UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-1895
NORANDA ALUMINUM, INC.,
Respondent.

May 7, 1979

ORDER

Before CLEARY, Chairman; BARNAKO AND COTTINE, Commissioners.

BY THE COMMISSION:

On August 16, 1978, Administrative Law Judge Alan M. Wienman issued his decision and order in this case, affirming a single serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 [hereinafter referred to as ‘the Act’], for respondent’s failure to comply with the standard published at 29 C.F.R. § 1910.176(b)[1] and assessing a penalty in the amount of $400, as proposed. The case was not directed for review by the full Commission pursuant to section 12(j) of the Act. Thereafter, respondent petitioned for review of the decision of the Judge to the United States Court of Appeals for the Eighth Circuit. The petition for review was granted.

On March 8, 1979, the Court of Appeals for the Eighth Circuit issued a decision in Noranda Aluminum, Inc. v. O.S.H.R.C. and Marshall, No. 78-1861 (8th Cir., March 8, 1979). In its decision, the court affirmed the finding of the violation and the assessment of the $400 penalty. The court, however, vacated the date in the citation by which abatement was to be accomplished because respondent had changed the methods of stacking and securing that were the subject of the citation in this case while the administrative proceedings were pending. Accordingly, the court remanded the part of the case involving the abatement order for proceedings by the Secretary consistent with the following instructions:

If upon reexamination the [Secretary] finds that petitioner is in compliance with applicable requirements, well and good. Otherwise, in fairness we think that the [Secretary] should advise petitioner what it needs to do in order to get into compliance and should give petitioner a reasonable but limited time within which to do so. Should the dispute between petitioner and [Secretary] persist, the latter can always issue a new citation and additional proceedings can be had. Id, slip op. at 7.

Although the court did not, in its opinion, explicitly direct the Commission to take any action, this order is issued to implement and take action as follows: (1) Commission retains continuing jurisdiction of this matter until all aspects of the case, including abatement, are final under section 10(c) of the Act.

Therefore, it is hereby ORDERED that the Secretary shall examine respondent’s altered stacking procedures and take action as follows: (1) If the Secretary determines that the modified procedures are in compliance with the cited standard, the Commission shall be so notified. Abatement will be considered to be accomplished and the case will be closed effective the date of receipt of the Secretary’s notification that the modified stacking methods are acceptable. (2) If the Secretary determines that the modified stacking procedures are inadequate, he will issue to respondent abatement instructions and fix a date by which abatement is to be accomplished. The Commission shall also be given notice of this action, and, if there is no dispute, shall enter an appropriate order. (3) In the event a dispute arises under the terms of the cited standard either over the adequacy of respondent’s modified stacking procedures or over instructions issued by the Secretary under part (2) of this order, the matter will be submitted to the Commission for appropriate action.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAY 7, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-1895
NORANDA ALUMINUM, INC.,
Respondent.

FINAL ORDER DATE: October 5, 1978

DECISION & ORDER

APPEARANCES:

EUGENE F. DESHAZO, Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City, Missouri, for the Complainant

GERALD TOCKMAN, Esq., 706 Chestnut Street, St. Louis, Missouri, for the Respondent

WIENMAN, JUDGE, OSHRC:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation for serious violation issued to Respondent June 1, 1977. The Citation for alleged violation of occupational safety regulation 29 CFR 1910.176(b)[2] resulted from a fatality investigation conducted during a period from May 18–20, 1977, at Respondent’s plant in St. Jude Industrial Park, Marston, Missouri. The alleged violation was described on the Citation as follows:

The storage of material created a hazard:

a) At the 7 (seven) inch billet pole storage rack area at north end of bay 2, in the metal services building the L-Racks, spacers, and retainers did not prevent the billet poles from rolling off the top of the rack.

Complainant proposed a $400 penalty in connection with the alleged violation. After Complaint and Answer were filed, a hearing was held on February 21, 1978, at Cape Girardeau, Missouri, with both parties present and participating.

THE ISSUES

No jurisdictional matters remain in issue, the parties having pleaded facts sufficient to establish that Respondent is subject to the Act and that the Commission has jurisdiction of the parties and the subject matter.

The issues for decision are whether Respondent violated occupational safety regulation 29 CFR 1910.176(b) as alleged in the Citation, and if so, what penalty is appropriate for said violation.

SUMMARY OF THE EVIDENCE AND DISCUSSION

Five witnesses testified at the hearing, all appearing on behalf of Complainant. These included the OSHA Compliance Officer who conducted the inspection, and four of Respondent’s employees who worked in the cited plant area at various times. Respondent presented no witnesses, electing to move for dismissal at the conclusion of Complainant’s case on two grounds: (1) That the cited regulation is inapposite applying only to completed stacks and storage and not to the process of stacking and storing; and (2) that the Complainant’s evidence failed to establish a violation for multiple reasons. The two grounds will be discussed separately.

Respondent’s motion to dismiss on the ground that § 1910.176(b) is applicable only to completed stacking and storing is premised on the theory that the Citation and Complaint are directed and confined to the fatal accident which led to the OSHA inspection. This is not the case. Neither the Citation nor Complaint makes any allegations with respect to the episode on May 13, 1977, when three aluminum billets rolled off the top row of a rack (redacted), the metal handler who had made up the stack. Not at issue are any factual questions concerning the actual manner by which (redacted) assembled the particular stack, or whether he had completed the stacking process when the billets moved.

The contest is focused on the charge that billet poles ‘during May 18–20, 1977, and at times prior thereto’ were stored in violation of § 1910.176(b) which mandates that materials stored in tiers be ‘stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.’ The crucial allegation is a failure to secure the stacks to prevent accidental movement. Construing the standard to apply only to completed tiers or racks of material does not, in our judgment, render it inapplicable to Respondent’s workplace. To date the Commission has not defined ‘storage’ in the context of § 1910.176(b), but the duration or time period that materials must remain in place in order to constitute ‘storage’ has been a frequent subject of Commission discussion. In a line of cases dealing with such diverse regulations as those governing excavations, explosives and blasting agents, and construction materials handling, the Commission has uniformly ruled that ‘stored’ is synonymous with ‘placed’ or ‘deposited;’ and that temporary placement of materials constitutes ‘storage.’ See, Secretary v. Perini Corporation, 5 BNA OSHC 1343, CCH OSHD para. 20,030 (No. 12589, 1977); Secretary v. Whitcomb Logging Co., 2 BNA OSHC 1419, CCH OSHD para. 19,128 (No. 1323, 1974); Secretary v. Perini Corporation, CCH OSHD para. 22,772 (No. 13029, 1978); Secretary v. Sierra Construction Co., CCH OSHD para. 22,506 (No. 13638, 1978); Secretary v. Gerard Leone & Sons, 6 BNA OSHC 1512 (No. 14157, 1978). Frequently cited by the Commission in this regard is the appellate court decision in Brennan v. OSHRC and Dic-Underhill Construction Corp., 513 F.2d 1032 (2nd Cir., 1975) dealing with regulation § 1926.250(b)(1) in re construction material storage.

The record is not generous in providing a description of Respondent’s production processes, but witnesses related that billets, stacked in Bay 2 in tiers well above a man’s head (Ex. C–4), are next either placed on a furnace car or in a storage area (T. 293). Such deposit or placement is synonymous with ‘storage,’ a contrary interpretation not serving the regulatory purpose. See, Brennan v. OSHRC & Gerosa, Inc., 491 F.2d 1340, 1343 (2nd Cir., 1974).

We therefore deny the motion to dismiss based on the ground that the regulation is inapplicable and consider whether the evidence establishes a violation of § 1910.176(b).

No witness described in unbroken sequence the manner in which aluminum bars or billets were processed in the cited area of Respondent’s metal services building, but composite testimony provides the following general outline:

The aluminum is melted and cast in molds of various diameters in an area termed the ‘DC pits’ (T. 121). The diameters range from 6‘ to 14‘ (T. 200). The 7‘ diameter bars, cast in ‘drops’ of 40 billets (T. 204), are 300‘ long and weigh approximately 1100 pounds (T. 35).

After casting, billets are transported to the inspection area and deposited on the floor (T. 122). This completes the pit crews’ task, and the inspection area metal handler assumes responsibility for stacking the billets on L-shaped metal frames and marking identifying data on the aluminum. This was the function of Richard Allen on May 13, 1977. Allen was stacking triple tiers of 7‘ billets on each L-frame, placing eight billets on the lower two tiers and five billets on the top tier. The completed pattern was three L-frames high with an overall height of 95‘ (T. 35, 54).

At various times through the inspection dates Respondent employed other stacking patterns, but the standard procedure by which the metal handler sought to secure the racked billets against movement was always a strategic distribution of devices termed ‘spacer bars’ and ‘retainer clips.’ Whether the procedure was effective in preventing billets from rolling off the racks is the pivotal issue in the case.

‘Spacer bars’ are 3‘ x 3‘ blocks of aluminum, approximately 56‘ to 59‘ in length, inserted at intervals in the billet rows (T. 33). ‘Retainer clips’ are specially designed devices placed on the end of the spacer bars to block billet movement (T. 34).

At the time of inspection the retainers were either of ‘window’ or ‘horseshoe’ (‘U’) design. The rectangular ‘window’ retainers, depicted in Exhibit C–2, are designed to impede billet movement by tilting and exerting countervailing frictional force (T. 54). Compliance Officer Robert T. Dwyer constructed a model in an attempt to demonstrate how this function could be theoretically defeated if the billet rows were so close as to prevent the retainer from ‘laying over’ (T. 45–53). However, this testimony was considerably impacted by Dwyer’s admissions that he could not calculate the forces involved (T. 94), and that he had conducted no tests of the system (T. 80).

The ‘horseshoe’ type retainer presumably functioned in a similar fashion to the ‘window,’ but its physical characteristics were not described by any witness. It apparently was less frequently used. Dwyer saw none during the inspection (T. 61), and one employee, George Woollums, testified he saw none prior to (redacted) (T. 141). Another metal handler, Mike Zoellner, did recall use of the ‘U’ retainers prior to the accident (T. 277), and one appears in Exhibit C–1, a photograph made by Dwyer.

All four employee witnesses declared they had observed multiple instances when retainers failed to keep billets in place (T. 200–201, 207, 220, 270, 278). Mike Zoellner testified that a 7‘ billet had rolled off on the foot of a relief man (T. 272). Since Respondent presented no witnesses, the employee testimony relative to falling retainers and billets stands unrebutted in the record. Respondent did cross examine in an effort to establish that retainers and billets did not move without the application of some external force, but admissions on this point were not elicited from all witnesses (T. 220, 270).

The employee testimony is persuasive that use of ‘window’ and ‘U’-type retainer clips did not always result in stable and secure storage of the tiered billets. Rather, both retainers and heavy billets fell with sufficient frequency to create a hazard contrary to the mandate of § 1910.176(b). We therefore conclude that the evidence establishes a prima facie case of violation.

In concluding that Complainant has succeeded in meeting its burden of proof, we are mindful of the arguments urged by Respondent in support of a contrary view. We note, however, that many of Respondent’s contentions are based on a restricted view of the pleadings and issues which we do not share.

Respondent contends, inter alia, that there has been a failure of proof because there was no showing that: (1) That 7‘ aluminum billet stacked eight wide with ‘U’-type retainers rolled or moved; and (2) that the deceased employee, Richard Allen, was responsible for his own death, having failed to use retainers on the top rack and having failed to position L-frames according to company practices.

As noted earlier in this decision, the resolution of the central issue herein does not depend on the circumstances of Richard Allen’s death. Complainant made no allegations in that regard, and the Compliance Officer candidly stated that he did not know the cause of Allen’s accident (T. 76).

Respondent’s contention that charge is limited to its procedure while employing one particular stacking pattern—7‘ billet stacked in rows eight billets wide—has no support in the pleadings. The Citation identifies ‘the 7 (seven) inch billet pole storage rack area at the north end of bay 2, in the metal services building’ as the site of the violation but does not restrict the allegations in terms of stacking patterns, types of retainer clips, etc. Respondent rather artfully suggests that the pleadings were narrowed by certain answers Complainant made in response to interrogatories prior to the hearing. Our review of the interrogatories and answers reveals no sufficient basis for such a conclusion.

Also urged in support of the motion to dismiss are two additional arguments: (1) That the Citation does not inform the Respondent of what is considered to be a hazard; and (2) Complainant failed to suggest any means of correcting the alleged hazard.

Again, we find neither argument persuasive. The hazard expressly alleged in the Citation is the manner of storage of material, namely, that ‘the L-Racks, spacers, and retainers did not prevent the billet poles from rolling off the top of the rack.’ It is fatuous to insist that the hazard is not clearly delineated by such express language.

The contention that Complainant failed to suggest abatement measures is accurate vis-a-vis the pleadings but does not entirely comport with the testimony.[3] In any event the argument assumes that the Complainant’s burden in establishing a § 1910.176(b) violation includes proof of the likely utility of abatement measures. Again, this is not the case since § 1910.176(b) is a ‘performance standard.’ And the performance required by the standard is clear enough, namely, storage of material so that it does not create a hazard but is stable and secure against sliding or collapse. Section 1910.176(b) therefore may be enforced without proof by the Secretary of the feasibility and likely utility of abatement measures. Cf., Secretary v. Hughes Brothers, Inc. (No. 12523, July 27, 1978); Irvington-Moore, Div. of U.S. Natural Resources v. OSHRC, 556 F.2d 431, 436 (9th Cir., 1977).

The violation was serious within the meaning of section 17(k) of the Act in view of the fact that serious physical harm or death could result from accidental movement of the heavy billets and the employer could, with the exercise of reasonable diligence, have ascertained the fact the retainer clips and billets had often been observed to fall from the racks. Mindful of the gravity of the violation, the number of employees exposed, and the Respondent’s size, history, and good faith, we find a civil penalty in the sum of $400 appropriate under the circumstances.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative, and substantial evidence supports the findings of fact set forth in the foregoing summary of evidence.

CONCLUSIONS OF LAW

1. At all times material hereto Respondent was an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

2. Jurisdiction of these proceedings is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

3. During a period from May 18–20, 1977, and at various times prior thereto in said month, at Respondent’s workplace in St. Jude Industrial Park, Marston, Missouri, Respondent violated occupational safety regulation 29 CFR 1910.176(b) as alleged in the Citation for serious violation issued to Respondent June 1, 1977. There was substantial probability that death or serious physical harm could result from the violative conditions and Respondent knew or with the exercise of reasonable diligence should have known of the presence of the violation. The aforesaid violation was a serious violation within the meaning of section 17(k) of the Act, and a penalty of $400 is appropriate for said violation.

ORDER

Based on the above findings of fact and conclusions of law, it is ORDERED that the Citation for serious violation issued to Respondent June 1, 1977, is hereby affirmed and a penalty in the sum of $400 is assessed thereon.

Alan M. Wienman

Judge, OSHRC

Dated: September 5, 1978

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[1] The cited standard reads as follows:

§ 1910.176 Handling materials—general.

(b) Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

[2] Regulation 29 CFR 1910.176(b) provides:

Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

[3] Compliance Officer Dwyer (T. 71–72) and George Woollums (T. 142–144, 163) both suggested abatement measures. And curiously enough Respondent, through its cross examination of Mike Zoellner, established that at the time of the hearing it was using newly modified L-frames and retainers. The new retainer is a ‘horse-shoe’ equipped with two teeth on a bar welded to what formerly was the open end of the ‘U.’ The portion of the retainer containing the teeth is bent at angle of some 26° to 27° from the vertical axis. A scale drawing of the new retainer appears in the record as Exhibit R–7.