BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 77-1545

Occupational Safety and Health Review Commission

April 30, 1982

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BEFORE: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

George B. Lavasseur, Bethlehem Steel Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Benjamin G. Usher is before the Commission under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Usher vacated citation 1, item 2, which alleges that Respondent, Bethlehem Steel Corporation, committed a serious violation of the Act by failing to comply with the personal protective equipment standard at 29 C.F.R. 1910.132(a). n1 In addition, the judge denied a motion by the Secretary of Labor ("the Secretary") to amend citation 1, item 2, and also denied a motion by the Secretary for reconsideration of a prehearing order granting Respondent's motion for partial summary judgment. This prehearing order vacated citations for serious violations of the Act for failure to comply with the general industry standards concerning overhead and gentry cranes at 29 C.F.R. 1910.179(g)(2)(i) and 1910.179(g)(3)(ii). n2

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n1 The standard provides as follows:

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n2 These standards provide as follows:

1910.179 Overhead and gentry cranes.

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(g) Electric equipment --

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

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(3) Controllers.

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(ii) Lever operated controllers shall be provided with a notch or latch which in the "off" position prevents the handle from being inadvertently moved to the "on" position. An "off" detent or spring return arrangement is acceptable.

Citation 1, subitems 3(a) through 3(d), alleges noncompliance with 1910.179(g)(2)(i) because several resistor banks on crane bridge walkways were not located or enclosed to prevent accidental employee contact. Citation 1, subitems 4(a) through (g), alleges noncompliance with 1910.179(g)(3)(ii) because the cited crane controllers assertedly were not provided with notches or latches to prevent inadvertent movement of their handles.

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The Secretary filed a petition for discretionary review. The Secretary excepted to (1) the judge's vacating of citation 1, item 2, on the ground that Respondent established a greater hazard defense; (2) the judge's "implied conclusion" that section 1910.132(a) does not include a requirement that employers provide safety belts to protect against fall hazards; (3) the judge's denial of the Secretary's motion to amend citation 1, item 2, to allege, in the alternative, a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1); and (4) the judge's denial of the Secretary's motion for reconsideration of his prehearing order. I directed review on all of the issues raised by the Secretary's petition.

For the reasons set forth in our separate opinions, the Commission members conclude that Judge Usher did not err in vacating citation 1, item 2. In addition, we find that the judge did not err in denying the Secretary's motion to amend that item. Moreover, for the reasons set forth in Part III of this opinion, we conclude that the judge did not err in denying the Secretary's motion for reconsideration [*4] of his prehearing order. Accordingly, the judge's decision is affirmed.

I

Respondent manufactures steel at its plant in Bethlehem, Pennsylvania. During an inspection of this facility, Occupational Safety and Health Administration ("OSHA") compliance officer Michael Glowatz observed an apprentice rigger with Respondent, Robert Solt, as he worked atop an idle heat treatment furnace in the number two treatment shop. Solt was rigging a hoist cable for the removal and replacing of furnace-door castings as part of a regular maintenance program on the furnace.

Compliance officer Glowatz watched Solt work at the unguarded edge of the furnace top for 4 or 5 minutes. In Glowatz's opinion, Solt was exposed to a fall of at least 15 feet to the ground or to a metal buggy that protruded partially from the furnace. Although he was wearing a safety belt and lanyard, Solt was not tied off when Glowatz saw him, and Respondent had provided no other fall protection at the furnace. During the course of the 3- to 5-day repair operation, the rigger was exposed to this fall hazard for about 30 to 45 minutes. At all other times the employee was either protected by scaffolding at the front of the [*5] furnace or tied off to angles of the furnace.

Following the inspection, the Secretary issued to Respondent citation 1, item 2, alleging a serious violation of the Act for failure to comply with section 1910.132(a) in that a "repairman working on top of number 20 furnace in Number 2 Treatment shop, adjacent to the perimeter of the furnace, hanging rigging for a snatch block[,] was working without lifeline and lanyard." Compliance officer Glowatz later testified that, in his opinion, a fall from the furnace top "would have resulted in serious physical injury to the employee, possibly death."

During the hearing, the Secretary presented evidence on methods that Respondent assertedly could have used to protect employee Solt. For example, both compliance officer Glowatz and Solt suggested that a safety cable or "run line" for lanyard tie-off could have been strung between the two vertical support columns. However, Respondent sought to rebut the Secretary's showing by presenting evidence to the effect that all of the means of protection suggested by the Secretary's witnesses would have increased the length of time employees were exposed to the fall hazard.

In his decision vacating the [*6] citation item at issue, Judge Usher concluded that Respondent had established a greater hazard defense because its "argument that the hazard would have been aggravated rather than diminished by the use of a 'lifeline and lanyard' . . . is fully supported by the evidentiary record . . . ." In reaching this conclusion, the judge found that the possible methods of fall protection suggested by the compliance officer "were clearly shown to be infeasible or impossible to accomplish." In view of this disposition, the judge did not reach Respondent's argument that section 1910.132(a) does not apply to the fall hazard at issue because "safety belts, lifelines and lanyards fail to meet the definition of 'protective equipment'" under the standard. However, the judge stated his opinion that this argument "is persuasive."

On review, the Secretary argues that the judge erred in concluding that Respondent established a greater hazard defense. The Secretary also contends that the judge erred "in impliedly concluding" that section 1910.132(a) does not include safety belts, lifelines and lanyards as personal protective equipment required under the standard.

Respondent argues that the judge properly [*7] found that it established the greater hazard defense and vacated the citation. Respondent alternatively contends that section 1910.132(a) does not apply to safety belts, a "non-personal" type of protective equipment that is not specifically mentioned in the standard. In support of this argument, Respondent maintains that the personal protective equipment provisions at subpart I of 29 C.F.R. Part 1910, including section 1910.132(a), are intended to apply only "to the use of equipment which is associated with some sort of safety wearing apparel such as respirators, head protection and foot safety protection," unless other equipment is specifically designated.

II

In Bethlehem I, we held that 29 C.F.R. 1910.132(a) may properly be read to encompass a requirement that safety belts and lanyards be used to protect against fall hazards. Accordingly, Bethlehem I is dispositive on the issue of the standard's applicability. In addition, [*8] because section 1910.132(a) is applicable to the cited conditions, Commissioner Cottine and I conclude that the judge did not err in denying the Secretary's motion to amend this citation to allege a violation of section 5(a)(1). When a specific standard applies to the facts, a citation alleging a section 5(a)(1) violation is inappropriate. See, e.g., Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979).

I further conclude that Judge Usher properly vacated this citation item. Although section 1910.132(a) applies to the cited conditions, vacating the citation is required here, as in Bethlehem I, because Respondent was not given sufficient notice of the applicability of the standard to fall hazards and to safety belts. Id., slip op. at 7. This case presents two salient notice problems. First, the broad, general language of the personal protective equipment standard did not specifically apprise Respondent that it was required to provide safety belts to employees exposed to fall hazards. Second, the Commission only recently decided that safety belts are required under section 1910.132(a), in Bethlehem [*9] I, supra. Until then, the majority of unreviewed administrative law judge decisions held that section 1910.132(a) does not apply to this protective equipment and to falling hazards. Although these unreviewed judge's decisions are not binding on the Commission, I conclude, as I did in Bethlehem I, that they created the appearance of a "pattern of administrative enforcement" that failed to give Respondent adequate notice that the standard applies to safety belts and to fall hazards. See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978). Thus, vacating of the citation at issue is required to give Respondent "the full benefit of the notice denied." n3 Bethlehem I, supra at 8, citing Diebold, Inc. v. Marshall, supra, 585 F.2d at 1339.

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n3 In light of this disposition, it is not necessary for me to reach the directed issue of whether the judge erred in concluding that Respondent met its burden of establishing a greater hazard defense. Nevertheless, I note my disagreement with Commissioner Cottine's analysis of this issue and his holding that Respondent established its defense. In particular, I disagree with his conclusion that Respondent established the second element of a greater hazard defense, i.e., that alternative means of protection were unavailable. The compliance officer testified that, during the inspection, an incomplete scaffold stood somewhere at the front of the furnace. After observing the employee, Robert Solt, on top of the furnace working at the unguarded edge, the compliance officer called him down to talk to him. Before Solt returned to work, Respondent had completed the scaffold, thereby in effect providing a catch platform for any employee who worked on the furnace top. I conclude that, if the scaffolding had been completed prior to the inspection, it would have afforded protection to Solt as a catch platform. I also note that there is no reason apparent in the record why Solt could not have waited until the scaffold was in place before beginning the work that exposed him to the fall hazard. Under these circumstances, I cannot agree that Respondent was excused from its obligation to provide protection to an employee working at the edge of a furnace top 15 feet above a protruding buggy and 20 feet 6 inches above the ground below.

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III

Judge Usher granted Respondent's pretrial motion for a partial summary judgment and accordingly he vacated citation 1, items 3(a) through 3(d), alleging noncompliance with section 1910.179(g)(2)(i), and citation 1, items 4(a) through 4(g), for noncompliance with section 1910.179(g)(3)(ii). See note 2 supra. In his order granting Respondent's motion, the judge concluded that Respondent had established that it was exempt from the requirements of the cited standards on overhead and gantry cranes because Respondent's cranes were installed before August 31, 1971. Relying on United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977), he found that the standards are not mandatory and thus not enforceable for overhead cranes installed before August 31, 1971, but instead are "design specifications to be applied to later installations." In his decision, the judge denied the Secretary's motion to reconsider the order granting Respondent's partial summary judgment motion.

On review, the Secretary contends that sections 1910.179(g)(2)(i) and (g)(3)(ii) [*11] apply to the cited cranes as mandatory standards, not merely as advisory "design specifications." He urges the Commission to overrule its prior contrary decisions, including United States Steel Corp., supra, and to remand this case to hear evidence on the alleged violations.

We conclude that the judge properly denied the Secretary's motion for reconsideration. The Commission has held repeatedly that the provisions of section 1910.179 that originate from the "construction and installation" requirements of ANSI B30.2.0-1967, set out in chapter 2-1 of that standard, are advisory when applied to overhead and gantry cranes installed before August 31, 1971. General Dynamics Corp., Electric Boat Division, 80 OSAHRC 42/C7, 8 BNA OSHC 1360, 1980 CCH OSHD P24,416 (No. 78-3290, 1980), and cases cited therein. The two cited provisions originate from those "construction and installation" requirements. Accordingly, we affirm the judge's order granting partial summary judgment and his subsequent denial of the Secretary's motion for reconsideration.

IV

Accordingly, the Commission affirms the judge's order vacating citation 1, item 2, for alleged noncompliance with section 1910.132(a), [*12] and his order vacating citation 1, items 3 and 4, for alleged noncompliance with sections 1910.179(g)(2)(i) and (g)(3)(ii).

SO ORDERED.

CONCURBY: ROWLAND; COTTINE

CONCUR:

ROWLAND, Chairman, concurring in the disposition:

I concur with Commissioners Cleary and Cottine's decision to vacate the citation item alleging a violation of section 1910.132(a), but my reasons differ from theirs. I would vacate that item on the grounds that section 1910.132(a) does not require safety belts. I also concur with Commissioners Cleary and Cottine's conclusion that the judge did not err in denying the Secretary's motion to amend item 2 of citation 1. However, in contrast with the reasons set forth in the lead opinion, I would affirm the judge's denial of the Secretary's motion because the Secretary unduly delayed in requesting leave to amend and because the Respondent would have been prejudiced by the amendment.

Consistent with the plain meaning of section 1910.132(a), that standard [*13] does not pertain to safety belts because safety belts are substantially different from the types of personal protective equipment listed in section 1910.132(a); safety belts reduce potential falls by restraining or restricting the employee himself whereas the devices enumerated in section 1910.132(a) filter or block external agents, substances or objects encountered at the workplace. Bethlehem I, supra. Inasmuch as safety belts and lanyards are not encompassed by the requirements of section 1910.132(a), I conclude that the standard is inapplicable to this case. Accordingly, I would affirm the vacation of item 2, citation 1. n4

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n4 As to the Respondent's contention that safety belts and lanyards would pose a "greater hazard" than the hazard which allegedly existed without fall protection, I note that contrary to the analysis of Commissioners Cleary and Cottine, I would consider Respondent's evidence in this regard as rebuttal to the Secretary's prima facie showing of feasibility of abatement, rather than as an affirmative defense.

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The record shows that the Secretary was dilatory in moving to amend item 2, citation 1, so as to alternatively allege a violation of section 5(a)(1) of the Act. The Secretary did not move to amend until the hearing, when he made his motion in open court. However, the Secretary could have requested leave to amend several months before trial, upon receipt of Respondent's first answer in which Respondent asserted that the cited standard, section 1910.132(a), did not apply. In this regard, I note that the Respondent renewed its contention concerning the inapplicability of section 1910.132(a) in his amended answer one week before trial; yet the Secretary waited until trial to request leave to amend. As the Respondent asserted at the hearing, the Respondent would have been prejudiced by the amendment because the Secretary's requested amendment, if granted, would have substantially altered the theory of the case and rendered several of Respondent's defenses unavailable. Moreover, since the judge reserved ruling on the Secretary's motion, any request for a continuance - if additional time were needed to [*15] prepare a defense to a section 5(a)(1) charge - would have been of no avail. Accordingly, I would affirm the judge's denial of the Secretary's motion to amend. n5

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n5 The judge denied the amendment because he concluded that the Secretary subsequently abandoned the request to amend. The record does not support the judge's conclusion in that respect. Since leave to amend under Rule 15(a) is within the sound discretion of the trial judge, I would ordinarily remand this item to the judge to determine whether the Secretary exhibited undue delay or whether the Respondent would have been prejudiced by the amendment. See United Cotton Goods, supra (dissenting opinion). However, the Review Commission has the ultimate authority to grant requested amendments and the record in this case is clear. See Franklin R. Lacy, 81 OSAHRC 7/A2, 9 BNA OSHC 1253, 1981 CCH OSHD P25,170 (No. 3701, 1981). In my view, a remand is therefore inappropriate.

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COTTINE, Commissioner, concurring:

I agree with Commissioner Cleary that safety belts constitute a form of personal protective equipment within the meaning of 29 C.F.R. 1910.132(a). However, Bethlehem was not deprived of fair notice of the inclusion of safety belts under the personal protective equipment standard.

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n1 Unlike Bethlehem I, the notice issue in this case can be resolved on the basis of a factual record. Here, there is no evidence and Bethlehem has stated no grounds that would support a defense of lack of notice. In fact, unlike Bethlehem I, there is no evidence or argument that the steel industry interpreted 1910.132(a) not to apply to safety belts.

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The Secretary has established a prima facie violation of the cited standard. Under 1910.132(a) the Secretary must show that [*17] a reasonable person familiar with the circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the Respondent's industry, would recognize a hazard warranting the use of protective equipment. Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD P25,431 (No. 77-2778, 1981), appeal filed, No. 81-7493 (9th Cir. July 27, 1981); Owens Corning Fiberglass Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981). In this case, Respondent provided the exposed employee, Robert Solt, with a safety belt for work on the furnace roof and generally required employees to tie off unless tying off would be infeasible or impractical. The fall distance was at least 15 feet. This evidence is sufficient to establish that Bethlehem recognized a hazard warranting the use of protective equipment for workers on the furnace roof. The Secretary also identified available forms of protective equipment -- safety belts, lanyards and lifelines -- to protect employees from the fall hazards involved. Therefore, the Secretary has made out a prima facie case. [*18] See Ed Cheff, supra.

Nevertheless, I concur in vacating the citation in this case because Bethlehem has proven the greater hazard defense based on the record evidence. In order to prove this affirmative defense the employer must show that (1) the hazards created by compliance with the requirements of the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting employees are unavailable, and (3) a variance application under section 6(d) of the Act, 29 U.S.C. 655(d), would be inappropriate. M.J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

In this case the Secretary's witness, Robert Solt, the exposed employee, testified that it would take as much as 55 minutes by the quickest method to install and remove a safety cable between the two vertical support columns. n2 The Secretary and the Respondent both accept Foreman Chlebove's estimate that the total time the employee would be exposed to a fall while working atop the furnace without safety belt protection would be about 40 minutes. It was undisputed at the hearing that an employee would be exposed to the same kind of [*19] fall hazard while installing and removing a safety cable as Solt was while performing his job. n3 Thus, the evidence indicates that there would be a greater duration of exposure to the same fall hazards if a safety cable were used than if it were not used. Also, Bethlehem's safety director, Joseph Eagan, the only witness who appeared as an expert, testified that installation of a safety cable would expose employees to comparable risks for longer periods of time than Solt was exposed. Chlebove's testimony was to the same effect. This testimony further supports Bethlehem's position.

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n2 Solt testified that it would take 30 to 45 minutes to install a safety cable between the two vertical support columns. He testified that it would take an additional 10 minutes to remove the cable by cutting it with a torch or 30 minutes if the cable were preserved for re-use. Thus, the Secretary's witness established that installation and removal of the line could easily take up to 55 minutes.

n3 Chlebove testified that the safety cable would have to be removed because it would probably interfere with the furnace door's operation if it were left up.

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The Secretary also suggested other means of providing safety belt protection, including typing off directly to the columns or the access ladder or to a loose cable or rope. However, Eagan and Chlebove testified without contradiction that each of those methods would involve much greater exposure to fall hazards than those involved in Solt's work. The columns were double columns located on each side of the furnace front. The access ladder was on the outside of the left-hand double column. The compliance officer acknowledged that to tie off to the column the employee would have to "swing out from [the edge of] the furnace." He did not know how long the employee would be tied off to the column, although the compliance officer testified that the employee told him he had been working within 3 or 4 feet of the column of "some period of time." However, the employee testified that his work required him to walk across the 20-foot-wide furnace and Eagan testified that "you should never use a lanyard that will allow a man to fall more than six feet into the lanyard." Eagan, an acknowledged expert, concluded [*21] that tying off to the column would involve greater hazards than working for the required period without safety belt protection.

With regard to tying off to the access ladder, Eagan confirmed that this method would require reaching beyond the double column to the ladder and also would obstruct the ladder when another employee had to use it. With respect to typing off to loose rope or cable, Eagan testified, "No safety engineer would make that kind of recommendation. A sagging cable is not the proper method. It adds too much to the drop." Chlebove testified to the same effect and the Secretary did not rebut their testimony. Considering the record as a whole, the preponderance of the evidence supports Bethlehem's claim that compliance with any of the means suggested by the Secretary for providing safety belt protection would result in greater hazards. Cf. Marion Power Shovel Co., 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 1980 CCH OSHD P24,915 (No. 76-4114, 1980) (safety belt lanyard could be adjusted so as to preclude asserted tripping hazard; mere possibility that compliance might create a different hazard does not show a greater hazard).

The Secretary suggested installation [*22] of guardrails or scaffolding as alternative means of protection. However, Eagan and Chlebove testified without contradiction that the time involved in installing either alternative would exceed that of performing the required work without protection and that the same kind of fall hazards would exist during installation. Eagan testified that Bethlehem had investigated alternative protection, including the possibility of using a "cherry picker," but found no workable alternative that would not increase the exposure to fall hazards. Thus, the record affirmatively establishes the lack of available alternative means of protection. Cf. Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD P25,293 (No. 9850, 1981) appeal docketed, No. 81-4203 (5th Cir. May 29, 1981) (claim that safety belts and lifelines would pose greater hazards rejected because scaffolds were found to be an available alternative).

Finally, a variance application would have been inappropriate under the circumstances of this case. The employee exposure to fall hazards while working on the furnace was approximately 40 minutes and this maintenance was performed only once every 15 years. [*23] There was no showing that comparable hazards existed on other furnaces during periodic maintenance. Cf. Morton Buildings, Inc., 79 OSAHRC 75/C7, 7 BNA OSHC 1702, 1979 CCH OSHD P23,861 (No. 15565, 1979) (where standard construction technique like purlin installation is involved, variance likely would have widespread application for the employer and provide more relief than for more transitory construction activities). Thus, it would be inappropriate to require Bethlehem previously to have filed a variance request.

Accordingly, I conclude that Bethlehem has established a greater hazard befense based on the evidence of record.