Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 6448

PHILADELPHIA COKE DIV. EASTERN

ASSOCIATED COAL CORP.,

Respondent.

DECISION

Before Barnako, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner: A decision of Review Commission Judge Ben D. Worcester dated

1 2

April 21, 1975, which is attached hereto as Appendix A, is before this Commission for review

pursuant to 29 U.S.C. § 661(i). That decision vacated a citation which alleged that respondent

had violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standard

codified at 29 C.F.R. § 1910.37(j). For reasons that follow, we affirm.

Section 1910.37(j) provides that:

‘Where a means of egress is not substantially level, such differences in elevation

shall be negotiated by stairs or ramps.’

The citation averred that respondent failed to comply with this standard in that the slope of its D–

14 conveyor ramp between the foundry and domestic screening stations exceeded a vertical rise

of 2 inches in a horizontal distance of 12 inches. The parties stipulated at the trial that the slope

of respondent’s ramp was ‘between 4 or 4 ½ inches rise for every 12 inches in length.’

Not only does the evidence fail to establish that respondent did not comply with the cited

This decision followed a remand of the case by a Commission decision of September 5, 1974,

which held that Judge Worcester erred in holding in his order of March 26, 1974, that respondent

had not timely contested the citation. Complainant challenges on this review the correctness of

our prior decision. We reject complainant’s contentions on that issue and adhere to our previous

decision.

Chairman Barnako does not agree to this attachment.

standard, but it shows that respondent did all that the standard required. The standard simply

requires the use of stairs or a ramp where a means of egress is not substantially level, and

respondent complied therewith by providing a ramp. Complainant would have the Commission

read slope limitations into the ramp requirement. I refuse to do so. See Diamond Roofing Co. v.

OSAHRC, 528 F.2d 645 (5th Cir. 1976).

I have found no regulation of the Secretary of Labor which prohibits use of a ramp whose

slope exceeds 2 inches in 12 inches, nor has my attention been directed to such a regulation.

Complainant has contended that Table E–1 of 29 C.F.R. § 1910.37(c)(1)(iii) sets forth the

permissible slope for ramps. That standard defines Class A and B ramps but does not preclude

the use of other ramps which do not fall within those definitions. Furthermore, when subsections

purpose is to insure that employees are provided with a means of egress which is wide enough to

permit rapid escape from their workplace in case of fire or other emergency with no danger of

overcrowding. More importantly, however, respondent was not charged with violating Table E.

Although the citation designated 29 C.F.R. § 1910.37(j) as the standard allegedly

violated, it also made reference to section 5–61 of the National Fire Protection Association Life

Safety Code (NFPA 101–1970). Subsection 5–6121 thereof defines Class A and B ramps in the

same manner as Table E, 29 C.F.R. § 1910.37(c)(1)(iii), indicating that the slope of those ramps

must not be more than 2 inches in 12 inches. This, however, does not help complainant’s case.

Section 5–1241, NFPA 101–1970 is the original source of 29 C.F.R. § 1910.37(j). See

29 C.F.R. § 1910.39. The source standard provides that:

‘Where a means of egress is not substantially level, such differences in elevation

shall be negotiated by stairs or ramps conforming to the requirements of this

Chapter for stairs or ramps.’ (Emphasis added.)

Thus, section 1910.37(j) is worded the same as its source standard except for the important

phrase which is emphasized above. That phrase apparently made the slope requirements of

subsection 5–6121 applicable to all ramps. Had the Secretary adopted a similar phrase in

promulgating section 1910.37(j), it might be said that the sloping provisions of Table E were

Section 1910.37(j) was promulgated pursuant to 29 U.S.C. § 655(a), which permitted the

Secretary to adopt as occupational safety and health standards any national consensus standard

for a period of two years without observing the procedural safeguards required by 29 U.S.C.

§ 655(b) for promulgating other standards which did not originate from such a source.

applicable to respondent. However, I construe his failure to do so as a clear indication that he

intended to exclude from his regulations the provision that would have limited the permissible

slope of ramps.

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 21, 1976

BARNAKO, Chairman, Concurring.

I concur in the disposition but not for the reasons stated. The administrative law judge

vacated on the basis that the cited standard is not applicable to the ramp in question. The lead

opinion, on the other hand, assumes that the standard applies since it vacates on the conclusion

that the ramp is in compliance with the requirements of the standard. I say ‘assumes’ because the

lead opinion gives no reasons for its rejection of the judge’s holding. In my view the standard is

plainly inapplicable on the facts, and the judge’s basis for vacation is proper. Therefore it is not

necessary to consider the question of compliance, and I do not join in the lead opinion’s

discussion thereof.

The foundry and domestic screening stations are each used for the sizing of coke. The

stations are each elevated at a height of 68 feet. A caged ladder leads to the foundry station and

there is a stairway at the end of the domestic station. The stations are separated by a distance of

40 feet which is negotiated by the ramp in question. The ramp is inclined from the top of the

foundry station to the base of the domestic station.

The sizing operation is automated. A conveyor belt extends along the center of the ramp

such that there is a passageway on the ramp on either side of the conveyor. However, only one

side of the ramp (the left-hand side as one ascends the ramp) is normally used and on this side

there is a handrail. An operator is normally stationed in the domestic station; he will go into the

foundry station two or three times per shift for an average of 10 minutes at a time to check the

amount of coke in the bins or to see that the screens are operating properly. Employees may enter

and leave the foundry station either by the ladder located there or by crossing the ramp.

A ‘means of egress’ as that phrase is used in the cited standard is defined at 29 C.F.R. §

I agree, however, with the reaffirmation of our prior decision in this matter. I also note that

following our original decision Complainant did not file a complaint as required by our rules

because he insisted on his view that Respondent had not timely contested the citation item in

question. It is, however, the function of the Commission as the adjudicating body to determine

the scope of the contest before it. See Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir.

1975); Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975); Owens-Illinois, Inc., No.

8859, BNA 4 OSHC 1250, CCH OSHD para. 20,705 (OSHRC, May 19, 1976); Turnbull

Millwork Co., No. 7413, BNA 3 OSHC 1781, CCH OSHD para. 20,221 (OSHRC, Dec. 15,

1975).

The standard is within subpart E of Part 1910 which is entitled ‘Means of Egress.’

1910.35(a) in pertinent part as ‘a continuous and unobstructed way of exit travel from any point

in a building or structure to a public way and consists of three separate and distinct parts: the way

of exit access, the exit, and the way of exit discharge . . ..’ Complainant’s argument, which the

lead opinion apparently accepts, is that the ramp constitutes the ‘exit access’ component because

it leads eventually to a public way.

The record, however, fails to show the location of any public way in relation to either the

domestic or foundry screening stations. Indeed, Judge Worcester specifically found that the

intervening ramp does not conduct from or onto a public way and is nothing more than a means

to connect two pieces of manufacturing equipment, or two work stations, somewhere inside the

plant. I agree.

Complainant, though, contends that only the ‘exit discharge’ need join with a public way. The

necessary conclusion from this argument and the lead opinion is that every walkway within a

building is a means of egress, because every walkway, no matter where it is located, will

ultimately reach a public Such an interpretation in my view is much too broad for it ignores the

limiting language of the definition that the means of egress be ‘continuous and unobstructed.’

In this case employees may use the ramp to enter or leave each work station or they may

use the ladder or stairs leading to and from each station. It logically follows from Complainant’s

argument that employees could exit the plant within the meaning of the standard by climbing the

ladder 68 feet to the foundry station, crossing the ramp, and descending another 68 feet down the

stairs from the domestic station. That such a means of egress would be neither continuous nor

Section 1910.35 further defines the three parts of a ‘means of egress’ as follows:

(b) Exit access. Exit access is that portion of a means of egress which leads to an

entrance to an exit.

spaces of the building or structure by construction or equipment as required in this

subpart to provide a protected way of travel to the exit discharge.

(d) Exit discharge. Exit discharge is that portion of a means of egress between the

termination of an exit and a public way.

I would conclude that the ramp is a ‘walking-working surface’ within subpart D rather than a

means of egress under subpart E because it falls within the definition of a ‘runway’ at 29 C.F.R.

§ 1910.21(a)(5): ‘A passageway for persons, elevated above the surrounding floor or ground

level, such as a footwalk along shafting or a walkway between buildings.’ No standard in this

subpart governs the slope of a runway but railings are required.

unobstructed is obvious. Accordingly, I would vacate for inapplicability of the cited standard.

CLEARY, Commissioner, CONCURRING:

I concur in the disposition of this case for the reasons given below.

First, I conclude that the cited standard is applicable to the ramp between the foundry

screening station and domestic screening station. The ramp is an integral part of a means of

egress from the

Secondly, I concur in the holding of the lead opinion that the standard at section

1910.37(j) does not incorporate the slope requirements for ramps found at Table E–1 of the

standard in section 1910.37(c)(1)(iii) for the reasons stated in that opinion.

Nevertheless, under the general requirements of section 1910.26(a), a means of egress

must be ‘safe’. For example, the slope of a ramp cannot be so steep as to render its use

dangerous.

I hold that the D–14 ramp was safe on the facts recited by my colleagues, its actual slope,

and the fact that there have been no injuries to employees while using the D–14 ramp during the

nine years of its existence.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 6448

PHILADELPHIA COKE DIV. EASTERN

ASSOCIATED COAL CORP.,

Respondent.

Howard K. Agran, Esq. of Philadelphia, Pa.

for the Secretary

Raymond K. Denworth, Jr., Francis J. Connell III Drinker, Biddle & Reath, of

Philadelphia, Pa.

for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a remand order of the Review Commission reversing a

former Order of this Judge dismissing the matter sua sponte on the ground that the Occupational

Safety and Health Review Commission did not have jurisdiction of the subject matter. The

matter came on to be heard pursuant to the remand order in Philadelphia, Pennsylvania on

November 15, 1974.

The Issues

The procedural history is noteworthy because of its present abstruse posture on remand.

The Secretary performed an inspection of Philadelphia Coke’s premises on December 11 and 12,

1973. On January 9, 1974, a citation consisting of 22 separate allegations of violation of the

standards Commission and the record of trial reveal, the next communication between the parties

was on January 30, 1974, when Philadelphia Coke sent a letter to the Secretary saying:

‘Pursuant to the citation issued to this company, and our subsequent visit to your

office, please be advised that the following is a status report of the several items

listed in the citation.’ (Emphasis added).

After naming the date upon which the various items the status report pertained to could

be abated the following request was made:

‘An extension of time to complete the necessary work required for compliance is

respectfully requested for the following items:

‘Items 12(a), (b), (c) in the subject citation have been omitted from this reply,

since it was stated in our conference that a revised citation would be issued by

your department. We assume that we will then have the customary time to reply

to the revised citation.’

No item was contested. The Secretary transmitted the petition to the Commission

together with this response:

‘Respondent, by his Counsel, has reviewed Petitioner’s petition for Modification

of Abatement Period, and finds no reason to object to the requested extension. ’

The matter was docketed as a petition for modification of abatement but before any action was

taken the following letter from Philadelphia Coke dated February 20, 1974, was received by the

Secretary:

‘Reference: CSHO No. C 5653 Amended as to Violation No. 12

‘Upon notice by the Inspector, at the time of inspection Mr. Stout ?? conference in

your office, the above instructions were modified to permit maintenance work on

the conveyors within the Galleries.

‘We propose to post these areas. An extension of time will be necessary to obtain

signs.

‘Item 12(c) is a difficult problem to solve for several reasons:

1. Present Engineering Schedules preclude study of problem for several months.

2. Construction of Air Pollution Abatement Equipment in area, will prevent any

other activity from being carried out successfully at the same time.

In view of the above, we request an extension of time in this matter. Our

recommendation is that Philadelphia Coke Division be given until January 1,

1975, to complete this work.’

The Respondent had taken no position as to Item 12 prior to February 20, either as to the

citation, the penalty or the time for abatement, but on February 20, 1974, a request for

modification of time for abatement (and nothing else) was made: The Secretary then took an

adverse position saying:

‘Petitioner requests an extension of time, until January 1, 1975 to correct the

problem of employees using conveyor housing ramp D–14 for egress and as

reason therefor alleges ‘(1) Present engineering schedules preclude study of

problem for several months’ and ‘(2) Construction of Air Pollution Abatement

Equipment in area, will prevent any other activity from being carried out

successfully at the same time’

‘We submit that the safety hazards created by the use of the said conveyor ramp

for egress demand that engineering schedules be rearranged to give immediate

attention to abatement. The said conveyor ramp is the only means of ingress or

egress to Petitioner’s building on the floor where it enters. In addition to the ramp,

there is only a fixed ladder on another floor of this multi-storied building to

provide any ingress or egress. Neither doors nor steps to the outside exist at all.

‘If, as Petitioner alleges, construction of air pollution abatement equipment is

being carried on in the said area, we urge and submit the absolute necessity to

simultaneously contruct safe means of egress for the said location.

‘WHEREFORE, the Secretary of Labor urges that Petitioner’s Petition for

Modification of Abatement Period be denied.’

It has now been revealed, through the Secretary’s post-hearing brief, that Philadelphia

Coke had written a letter to the Secretary on January 17, 1974, asking for a meeting to discuss

items 7 and 12 of the citation; that such meeting was held on January 21, 1974, and that the

Secretary had amended item 12 of the citation on January 24, 1974. A copy of the citation which

was filed with this Commission when the case was docketed does not clearly show the January

24 date and, since there is no complaint in the record for reasons which will be explained below,

the fact that an amended citation pertaining to item 12 had been issued was not revealed until the

filing of the Secretary’s brief. The January 24 amended citation apparently did not reach

Philadelphia Coke before the January 30 letter was written, so no position was taken as to item

12, as amended.

When an employer finds that, after a good faith effort to comply with the abatement

requirements of the citation, abatement has not been accomplished because of factors beyond his

reasonable control, he has the right to file a petition for modification of the time for abatement

with the Secretary, 29 U.S.C. Section 659(c). The Commission’s remand order cited its prior

decision in Secretary of Labor v. H. K. Porter Company, OSAHRC Docket No. 1210–p (March

22, 1974), paragraph 17471, CCH Occupational Safety and Health Decisions, 1973–1974, in

which the majority said at page 21951:

‘Ordinarily, such express statutory language would be controlling. In the present

case, however, we are convinced that the language in the key sense is erroneous

and we are required, therefore, to disregard it.’

I now find myself in a position similar to that of Chief Justice John Marshall in

Richmond, Virginia, on Monday, August 31, 1807, where he had presided over the trial of the

then unpopular Aaron Burr as a circuit judge in which Burr had been charged with committing

treason. In his charge to the jury he felt compelled to advise them that the United States had

failed to sustain the burden of proof, which made it incumbent upon him in the course of his duty

and responsibility as the trial judge, to direct a verdict for acquittal saying, among other things,

the following:

‘That this court dares not usurp power is most true.

‘That this court dares not shrink from its duty is not less true.

‘No man is desirous of placing himself in a disagreeable situation. No man is

desirous of becoming the peculiar subject of calumny. No man, might he let the

bitter cup pass from him without self reproach would drain it to the bottom. But if

he have no choice in the case, if there be no alternative presented to him but a

dereliction of duty or the opprobrium of those who are denominated in the world,

he merits the contempt as well as the indignation of his country. Who can hesitate

which to embrace.’ John Marshall—A Life in Law—Leonard Baker (1974), page

514.

In the case of Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579; 72 S. Ct.

8637; 96 Law Ed. 1153 (1952). The court, speaking through Mr. Justice Black, said in part:

‘In the framework of our Constitution the President’s power to see that the laws

are favorably executed refutes the ides that he is to be a lawmaker.’

This statement was buttressed upon the language of Section 1, Article I of the

Constitution of the United States which provides that:

‘All legislative powers herein granted shall be vested in a Congress of the United States .

. ..’

The court said that the Constitution did not subject this lawmaking power to presidential . . .

control. If the President cannot disregard an act of Congress and thus become a lawmaker

himself, subordinates of the President cannot disregard an act of Congress. For that reason, I

disclaim any intention to do so, but I am bound by the order of the Review Commission

remanding this matter to me as if there were a notice of contest.

By means of a transmutation in the abstruse the Review Commission converted a

complex question into a simple one. Because Philadelphia Coke had apparently not seen the

January 24 amendment of item 12 of the citation at the time it drafted its January 30 letter it

neither denied nor admitted a violation as alleged in item 12 of the citation as amended January

24, but the Commission has now decided that this letter was a notice of contest. It therefore is a

notice of contest.

Originally, issues were joined on the petition of Philadelphia Coke and the Secretary’s

acquiescence in response. When the matter was remanded with the positions of the parties

reversed as if it arose from a notice of contest of the citation, the Secretary refused to file a

complaint because he adheres to his previous position that it arises from a petition for

modification of abatement. Philadelphia Coke, on the other hand, deferred to the conclusion of

the Commission that the citation was contested. What are the issues under these circumstances?

Because the Secretary has filed no complaint, Philadelphia Coke has filed no answer. In its only

pleading Philadelphia Coke did not dispute the allegations of violation as described in the

citation, but the Commission has nevertheless proclaimed the issue to be a timely notice of

contest of both the citation and reasonableness of the time fixed for abatement. Accordingly, I

conclude that the issue is whether Philadelphia Coke violated the provisions of 29 CFR

1910.37(j) on December 11 and 12 as alleged in the citation and if so, what is a reasonable time

for abatement of the violation? Since there are no pleadings, the only means of identifying the

issues in dispute is from the arguments of the parties in their post-hearing briefs.

THE FACTS

The Secretary says that the applicable standard requires that means of egress which are

not substantially level shall be negotiated by stairs or ramps and that, implicitly when considered

in light of 29 CFR 1910.37(a), an exit shall consist only of the improved components. It is

contended that the facts stipulated by the parties show that the slope of the ramp in Respondent’s

Coke plant was far in excess of the slope permitted by the regulations because the slope was

between 4 and 4 1/2 inches and 12 inches.

Philadelphia Coke is a corporation engaged in the manufacture of industrial coke and

coke by-products. In this process, raw materials are transported through a number of elevated

stations. The particular stations involved in the instant case are the foundry screening station and

the domestic screening station. A 40-foot conveyor ramp runs between the two stations at an

incline of approximately 18 degrees, 4 1/2 vertical inches for each 12 horizontal inches. The

ramp is a totally enclosed structure containing a conveyor which carries coal from the foundry

screening station to the domestic screening station. The conveyor is 5 feet 4 inches wide. There

is a passageway on either side of the conveyor, one of which is 3 feet wide and the other 2 feet 9

1/2 inches wide. Employees traveling up and down the ramp use the 3-foot wide passageway

which is equipped with a handrail. The floor of the ramp is diamond-plated. Cleats

approximately 1 inch high are welded to its surface to provide a secure foothold.

Coming now to consideration of the standard under which the Respondent was cited,

Section 1910.37(j). The heading of this section is ‘Means of Egress, General.’ Section

1910.35(a) defines ‘means of egress’ as follows:

‘A means of egress is a continuous and unobstructed way of exit travel from any

point in a building or structure to a public way and consists of three separate and

distinct parts: The way of exit access, the exit, and the way of exit discharge. A

means of egress comprises the vertical and horizontal ways of travel and shall

include intervening room spaces, doorways, hallways, corridors, passageways,

balconies, ramps, stairs, enclosures, lobbies, escalators, horizontal exits, courts,

and yards.’

A public way has been defined as a way open to all people without distinction for passage

and repassage at their pleasure (Wray v. Norfolk and Western Railway Company, 61

Southeastern 2d, 65, 69, 191 Va. 212). A bridge resting at each end upon land dedicated by a

municipality under the laws of the State to a public purpose is a public way, Town of Nahant v.

United States, 136 Fed. 273, 277. The true test of a public way is in the general use of it by the

general public. State v. Floyd, 17 S.E. 505, 39 South Carolina 23, 25.

Under the facts in the instant case it cannot be said that the ramp involved, which has no

means of egress from or onto a public way and serves only as a means of access between two

pieces of manufacturing equipment inside of Philadelphia Coke’s coke manufacturing plant is a

public way. For that reason, item 12(c) of the citation of January 24, 1975 should be, and hereby

is, vacated.

The motion of the Respondent to withdraw its notice of contest of items 5(c), 11(a),

21(a), 13(a) and 18(a) having been granted, each of said citations have become a final order, not

reviewable by any court or agency by operation of law.

BEN D. WORCESTER

Judge, OSAHRC

Dated: APR 25, 1975

Hyattsville, Maryland