issued by Labor.

[*27]

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We decline to do so. In interpreting Acts of Congress, courts do not consider interpretations rendered by later Congressional Committees as being definitive interpretations of Congressional intent in adopting the Acts. Waterman Steamship Corp. v. U.S., 381 U.S. 252, 268-269 (1965); General Foods Corp. v. U.S., 530 F.2d 923, 928 (Ct. Cl. 1976). Interpretations by committees of subsequent Congresses may, however, be given some consideration as expert opinions regarding the meaning of Acts of Congress. Bobsee Corp. v. U.S., 411 F.2d 231, 237, n.18 (5th Cir. 1969). Similarly, the ANSI letter is entitled to some weight as an expert opinion, but it does not represent the intent of the drafters of the standard.

As the record does not contain any definitive legislative history for the standard, we must apply other principles of statutory construction to determine the intent of its drafters. That intent is, of course, primarily conveyed by the ordinary meaning of the language of the standard. In general, we think it is clear that when maintenance is performed on a machine [*28] while that machine is not being used for its intended purpose, the machine is not operating normally. Indeed Labor's own standards distinguish between maintenance and operation of the cranes. Section 1910.179(1)(3)(i) provides:

(1) Maintenance

(3) Adjustments and repairs. (i) Any unsafe conditions disclosed by the inspection requirements of paragraph (j) of this section shall be corrected before operation of the crane is resumed . . . (Emphasis added).

We therefore conclude that the ordinary meaning of "normal operating conditions" does not encompass the situation when maintenance is performed on a crane with the crane out of production.

This conclusion is not altered by the fact that U.S. Steel performs maintenance on its cranes regularly and frequently. Labor's standards require frequent inspections of crane components, sometimes as often as daily, and also require that defects discovered during such inspections be corrected. See 1910.179(j) and (1)(3)(i). It would be anomalous to equate frequent maintenance with normal operations when Labor's own standards require frequent inspections and maintenance.

Furthermore, as U.S. Steel points out, the drafters of the standard [*29] must have intended to exclude some situations from its requirements, otherwise there would not have been any reason for them to have limited the standard's application to "normal operating conditions." Labor's suggested interpretation would apply the standard to all situations in which employees have access to energized parts, and would therefore read the words "normal operating conditions" out of the standard. Labor's interpretation is thus inconsistent with the rule of statutory construction that meaning should, if possible, be given to every word and phrase or a standard. U.S. v. Menasche, 348 U.S. 528, 538-539 (1955).

We also recognize that the standard was intended by its drafters to promote employee safety and should be interpreted to achieve that goal. See GAF Corp., supra; Brennan v. OSHRC (Gerosa, Inc.), supra. The record establishes, however, that for some types of maintenance work, it is necessary for the maintenance worker to have access to energized parts such as the resistor banks. To require that the resistor banks be covered while such maintenance is performed would be tantamount to preventing the maintenance.

On the other hand, an interpretation [*30] of the standard which permits only unavoidable exposure is consistent with the goal of employee safety. See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). In this regard, we note that Labor's general industry standards recognize that, under some circumstances, employees must have access to energized parts. Article 110-17(a) of the National Electrical Code, adopted by Labor at 29 C.F.R. 1910.309, provides:

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidential contact with the live parts or to bring conducting objects into contact with them.

(3) By location [*31] on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

(4) By elevation at least 8 feet above the floor or other working surface.

Since Labor's standards generally permit access to live electrical parts by qualified personnel, it would obviously not result in an unacceptable risk to interpret 1910.179(g)(2)(i) to allow U.S. Steel's employees to have access to energized resistors to the extent necessary to perform maintenance on its cranes. The record establishes that, when maintenance is performed with a crane out of production, the resistors are only energized when the maintenance worker directs that the crane be operated in order that the malfunction can be discovered or corrected. In those instances, therefore, access to energized resistors is reduced to the minimum possible. Thus, all the applicable principles of statutory interpretation point to the conclusion that U.S. Steel did not violate the cited standard in those instances when maintenance work was performed on cranes with the cranes taken out of production and under the control of the maintenance worker.

The record also shows however, that there are occasions when [*32] minor maintenance work is performed while the crane is used in production. U.S. Steel argues that, whenever a maintenance worker boards a crane, that crane is no longer used in a normal operating condition. That conclusion does not, of course, follow. The mere presence or absence of a maintenance worker on a walkway of a crane is not relevant to whether that crane is operating normally. We think that, whenever the crane is used in its regular production activities, and under the control of its operator rather than under the control of a maintenance worker, it is used in a normal onerating condition. We therefore conclude that U.S. Steel violated the standard with respect to the occasions when a maintenance worker was on a walkway with the crane being used in regular production activities. We also note that the latter situation is considerably more hazardous to the employee than the situation when the crane is only operated under directions from the maintenance employee. When operation of the crane is not under the control of the maintenance worker, the resistor banks can be energized without his knowledge and accidental contact with energized resistors is more likely.

We also [*33] conclude that the standard was violated in those situations in which the cranes were used a change lightbulbs on the ceiling of the plant. Changing lightbulbs is obviously not maintenance on a crane itself. When a crane is used to change lightbulbs it is operating normally in that all of its components are functioning in a normal manner. Additionally, it is not necessary for employees to have access to energized resistors in order to change lightbulbs. Since the record shows that employees were sometimes close to energized resistors while lightbulbs were being changed, a violation is established.

Finally, the Judge, in affirming the citation, relied in part on the fact that the resistors in question become hot and remain hot for some time even after they are deenergized. He concluded that, since workers could have contacted the hot resistors and received burns, the thermal hazard was included in the violation of the standard. Respondent argues that this conclusion is in error, and that, in using the term "live parts," the standard obviously contemplates only the hazard of contacting electrically energized parts. We agree. The standard clearly is directed at the electrical [*34] hazard. The use of the term "live parts" can convey no other meaning.

Having considered the gravity of the violation, together with U.S. Steel's size, good faith, and prior history, we conclude that the penalty of $60 assessed by the Judge is appropriate for those elements of the violation we have found.

Accordingly, the citation is vacated with respect to cranes No. 11 and 12. With respect to the remaining seven cranes, the Judge's decision, as modified by this decision, is affirmed.

APPENDIX A

UNITED STATES OF AMERICA, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 1825 K STREET, NW, WASHINGTON, D C 20006

December 5, 1975

TO: William S. McLaughlin, Executive Secretary

FROM: Frank R. Barnako, Chairman

Please notify the parties that I have decided to participate in the disposition of this case and provide them with copies of the following statement:

The question with which I am presented is whether my expression of an opinion as to the interpretation of a standard prior to assuming my present position is sufficient reason for me to disqualify myself in a case involving that standard. [*35] I have considered the comments submitted by the parties at my request and have concluded, for the reasons set forth herein, that there is no basis for me to disqualify myself in this case.

The instant case involves a very different situation, in that if any reason for disqual fication exists, it is because I expressed an opinion as to the interpretation of 29 C.F.R. 1910.179(g)(2)(i) while employed by Bethlehem. However, I have never been employed by the Respondent herein, nor do I have any financial interest in it.

It should be noted that my duties as Safety Director for Bethlehem Steel over a long period, necessitated my expressing many opinions as to my interpretations of the Act and the standards promulgated pursuant to it. If I were to disqualify myself in this case, it would set a precedent that would make it almost imposeible for me to carry out my duties as a member of this Commission. It should also be noted that Section 12(a) of the Act specifically states that the President should chose members of this Commission [*36] "who by reason of training, education, or experience are qualified to carry out the functions of the Commission." (emphasis added) It would indeed be anomalous to say that this same experience should hinder a Commissioner in the performance of his duties.

In deciding to participate in this case, I have also noted that Justice Rehnquist, as well as other Justices, when faced with the same issue, have decided to participate in their respective cases. See cases cited in Laird v. Tatum, 409 U.S. 824 (1972). In this regard, Justice Rehnquist stated in Laird v. Tatum, supra, at 839:

Every litigant is entitled to have his case heard by a judge mindful of this oath. But neither the oath, the disqualification statute, nor the practice of the former Justices of this Court guarantee a litigant that each judge will start off from dead center in his willingness or ability to reconcile the opposing arguments of counsel with his understanding of the Constituion and the law. That being the case, it is not a ground for disqualification that a judge has prior to his nomination expressed his then understanding of the meaning of some particular provision of the Constitution." ( [*37] Laird v. Tatum, supra, 409 U.S. 839, 34 L. Ed. 2d 61).

I conclude that it is not a ground for disqualification that prior to my nomination I expressed the understanding that I had then of the meaning of 1910,179(g)(2)(i). Accordingly, I will participate in the disposition of this case.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I would affirm Judge Duvall's well reasoned decision. Section 1910.179(g)(2)(i) clearly imposes a mandatory requirement to place covers on the resistor banks for all the cranes cited in this case.

As the lead opinion notes, respondent United States Steel Corporation operates twelve large overhead cranes. Each of these cranes have resistor banks located on walkways of the cranes' bridges. Even though various employees frequently walked dangerously close to the resistor banks, the respondent covered none of the resistor banks at any time. It defends its conduct on two basic grounds: (1) that it was under no obligation to abate the hazard at all because the cranes were installed before August 31, 1971; and (2) that the resistor banks were guarded by location [*38] during normal operating conditions. Neither of these contentions is persuasive.

The Alleged Exemption

The standard in 29 CFR 1910.179 for which respondent has been cited is in paragraph (g)(2)(i). It requires that "[e]lectrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions." Paragraph (b)(2) of this section, it is alleged, provides an exemption from this requirement. As the Secretary points out, however, that the paragraph states nothing whatsoever about the standard cited here. According to its plain terms, the paragraph is applicable only to "the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0 -- 1967." Paragraph (g)(2)(i) is simply not part of the referenced ANSI standard. The interpretation of provision in the lead opinion shows imagination, but the alleged exemption that the standard is said to provide has no application here. n9

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n9 I note that the Secretary's position on this point is not clearly stated in the lead opinion, and nowhere is it answered directly. In addition to his argument that the requirement for guarding of live electrical parts is not a design specification, the Secretary also argues that section 1910.179(g)(2)(i) is not an ANSI standard.

[*39]

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Even if I were to make the necessary leap of logic and conclude that paragraph (g)(2)(i) is an ANSI standard rather than a federal occupational safety and health standard, I would be unable to agree with the conclusion that it is a "design specification" within the contemplation of paragraph (b)(2).

The ANSI standard which is the source of section 1910.179 contains a chapter entitled "Construction and Installation". Paragraph (b)(2), however, does not refer to the construction and installation chapter, but only to the design specifications of the ANSI standard. As the majority indicates, the term "design specification" unquestionably refers to engineering specifications that determine the basic design of the crane. It is, however, specious to argue that a decision to place a cover on a resistor bank will determine the basic design of a crane.

The majority would conclude that the Secretary apparently recognized that the ANSI source standard for paragraph (g)(2)(i) was a design specification. It reasons that because the source standard was part of the construction and installation chapter of the [*40] ANSI standard, and the construction and installation chapter was referenced in the source standard for paragraph (b)(2), paragraph (b)(2)'s reference to design specifications must reach to the entire construction and installation chapter. If this were the Secretary's intent, it would seem more likely than not that he would have chosen the term "construction and installation requirements" for use in paragraph (b)(2) rather than the term "design specifications." In short, the majority's analysis transforms all requirements contained in the ANSI construction and installation chapter into design specifications under paragraph (b)(2).

The majority's reading does not square with the fact that the construction and installation chapter contains requirements that are indisputably not design specifications. See e.g., the following sections of the ANSI chapter on Construction and Installation: 21.1.1 Rated Load Marking; 21.4.4 Tool Box; 21.4.5 Fire Extinguisher; 21.4.6 Lighting; 21.9.3.b. Controllers; and 21.9.4.a (first clause) Resistors.

The Secretary's amendment to the present form n10 of paragraph (b)(2) to reflect accurately the ANSI source provision for 1910.179(b)(2) does [*41] not signifiy anything more than an intent to give, as did ANSI, an adequate delay in effective date for employers using overhead traveling cranes to modify their cranes in accordance with the standard's requirements. The lead opinion's effort to make more of the amendment distorts its context.

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n10 The original text of paragraph (b)(2) was as follows:

(2) New and existing equipment. All new overhead and gantry cranes installed after the effective date of the regulations in this subpart shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967. Equipment constructed and installed prior to the effective date of this subpart shall be modified to conform to these specifications. 36 Fed. Reg. 10618 (May 31, 1971).

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In this connection, I would note the following facts overlooked by the majority. There are several important sections of the Construction and Installation chapter of the ANSI standard that were not adopted directly as part of 1910.179. [*42] Among these are: section 2.1.3 General Construction -- Runways and Structural, which contains standards on clearances between cranes and obstructions, clearances between parallel cranes, foundations and anchorages, crane runway design, welding specifications, and girder specifications; and section 21.4.2 Cab Construction, which contains the specifications for the construction of the cab. Both of these sections almost wholly consist of design specifications. It therefore seems far more consistent with the text and structure of both 1910.179 to conclude that its reference to the design specifications of the ANSI standard was meant to refer the reader to the design specifications contained in the chapter on construction and installation that were not directly adopted in 1910.179. Otherwise, the first clause of 1910.179(b)(2) would be largely redundant.

Also overlooked by the majority is that if paragraph (b)(2) was indeed intended to reflect without change the thrust of section IV of the Introduction to the ANSI standard, and should be interpreted as consistent therewith, the equipment at issue here has not been shown to exempt from the requirements of the law. Section IV of [*43] the ANSI standard's introductory section speaks only to "equipment" installed before the effective date of the ANSI standard. Inasmuch as the burden of proving any exemption clearly must be borne by the party claiming to fall within it -- here, U.S. Steel -- and it has not been shown that the equipment at issue here, the resistor banks, were installed before that effective date, the exemption has not been proved regardless of the ago of the cranes on which they are located.

Respondent's contentions include the argument that if the paragraph (g)(2)(i) is applied as a mandatory requirement to equipment that was installed before the effective date of the ANSI source, then 1910.179(g)(2)(i) is invalid. The majority holds that it is not a mandatory requirement because paragraph (b)(2) uses the auxiliary verb "should" and therefore consigns the invalidity argument to a footnote. The matter is not so easily disposed of. The Secretary argues that the old equipment provision of 1910.179(b)(2) is mandatory. I agree. The pertinent provisions reads as follows:

. . . Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to [the] design specifications [*44] [of the ANSI standard] by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section [1910.179]. [Emphasis added.]

The term "should" must be read in light of the full context of the provision, including its "unless" clause permitting an exception upon a showing of a lack of feasibility. Plainly the exception is redundant unless the provision for crane modification is mandatory. The word "should" can impose a duty or obligation. 39 Words & Phrases 310, 312 "Should." See the excellent discussion of this point by Judge Duvall in Wheeling-Pittsburgh Steel Corp., Nos. 10611 & 11327 (September 29, 1975) (Administrative Law Judge), review directed, October 6, 1975. n11

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n11 Noblecraft Industries, Inc., BNA 3 OSHC 1727, CCH 1975-76 OSHD para. 20,168 (No. 3367, 1975) is not controlling on this point. That case interpreted only the meaning of the word "should" as it was defined by ANSI. Here, however, the issue is in what sense did the Secretary use "should" in a crule of his own, paragraph (b)(2).

[*45]

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Moreover, for the reasons stated by Judge Duvall in Wheeling-Pittsburgh Steel Corp., supra. I disagree with the view that the majority's reading of paragraph (b)(2) aboids any realisic possibility that the standard would be invalid as an impermissible substantive revision of the ANSI standard. I doubt that the introductory section of the ANSI section relied on by the majority is a substantive provision forbidding the Secretary from drafting a delay-in-effective date rule when he adopted the substantive provisions of the ANSI standard for use as federal occupational safety and health standards. Cf. Fieldcrest Mills, Inc., BNA 2 OSHC 1143, CCH 1974-75 OSHD para. 18,471 (No. 5625, 1974); Idaho Forest Industries, Inc., 11 OSAHRC 473, BNA 2 OSHC 3147, CCH 1974-75 OSHD para. 18,373 (No. 2973, 1974) (Administrative LAw Judge).

I therefore conclude that paragraph (b)(2) says nothing about the applicability of paragraph (g)(2)(i), and that the standard as applied is not invalid. Accordingly, I dissent from the portion of the Commission's order vacating the citation as to number 11 and [*46] 12 cranes.

Was the Standard Complied With?

I find, as did Judge Davall, that respondent failed to comply with the standard. It did not guard either by location or by a cover the resistor banks on its cranes while they were live.

There is a threshold question in this case of whether in construing a national consensus standard adopted as an occupational safety and health standard under section 6(a) of the Act we should look mainly to the intent of the Secretary of Labor or the private organization drafting the source standard, ANSI. The majority gives short shrift to the views of the Secretary of Labor, concluding in a footnote that because the Secretary adopted the standard in compliance with a statutory directive to do so, his "intent at the time of promulgation may have been only to comply with the mandate." Lead opinion at note 8. This analysis is incomplete and superficial. The Secretary's duty under section 6(a) is not purely ministerial. Congress gave him some discretion in the adoption of any national consensus standards. Section 6(a) expressly empowered the Secretary to refuse to adopt a national consensus standard if he determined that its adoption "would not result [*47] in improved safety or health for specifically designated employees." In the event of conflict among standards, the Secretary was commanded to promulgate the standard "which assures the greatest protection of the safety or health of the affected employees." Plainly, the Secretary's duty required that he he examine national consensus standards and that he form an understanding of their meaning before promulgating them. He was more than an editor for the Federal Register.

Thus, the Secretary engages in significant rulemaking under section 6(a) of the Act. Congress did not require unqualified adoption of ANSI standards. It is the Secretary's regulatory intent that must ultimately govern the interpretation of occupational safety and health standards. n12 The Commission may not depart from that intent, when it is discernible, and place upon the standard a construction that it considers "reasonable", better suited to serve the statutory purpose, or closer to ANSI's own intention, even if the result under the Secretary's reading may raise additional legal problems. n13

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n12 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414 (1945); see Barlow's Inc. v. Usery, 424 F. Supp. 437, 441 (D. Idaho 1976) (three judge court), appeal filed, 45 U.S.L.W. 3604 (U.S. February 17, 1977); see e.g. Kennecott Copper Corporation, BNA 4 OSHC 1400, CCH 1976-77 OSHD para. 20,860 (No. 5958, 1976).

n13 See K. Davis, Administrative Law Treatise 30.12 at 258 (1958): "If the regulations are issued by one authority and interpreted by another, the problem is much like interpretation and application of statutes . . . ."

[*48]

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This does not cast the Commission in the role of a "specialized jury," the task of which is completed once the correct legal test is applied to adjudicative facts. See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974). The Commission does have a broad policy role outside the perimeter of the Secretary's rulemaking. See id. n14 Once a rule (standard) is adopted, however, the Commission must apply the standard in accordance with the Secretary's discernible intent.

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n14 See e.g. Anning-Johnson Co., BNA 4 OSHC 1193, CCH 1975-76 OSHD para. 20,690 (No. 4409, 1976); Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, 1976).

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In this case, there is no clear contemporaneous evidence of the intent of the Secretary in promulgating the standard. The Secretary's proffered interpretation is not a contemporaneous view, nor has it been offered as representing [*49] his actual intent when he determined that the standard should be adopted. It is therefore inappropriate in this case to give controlling weight to it, although as the administrator charged with the enforcement of the Act, his view is in any event entitled to substantial weight. Here, the language of the standard is ambiguous, and except for the explanation of the Secretary offered here, no extrinsic evidence of the Secretary's intent exists. We should look therefore to the remedial purposes of the standard and the Act that it applies. Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d, 340 (2d Cir. 1974).

When viewed in light of these purposes, the record supports Judge Duvall's decision. First, I note that the standard does not limit its protection to any particular class of employees. Hence, separately treating maintainance employees from other employees such as the crane operator is unwarranted. Bethlehem Steel Corp., BNA 5 OSHC 1025, CCH 1976-77 OSHD para. 19,825 (No. 9968, 1977) (Administrative Law Judge's decision). Second, contrary to the suggestions of the lead opinion, the Secretary has not argued that the resistor banks should be covered when maintainance [*50] must be performed on the resistors themselves. Third, as Judge Duvall holds, the standard is geared not so much to production work as it is "keyed to all crane operating conditions which occur on a regular or recurring basis . . . ." Inasmuch as the resistor banks were located on crane walkways and employees walked past them during these normal operating conditions, their live parts cannot be said to have been guarded by location, as U.S. Steel claims. Finally, I agree with the Judge that the term "live parts" refers not merely to parts presently energized, but also to electrical equipment that present thermal hazards incident to their being recently energized.

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Although the lead opinion contains unnecessary dicta, I concur with that portion thereof which holds that the two cranes installed prior to August 31, 1971, are exempt from the requirements of 29 C.F.R. 1910.179(g)(2)(i). I dissent, however, from the remaining disposition of this case.

As Chairman Barnako has noted, the evidence establishes that respondent's employees are exposed to accidental contact with exposed resistor banks only during the performance [*51] of maintenance functions. There is no evidence in the record, however, that demonstrates exposure of crane operators or their assistants.

Respondent contends that section 1910.179(g)(2)(i) does not apply to the performance of maintenance functions becauss they do not constitute "normal operating conditions." I agree.

The rationale expressed in Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976), in construing a different standard, is equally applicable in the instant case. In that case the Circuit Court stated:

"An employer . . . is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. . . . A regulation should be construed to give effect to the natural and plain meaning of its words."

528 F.2d at 649. The natural and plain meaning of the standard at issue in this case is clear. It pertains to norma operating [*52] conditions -- not maintenance activities. Operation of machinery and maintenance thereof are universally recognized as separate and distinct functions. n9 Any other interpretation would "strain the plain and natural meaning of the words" of the standard, something the Circuit Court wisely refused to do under similar circumstances in the Diamond Roofing case. 528 F.2d at 650.

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n9 Chairman Barnako has distinguished maintenance functions performed while the crane is under the control of the maintenance worker from those performed while the operator is in control, indicating that the latter situation involves a normal operating condition and is considably more hazardous. Such distinctions are not appropriate. During the latter situations, the maintenance men are under the direction and supervision of expert troubleshooters who have received a minimum of 7,000 hours of instruction in crane electrical maintenance and controls. See Finding of Fact #13 in Judge Duvall's decision which is attached hereto as Appendix A. Furthermore, the cited American National Standards Institute (ANSI) interpretation makes no such distinction. Mr. Barnako also concludes that the cited standard was violated when employees used a crane to change light bulbs because the crane was operating normally at that time. The evidence indicates, however, that "[d]uring light bulb replacement the plant is normally shutdown and the resistor banks are energized only while the bridge or trolley is being positioned [for the purpose of changing the bulbs]." See Finding of Fact #14 in Judge Duvall's decision. It is absurd to consider such operations as "normal operating conditions."

[*53]

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Moreover, there are valid reasons why the section 1910.179(g)(2)(i) standard does not apply to maintenance activities. That standard is derived from ANSI standard B30.2.0 - 1967, Safety Code for Overhead and Gantry Cranes. 29 C.F.R. 1910.189. Pursuant to a request for an interpretation of the phrase "under normal operating conditions," which is also contained in the ANSI source standard, the ANSI B30 committee responded with a unanimous interpretation, which was received in evidence at the hearing. Although Chairman Barnako has chosen to excerpt only the last paragraph of this interpretation in his opinion, the following more complete quotation provides added insight into the views of the ANSI committee:

". . . the ANSI B30 Committee concurs with your interpretation of 'under normal operating conditions' used in Section 2-1.9.2(a), page 11 of the ANSI B30.2.0 -- 1967 Standard for 'Overhead and Gantry Cranes' from which OSHA derived Section 1910.179(g)(2)(i). . . . This section applies only to electrical equipment that might accidentally be contacted by the operator or assistant in the normal [*54] performance of the crane functions. This would prohibit oper knife switches, open face-plate controllers, open terminals, etc., in the vicinity of the operator or his assistant during normal operation. Although not specifically stated in the above section, it is assumed that it will be possibile to deenergize any exposed electrical equipment if it is necessary for the operator to pass that equipment for access or egress to the cab.

Note that the quoted section allows the option of locating electrical equipment so that live parts will not be exposed to accidental contact. In other words, open control panels and open registers can be mounted in a location remote from operating personnel. One of the most common locations for this is the bridge walkway.

Since maintenance personnel would have to remove cover[s] or open doors in order to inspect or adjust devices, enclosures for this type of electrical equipment provide no additional protection for such personnel. In fact, the need to remove covers for inspection and adjustment introduces the possibility of additional hazards for personnel on the floor below if any loose parts should accidentally fall from the crane. It must [*55] also be realized that the power must be on and electrical devices exposed in order for the maintenance personnel to make proper adjustments to the crane. Therefore, whenever any maintenance personnel board a crane, this crane is no longer operating or performing functions within the scope of its intended original design." (Emphasis added.)

This well-reasoned explanation provides additional support for not permitting any departure from the "natural and plain meaning" of the standard in that: (1) the standard "applies only to electrical equipment that might accidentally be contacted by the operator or assistant in the normal performance of the crane functions"; and (2) "whenever any maintenance personnel board a crane, this crane is no longer operating or performing functions within the scope of its intended original design."

If the drafters of the standard had intended for it to apply to maintenance functions, "they very easily could have and should have said so." Diamond Roofing Co. v. OSAHRC, supra at 648. As the Circuit Court also noted in Diamond Roofing,

"If the regulation missed its mark, the fault lies in the wording of the regulation - a matter easily remedied [*56] under the flexible regulation promulgating structure, 29 U.S.C.A. 655(b) & (e); 29 C.F.R. Part 1911, with no need to press limits by judicial construction in an industrial area presenting infinite operational situations."

528 F.2d at 648-649. The Commission should not adopt a strained interpretation of a standard "simply because a hazard not included within its plain meaning may exist." Secretary v. Burtex Contractors, Inc., OSAHRC Docket No. 11553, December, 28, 1976.

Finally, Article 110-17(a)(1), National Electric Code, NFPA No. 70-1971, specifically permits exposed energized parts to be accessible to qualified maintenance personnel. That Article has been adopted by the Secretary of Labor as an occupational safety standard in 29 C.F.R. 1910.309. Therefore, if the term "normal operating conditions" was interpreted to include maintenance activities, there would be an inconsistency in the Secretary's standards.

The citation should be vacated in all respects.

Appendix A

DECISION AND ORDER

Matthew J. Rieder, U.S. Department of Labor, for Complainant

Lloyd H. Shenefelt III, for Respondent

Charles A. Maniccia, President, United Steelworkers of America, Local 1219 [*57] and Caleb A. Scott, Chairman, Safety Committee, Local 1219, United Steelworkers of America, Authorized Employee Representatives

Duvall, D. K., Judge:

This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting item number 10 of citation number 2 issued by complainant to respondent on October 9, 1974. Said citation item alleged a non-serious violation of the occupational safety and health standard set forth at 29 CFR 1910.179(g)(2)(i) under sections 5(a)(2) and 6 of the Act based on an OSHA inspection of respondent's Edgar Thomson Works at Braddock, Pennsylvania on September 27 and 30, 1974.

Respondent had also previously contested serious violation item 1 of amended citation number 1 issued on October 24, 1974, but complainant's withdrawal of this notice of contest was accepted by my Order dated December 31, 1974 (Docket No. 10825 Case File, items 7 and J-1). Similarly, respondent's petition for modification of the abatement period for alleged non-serious violation item 15 in citation number 2, issued on October 9, 1974, was granted in my Order of January [*58] 22, 1975, complainant having agreed to the extension of time petitioned for (Docket No. 10849, items 5 and J-1).

A hearing on citation item 10 was held on March 27, 1975, at Pittsburgh, Pennsylvania with counsel for the parties and authorized employee representatives participating. The citation item 10 alleged violation of 29 CFR 1910.179(g)(2)(i) in that

"Electrical equipment, on the following overhead cranes, was not so located or enclosed so as to prevent accidental contact under normal operating conditions:

(a) Number 4 Crane, Finishing Shop (Resistor Banks)

(b) Number 7 Crane, Finishing Shop (Resistor Banks) and magnet control box on bridge

(c) Number 5 Crane, Ram & Finishing Building (Resistor Banks)

(d) Number 3 Crane, Ram & Finishing Building (Resistor Banks)

(e) Number 16 Crane, Stool Foundry (resistor banks, main hoist and auxiliary hoist switch board panel door missing)

(f) Number 11 & 12 Crane, Chip Shed (hoist trolley and bridge switch board, resistor banks) magnet circuit breaker box in cab

(g) Number 1 and 2 Cranes, Cast Shop (Resistor Banks)"

The cited standard reads as follows:

"1910.179 Overhead & gantry cranes

* * *

(g) Electric equipment

* * *

(2) [*59] Equipment. (i) Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions."

The principal issue herein is whether, on September 27 and 30, 1974, respondent's electrical equipment as cited was so located or enclosed that live parts were, in violation of the cited standard, exposed to accidental contact under normal operating conditions. While certain electrical equipment other than resistor banks on certain of the cranes cited was also set forth in the citation, complainant's entire case from opening statement through the evidence adduced was limited to resistor banks. Therefore, the cited resistor banks are deemed to be the only electrical equipment in issue here. By stipulation, the penalty of $60.00 proposed for the aforesaid alleged non-serious violation is not contested if the cited violation is found (Tr. 14).

Findings of Fact

The record herein, as a whole, contains reliable, probative, and substantial evidence to support the following findings of fact:

1. By letter dated November 1, 1974, respondent contested item number 10 of the citation issued by complainant to respondent on [*60] October 9, 1974. Said citation and the occupational safety and health standard allegedly violated are those previously stated more specifically herein (Citation, Notice of Contest, Case File, items 1 and 3).

2. As stipulated by the parties herein, respondent was engaged in a business affecting commerce at the time of the alleged violation (September 27 and 30, 1974), respondent is the largest steel manufacturer and steel fabricator in the United States, with a daily average of 2,450 employees at its Edgar Thomson Works for 1975 (Stipulation of Facts, Exhibit CR-1, Tr. 10, 13).

3. By stipulation the parties agreed that if the Judge finds a violation herein as alleged the proposed penalty of $60.00 will not be contested (Stipulation, Tr. 14).

4. By stipulation the parties agreed that "if Mr. T. S. McKosky, Chairman of the American National Standards Committee B30 of the American National Standards Institute, were present at this hearing and sworn as a witness, he would testify substantially as follows:

"I am T. S. McKosky, Chairman of the American Standards Committee B30 under the American National Standards Institute. The B30 Committee met on February 18, 1975, in Phoenix, [*61] Arizona, and discussed Section 2-1.9.2(a) of the ANSI B30.2.0 - 1967 Standard. After a discussion on the meaning of 'under normal operating conditions,' a letter was drafted by the B30 Committee to F. R. Barnako giving the B30 Committee's interpretation of 'under normal operating conditions' as used in Section 2-1.9.2(a) of the ANSI B30.2 - 1967 Standard.

Attached is a copy of the letter drafted by the B30 Committee which was forwarded to Mr. F. R. Barnako. It incorporates the Committee's unanimous interpretation of the questioned standard; and I hereby incorporate the same into my testimony as true and correct." (Stipulation of Expected Testimony, with attachment, Exhibit CR-2).

5. By stipulation of the parties the American Standards Committee B30 consists of 26 members as set forth in the hearing transcript, including the U.S. Departments of the Army, Navy, Air Force, and Labor, the Occupational Safety and Health Administration, and the National Safety Council (Tr. 194-195).

6. At all material dates herein the resistor banks on the walkways of all the cited cranes (cranes numbered 4, 7, 5, 3, 16, 11, 12, 1 and 2) were uncovered (Tr. 22-30).

7. The only times any persons [*62] are on the bridge walkways of the cited overhead cranes is when the crane man boards, leaves, and inspects the crane, when troubleshooters (maintenance men, including motor inspectors, motor inspector apprentices and helpers, millwrights, millwright apprentices and helpers, wiremen, electricians, and pipefitters) are needed to correct crane malfunctions, and when maintenance men une the cranes in order to change light bulbs or fix pipes in the ceiling of the plant (Tr. 36-51, 66-70, 111, 141-150, 214-215, 238).

8. Overhead traveling cranes of the types cited herein are rated in terms of tons lifting capacity (15-75 tons). These cranes basically consist of two bridge spans across the width of the shop (60 feet) and 40-50 feet above the floor of the plant, linked together by an end truck. Each bridge span has a walkway and a trolley which travels across the bridge span and an operator's cab located under one end of the bridge span. Related motors and electrical apparatus, including resistor banks, are located on the bridge walkways, which are approximately eight feet wide except where narrowed due to the placement of the motors and electrical equipment. For example, the No. 7 [*63] electric overhead traveling crane in the Finishing Department has a 25- and 15-ton hoisting capacity with bridge span of about 60 feet and end truck width of about 26 feet. The bridge line shaft, bridge motor, resistance cabinets, and switchboards from the various motors are located on the crane walkway which is about eight feet wide where unobstructed. On this crane there are a total of 28 resistors stored in five resistor cabinets, measuring approximately five feet nine inches high, two feet nine inches long, and one foot five inches wide. These measurements vary with the particular crane, e.g., crane #3's bridge walkway is only 2 feet 10 inches wide in front of its resistor cabinets (Tr. 21-30, 99; Exhibits R-1 thru 8).

9. Maintenance or troubleshooting duties on these cranes include checking electrical systems, testing and replacing motors, replacing switch gear, and changing resistor banks, line shafts and bridge wheels as necessary (Tr. 21).

10. The resistor banks on each of the cited cranes are energized only when the main manual magnetic switch on the bridge and the manual magnetic switch in the cab are on and the controller in the cab is being operated. Under safety [*64] rules prescribed and enforced by respondent, crane men must lock out (turn off) the main magnetic switch upon boarding, leaving or inspecting a crane. Similarly, a maintenance man will lock out the main manual magnetic switch when he boards a crane unless, after consultation with the crane man, he directs the crane man to operate the crane in order to troubleshoot and ascertain malfunctions or change light bulbs (Tr. 72-73, 87-89, 91-92, 135, 208-211).

11. When not energized the crane resistors do not shock electrically when touched, but may burn if the resistor had previously been energized, depending upon the size of the unit and the period of time it had to cool off (Tr. 171-172, 39-50).

12. While respondent's safety rules governing crane boarding and lock-out procedures are not always followed by its employees, violations are not usual and respondent enforces a disciplinary procedure for violations of safety rules (Tr. 93-94, 173-175, 226; Exhibits R-13-17).

13. Maintenance men board all the cited cranes a total of six times a workday approximately, with maintenance on individual cranes running from zero to four times a day, for a period of 5 minutes to several hours. [*65] At least one motor inspector apprentice spends 30-40% of his daily workday in maintenance on the cited cranes. A substantial number of times (at least 2-3 times a week) maintenance men are on the bridge walkways while these cranes are in operation (resistors energized) under the direction and supervision of an expert troubleshooter who, in the cases of motor inspectors, millwrights and linemen, have received 7,000 or more hours of training in crane electrical maintenance and controls (Tr. 21, 31-35, 66, 111, 143, 219, 233-234, 238).

14. While on the walkways of the cited cranes during operation maintenance men would pass fairly close to energized resistor banks (within 6-12 inches on cranes #4 and #7) while troubleshooting and within 4-5 feet (cranes #4, #5 and #7) when changing light bulbs. Crane operations with at least one maintenance man on the bridge walkway during troubleshooting included moving the crane bridge and hoisting to correct hoist slippage or other malfunctions. Such operations during troubleshooting sometimes entailed continuing regular work, such as lifting and moving work loads. During light bulb replacements the plant is usually shutuown and the resistor [*66] banks are energized only while the bridge or trolley is being positioned (Tr. 38, 99, 111, 124, 145-147, 167, 239-240).

15. Whether or not a malfunctioning crane is taken out of service is determined by the maintenance men in consultation with the crane man. Normally, a crane is not taken out of service during troubleshooting, unless there is a serious breakdown such as a line shaft break or collector shoe burn-off (Tr. 35, 151, 242-245).

16. Whether or not a crane man is directed by maintenance men on the bridge walkway to continue regular crane operations during troubleshooting depends on several factors, including the nature and severity of the malfunction, the stage at which the operations were interrupted by the malfunction, and production pressure incident to plant schedule at the time. For example, production work might be continued in the course of testing a hoist malfunction in order to complete a lifting operation, but normal work would not be done in determining the malfunction of a bridge truck shimmy. Performing normal crane operations during troubleshooting is very unusual in the chipping area (1 or 2 times a year) and casting shop (3 or 4 times in last 6 months) [*67] (Tr. 35-36, 152-154, 246-248).

17. If item 10 of the citation herein is affirmed, then respondent's stipulation respecting the proposed penalty is deemed to concede that in determining said proposed penalty complainant gave due consideration to the gravity of the violation, the size of respondent's business, respondent's good faith and history of previous violations as required by section 17(j) of the Act (Stipulation, Tr. 14; Complaint, p. 4, Case File, item 6).

Discussion

To prevail here and show a violation of the standard set forth at 29 CFR 1910.179(g)(2)(i), complainant must prove by a preponderance of the evidence that electrical equipment (resistor banks) on the cited cranes was not so located or enclosed as to protect respondent's employees from exposure to live electrical equipment (resistor banks) due to accidental contact under normal operating conditions. Based on the record herein I conclude that respondent has shown by a preponderance of the evidence that on or about the material dates respondent's maintenance men were exposed to energized (live) and uncovered resistor banks on the walkway of each of the cited cranes during the course of their frequent troubleshooting [*68] duties (Findings of Fact 11 through 17).

The evidence principally consists of the testimony of respondent's employees, including James H. McCune, a motor inspector apprentice (2 years, 9 months) and former foundry oiler and laborer (3 years, 3 months); Donald R. Thomas, a crane man (10 years); Caleb A. Scott, a foundry oiler (3 months) and former crane man (12 years) and Co-Chairman Joint Union-Management Safety Committee; Thomas V. Ferguson, general foreman-electrical (12 years) and electrician (30 years); and Michael J. Galya, turn foreman - foundry manintenance (3 1/2 years), 30 years with respondent. The lack of covers on the resistor banks as located on the crane walkways exposed respondent's employees (maintenance men, in particular) to the hazard of electrical or thermal shock due to possible accidental contact with said resistor banks which energized in the course of crane operations. Thus, respondent's noncompliance with the standard had a direct and immediate relationship to the employees' safety and health. Where an employer is in control of an area and responsible for its maintenance, to prove an occupational safety and health violation the Secretary of Labor need [*69] only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer. Brennan v. Occupational Safety and Health Review Commission and Underhill Construction Corporation,    F.2d   , 2 BNA OSHC 1641 (2d Cir. 1975); Lee Way Motor Freight, Inc. v. Secretary of Labor,    F.2d   , 2 BNA OSHC 1609 (10th Cir. 1975).

The critical question is whether exposure to the hazard occurred "under normal operating conditions" as required by the standard and also whether the standard applies only to electrical equipment that might accidentally be contacted by the crane operator or assistant during normal operation as contended by respondent, relying on the ANSI B30 Committee interpretation of the ANSI B30.2-1967 standard which was the source of the cited OSHA standard (29 CFR 1910.183).

Respondent argues that by its plain wording the cited standard applies only to accidental contact with live parts "under normal operating conditions"; that the latter quoted words would become mere surplusage if they were construed to include the operations of a malfunctioning crane under the direction of troubleshooting trained maintenance [*70] men. The evidence is persuasive that whenever respondent's maintenance men board a crane in response to a call to find a malfunction, they follow a regular lock-out procedure which precludes energization of the resistor banks on the bridge walkways, unless (as often happens) the maintenance men, in consultation with the crane man, decide not to lock out and assume control of crane operations through their specific directions to the crane operator, in which case, with both manual magnetic switches on and the controllers being operated by the crane man, maintenance men troubleshooting from the bridge walkway in proximity to the uncovered resistor banks are exposed to an electrical/thermal shock hazard by accidental physical contact. These operating conditions may reasonably be deemed normal insofar as or in the sense that the relative frequency of such troubleshooting to facilitate production makes the resulting operating conditions, characterized by crane control by maintenance men for the exclusive purpose of correcting malfunctions, practically an established practice incident to full production; indeed, with the cited cranes it occurs almost on a daily basis.

Furthermore, except [*71] in cases of certain serious malfunctions, cranes under maintenance, while locked out generally, are normally not taken out of service, and in some instances the crane operations directed by the maintenance man include performance of regular work, such a hoisting and moving loads. Even the maintenance control of the crane during troubleshooting is not absolute, since the crane operator may refuse to perform an operation he does not approve of (Tr. 154). While respondent may consider normal operating conditions to exist only when there are no crane malfunctions and the plant is working at full efficiency (Tr. 236-237), from an occupational safety and health standpoint, concerned with the safety of all employees at their place of employment, the proper and reasonable meaning and scope of "normal operating conditions" is less production-oriented and more keyed to all crane operating conditions which occur on a regular or recurring basis and involve uses or employments reasonably to be expected or contemplated for the cited cranes.

Such a broader interpretation of "normal operating procedures" as used in the cited standard is more consistent with the purpose of the Act "to assure so [*72] far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve human resources." National Roofing Contractors Association v. Secretary of Labor, 495 F.2d 1294, (7th Cir., 1974), cert. denied 1975, quoting 29 U.S.C. 651(b). Moreover, the ANSI B30 Committee's more restricted interpretation of the underlying ANSI standard, which is the source of the cited OSHA standard, would, in effect, exclude maintenance men from the protection of the standard regardless of the circumstances under which such personnel are exposed to the hazard contemplated by the standard. To limit the effectiveness of the cited standard to crane operators is contrary to the plain language of the standard which does not identify the type of employee who should not be exposed to live electrical parts; the only limitation in the standard is directed to the operating condition of the crane. Bethlehem Steel Corporation, OSAHRC Docket No. 9968 (June 19, 1975) (Judge Chodes).

In support of its position, respondent also relies on the technical interpretation of the underlying ANSI source-standard. Evidence of the ANSI interpretation was introduced through [*73] the stipulated testimony (Exhibit CR-2) of Mr. T. S. McKosky, Chairman of the ANSI B30 Committee. In that testimony, Mr. McKosky relates that the B30 Committee met in Phoenix, Arizons on February 18, 1975, and discussed the meaning of the phrase "under normal operating conditions." Following that discussion, the B30 Committee drafted a letter to Mr. F. R. Barnako of Bethlehem Steel incorporating the Committee's unanimous interpretation of the ANSI standard. In pertinent part, that interpretation reads as follows:

". . . the ANSI B30 Committee concurs with your interpretation of 'under normal operating conditions' used in Section 2-1.9.2(a), page 11 of the ANSI B30.2.0 -- 1967 Standard for 'Overhead and Gantry Cranes' from which OSHA derived Section 1910.179(g)(2)(i) page 23699 of their Industrial Standard. This section applies only to electrical equipment that might accidentally be contacted by the operator or assistant in the normal performance of the crane functions. This would prohibit open knife switches, open face-plate controllers, open terminals, etc., in the vicinity of the operator or his assistant during normal operation. Although not specifically stated in the above [*74] section, it is assumed that it will be possible to de-energize any exposed electrical equipment if it is necessary for the operator to pass that equipment for access or egress to the cab.

Note that the quoted section allows the option of locating electrical equipment so that live parts will not be exposed to accidental contact. In other words, open control panels and open resistors can be mounted in a location remote from operating personnel. One of the most common location [sic] for this is the bridge walkway.

Since maintenance personnel would have to remove cover or open doors in order to inspect or adjust devices, enclosures for this type of electrical equipment provide no additional protection for such personnel. In fact, the need to remove covers for inspection and adjustment introduces the possibility of additional hazards for personnel on the floor below if any loose parts should accidentally fall from the crane. It must also be realized that the power must be on and electrical devices exposed in order for the maintenance personnel to make proper adjustments to the crane. Therefore, whenever any maintenance personnel board a crane, this crane is no longer operating or [*75] performing functions within the scope of its intended original design."

Respondent asserts that since the ANSI B30.2.0 - 1967 Standard for "Overhead & Gantry Cranes" was adopted as a national consensus standard as defined by section 3(9) of the Act and promulgated under section 6(a) of the Act and since the ANSI B30 Committee, being a recognized authority on overhead electric traveling cranes (see 29 CFR 1910.179(b)(2)), was the author of the ANSI standard, then the Committee's above-quoted interpretation of the ANSI standard should be controlling or given great weight in determining the meaning and intent of the OSHA standard which was derived from the ANSI standard (Tr. 202-204; Respondent's Brief, pp. 8-12).

Complainant argues that the ANSI interpretation should not be given controlling weight primarily because (1) it is erroneous and conflicts with the policy of the Act; (2) ANSI is not an agency charged with enforcement of the Act; and (3) it is unreliable. Respondent asserts that the interpretation is unreliable because it comes eight years after the ANSI standard was drafted (1967), at which time the Occupational Safety and Health Act had not been enacted and the complainant [*76] had not adopted the standard as an OSHA standard. In complainant's view such a belated interpretation represents no more than the individual views of persons who were involved in the drafting of the ANSI standard. Accord, Blanchette v. Connecticut General Insurance Corporation,    U.S.   , 95 S. Ct. 335 (1974), citing United States v. United Mine Workers of America, 330 U.S. 258, 282 (1947), National Woodwork Manufacturing Association v. NLRB, 368 U.S. 612, 639, n. 34 (1967). Moreover, complainant suggests that the interpretation is suspect by reason of the fact that both the Chairman of the B30 Committee (McKosky) and the writer who solicited the interpretation (Barnako) had a common interest in being employees of the same company (Bethlehem Steel) (Tr. 196-197). In the absence of any evidence of collusion, bias or irregular procedure, I am unable to discredit the integrity of the Committee's interpretation on conflict-of-interest grounds, especially in view of the number and identity of the Committee Membership (which includes OSHA) and that fact that its interpretation was unanimous (Finding of Fact 4 and 5).

The fact that complainant (OSHA) and not [*77] ANSI is the agency charged with enforcement of the Act (sections 6, 9 and 10) is a critical point since in dealing with questions of interpretation of statutes or regulations which have been committed to a federal administrative agency for enforcement and implementation, the courts accord great deference to the agency's construction of the language in question. Thus, since complaint is authorized to promulgate regulations, his interpretation is entitled to great weight. Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (1974). Indeed, the promulgator's interpretation is controlling as long as it is one of several reasonable interpretations, although it may not appear as reasonable as some other. Brennan v. Southern Contractors Service, supra, citing Roy Bryant Cattle Company v. United States, 463 F.2d 418, 420, (5th Cir. 1972); Brennan v. Occupational Safety and Health Review Commission and Kesler & Sons Construction Company, U.S.C.C.A., 10th Cir., Docket No. 74-1518, CCH 1975 OSHD par. 19,465 (1975); Board of Directors and Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir., 1973), [*78] cert. denied, 414 U.S. 924 (1973); The Budd Company v. Occupational Safety and Health Review Commission, U.S.C.C.A. 3rd Cir., Docket Nos. 74-1256 and 74-1781, 2 BNA OSHC 1698 (1975). Respondent does not dispute these interpretive guidelines, but responds (1) that in this case ANSI, in effect, stands in the shoes of the promulgating agency by reason of the fact that we are here interpreting a national consensus standard (derived from an ANSI standard) as defined by section 3(9) and promulgated under section 6(a) of the Act and not an established federal standard as defined by section 3(10) and promulgated under section 6(a) of the Act; and (2) that the only interpretation of the cited standard by the Secretary of record is that contained in the unanimous interpretation by the ANSI B30 Committee, which included an OSHA representative.

The latter argument is too specious to bear close analysis. In the first place, the B30 Committee interpretation, on its face, is nothing more or less than an interpretation of the ANSI B30.2.0 - 1967 standard, although it clearly was written in response to or in the context of a request for the Committee's interpretation of the ANSI standard [*79] in order to clarify the meaning of the cited OSHA standard (Exhibit C-1). In short, it does not purport to be an interpretation of the OSHA standard per se. Secondly, even if it were construed as an interpretation of the OSHA standard, because it was a Committee action, conceivably involving the compromising pressures and procedures usually associated with collective decision-making, even when the result is "unanimous," as a matter of law it cannot fairly be construed as representing a definitive OSHA interpretation for application in the circumstances of all specific cases under the Act. Finally, the position taken by complainant at the hearing (Tr. 10-11, 196-202) and in his brief (pp. 8-14) regarding interpretation of the cited standard would seem to constitute a reasonably clear, authoritative and rational interpretation different and more recent than the B30 Committee interpretation imputed to OSHA. Cf., Brennan v. Occupational Safety and Health Review Commission and Kesler & Sons Construction Company, supra (agency interpretation of statute consisting solely of Secretary's argument before Commission and court upheld).

Respecting the former argument, I agree [*80] that by virtue of the ANSI standard's being a national consensus standard promulgated as an occupational safety and health standard under the Act the interpretation of the ANSI standard rendered by the ANSI B30 Committee is entitled to great weight in clarifying the meaning of the words "normal operating conditions" as used in the cited OSHA standard. See S.D. Mullins and Diamond Roofing Company, Inc., 4 OSAHRC 1415, 1418 n. 6 (OSAHRC Docket Nos. 364 and 459, 1974). But an ANSI interpretation or procedure is not a determinative factor in the interpretation or application of an ANSI standard which has been adopted and promulgated by the Secretary of Labor. Isaacson Structural Steel Company, 5 OSAHRC 654, 658 (OSAHRC Docket No. 1906 (1973)). Even according the ANSI interpretation great weight does not make it controlling in the circumstances of this case. Here there is a preponderance of evidence of record showing that the nature and frequency of troubleshooting and maintenance of the cited cranes during their regular working hours and, in some instances, while they continued to perform their regular work, has practically and legally extended the ambit of "normal operating [*81] conditions," as used in the cited occupational safety and health standard, to include inspections and maintenance, where such inspections and maintenance expose employees to the hazard of uncovered live electrical equipment (resistor banks) contrary to the intent of the standard and the purpose of the Act.

Since Congress apparently placed primary reliance upon promulgation by the Secretary of specific regulations or standards, such as the one in this case, which the statute commands employers to obey, it is especially important that these regulations be construed to effectuate Congressional objectives. Brennan v. Occupational Safety and Health Review Commission and Gerosa, 491 F.2d 1340 (2d Cir. 1974). The broad purpose of the Act, "so far as possible" to assure "every working man and woman in the Nation safe and healthful working conditions . . .", expresses the intention of Congress to encourage reduction of safety hazards to employees "at their places of employment." Brennan v. Occupational Safety and Health Review Commission and Underhill Construction Corporation,    F.2d   , 2 BNA OSHC 1641 (2d Cir., March 10, 1975). In this context, the ANSI B30 Committee's [*82] interpretation of the cited OSHA standard, as urged by respondent, is unreasonably narrow and constrictive of the scope of the standard when viewed in the light of the purpose of the Act. In considering the weight to be given to administrative interpretations of statutes there is a "duty to ignore that construction should it be determined that it is in conflict with the plain intent of the legislature," Francisco Tower Service, Inc., OSAHRC Docket No. 8128 (Judge Chodes, February 25, 1975), quoting Judge Wright in Wilderness Society v. Morton, F.2d 842, 865 (D.C. Cir.), cert. denied 411 U.S. 917 (1973). In any event, Judge Wright further stated, "administrative interpretations are not absolute rules of law which must necessarily be followed in every instance, but are only helpful guides to aid courts in their tasks of statutory construction."

In construing a regulation promulgated pursuant to remedial civil legislation, such as the Act, we must do so in the light of conduct to which it is applied. Brennan v. Occupational Safety and Health Review Commission and Santa Fe Trail Transport Company,    F.2d   , CCH 1975 OSHD par. 18,863 (10th Cir., 1974), citing [*83] Ryder Truck Lines, Inc. v. Brennan, 467 F.2d 230, 233 (5th Cir, 1974) and United States v. National Dairy Corporation, 372 U.S. 29, 36 (1963). The question is whether the regulation "delineates its reach in words of common understanding." Santa Fe Trail Transport Company, supra, citing Cameron v. Johnson, 390 U.S. 611, 616 (1968). A permissible "leeway" is allowed in the field of regulatory statutes governing business activities in narrow categories. Santa Fe Trail Transport Company, supra, citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). A standard designed to protect workers on overhead and gantry cranes from the hazard of accidental exposure to live electrical equipment requires flexibility rather than specificity. The interpretation of the cited standard urged by respondent would limit the protection of the standard to the crane operator and assistant, and exclude from coverage other workers engaged in maintenance and trouble-shooting on the cranes. In view of the salutary purpose of the Act, I cannot conclude in the circumstances of this case that the words "normal operating conditions" are so clear and unambiguous [*84] as to warrant condemnation of the Secretary's interpretation of the cited standard as unreasonable. Cf. Brennan v. Southern Contractors Service, supra at 501. A court should not overturn an administrative interpretation of a statute which it is charged with administering unless it can be said that the interpretation is plainly erroneous. Board of Directors and Officers, Forbes Federal Credit Union v. National Credit Union Administration, supra at 784, citing Jno. McCall Coal Company v. United States, 374 F.2d 689 (4th Cir. 1967).

As stated by the court in Anning-Johnson Company and Workinger Electric Incorporated v. Brennan and U.S. Occupational Safety and Health Review Commission,    F.2d    (7th Cir., Nos. 74-1381 and 74-1382, May 27, 1975), "we are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated Congressional purpose in an equitable manner. . . ." This task requires "a good faith effort to balance the need of workers to have a safe and healthy work environment against the requirement of industry to function without undue interference." Anning-Johnson Company and Workinger Electric Incorporated [*85] case, supra, quoting Subcommittee on Labor of Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Congress, 1st Session 411 (Comm. Print 1971) (remarks of Senator Williams). Respecting the possible effects of the foregoing opinion on this respondent and the steel industry, I find no evidence of record indicating that respondent is not realistically in a position to comply with the cited standard as interpreted by complainant herein or that such compliance would be economically wasteful or impractical.

Conclusions of Law

1. At all material times herein, respondent was a person engaged in a business affecting commerce who has employees and, therefore, was an employer within the meaning of sections 3(5) and 5(a)(2) of the Act.

2. At all times material herein respondent was subject to the provisions of the Act and the standards duly promulgated thereunder, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

3. On or about September 27 and 30, 1974, respondent was in violation of the standard set forth at 29 CFR 1910.179(g)(2)(i) under sections 5(a)(2) [*86] and 6 of the Act.

4. The proposed penalty of $60.00 for the aforesaid violation is appropriate under section 17(c) and (j) of the Act.

Order

Lased on the foregoing findings of fact and conclusions of law and the record as a whole, it is hereby ORDERED, that item number 10 in citation number 2 and the corresponding item in the Notification of Proposed Penalty herein be and hereby are affirmed.

Dated: August 1, 1975

Hyattsville, Maryland

DONALD K. DUVALL, Judge, OSAHRC