“SECRETARY OF LABOR,Complainant,v.KEYSTONE CONSOLIDATED INDUSTRIES, INC.,Respondent.INDEPENDENT STEEL ALLIANCE,Authorized EmployeeRepresentative.OSHRC Docket No. 80-5236_DECISION_Before: ROWLAND, Chairman, and CLEARY, Commissioner. *BY THE COMMISSION:The questions for decision are (1) whether the overhead crane inspectionstandard at 29 C.F.R. ? 1910.179 (j) (2) (ii) requires that one do morethan pump the pedals of air and hydraulic brake systems to meet thedaily inspection requirement, and (2) if so, must the systems beinspected daily even if they are not yet known to be deteriorating orleaking? We answer both questions in the affirmative and uphold thecitation.Keystone Consolidated Industries operates overhead cranes at its steelmill in Illinois. The cranes have either hydraulic or air andhydraulic braking systems. The Secretary of Labor issued a citation toKeystone alleging that the brake systems were not being inspecteddaily. The record shows and the parties appear to agree that the onlycheck of the air and hydraulic brake systems that Keystone requireddaily was pumping the brake pedal in the crane cab for \”hardness\”. Onecannot see the rest of the brake system from the cab. Keystone arguesthat pumping the pedal satisfies the standard’s daily inspectionrequirement or, in the alternative, that daily inspections are notrequired until the brake systems are known to be deteriorating or leaking.Sections 1910.179(j) states in part:? 1910.179 _Overhead and gantry cranes_.(j) _Inspection_–(1) _Inspection classification_.(ii) Inspection procedure for cranes in regular service is divided intotwo general classifications based upon the intervals at which inspectionshould be performed. The intervals in turn are dependent upon thenature of the critical components of the crane and the degree of theirexposure to wear, deterioration, or malfunction. The two generalclassifications are herein designated as \”frequent\” and \”periodic\” withrespective intervals between inspections as defined below:(_a_) Frequent inspection–Daily to monthly intervals(_b_) Periodic inspection–1 to 12-month intervals.(2) _Frequent inspection_. The following items shall be inspected fordefects at intervals as defined in paragraph (j)(1)(ii) of this sectionor as specifically indicated, including observation during operation forany defects which might appear between regular inspections. Alldeficiencies such as listed shall be carefully examined anddetermination made as to whether they constitute a safety hazard:(i) All functional operating mechanisms for maladjustment interferingwith proper operation. Daily.(ii) Deterioration or leakage in lines, tanks, valves, drain pumps, andother parts of air or hydraulic systems. Daily.(iii) Hooks with deformation or cracks. Visual inspection daily;monthly inspection with signed reports. For hooks with cracks or havingmore than 15 percent in excess of normal throat opening or more than 10?twist from the plane of the unbent hook refer to paragraph(j)(1)(3)(iii)(_a_) of this section.(iv) Hoist chains, including end connections, for excessive wear, twist,distorted links interfering with proper function, or stretch beyondmanufacturer’s recommendations. Visual inspection daily; monthlyinspection with signed report.(v) [Reserved](vi) All functional operating mechanisms for excessive wear of components.(vii) Rope reeving for noncompliance with manufacturer’s recommendations._Does pumping the brake pedal satisfy the daily inspection requirement?_ Section 1910.179(j)(2) requires that various listed items \”beinspected for defects.\” Subsection (ii) lists \”[d]eterioration orleakage in lines, tanks, valves, drain pumps and other parts of air orhydraulic systems\”; it specifies that the inspection must be performeddaily. Keystone argues in effect that by pumping the brake pedal one\”inspects\” the parts listed in the standard. Judge Wienman rejectedthe argument. He observed that the ordinary meaning laymen attach to\”inspection\” is visual examination and that common dictionarydefinitions state that one \”inspects\” by viewing closely and critically,by scrutinizing, and by looking carefully.[[1]] The judge held that\”[a]ny construction of the standard mindful of the ordinary meaning of’inspection’ necessarily requires a visual examination of the systems oran equivalent means of detecting problems.\” Judge Wienman then foundthat \”[a] mere check of crane pedal pressure is ineffectual for thispurpose…..\”We substantially agree with Judge Wienman. We are reluctant to adoptKeystone’s construction because it does not comfortably fit the usualmeaning of \”inspect,\” and because it would substitute for a formalinspection a step that is normally performed during craneoperation–pedal pumping. We prefer to rest our decision on a narrowerground, however. Like the judge, we do not rule out the possibilitythat, without unduly straining the meaning of the word, one may\”inspect\” an entire system by scrutinizing one critical, tell-talecomponent. But as Judge Wienman found, pumping a brake pedal is anineffectual means of inspecting the specified parts of air and hydraulicbrake systems for deterioration or leakage. The judge relied on thetestimony of two experienced brake repairmen that a brake pedal mightfeel normal when pumped even when there is a leak or malfunction in thehydraulic and air systems. The judge also relied on the testimony of acrane operator that he had once tested the brake pedal at the beginningof his shift, found it felt normal, but later discovered during theshift that all the hydraulic fluid had leaked out. Against this,Keystone cites the testimony of its crane repair supervisor that pumpingthe brake pedal \”is perfectly adequate to determine that there is a safeand functioning system . . . and that there is no leakage and nodeterioration….\” We agree with Judge Wienman, however, that thewitness distanced himself from this opinion on cross-examination. Helater testified that the crane operator could not detect deteriorationin hydraulic lines by stepping on the pedal, that he doubted \”very much\”that the operator could detect a small leak, and that a small leak couldbecome a large leak under continuous brake use.Keystone nevertheless maintains that unless the standard is construed torequire no more than a brake pedal test, it would be invalid. Keystonereasons as follows:The ancestor of section 1910.179 is the 1967 revised edition of aprivate safety standard published by the American National StandardsInstitute, ANSI B30.2.0–1967, _Safety Code for Overhead and GantryCranes_. [[2]] The Secretary adopted the ANSI code under theOccupational Safety and Health Act of 1970, ? 6(a), 29 U.S.C. ? 655(a),without conventional rulemaking procedures because it was a \”nationalconsensus standard\” within the meaning of section 3(9) of the Act, 29U.S.C. ? 652(9). [[3]] As a general principle, standards adopted undersection 6(a) may not differ in substance from their ancestors. [[4]] The provisions of the 1967 ANSI code corresponding to section 1910.179(j)(2)(ii) did not require more than a brake pedal test. To interpretthe standard to require more would make it invalid. Accordingly, thestandard should be interpreted to require no more than a brake pedal test.The linchpin of Keystone’s argument is the proposition that the 1967ANSI code required only a brake pedal test. Keystone does not claimthat subsection 2-2.1.2.a.3 of the ANSI standard, the provisioncorresponding to subsection (ii) of section 1910.179(j)(2), is wordeddifferently, for the provisions are identical. Instead, Keystone claimsthat the intent behind the ANSI provision was that no more than a brakepedal test was required.The only support that Keystone offers for this view is the testimony ofWilliam A. Weaver that the members of the 1967 ANSI revision committeethat added this provision intended to require only a brake pedal test. Mr. Weaver was not, however, a member of the 1967 ANSI revisioncommittee. He joined the ANSI committee concerned with this code in1969. At the time of the hearing, Mr. Weaver was the chairman of thesubcommittee that issued a revision of the code in 1976. So far as thisrecord shows, his only knowledge of the intent of the 1967 ANSI revisioncommittee came from discussions of the 1976 revision committee. Hetestified that during the discussions \”the meetings of the varioussections on inspections were gone over.\” We agree with Judge Wienmanthat the record does not satisfactorily show \”the nature and extent ofWeaver’s knowledge of the [1967] ANSI committee intent.\” Mr. Weaver didnot speak from first-hand knowledge of the intent of the 1967 ANSIrevision committee. He did not state that the persons he had spoken tohad reason to know of that intent. As Judge Wienman stated:If any ANSI documents or records support Weaver’s opinion, they were notcited by the witness, much less offered in evidence. Nor were any of the51 individuals listed in [ANSI] B30.2.0–1967 as members of thestandards committee . . . — those present at the creation of the citedstandard–identified as men who agreed with the proposition that the[crane] operator’s action in depressing the brake pedal satisfied aregulation which mandates daily inspection of \”lines, tanks, valves,drain pumps, and other parts of air or hydraulic systems.\”[[5]]We are therefore unconvinced that our construction of the standardrenders it invalid.Although we hold that Keystone must do more than merely pump a brakepedal, we also agree with the suggestion in Keystone’s brief that,despite the standard’s literal language, it does not require aninspection of every inch of hydraulic or air line and the dismantlingand close scrutiny of every component of every brake mechanism. Weagree with Keystone that an extremely literal reading of the standardwould require the dismantling and close scrutiny of each component ofair or hydraulic systems. However, such an exacting type of inspectionwas neither advocated by the Secretary in this case nor was shown to benecessary, and we therefore do not require Keystone to perform such aninspection.At the hearing, Keystone’s crane repairman Parrish outlined proceduresfor inspecting the lines, tanks, valves, drain pumps and other parts ofhydraulic systems. Parrish indicated that such a daily inspectionwould take from 15 minutes to 40 minutes, depending upon the type ofcrane involved. Parrish, as well as another crane repairman and thecompliance officer, also indicated that an adequate inspection could beperformed without dismantling and closely scrutinizing every brakemechanism component. Further, at the time of the inspection, Keystonewas conducting, on a less than daily basis,[[6]] the type of inspectionthat Parrish outlined at the hearing. There was also unrebuttedtestimony by Parrish that five years before the inspection Keystoneconducted such inspections of its brake systems on a daily basis. Keystone did not put on any convincing evidence that would establishthat the inspection procedures outlined by Parrish would be ineffectiveor were not practical, nor did Keystone suggest that it was unaware ofprocedures that would constitute effective compliance with the citedstandard.As discussed earlier, the only test of the brake hydraulic system thatKeystone implemented on a daily basis at the time of the inspection wasthe pumping of the brake pedal. Since the pedal test was shown not tobe the type of inspection procedure contemplated by the cited standard,and since the record establishes that Keystone could have implementedmore effective inspection procedures, we find that Keystone did notperform the inspection required by section 1910.179(j)(2)._Are daily inspections of air and hydraulic systems required only if thesystems are known to be deteriorating or leaking?_ Keystone maintainsthat section 1910.179(j)(2) establishes two categories of inspectionitems: \”normal items to be inspected for deficiencies\” and \”knownexisting deficiencies to be inspected.\” Although it acknowledges thatsection 1910.179(j)(2) is not artfully drafted, Keystone posits thatsubsections (ii) and (iii) are critically different from subsections(i), (iv), (vi) and (vii) because the latter use the key word \”for\”. That word, in Keystone’s view, signifies that frequent inspections arerequired even if deficiencies are not yet known. Thus, subsection (iv)requires that all hoist chains be inspected \”_for_ excessive wear\” evenif they are not yet known to be worn to the point of being deficient. By contrast, subsection (ii) does not require that all air and hydraulicsystems be inspected daily because the item was worded to requireinspection or \”deterioration or leakage\” rather than inspection ofhydraulic and air systems \”for\” deterioration or leakage. Keystonepoints particularly to item (iii), which requires inspections of\”[h]ooks with deformation or cracks,\” and reasons that this item doesnot require inspection of hooks to discover deformation or cracks butthose \”with\” deformation or cracks. [[7]]We are unconvinced. As Judge Wienman observed, Keystone’s positionrests on a meticulous analysis of section 1910.179(j)(2). Yet, asKeystone concedes, section 1910.179 was not artfully drafted. Analysisof grammatical construction may be helpful where a standard is\”scientifically drawn and consistently expressed,\”[[8]] but respect forcommon usage and understanding is a surer guide in construing the oldANSI codes, which were drafted by practical men for audiences familiarwith the subject.[[9]]Under common usage and understanding, the word \”for\” is generally notused with the care and sophistication Keystone’s construction requires. The use or omission of \”for\” in a context such as this standard carriesno obvious change in meaning to lay drafters and readers, and they arenot likely to attach significance to the concomitant variation insentence structure. Using \”for\” is, in ordinary usage, a convenient wayto avoid awkward phrasing. In this standard, the word \”for\” is used insubsections (i), (iv), (vi) and (viii) to straightforwardly delineatewhat \”defects\” or \”deficiencies\” to look \”for\” when inspecting an\”item\”. For example, subsection (vii) of section 1910.179 (j)(2),which commands one to inspect \”[r]ope reeving for noncompliance withmanufacturer’s recommendations,\” would be difficult to smoothly phraseif \”for\” could not be used. By contrast, in subsection (ii) the use ofthe word is unnecessary to straightforward writing. We thereforeconclude that the use or omission of \”for\” is of no substantiveimportance, but merely is the result of the drafter’s use of varyingsentence structure in the different subsections of section 1910.179(j)(2).Keystone’s view also introduces its own anomalies. Keystone pays littleattention to the first sentence of section 1910.179(j)(2), whichrequires that listed items be inspected for \”defects\”. Under itsconstruction, the \”items\” to be inspected would not be the listed airand hydraulic system parts, but deterioration or leakage in them. Thereader of the standard would therefore be given the puzzling and clumsycommand to inspect \”deterioration and leakage\” for \”defects.\” The morestraightforward and sensible view is that the listed air and hydraulicsystem parts are \”items\” and \”deterioration and leakage\” are \”defects.\” Under this reading, the employer’s duty is plain and understandable: toinspect air and hydraulic systems for deterioration and leakage, andthen determine whether any deterioration or leakage is a safety hazard.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: FEB 29 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*]] Commissioner Buckley took no part in the decision of this case. Although a new Commissioner possesses the legal authority to participatein pending cases, participation is discretionary and is not required forthe agency to take official action. _Perini Corp_., 78 OSAHRC 43\/C5, 6BNA OSHC 1609, 1611, 1978 CCH OSHD ? 22,772, p. 27,494 (No. 13029, 1978)(Commissioner Cottine’s separate opinion). See ? 12(f) of the Act, 29U.S.C. ? 661(e). Chairman Rowland and Commissioner Cleary reachedagreement on the disposition of this case prior to the assumption ofoffice of Commissioner Buckley. Participation by Commissioner Buckleywould therefore have no effect on the outcome of the cases and woulddelay the issuance of the decision. Accordingly, in the interests ofefficient decision-making, Commissioner Buckley elects not toparticipate in this case.[[1]] The judge referred to Webster’s Third New International Dictionary(1965). See also _The Random House Dictionary_ 736 (1971) (\”to lookcarefully at or over; view closely and critically: _to_ _inspect__every_ _part_\”). The American Society of Safety Engineers, _Dictionaryof Terms Used in the Safety Profession_ 23 (1971) defines \”inspect(inspection)\” as \”[t]o look upon; to view closely and critically; toexamine; to scrutinize and evaluate.\” The latest edition of thisdictionary is to the same effect. ASSE, _Dictionary of Terms Used inthe Safety Profession 24_ (1981).[[2]] 29 C.F.R. ? 1910.189 (listing sources of standards).[[3]] 36 Fed. Reg. 10466, 10620 (1971).[[4]] _George C. Christopher & Sons, Inc_., 82 OSAHRC 9\/A2, 10 BNA OSHC1436, 1443, 1982 CCH OSHD ? 25,956, p. 32,531 (No. 76-647, 1982);_American Can Co_., 82 OSAHRC 5\/A2, 10 BNA OSHC 1305, 1310-1311, 1982CCH OSHD ? 25,899, pp. 32,413-4 (No. 76-5162, 1982). _See_ _also__Noblecraft Industries v. Secretary of Labor_, 614 F.2d 199 (9th Cir. 1980).[[5]] The weakness of Keystone’s evidence sharply distinguishes thiscase from _United States Steel Corp._, 77 OSAHRC 64\/C8, 5 BNA OSHC 1289,1295-6, 1977-78 CCH OSHD ? 21,795, p. 26,224 (No. 10825, 1977). There,the Commission held that a letter written by a later ANSI committee,interpreting the same ANSI standard before us now, was not definitiveevidence of the intent of the drafters but \”is entitled to some weightas an expert opinion . . . .\” _See_ _also_ _Bethlehem Steel Corp. v.OSHRC_, 573 F.2d 157, 159 (3d Cir. 1978) (not binding but \”entitled toconsideration\”). Chairman Rowland would also contrast this case with_Georgia Power Co_., 83 OSAHRC 20\/A2, 11 BNA OSHC 1349, 1358, 1983 CCHOSHD ? 26,540, p. 33,869 (No. 76-3353, 1983) (Chairman Rowland,dissenting) (attaching weight to statement of member of ANSI revisioncommittee that was consistent with structure of standard).[[6]] Parrish testified that Keystone inspected its brake system anaverage of about once per week, while Keystone’s supervisor Beanetestified that inspection occurred once every three to four days.[[7]] Judge Wienman rejected Keystone’s argument because he thought itinconsistent with section 1910.179(l)(3)(i). That standard requiresthat \”[a]ny unsafe conditions disclosed by the inspection requirementsof paragraph (j) . . . shall be corrected before operation of the craneis resumed.\” The judge relied on the remark in _United States SteelCorp._, 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD ?21,795, p. 26,225 (No. 10825, 1977), that sections 1910.179 (j) and (1)\”require that _defects_ discovered during . . . inspections becorrected.\” (Emphasis added.) The judge reasoned that Keystone’sconstruction of section 1910.179(j)(2) would permit cranes with defectsto be operated, while section 1910.179(l)(3)(i) requires them to berepaired first. Keystone maintains that the judge erred. It reasonsthat section 1910.179(1)(3)(i) does not require that cranes with\”defects\” not be operated until repaired but that cranes with parts thatare defective to the point of being an \”unsafe condition\” may not beoperated until repaired. See also section 1910.179(j)(2) (secondsentence). The Secretary does not rely on this aspect of the judge’sreasoning. Although we conclude that _U.S. Steel_ did not correctlycharacterize the standards, we conclude also that the judge’s decisionshould be affirmed on another ground.[[8]] _See_ McCaffrey, _Statutory Construction_ ? 21 (1953).[[9]] See Hamilton, \”The Role of Nongovernmental Standards in theDevelopment of Mandatory Federal Standards Affecting Safety or Health,\”56 Texas L.Rev. 1329, 1449 (1978).”