PITTSBURGH-DES MOINES STEEL CO.
OSHRC Docket No. 13708
Occupational Safety and Health Review Commission
May 5, 1977
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Nancy J. Palmer, Pittsburgh-Des Moines Steel Co., for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A December 29, 1975, decision of Review Commission Judge Henry K. Osterman, attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision held that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the overhead and gantry crane guarding requirements of the occupational safety standard codified at 29 C.F.R. § 1910.179(e)(6)(i). For the reasons set forth below, we reverse.
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n1 Chairman Barnako does not agree to this attachment.
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In Secretary v. United States Steel Corporation, OSAHRC Docket No. 10825, April 25, 1977, we held that 29 C.F.R. § 1910.179(g)(2)(i) is a design specification standard within the meaning of 29 C.F.R. § 1910.179(b)(2) and is advisory, rather than mandatory, as to overhead [*2] and gantry cranes installed prior to August 31, 1974. The reasoning applied in that case applies with equal force to the instant case.
The overhead and gantry cranes standards codified at 29 C.F.R. § 1910.179 are derived from the American National Standards Institute (ANSI), ANSI B30.2.0-1967, Safety Code for Overhead and Gantry Cranes. 29 C.F.R. § 1910.189. The ANSI standards, as first published, made compliance mandatory as to all new construction and installations, but was advisory only as to installations made prior to the effective date of the Code. n2 Similarly, 29 C.F.R. § 1910.179(b)(2) provides that new cranes constructed and installed after August 31, 1971, must comply with ANSI "design specifications," but these requirements are advisory only as to cranes constructed prior to August 31, 1971.
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n2 See Section IV, New and Old Installations, in the introduction to ANSI B30.2.0-1967.
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Both the cited standard in the case before us and the standard which we considered in Secretary v. United States Steel Corporation, [*3] supra, originated as construction and installation standards under Chapter 2-1 of the ANSI Code. These construction and installation standards were advisory only as to cranes installed prior to the effective date of the Code. As explained in detail in United States Steel, the term "design specification" employed in 29 C.F.R. § 1910.179(b)(2) coincides with the "construction and installation" requirements of Chapter 2-1 of ANSI B30.2.0-1967 to accurately reflect its ANSI source. Thus, since 29 C.F.R. § 1910.179(e)(6)(i) is the same as the standard contained in § 2-1.7.7(a), Chapter 2-1, of ANSI B30.2.0-1967, it is a design specification.
We, therefore, hold that 29 C.F.R. § 1910.179(b)(2) makes the guarding requirements of 29 C.F.R. § 1910.179(e)(6)(i) advisory only as to overhead and gantry cranes installed prior to August 31, 1971. Since the two cranes involved in this case were erected in 1910 and 1935, respectively, they are exempt from the guarding requirements of § 1910.179(e)(6)(i).
Accordingly, the Judge's decision is reversed and item 11 of the citation is vacated.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
I disagree with my colleagues because United States [*4] Steel Corp., Nos. 10825 and 10949 (April 25, 1977) is readily distinguishable.
The cited standard is 29 CFR § 1910.179(e)(6), which requires that "[e]xposed moving parts . . . which might constitute a hazard under normal operating conditions shall be guarded." The majority leaps to a finding that this requirement is a "design specification", i.e., an engineering specification determinative of the basic design of a crane. I submit that it is not. The record in this case clearly demonstrates that the placing of guards on these cranes would not affect their basic engineering features. The majority does not consider this point.
The majority opinion relies upon the lead opinion in United States Steel, which is read to have held that "the term 'design specification' employed in 29 CFR § 1910.179(b)(2) coincides with the 'construction and installation' requirements of chapter 2-1" of the ANSI source standard. While some of the language of the lead opinion in United States Steel is broad, its analysis furnishes no support for the result reached in this case. The lead opinion in United States Steel was careful to state that "some" of the provisions of § 1910.179 are design [*5] specifications. Next, it determined that paragraph (g)(2)(i) of § 1910.179 has the characteristics of a design specification, and found that it originated as a "construction and installation" requirement of the ANSI source standard. Under these narrow circumstances, paragraph (g)(2)(i), and no other provision, was found to be a design specification subject to the provisions of paragraph (b)(2). The narrowness of this holding is hardly surprising when one considers that some requirements of § 1910.179 that are derived from the "construction and installation" requirements of the ANSI source standard, are unquestionably not design specifications. See e.g.: subsection 1910.179(b)(5), derived from section 2-1.1.1 of the source standard; 1910.179(c)(4), derived from 2-1.4.7; and 1910.179(e)(ii), derived from 2-1.7.7.b.
I read United States Steel to hold only that those requirements of section 1910.179 that are derived from the "construction and installation" requirements of the ANSI source standard, and which can be classified as "design specifications" (that is, engineering specifications basic to the design of the crane) are referenced in the exemption in paragraph [*6] (b)(2). I do not accept enlargement of this holding.
Moreover, even if I were to agree with the majority's reading of United States Steel, I do not agree that vacation of the item is required. This case concerns the guarding of nip points and moving parts. Unlike United States Steel, there is plainly a standard having general application to this condition -- 29 CFR § 1910.212. Thus, even if section 1910.179 were not found applicable, consideration should be given to applying the provisions of section 1910.212. This is appropriate here because the parties extensively tried the machine guarding issues and respondent fully litigated what is closely akin to an impossibility defense. See Kaiser Aluminum & Steel Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976); Cf. Dunlop v. Uriel G. Ashworth, 538 F.2d 562, 564 (4th Cir. 1976).
Accordingly, I do not join in the disposition.
Appendix A
DECISION AND ORDER
Marshall H. Harris, Regional Solicitor, U.S. Department of Labor and Matthew J. Rieder, for Complainant
Nancy J. Palmer, for Respondent
Osterman, Judge, OSAHRC
This is a proceeding initiated by Respondent pursuant to Section [*7] 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (hereafter the Act).
The record discloses that on May 16, 1975, Respondent was issued a Citation alleging eighteen (18) separate non-serious violations of the health and safety regulations promulgated by the Secretary of Labor for which a total penalty of $425 was proposed. The Notice of Contest timely filed on June 5 contested only Item 11 of the Citation which charged Respondent with a violation of 29 CFR 1910.179(e)(6)(i) in that exposed moving parts on two electric overhead traveling cranes were not guarded. n1 All other violations charged in the Citation were uncontested and have become the final order of this Commission by operation of law.
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n1 The Citation contained a typographical error which incorrectly designated the regulation as 29 CFR 1910.179(c)(6)(i). The error was corrected by amendment.
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REGULATIONS INVOLVED
29 CFR 1910.179(b)(2) reads as follows:
(b) General requirements
(2) New and existing equipment. All new overhead [*8] 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 supplied)
29 CFR 1910.179(e)(6)(i) reads:
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(6) Guards for moving parts. (i) Exposed moving parts such as gears, set screws, projecting keys, chains, chain sprockets, and reciprocating components which might constitute a hazard under normal operating conditions shall be guarded. (emphasis supplied)
At the hearing the parties submitted in evidence a stipulation of facts which included a description of the Respondent and its operations as well as a description of Crane #1 and Crane #25 which are involved in the Citation and the issues to be tried herein. Respondent also stipulated that the proposed penalty of $30 for the alleged violation of Item 11 [*9] is appropriate if the violation charged by the Secretary is sustained (Jt. Exh. 1).
Evidence given by witnesses at the hearing disclosed the following facts:
Crane #1 was erected in 1910. Crane #25 was erected in 1935. Hence Crane #1 has been in operation for approximately 65 years and Crane #25 for approximately 40 years (Jt. Exh. 1, par. 14).
Each crane involved has a "bridge" with a walkway. Along each bridge and adjacent to the walkway is a shaft and gears which rotate when the crane is in motion. Sections of the shaft are joined together with "line shaft couplings." On Crane #1 there are four (4) couplings at irregularly spaced intervals (Stipulated Exh. E). Gears are located at each end of the shaft (Stipulated Exh. G; Tr. 6). The location of the line shaft on Crane #25 is also on the bridge of the crane. On Crane #25 there are eight (8) "line shaft couplings" with gears located at extreme ends of the shaft (Stipulated Exhibit H).
Unrebutted testimony established that none of the couplings or gears on either crane are guarded (Jt. Exh. 3, 4; Tr. 15-16, 28). The couplings on both cranes are held together with bolts which protrude from the surface of the coupling a [*10] sufficient distance to catch and entangle the clothing of personnel who may come in contact with the coupling while it is revolving (Tr. 20, 22, 28-29, 30, 71-72). Shaft and couplings at times revolve at a speed of 500 to 600 rpm (Tr. 20) and contact with a protruding bolt or a bolt which may come apart and strike an employee may cause serious injury (Tr. 20, 30). Similarly, bodily contact with an unguarded revolving gear may cause serious personal injury (Tr. 31, 76-85).
Although it is possible to lock-out a crane while mounting and dismounting the bridge, the evidence is clear that for certain kinds of maintenance and repairs the crane must be moving, and the shafts and gears revolving, while maintenance personnel are performing their functions for extended periods of time in close proximity to the rotating couplers and gears (Tr. 23, 39-44, 49, 50-55, 58, 59-60, 68-70, 72-80, 99-100, 114-117, 119).
There is no dispute relating to the feasibility of providing guards for either couplings or the gears involved. It was the uncontradicted testimony of a licensed mechanical engineer offered by the Secretary that adequate guards could be installed without difficulty (Tr. 98-100). [*11] With respect to the cost of providing guards for the two cranes involved, Respondent's manager of plant engineering testified that the direct cost of the material used to manufacture each coupler guard was three dollars ($3.00). Including all indirect costs such as social security, workmen's compensation, etc., the total cost for each guard would be one hundred dollars ($100). Assuming arguendo that the one hundred dollar figure is correct, it should be noted that Crane #1 requires four (4) couplers and two (2) gear guards while Crane #25 requires eight (8) couplers and two (2) gear guards (Exhs. E and H). In view of the size of Respondent's gross revenues, which amounted to $174,431,833 in 1974 (Stipulation, par. 5), I consider this projected cost to be de minimis. In these circumstances I find that Respondent has failed to show that these cranes cannot feasibly or economically be altered within the meaning of 29 CFR 1910.179(b)(2).
The remaining issue is whether the exposure of Respondent's employees to the hazard created by unguarded and revolving couplers and gears on Cranes #1 and #25 occurs during "normal operating conditions" within the meaning of 29 CFR 1910.179(e)(6)(i). [*12]
The term "normal operating conditions" is not defined in the standard nor is there now available any recorded contemporary interpretation of that phrase which accompanied the adoption of 29 CFR 1910.179(e)(6)(i) and which may be equated to the legislative history which usually accompanies the enactment of a statute (Tr. 130). The Respondent has offered in evidence only documents which express the current opinions of individuals (Resp's Exh. B, Jt. Exh. (unnumbered) attached to Respondent's letter dated November 3, 1975).
"Normal operation" may differ with different pieces of similar or identical equipment, depending upon various factors, including the age and mechanical condition of the piece of equipment in question. Courts have on occasion defined the meaning of the term "normal." In United States v. Fallbrook Public Utility District, 109 F. Supp. 28, the word "normal" was held to mean "ordinary" or "usual condition." The Restatement of Torts, § 382d defines "normal" as meaning "those forces which operate periodically or with a certain degree of frequency." In the Third Circuit (where Respondent is located) the term "normal" has been defined as "those forces which operate [*13] habitually or with a certain degree of frequency," In re New Jersey Power and Light, 89 A2d 26, 41.
The evidence is undisputed that both of the cranes involved herein are over-age (Crane #1 is 65 years old, Crane #25 is 40 years old) and consequently require regular, even daily, maintenance work in order to keep them operating (Tr. 46-48, 68-70). Testimony indicated that troubleshooting and other mechanical and repair operations require the cranes to be moving for long periods of time while employees are on the cranes' bridges and exposed to revolving couplers and gears (Tr. 46-48, 68-70, 79-81). Thus with respect to these particular cranes the presence of personnel in an exposed situation is habitual and frequent and may be considered a "normal operating condition."
FINDINGS OF FACT
1. Respondent is a corporation organized and existing under the laws of the State of Pennsylvania engaged in the fabrication and erection of steel and other metal structures and employing approximately 950 workers at its Neville Island facility. Respondent receives and ships products across state lines.
2. Respondent's gross revenues for 1974 were $174,431,833.
3. Cranes #1 and #25 [*14] in the Neville Island plant are 65 and 40 years old respectively and subject to frequent malfunctions.
4. In order to keep these cranes operating normally it is necessary for maintenance personnel, including electricians, millwrights and oilers to work on the crane bridges in close proximity to rotating couplers and gears which are not equipped with guards.
5. The exposed bolts on the couplers, and the exposed gears, are capable of inflicting injury to personnel who make contact with these rotating parts while engaged in their duties.
6. Because of the habitual and frequent need for Respondent's personnel to be on the bridges while couplers and gears are rotating this state of affairs is a normal operation condition with respect to Cranes #1 and #25.
7. The installation of guards on the couplers and gears of Cranes #1 and #25 is both feasible and economically viable.
CONCLUSIONS OF LAW
1. Respondent is subject to the jurisdiction of the Occupational Safety and Health Act of 1970 and this Commission.
2. On April 28-30, 1975, Respondent was in violation of 29 CFR 1910.179(e)(6)(i) because of its failure to guard exposed line shaft couplers and gears on Cranes #1 and [*15] #25 in its Neville Island facility.
3. The penalty proposed for the said violation is not inconsistent with the provisions of Section 17(j) of the Act.
ORDER
Pursuant to the authority granted in 29 U.S.C. 659(c) and Rule 66 of this Commission's Rules of Procedure it is ORDERED:
That the Citation and Notification of Proposed Penalty issued to Respondent on May 16, 1975 be, and the same hereby are, AFFIRMED.
Dated: December 29, 1975
Hyattsville, Maryland
HENRY K. OSTERMAN, Judge, OSAHRC