AGRICO CHEMICAL CO.

OSHRC Docket No. 8285

Occupational Safety and Health Review Commission

September 29, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

William Kloepfer, Assoc. Regional Solicitor

William C. Tidwell, III, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A decision of Administrative Law Judge Donald K. Duvall is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). Judge Duvall affirmed a citation as amended n1 insofar as it alleged a violation of 29 C.F.R. 1910.23(c)(2) n2 because four elevated runways used by Respondent's employees were unguarded on one side. We affirm.

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n1 The citation originally alleged a violation of 1910.23(c)(1) in that elevated platforms were not guarded. The Judge granted Secretary's motion to amend to also allege a violation of 1910.23(c)(2), which requires the guarding of elevated runways. The motion was made at the beginning of the first hearing; subsequent to the motion, Respondent was granted a two-month continuance to seek legal counsel. We conclude that the amendment was properly granted. The amendment did not alter the factual basis for the violation which was clearly stated in the citation. J.L. Mabry Grading, Inc., 9 OSAHRC 98, BNA 1 OSHC 1211, CCH OSHD para. 15,686 (1973). Therefore, neither Respondent nor the employees was mislead as to the essential facts of the alleged violation. We note further that Respondent was afforded ample opportunity to prepare for trial on the 1910.23(c)(2) charge by virtue of the two-month continuance.

n2 The standard at 1910.23(c)(2) provides in pertinent part that "Every runway shall be guarded by a standard railing . . . on all open sides 4 feet or more above floor or ground level . . . Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide."

[*2]

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It was undisputed that portions of the runways were unguarded on one side and that the runways were between 40 and 50 inches wide. The cited standard requires the guarding of runways on all open sides, but partially exempts special purpose runways from this requirement. The exemptory language provides that a standard railing may be omitted from one side of a special purpose runway where operatiig conditions necessitate its omission and the runway is more than 18 inches wide. Respondent argued before the Judge that the cited runways were special purpose runways which needed to be guarded only on one side.

Judge Duvall agreed with Respondent that the runways were special purpose runways within the meaning of the exemption since the work being performed on the runways was substantially similar to the examples listed in the standard of work generally performed on such runways. n3 He held, however, that Respondent had not shown that it was exempted from guarding both sides of the runways since it had not established by a preponderance of the evidence that operating conditions necessitated the lack of [*3] guarding. Consequently, he affirmed the citation and assessed the $90 penalty to which the parties had agreed.

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n3 The runways were used for the operation and maintenance of a conveyor and hopper cars for filling large bins with fertilizer.

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On review, Respondent takes exception to the Judge's finding that the omission of guarding was not necessitated by Respondent's operating conditions, pointing to testimony that guardrails would interfere with the work of its employees on the runway. Respondent also contends that the Judge improperly placed on it the burden of proving that it was exempted by the standard whereas the burden should have been placed on the Secretary to show that Respondent was not exempted.

Having considered Respondent's exceptions, we affirm the Judge's disposition in its entirety for the reasons he assigned. We reject Respondent's contention that the evidence established that the operations on the runways necessitated the omission of guardrails on one side. In finding to the contrary, Judge Duvall [*4] weighed the evidence. We have said that where a Judge's finding is supported by the evidence, we usually will not reweigh the evidence on review. Okland Construction Co., No. 3395, BNA 3 OSHC 2023, CCH OSHD para. 20,441 (Feb. 20, 1976). We reject also Respondent's argument that the Judge improperly allocated the burden of proof. Generally, the party claiming an exemption has the burden of proving its applicability. Southern Pacific Transportation Co., 18 OSAHRC 258, BNA 2 OSHC 1313, CCH OSHD para. 19,054 (1974), appeals docketed, Nos. 74-3981 and 75-1091 (5th Cir., Nov. 29, 1974 and Jan. 10, 1975); Idaho Travertine Corp., No. 1134, BNA 3 OSHC 1535, CCH OSHD para. 20,013 (1975). Clearly, the special purpose runway provision in 1910.23(c)(2) creates an exemption from the general rule that elevated runways are to be guarded on both sides. Therefore, the Judge properly placed the burden of proving it was entitled to the exemption on Respondent.

Accordingly we find Respondent to have been in violation of 1910.23(c)(2) and assess a penalty of $90. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The majority misconstrues the safety standard at issue in this [*5] case. Respondent is not asserting an exception from a requirement of law. It is being charged with a violation based upon specifically identified runways which, the Judge found, were "used exclusively for special purposes." n4 Under that regulation one railing may be omitted "where operating conditions necessitate such omission." It is the Secretary who claims that the "operating conditions" at respondent's plant did not necessitate omission of a second railing. It is up to him to prove his contention before a violation can be established. 29 C.F.R. 2200.73(a). Brennan v. OSAHRC and Hendrix, 511 F.2d 1139 (9th Cir. 1975). Since he has failed to do so, the citation should be vacated.

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n4 The cases relied upon for authority by the majority are inappropriate, however, because they deal with jurisdictional questions. Both Southern Pacific Transportation Co., supra, and Idaho Travertine Corp., supra, involve jurisdictional exemptions under 29 U.S.C. 653(b)(1), where the burden more properly rests with the party claiming jurisdiction. See my dissenting opinions therein.

[*6]

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The alleged violation occurred at respondent's agricultural fertilizer plant where it operates an elevated stationary conveyor belt and elevated cable cars, each in a separate building. The charge is based upon the existence of walkways alongside each of these which were guarded by railings on one side.

The walkway running parallel to the cable car tracks is 49 inches in width. It is guarded by standard railings on one side but is unguarded on the side adjacent to the tracks. There is ample space between the crossties on the cable car tracks and below the conveyor line to permit an employee to fall through to the collecting bins approximately 30 feet below.

In the center and at the ends of each track are guarded platforms for the operator and for the performance of some maintenance functions. The operator is on the walkway only to move the metal trip which trips the cable car load, to check the amount of fertilizer in each bin, or to sweep the walkway. Most maintenance functions are performed at the above mentioned guarded platforms, except certain work to be done on the cable, track or cars which [*7] must be performed along the length of the track. If another railing were installed, work of this kind would require the employees to climb over or remove that rail. The presence of the rail would make placement of the 28-1/2 pound trip more difficult and might increase the hazard of back strain.

The stationary conveyor belt at issue runs almost the entire length of the building, with a 40-inch wide walkway running adjacent to it for its entire length. A standard guardrail is provided along the outside of the walkway. Only the conveyor operator and maintenance employees have access to the walkway for the limited purposes of positioning the conveyor from a control panel, beating the rollers to remove dust, sweeping the walkway, and performing maintenance functions on the conveyors (servicing bearings and motors, greasing rollers). Occasionally a portable conveyor, positioned below the conveyor line, would be pushed by hand, but the portable conveyor itself provided a barrier against falling. Beating the rollers could be accomplished by leaning against a rail, but in order to grease and service the rollers and belt the employees would be required to climb over or remove a second [*8] railing if one were installed.

Judge Duvall correctly concluded that these walkways were "special purpose runways" but he incorrectly ruled that it was respondent's burden to establish that "operating conditions necessitate[d] such omission."

The Judge also found that placement of a railing along the conveyor and the cable car track would make job performance more difficult. Despite the substantial testimony referred to in his decision indicating the hazard of falling would thereby be increased rather than diminished, he concluded that a violation had been established. This conclusion is not supported by the evidence and is, therefore, in error. It is clear from this record that specific operating conditions necessitated the omission of a standard railing on one side of the runways involved.

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n5 I note the language in Secretary v. Industrial Steel Erectors, 6 OSAHRC 154 (1974) to the effect that employers and employees should not be required to follow a course of conduct shown to be less safe than an existing work practice. See also Secretary v. George A. Hormel and Co., 11 OSAHRC 725 (1974).

[*9]

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The Act's purpose of maintaining safe and healthful working conditions will not be enhanced by requiring the installation of standard railings which will increase back strain of employees and will have to be removed or climbed over before work can be performed. What the Commission has done here is to place burdens on employers which far outweigh any benefit to employees. Indeed, unnecessary burdens have been placed on both employers and employees. Decisions such as this set back the cause of worker safety and produce a corrosive effect upon the Act itself.

The decision below should be reversed. n6

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n6 Because both the majority opinion and this opinion rely on Judge Duvall's decision below, it is incorporated herein by reference and attached hereto as Appendix A.

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Appendix A

DECISION AND ORDER

Theodore J. Pethia, U.S. Department of Labor, for Complainant

William C. Tidwell III, for Respondent

DUVALL, D. K., Judge OSAHRC

Statement [*10] of Case

This is a proceeding pursuant to sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the act") contesting certain parts of item 16 of a citation and related notification of proposed penalty issued by Complainant to Respondent alleging, in part, a non-serious violation of the occupational safety and health standard set forth at 29 CFR 1910.23(c)(1) or (2), for which a penalty of $90.00 was proposed under the Act.

The citation was based on an OSHA inspection on April 1, 1974, of Buildings #4 and #6 of Respondent's fertilizer plant located at 717 Robinson Road, Washington Court House, Ohio. The pertinent parts of item 16 of the citation described the alleged violation as follows:

Failure to provide every open-sided floor or platform four feet or more above the adjacent floor or ground level with a standard guard railing on all open sides except where there is an entrance to a ramp, stairway or fixed ladder; . . . (c) Bldg. #4, stationary receiving conveyor, open side platform not provided with standard railing, . . . (e) Bldg. #6 track #1, open platform not provided with standard railing, (f) Bldg. #6, track [*11] #2, open platform not provided with standard railing, (g) Bldg. #6 track #3, open platform not provided with standard railing."

At the hearing in this matter held at Columbus, Ohio, on September 12 and November 18, 1974, * I granted Complainant's motion to amend the citation and complaint herein by adding thereto the alternate allegation that Respondent violated the occupational safety and health standard set forth at 29 CFR 1910.23(c)(2) pertaining to runways only (Tr. A 18-36; Tr. 7-14), the original citation having specified only (c)(1). The parties agreed to a number of stipulations, approved, in effect, by the presiding Judge, including Respondent's withdrawal of its notice of contest respecting the proposed penalty of $90.00 for item 16 of the citation and the abatement period for said item 16 as set forth in the citation (Tr. A 14-15). It was also stipulated that the tracks referred to in sub-items 16(e), (f), and (g) are identical and that all matters and conditions pertaining to one track are equally applicable to each of the other two tracks (Tr. A-15).

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* The September 12 hearing was recessed in deference to Respondent's request in order for it to secure legal counsel. Since there is a separate transcript for each day's hearing, for the purpose of clarity references to pages in the September 12 transcript are prefixed "A".

[*12]

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The principal issue to be determined herein is whether Respondent, at the workplace and on the date cited, violated sections 5(a)(2) and 6 of the Act by not complying with the standard set forth at 29 CFR 1910.23(c)(1) or (2) in the specific areas of Buildings #4 and #6, as cited.

Findings of Fact

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

1. Respondent, incorporated in the State of Delaware, is the largest producer of agricultural fertilizer products in the area of Washington Court House, Ohio. It employs a daily average of 25 employees and regularly purchases and ships raw materials and finished products across state lines. It does business in excess of $1 million per year and in 1973 had a net worth in excess of $100 million (Tr. A-15).

2. On April 1, 1974, Respondent's workplace at 717 Robinson Road, Washington Court House, Ohio was inspected by Complainant's compliance officer Manuel Ypsilantis, which resulted in the issuance of a citation to Respondent alleging 20 non-serious violations of various occupational [*13] safety and health standards under sections 5(a)(2) and 6 of the Act with a total proposed penalty of $180.00 (citation, notification of proposed penalty).

3. Respondent contested item 16(c), (e), (f), and (g) of said citation by letter dated May 29, 1974 (Case File, item 3).

4. The amount of the penalty proposed herein was determined by taking into consideration the size of Respondent's business, the gravity of the alleged violation, Respondent's good faith and history of previous violations. The $90.00 total proposed penalty is proratable on an equal basis as to each sub-item of item 16 of the citation (complaint).

Building #4

5. In Building #4, a stationary belt conveyor ran about 80 feet along the length of the building and a movable belt conveyor, on tracks under the stationary conveyor, could be positioned to extend the conveying capability to the west end of the building, which was 918 feet long. The conveyors ran over bins 31 feet deep into which fertilizer loads were dropped. The stationary conveyor was shoulder high, its lovest element waist high, and the movable conveyor about 6 to 36 inches high above sturdy walkway 40 inches wide which ran beside the conveyors [*14] practically the entire length of the building.

On April 1, 1974, there was a standard guardrail along the outside (away from conveyor) edge of the walkway (except at the stairs entrance to the lower level), and around the silo platform area at the east end of the conveyor, but none along the inside edge of the walkway paralleling and next to the conveyors. The conveyor side of the walkway was about 2 to 3 feet horizontally from the closest portion of the stationary conveyor and, where there was no guardrail, there was no obstruction on the walkway to falling off that side of the walkway, other than crossties perpendicular to the conveyor spaced about 20 feet apart. When the portable conveyor was moved, there was no possible drop for movers on the walkway because the conveyor was in the way (Tr. 26-27, 29, 65-66, 71-72, 113-117, 133, 166-167, 170, 182; Exhibits C-3, 4 and R-8, 9).

6. About one week prior to the hearing herein Respondent installed a standard railing along the conveyor side of the cited walkway from the silo platform to just past the stairway entrance to the walkway (about 32 feet). This section of the walkway includes a three step up in elevation. This section [*15] was railed to minimize the hazard due to possible tripping on the stairs (Tr. 133, 165; Exhibits C-4, R-8, R-9).

7. Only the conveyor operator and maintenance employees perform duties on or from the walkway. The operator climbs the stairs to the walkway one to four times a day to position the stationary conveyor from a control parel, to beat the rollers of the conveyor so as to relieve the build-up of fertilizer dust, and to sweep the fertilizer (triple, potash, sulphate, etc.) dust off the walkway. The operator would beat each roller for 5-10 minutes (2 hour total) by holding the top of the conveyor with his left hand and beating the rollers by reaching under the conveyor with his right hand. Maintenance men help beat the rollers.

The fertilizer dust accumulates on the rollers and the walkway, especially during damp weather, which makes the walkway slick, thus necessitating sweeping to avoid slipping. Besides servicing all bearings and motors, the maintenance men grease the rollers through fittings on the end of each roller. Occasionally (once in the last 9 months, 6 times during the last spring season), the operator and three other employees move the portable conveyor, normally [*16] by pushing it from the side. The operator spends most of his time on the lower level unloading fertilizer from box cars to be conveyed to the fertilizer bins and transferring fertilizer from the bins using a tractor forklift (Tr. 61-65, 106-107, 111-112, 128, 130, 137-138, 142-143, 167-168).

8. If a standard railing were installed on the conveyor side of the walkway adjacent to the conveyors, the maintenance function of beating the rollers could probably be performed by leaning against the railing, but the functions of greasing and servicing the rollers and conveyor belt and moving the portable conveyor would be substantially obstructed by the railing unless it were climbed over or taken down temporarily (Tr. 62-65, 108-109, 131-132, 135-136, 144-145, 169-170, 182-183).

9. Along the conveyor side of the walkway there was no entrance to a ramp, stairway, or fixed ladder nor any guarding equivalent to a standard railing. Beneath this open side of the walkway there was sometimes moving machinery in the form of an operator driven tractor moving fertilizer in the bins 31 feet under the conveyors (Tr. 23, 106-107, 123-124, 140-142; Exhibit R-8).

10. At least one employee who helped [*17] move the portable conveyor normally entered the walkway level from another entrance at the furthest and from the access stairs close to the silo area (Tr. 112-113, 116-117; R-8).

Building #6

11. In Building #6, three walkways 49 inches wide ran beside three parallel tracks the length of the building (approximately 180 feet). A fertilizer hopper car ran on each track, being loaded from an overhead hopper at work platforms situated in the middle of the tracks, where the operator (the same for all three cars) had a control panel for electrically moving the cars over their respective tracks to a position over one of a series of fertilizer bins, 30 feet deep, into which their fertilizer loads were to be dumped. The loads were automatically dumped by means of a metal, 28 1/2 pound trip mechanism that was manually lifted and positioned in advance by the operator beside the track above the bin desired to be filled. At the ends of each track there were platform areas around the pulley and motor assembly for the respective cables that moved the hopper cars (Tr. 79-82, 92, 95-96, 154-156; Exhibit R-7).

12. the perimeter of the platform areas in the middle and at the ends of the tracks [*18] are guarded by handrails, as are the walkways perpendicular to the tracks which join these platform areas. The outer (away from the track) edge of the elevated walkways parallel to the tracks are also handrailed, but the conveyor side of these walkways are not guarded by any railing. Except for crossties approximately 2 inches in thickness at approximately 20-foot intervals under the tracks and the walls of each bin, spaced at 20-foot intervals, the space immediately beside and between the tracks was open to a 30-foot drop. That part of the middle platform areas over which a track passes have metal grating between the track rails which eliminates the possibility of a fall through the tracks or from the platform (Tr. 44-45, 155, 163-164; Exhibits C-1, C-2, R-5, R-7).

13. Most of the operator's work time is spent in the central platform area where the car loading and unloading controls are located. The operator goes onto the walkway adjacent to the tracks only to move the trip, check the amount of fertilizer in a bin, and sweep the walkway. The operator has to move the trip once or twice a day at most, and often only once every two or three days. Moving a trip takes about 10 [*19] minutes and entails bending over or kneeling down on the walkway beside the track in order to lift or place the trip, with one or both hands, in its proper position. Maybe twice a day the operator goes on the cited walkways to look out the window and once or twice every second or third day he has to check the status of the bins he is filling. The operator sweeps the chemicals or fertilizer dust off the cited walkways about once a week or month for three or four hours, depending on when there is a breakdown (Tr. 82-91).

14. Maintenance men perform most of their work (changing light bulbs, greasing and repairing hopper cars and head and tail pulleys) at the central platform and end platform areas, the latter function being performed at least once a week. The one instance of cable repair was performed at the central platform (Tr. 50, 99-100, 146-149).

15. The operator and his relief when he takes breaks and the maintenance men are the only employees authorized on these walkways and platforms, and effective signs restricting entrance to the overhead track area were and are posted at the two entrance stairways to the upper level (Tr. 94-95, 100, 156; Exhibits R-1, 2).

16. If a [*20] standard railing were installed on the track side of the cited walkways, any maintenance of the cable, track, or hopper cars done away from the central platform would have to be performed by the maintenance men on the track side of said railing, requiring them to climb or remove the rail.

Such a railing would also make it more difficult for the operator to place the trip properly and possibly increase the hazard of back strain to the operator in stooping or bending over through the railing to place or remove the 2-foot-by-10-inch iron and steel trip weighing 28 1/2 pounds which fits into two prongs beside the track (Tr. 50-52, 57-58, 93, 97-99, 150-152, 165-166, 183, 186-188; Exhibit R-6).

Discussion

The occupational safety and health standard set forth at 29 CFR 1910.23(c)(1) and (2) provides as follows:

"Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided [*21] with a toeboard wherever, beneath the open sides,

(1) persons can pass,

(ii) there is moving machinery, or

(iii) there is equipment with which falling materials could create a hazard.

(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

The words platform and runway, as used in section 1910.23, are defined in section 1910.21 as follows:

"(4) Platform. A working space for persons, elevated above the surrounding floor or [*22] ground; such as a balcony or platform for the operation of machinery and equipment.

(5) Runway. A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings."

The evidence of record, on balance, convinces me that the cited walkways here contested in both Buildings #4 and #6 were used more as passageways to the principal working areas of the operators and maintenance men. In Building #4 the operator of the conveyors spent most of his time at the lower level working in and around the bins, going up on the walkway usually less than twice a day to position the conveyor, clean the rollers, or sweep the walkway. Maintenance men came up to grease the rollers and pulleys once or twice a week and much less frequently several men would come up to move the portable conveyor on its tracks. In Building #6 the operator spent full time on the upper level, but principally at the guarded central platforms where the hopper cars were loaded and controlled. Maintenance men also worked mainly on the guarded central platforms and guarded end platforms.

As the standard makes clear, runways can be used for special [*23] working purposes, such as oiling, shafting, or filling tank cars, and when so used the railing on one side may be omitted when necessitated by operating conditions, provided that the runway is not less than 18 inches wide. I consider the operations performed by operators and maintenance men on the runway in Building #4 (controlling conveyor, checking bins, beating and greasing rollers, sweeping runways, and servicing conveyors) and in Building #6 (walking to work platforms, setting trips, checking bins, greasing and repairing hopper cars, pulleys and cables and sweeping runways) to be substantially similar to the illustrative operations specified in the standard. The runway in Building #4 was 40 inches wide and in Building #6, 49 inches wide, and they both were used exclusively by the operators and maintenance men for the aforestated purposes, which constituted operation and maintenance of equipment for filling bins with fertilizer. Such purposes are substantially similar or analogous to the special purposes qualifying as special purpose runways under the standard, which purposes defined only examples of activities that quality for exemption from the guardrail requirement. See [*24]

On the other hand, Respondent has not established by a preponderance of the evidence that operating conditions in buildings #4 and #6 necessitate the omission of the standard railing or equivalent on the conveyor and track side of the runways. Testimony of operators and maintenance men was to the effect that they could still perform their essential functions respecting the conveyors and the cable cars with the inner standard railing or equivalent installed, although such performance would be more difficult or "unhandy" (Operator Brant, Tr. 97-98; employer Williams, Tr. 109; former operator Mossbarger, Tr. 131; oiler Prendergast, Tr. 144-145, 151-152).

Respondent's plant manager for the past 8 years, S. E. Vaughn, testified that the installation of the inner standard railing or equivalent would increase rather than minimize hazards on the runways (Tr. 166). Specifically, he referred to the hazard of back injury to those employees who had to set the trip for the cable car by having to stoop or lean through the railing in order to place or remove the 28 1/2 pound trip (Tr. 165-166). He also stated [*25] that maintenance men would have to climb over or remove the railing in order to do maintenance on the track or cable car (Tr. 166). Similarly, he stated that any heavy maintenance on the conveyor belt or rollers (other than just beating them) or perhaps moving the portable conveyor would require being on the other side of the railing, which would involve greater hazard incident to climbing or removing the rail (Tr. 169-170). Mr. Vaughn also stressed the relatively infrequent, limited exposure of employees to the runways in normal operations (Tr. 169-170) and the absence of any injuries from the cited hazards since 1955 (Tr. 171).

For apparently similar reasons, Respondent's corporate safety director, Mr. Mueller, a certified safety professional and an active member and former officer of the Fertilizer Section of the National Safety Council, was also of the opinion that the addition of railings to the conveyor and track sides of the cited walkways would increase rather than diminish the hazard (Tr. 187-188). In his view, given the work stations and work frequency patterns of the restricted number of affected employees, a single guardrail is adequate protection, as determined by [*26] OSHA inspections of similar situations in Respondent's five other plants (Tr. 188-189).

Nonetheless, to come within the aforestated exception to the runway standard railings standard the necessity for omission of the railing or equivalent on one side must be shown in terms of specific operating conditions. In the Ashland Oil, Inc. case (supra), for example, omission of the railing on a gas filling dock was approved where it would have restricted a driver's egress from a tank truck in the event of fire or other emergency, where use of the existing loading facility would have been impeded or made impossible, and where the falling hazard was minimized by the barrier of riser pipes 3 feet apart and within 32 inches of the edge of the dock (9 OSAHRC 272, 277). I find no such necessitous factors in the present case. While the stationary conveyor and its superstructure did come down from the roof to waist level within two feet out from the edge of the walkway, this did not constitute a substantial barrier to falling (Tr. 66). While the portable conveyor may have itself posed a barrier to falling whenever it was moved from the side, it sometimes required movement from the front (Tr. [*27] 118). The importance of an adequate barrier is reinforced by the constant build-up of fertilizer dust on the floor and the equipment, which tends to increase the risk of slipping, albeit minimized by sweeping on an irregular basis (Tr. 90-91, 126-127, 138). The aforecited testimony of respondent's affected employees that most of their essential operations could be performed with the rail installed, is reinforced by the fact that 32 feet of standard railing has been installed by Respondent along the conveyor side of the cited runway, albeit for the purpose of protection at a stairs access (Tr. 133, 165, Exhibit R-9).

Respecting the relatively infrequent performance of maintenance functions requiring operations beyond the edge of the runway, Complainant suggests (and Respondent partially admits) that the rail-climbing hazard such operations would entail could be reasonably minimized by use of a standard railing or equivalent of a type easily, partially or temporarily removable, or, alternatively, that the railing could be used for tying off with safety belts (Tr. 50-51, 160, 169-170, 177, 188).

Conclusions of Law

1. At all times material hereto Respondent was an employer engaged [*28] in a business affecting commerce within the meaning of sections 5(a) and 3(5) of the Act and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

2. At all times material hereto Respondent was and is subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section 6 of the Act, including the standards cited herein.

3. At Respondent's fertilizer plant in Washington Court House, Ohio, the walkways beside the conveyors in Building #4 and beside the tracks in Building #6 were and are special purpose runways within the meaning of the standard set forth at 29 CFR 1910.23(c)(2).

4. A preponderance of the evidence of record herein shows that, on April 1, 1974, at its workplace herein, Respondent's failure to install a standard railing or equivalent on the conveyor side of the walkway in Building #4 and on the track side of the walkways in Building #6 constituted a violation of the standards set forth at 29 CFR 1910.23(c)(1) or (2) under sections 5(a)(2) and 6 of the Act.

5. Item 16(c), (d), (f), and (g) of the citation and the notification of proposed penalty herein [*29] should be affirmed.

It is so ORDERED.

Dated: March 24, 1975

Hyattsville, Maryland

DONALD K. DUVALL, Judge, OSAHRC