SECRETARY OF LABOR,
Complainant,

v.

KEYSTONE CONSOLIDATED INDUSTRIES, INC.,
Respondent.

INDEPENDENT STEEL ALLIANCE,
Authorized Employee
Representative.

OSHRC Docket No. 80-5236

DECISION

Before:  ROWLAND, Chairman, and CLEARY, Commissioner. *

BY THE COMMISSION:

The questions for decision are (1) whether the overhead crane inspection standard at 29 C.F.R. 1910.179 (j) (2) (ii) requires that one do more than pump the pedals of air and hydraulic brake systems to meet the daily inspection requirement, and (2) if so, must the systems be inspected daily even if they are not yet known to be deteriorating or leaking?  We answer both questions in the affirmative and uphold the citation.

Keystone Consolidated Industries operates overhead cranes at its steel mill in Illinois.   The cranes have either hydraulic or air and hydraulic braking systems.  The Secretary of Labor issued a citation to Keystone alleging that the brake systems were not being inspected daily.  The record shows and the parties appear to agree that the only check of the air and hydraulic brake systems that Keystone required daily was pumping the brake pedal in the crane cab for "hardness".  One cannot see the rest of the brake system from the cab.  Keystone argues that pumping the pedal satisfies the standard's daily inspection requirement or, in the alternative, that daily inspections are not required until the brake systems are known to be deteriorating or leaking.

Sections 1910.179(j) states in part:

1910.179 Overhead and gantry cranes.

(j) Inspection--
(1) Inspection classification.
(ii) Inspection procedure for cranes in regular service is divided into two general classifications based upon the intervals at which inspection should be performed.   The intervals in turn are dependent upon the nature of the critical components of the crane and the degree of their exposure to wear, deterioration, or malfunction.   The two general classifications are herein designated as "frequent" and "periodic" with respective intervals between inspections as defined below:

(a) Frequent inspection--Daily to monthly intervals
(b) Periodic inspection--1 to 12-month intervals.
(2) Frequent inspection.  The following items shall be inspected for defects at intervals as defined in paragraph (j)(1)(ii) of this section or as specifically indicated, including observation during operation for any defects which might appear between regular inspections.  All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(i) All functional operating mechanisms for maladjustment interfering with proper operation.  Daily.
(ii) Deterioration or leakage in lines, tanks, valves, drain pumps, and other parts of air or hydraulic systems.  Daily.
(iii) Hooks with deformation or cracks.  Visual inspection daily; monthly inspection with signed reports.  For hooks with cracks or having more than 15 percent in excess of normal throat opening or more than 10 twist from the plane of the unbent hook refer to paragraph (j)(1)(3)(iii)(a) of this section.
(iv) Hoist chains, including end connections, for excessive wear, twist, distorted links interfering with proper function, or stretch beyond manufacturer's recommendations.   Visual inspection daily; monthly inspection with signed report.
(v) [Reserved]
(vi) All functional operating mechanisms for excessive wear of components.
(vii) Rope reeving for noncompliance with manufacturer's recommendations.

Does pumping the brake pedal satisfy the daily inspection requirement?   Section 1910.179(j)(2) requires that various listed items "be inspected for defects."  Subsection (ii) lists "[d]eterioration or leakage in lines, tanks, valves, drain pumps and other parts of air or hydraulic systems"; it specifies that the inspection must be performed daily.  Keystone argues in effect that by pumping the brake pedal one "inspects" the parts listed in the standard.   Judge Wienman rejected the argument.  He observed that the ordinary meaning laymen attach to "inspection" is visual examination and that common dictionary definitions state that one "inspects" by viewing closely and critically, by scrutinizing, and by looking carefully.[[1]]  The judge held that "[a]ny construction of the standard mindful of the ordinary meaning of 'inspection' necessarily requires a visual examination of the systems or an equivalent means of detecting problems."  Judge Wienman then found that "[a] mere check of crane pedal pressure is ineffectual for this purpose....."

We substantially agree with Judge Wienman.  We are reluctant to adopt Keystone's construction because it does not comfortably fit the usual meaning of "inspect," and because it would substitute for a formal inspection a step that is normally performed during crane operation--pedal pumping.  We prefer to rest our decision on a narrower ground, however.  Like the judge, we do not rule out the possibility that, without unduly straining the meaning of the word, one may "inspect" an entire system by scrutinizing one critical, tell-tale component.   But as Judge Wienman found, pumping a brake pedal is an ineffectual means of inspecting the specified parts of air and hydraulic brake systems for deterioration or leakage.  The judge relied on the testimony of two experienced brake repairmen that a brake pedal might feel normal when pumped even when there is a leak or malfunction in the hydraulic and air systems.  The judge also relied on the testimony of a crane operator that he had once tested the brake pedal at the beginning of his shift, found it felt normal, but later discovered during the shift that all the hydraulic fluid had leaked out.  Against this, Keystone cites the testimony of its crane repair supervisor that pumping the brake pedal "is perfectly adequate to determine that there is a safe and functioning system . . . and that there is no leakage and no deterioration...." We agree with Judge Wienman, however, that the witness distanced himself from this opinion on cross-examination.  He later testified that the crane operator could not detect deterioration in hydraulic lines by stepping on the pedal, that he doubted "very much" that the operator could detect a small leak, and that a small leak could become a large leak under continuous brake use.

Keystone nevertheless maintains that unless the standard is construed to require no more than a brake pedal test, it would be invalid. Keystone reasons as follows:

The ancestor of section 1910.179 is the 1967 revised edition of a private safety standard published by the American National Standards Institute, ANSI B30.2.0--1967, Safety Code for Overhead and Gantry Cranes. [[2]]  The Secretary adopted the ANSI code under the Occupational Safety and Health Act of 1970, 6(a), 29 U.S.C. 655(a), without conventional rulemaking procedures because it was a "national consensus standard" within the meaning of section 3(9) of the Act, 29 U.S.C. 652(9). [[3]] As a general principle, standards adopted under section 6(a) may not differ in substance from their ancestors. [[4]]  The provisions of the 1967 ANSI code corresponding to section 1910.179 (j)(2)(ii) did not require more than a brake pedal test.  To interpret the standard to require more would make it invalid.   Accordingly, the standard should be interpreted to require no more than a brake pedal test.

The linchpin of Keystone's argument is the proposition that the 1967 ANSI code required only a brake pedal test.  Keystone does not claim that subsection 2-2.1.2.a.3 of the ANSI standard, the provision corresponding to subsection (ii) of section 1910.179(j)(2), is worded differently, for the provisions are identical.  Instead, Keystone claims that the intent behind the ANSI provision was that no more than a brake pedal test was required.

The only support that Keystone offers for this view is the testimony of William A. Weaver that the members of the 1967 ANSI revision committee that added this provision intended to require only a brake pedal test.  Mr. Weaver was not, however, a member of the 1967 ANSI revision committee.  He joined the ANSI committee concerned with this code in 1969.  At the time of the hearing, Mr. Weaver was the chairman of the subcommittee that issued a revision of the code in 1976.  So far as this record shows, his only knowledge of the intent of the 1967 ANSI revision committee came from discussions of the 1976 revision committee.  He testified that during the discussions "the meetings of the various sections on inspections were gone over."  We agree with Judge Wienman that the record does not satisfactorily show "the nature and extent of Weaver's knowledge of the [1967] ANSI committee intent."  Mr. Weaver did not speak from first-hand knowledge of the intent of the 1967 ANSI revision committee.   He did not state that the persons he had spoken to had reason to know of that intent.  As Judge Wienman stated:

If any ANSI documents or records support Weaver's opinion, they were not cited by the witness, much less offered in evidence. Nor were any of the 51 individuals listed in [ANSI] B30.2.0--1967 as members of the standards committee . . . -- those present at the creation of the cited standard--identified as men who agreed with the proposition that the [crane] operator's action in depressing the brake pedal satisfied a regulation which mandates daily inspection of "lines, tanks, valves, drain pumps, and other parts of air or hydraulic systems."[[5]]

We are therefore unconvinced that our construction of the standard renders it invalid.

Although we hold that Keystone must do more than merely pump a brake pedal, we also agree with the suggestion in Keystone's brief that, despite the standard's literal language, it does not require an inspection of every inch of hydraulic or air line and the dismantling and close scrutiny of every component of every brake mechanism.  We agree with Keystone that an extremely literal reading of the standard would require the dismantling and close scrutiny of each component of air or hydraulic systems.   However, such an exacting type of inspection was neither advocated by the Secretary in this case nor was shown to be necessary, and we therefore do not require Keystone to perform such an inspection.

At the hearing, Keystone's crane repairman Parrish outlined procedures for inspecting the lines, tanks, valves, drain pumps and other parts of hydraulic systems.   Parrish indicated that such a daily inspection would take from 15 minutes to 40 minutes, depending upon the type of crane involved.  Parrish, as well as another crane repairman and the compliance officer, also indicated that an adequate inspection could be performed without dismantling and closely scrutinizing every brake mechanism component. Further, at the time of the inspection, Keystone was conducting, on a less than daily basis,[[6]] the type of inspection that Parrish outlined at the hearing.  There was also unrebutted testimony by Parrish that five years before the inspection Keystone conducted such inspections of its brake systems on a daily basis.  Keystone did not put on any convincing evidence that would establish that the inspection procedures outlined by Parrish would be ineffective or were not practical, nor did Keystone suggest that it was unaware of procedures that would constitute effective compliance with the cited standard.

As discussed earlier, the only test of the brake hydraulic system that Keystone implemented on a daily basis at the time of the inspection was the pumping of the brake pedal.  Since the pedal test was shown not to be the type of inspection procedure contemplated by the cited standard, and since the record establishes that Keystone could have implemented more effective inspection procedures, we find that Keystone did not perform the inspection required by section 1910.179(j)(2).

Are daily inspections of air and hydraulic systems required only if the systems are known to be deteriorating or leaking?  Keystone maintains that section 1910.179(j)(2) establishes two categories of inspection items:  "normal items to be inspected for deficiencies" and "known existing deficiencies to be inspected."  Although it acknowledges that section 1910.179(j)(2) is not artfully drafted, Keystone posits that subsections (ii) and (iii) are critically different from subsections (i), (iv), (vi) and (vii) because the latter use the key word "for".  That word, in Keystone's view, signifies that frequent inspections are required even if deficiencies are not yet known.  Thus, subsection (iv) requires that all hoist chains be inspected "for excessive wear" even if they are not yet known to be worn to the point of being deficient.  By contrast, subsection (ii) does not require that all air and hydraulic systems be inspected daily because the item was worded to require inspection or "deterioration or leakage" rather than inspection of hydraulic and air systems "for" deterioration or leakage.   Keystone points particularly to item (iii), which requires inspections of "[h]ooks with deformation or cracks," and reasons that this item does not require inspection of hooks to discover deformation or cracks but those "with" deformation or cracks. [[7]]

We are unconvinced.  As Judge Wienman observed, Keystone's position rests on a meticulous analysis of section 1910.179(j)(2). Yet, as Keystone concedes, section 1910.179 was not artfully drafted.  Analysis of grammatical construction may be helpful where a standard is "scientifically drawn and consistently expressed,"[[8]] but respect for common usage and understanding is a surer guide in construing the old ANSI codes, which were drafted by practical men for audiences familiar with the subject.[[9]]

Under common usage and understanding, the word "for" is generally not used with the care and sophistication Keystone's construction requires.  The use or omission of "for" in a context such as this standard carries no obvious change in meaning to lay drafters and readers, and they are not likely to attach significance to the concomitant variation in sentence structure.  Using "for" is, in ordinary usage, a convenient way to avoid awkward phrasing.   In this standard, the word "for" is used in subsections (i), (iv), (vi) and (viii) to straightforwardly delineate what "defects" or "deficiencies" to look "for" when inspecting an "item".   For example, subsection (vii) of section 1910.179 (j)(2), which commands one to inspect "[r]ope reeving for noncompliance with manufacturer's recommendations," would be difficult to smoothly phrase if "for" could not be used.  By contrast, in subsection (ii) the use of the word is unnecessary to straightforward writing.  We therefore conclude that the use or omission of "for" is of no substantive importance, but merely is the result of the drafter's use of varying sentence structure in the different subsections of section 1910.179(j)(2).

Keystone's view also introduces its own anomalies.  Keystone pays little attention to the first sentence of section 1910.179(j)(2), which requires that listed items be inspected for "defects".  Under its construction, the "items" to be inspected would not be the listed air and hydraulic system parts, but deterioration or leakage in them.  The reader of the standard would therefore be given the puzzling and clumsy command to inspect "deterioration and leakage" for "defects."  The more straightforward and sensible view is that the listed air and hydraulic system parts are "items" and "deterioration and leakage" are "defects."  Under this reading, the employer's duty is plain and understandable:  to inspect air and hydraulic systems for deterioration and leakage, and then determine whether any deterioration or leakage is a safety hazard.

Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  FEB 29 1984


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


FOOTNOTES:
[[*]] Commissioner Buckley took no part in the decision of this case.  Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action.  Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD 22,772, p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion).  See 12(f) of the Act, 29 U.S.C. 661(e).  Chairman Rowland and Commissioner Cleary reached agreement on the disposition of this case prior to the assumption of office of Commissioner Buckley.   Participation by Commissioner Buckley would therefore have no effect on the outcome of the cases and would delay the issuance of the decision.  Accordingly, in the interests of efficient decision-making, Commissioner Buckley elects not to participate in this case.

[[1]] The judge referred to Webster's Third New International Dictionary (1965).  See also The Random House Dictionary 736 (1971) ("to look carefully at or over; view closely and critically:  to inspect every part").  The American Society of Safety Engineers, Dictionary of Terms Used in the Safety Profession 23 (1971) defines "inspect (inspection)" as "[t]o look upon; to view closely and critically; to examine; to scrutinize and evaluate."  The latest edition of this dictionary is to the same effect.   ASSE, Dictionary of Terms Used in the Safety Profession 24 (1981).

[[2]] 29 C.F.R. 1910.189 (listing sources of standards).

[[3]] 36 Fed. Reg. 10466, 10620 (1971).

[[4]] George C. Christopher & Sons, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD 25,956, p. 32,531 (No. 76-647, 1982); American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1310-1311, 1982 CCH OSHD 25,899, pp. 32,413-4 (No. 76-5162, 1982).  See also Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980).

[[5]] The weakness of Keystone's evidence sharply distinguishes this case from United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1295-6, 1977-78 CCH OSHD 21,795, p. 26,224 (No. 10825, 1977).  There, the Commission held that a letter written by a later ANSI committee, interpreting the same ANSI standard before us now, was not definitive evidence of the intent of the drafters but "is entitled to some weight as an expert opinion . . . ." See also Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 159 (3d Cir. 1978) (not binding but "entitled to consideration").  Chairman Rowland would also contrast this case with Georgia Power Co., 83 OSAHRC 20/A2, 11 BNA OSHC 1349, 1358, 1983 CCH OSHD 26,540, p. 33,869 (No. 76-3353, 1983) (Chairman Rowland, dissenting) (attaching weight to statement of member of ANSI revision committee that was consistent with structure of standard).

[[6]] Parrish testified that Keystone inspected its brake system an average of about once per week, while Keystone's supervisor Beane testified that inspection occurred once every three to four days.

[[7]] Judge Wienman rejected Keystone's argument because he thought it inconsistent with section 1910.179(l)(3)(i).  That standard requires that "[a]ny unsafe conditions disclosed by the inspection requirements of paragraph (j) . . . shall be corrected before operation of the crane is resumed."  The judge relied on the remark in United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD 21,795, p. 26,225 (No. 10825, 1977), that sections 1910.179 (j) and (1) "require that defects discovered during . . . inspections be corrected."  (Emphasis added.)  The judge reasoned that Keystone's construction of section 1910.179(j)(2) would permit cranes with defects to be operated, while section 1910.179(l)(3)(i) requires them to be repaired first.  Keystone maintains that the judge erred.  It reasons that section 1910.179(1)(3)(i) does not require that cranes with "defects" not be operated until repaired but that cranes with parts that are defective to the point of being an "unsafe condition" may not be operated until repaired.  See also section 1910.179(j)(2) (second sentence).  The Secretary does not rely on this aspect of the judge's reasoning.   Although we conclude that U.S. Steel did not correctly characterize the standards, we conclude also that the judge's decision should be affirmed on another ground.

[[8]] See McCaffrey, Statutory Construction 21 (1953).

[[9]] See Hamilton, "The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health," 56 Texas L.Rev. 1329, 1449 (1978).