“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 6448\t\t\t\t\t\t\t\t\t\tPHILADELPHIA COKE DIV. EASTERN\t\t\t\t\t\t\t\t\t\tASSOCIATED COAL CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBefore Barnako, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner: A decision of Review Commission Judge Ben D. Worcester dated\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tApril 21, 1975, which is attached hereto as Appendix A, is before this Commission for review\t\t\t\t\t\t\t\t\t\tpursuant to 29 U.S.C. \u00a7 661(i). That decision vacated a citation which alleged that respondent\t\t\t\t\t\t\t\t\t\thad violated 29 U.S.C. \u00a7 654(a)(2) by failing to comply with the occupational safety standard\t\t\t\t\t\t\t\t\t\tcodified at 29 C.F.R. \u00a7 1910.37(j). For reasons that follow, we affirm.\t\t\t\t\t\t\t\t\t\tSection 1910.37(j) provides that:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Where a means of egress is not substantially level, such differences in elevation\t\t\t\t\t\t\t\t\t\tshall be negotiated by stairs or ramps.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe citation averred that respondent failed to comply with this standard in that the slope of its D\u2013\t\t\t\t\t\t\t\t\t\t14 conveyor ramp between the foundry and domestic screening stations exceeded a vertical rise\t\t\t\t\t\t\t\t\t\tof 2 inches in a horizontal distance of 12 inches. The parties stipulated at the trial that the slope\t\t\t\t\t\t\t\t\t\tof respondent\u2019s ramp was \u2018between 4 or 4 \u00bd inches rise for every 12 inches in length.\u2019\t\t\t\t\t\t\t\t\t\tNot only does the evidence fail to establish that respondent did not comply with the cited\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tThis decision followed a remand of the case by a Commission decision of September 5, 1974,\t\t\t\t\t\t\t\t\t\twhich held that Judge Worcester erred in holding in his order of March 26, 1974, that respondent\t\t\t\t\t\t\t\t\t\thad not timely contested the citation. Complainant challenges on this review the correctness of\t\t\t\t\t\t\t\t\t\tour prior decision. We reject complainant\u2019s contentions on that issue and adhere to our previous\t\t\t\t\t\t\t\t\t\tdecision.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tChairman Barnako does not agree to this attachment.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tstandard, but it shows that respondent did all that the standard required. The standard simply\t\t\t\t\t\t\t\t\t\trequires the use of stairs or a ramp where a means of egress is not substantially level, and\t\t\t\t\t\t\t\t\t\trespondent complied therewith by providing a ramp. Complainant would have the Commission\t\t\t\t\t\t\t\t\t\tread slope limitations into the ramp requirement. I refuse to do so. See Diamond Roofing Co. v.\t\t\t\t\t\t\t\t\t\tOSAHRC, 528 F.2d 645 (5th Cir. 1976).\t\t\t\t\t\t\t\t\t\tI have found no regulation of the Secretary of Labor which prohibits use of a ramp whose\t\t\t\t\t\t\t\t\t\tslope exceeds 2 inches in 12 inches, nor has my attention been directed to such a regulation.\t\t\t\t\t\t\t\t\t\tComplainant has contended that Table E\u20131 of 29 C.F.R. \u00a7 1910.37(c)(1)(iii) sets forth the\t\t\t\t\t\t\t\t\t\tpermissible slope for ramps. That standard defines Class A and B ramps but does not preclude\t\t\t\t\t\t\t\t\t\tthe use of other ramps which do not fall within those definitions. Furthermore, when subsections\t\t\t\t\t\t\t\t\t\t(c) and (d) of section 1910.37 are considered together in their entirety, it is clear that their\t\t\t\t\t\t\t\t\t\tpurpose is to insure that employees are provided with a means of egress which is wide enough to\t\t\t\t\t\t\t\t\t\tpermit rapid escape from their workplace in case of fire or other emergency with no danger of\t\t\t\t\t\t\t\t\t\tovercrowding. More importantly, however, respondent was not charged with violating Table E.\t\t\t\t\t\t\t\t\t\tAlthough the citation designated 29 C.F.R. \u00a7 1910.37(j) as the standard allegedly\t\t\t\t\t\t\t\t\t\tviolated, it also made reference to section 5\u201361 of the National Fire Protection Association Life\t\t\t\t\t\t\t\t\t\tSafety Code (NFPA 101\u20131970). Subsection 5\u20136121 thereof defines Class A and B ramps in the\t\t\t\t\t\t\t\t\t\tsame manner as Table E, 29 C.F.R. \u00a7 1910.37(c)(1)(iii), indicating that the slope of those ramps\t\t\t\t\t\t\t\t\t\tmust not be more than 2 inches in 12 inches. This, however, does not help complainant\u2019s case.\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tSection 5\u20131241, NFPA 101\u20131970 is the original source of 29 C.F.R. \u00a7 1910.37(j). See\t\t\t\t\t\t\t\t\t\t29 C.F.R. \u00a7 1910.39. The source standard provides that:\t\t\t\t\t\t\t\t\t\t\u2018Where a means of egress is not substantially level, such differences in elevation\t\t\t\t\t\t\t\t\t\tshall be negotiated by stairs or ramps conforming to the requirements of this\t\t\t\t\t\t\t\t\t\tChapter for stairs or ramps.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThus, section 1910.37(j) is worded the same as its source standard except for the important\t\t\t\t\t\t\t\t\t\tphrase which is emphasized above. That phrase apparently made the slope requirements of\t\t\t\t\t\t\t\t\t\tsubsection 5\u20136121 applicable to all ramps. Had the Secretary adopted a similar phrase in\t\t\t\t\t\t\t\t\t\tpromulgating section 1910.37(j), it might be said that the sloping provisions of Table E were\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tSection 1910.37(j) was promulgated pursuant to 29 U.S.C. \u00a7 655(a), which permitted the\t\t\t\t\t\t\t\t\t\tSecretary to adopt as occupational safety and health standards any national consensus standard\t\t\t\t\t\t\t\t\t\tfor a period of two years without observing the procedural safeguards required by 29 U.S.C.\t\t\t\t\t\t\t\t\t\t\u00a7 655(b) for promulgating other standards which did not originate from such a source.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tapplicable to respondent. However, I construe his failure to do so as a clear indication that he\t\t\t\t\t\t\t\t\t\tintended to exclude from his regulations the provision that would have limited the permissible\t\t\t\t\t\t\t\t\t\tslope of ramps.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge\u2019s decision is affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: OCT 21, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman, Concurring.\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tI concur in the disposition but not for the reasons stated. The administrative law judge\t\t\t\t\t\t\t\t\t\tvacated on the basis that the cited standard is not applicable to the ramp in question. The lead\t\t\t\t\t\t\t\t\t\topinion, on the other hand, assumes that the standard applies since it vacates on the conclusion\t\t\t\t\t\t\t\t\t\tthat the ramp is in compliance with the requirements of the standard. I say \u2018assumes\u2019 because the\t\t\t\t\t\t\t\t\t\tlead opinion gives no reasons for its rejection of the judge\u2019s holding. In my view the standard is\t\t\t\t\t\t\t\t\t\tplainly inapplicable on the facts, and the judge\u2019s basis for vacation is proper. Therefore it is not\t\t\t\t\t\t\t\t\t\tnecessary to consider the question of compliance, and I do not join in the lead opinion\u2019s\t\t\t\t\t\t\t\t\t\tdiscussion thereof.\t\t\t\t\t\t\t\t\t\tThe foundry and domestic screening stations are each used for the sizing of coke. The\t\t\t\t\t\t\t\t\t\tstations are each elevated at a height of 68 feet. A caged ladder leads to the foundry station and\t\t\t\t\t\t\t\t\t\tthere is a stairway at the end of the domestic station. The stations are separated by a distance of\t\t\t\t\t\t\t\t\t\t40 feet which is negotiated by the ramp in question. The ramp is inclined from the top of the\t\t\t\t\t\t\t\t\t\tfoundry station to the base of the domestic station.\t\t\t\t\t\t\t\t\t\tThe sizing operation is automated. A conveyor belt extends along the center of the ramp\t\t\t\t\t\t\t\t\t\tsuch that there is a passageway on the ramp on either side of the conveyor. However, only one\t\t\t\t\t\t\t\t\t\tside of the ramp (the left-hand side as one ascends the ramp) is normally used and on this side\t\t\t\t\t\t\t\t\t\tthere is a handrail. An operator is normally stationed in the domestic station; he will go into the\t\t\t\t\t\t\t\t\t\tfoundry station two or three times per shift for an average of 10 minutes at a time to check the\t\t\t\t\t\t\t\t\t\tamount of coke in the bins or to see that the screens are operating properly. Employees may enter\t\t\t\t\t\t\t\t\t\tand leave the foundry station either by the ladder located there or by crossing the ramp.\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tA \u2018means of egress\u2019 as that phrase is used in the cited standard is defined at 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tI agree, however, with the reaffirmation of our prior decision in this matter. I also note that\t\t\t\t\t\t\t\t\t\tfollowing our original decision Complainant did not file a complaint as required by our rules\t\t\t\t\t\t\t\t\t\tbecause he insisted on his view that Respondent had not timely contested the citation item in\t\t\t\t\t\t\t\t\t\tquestion. It is, however, the function of the Commission as the adjudicating body to determine\t\t\t\t\t\t\t\t\t\tthe scope of the contest before it. See Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir.\t\t\t\t\t\t\t\t\t\t1975); Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975); Owens-Illinois, Inc., No.\t\t\t\t\t\t\t\t\t\t8859, BNA 4 OSHC 1250, CCH OSHD para. 20,705 (OSHRC, May 19, 1976); Turnbull\t\t\t\t\t\t\t\t\t\tMillwork Co., No. 7413, BNA 3 OSHC 1781, CCH OSHD para. 20,221 (OSHRC, Dec. 15,\t\t\t\t\t\t\t\t\t\t1975).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tThe standard is within subpart E of Part 1910 which is entitled \u2018Means of Egress.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1910.35(a) in pertinent part as \u2018a continuous and unobstructed way of exit travel from any point\t\t\t\t\t\t\t\t\t\tin a building or structure to a public way and consists of three separate and distinct parts: the way\t\t\t\t\t\t\t\t\t\tof exit access, the exit, and the way of exit discharge . . ..\u2019 Complainant\u2019s argument, which the\t\t\t\t\t\t\t\t\t\tlead opinion apparently accepts, is that the ramp constitutes the \u2018exit access\u2019 component because\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tit leads eventually to a public way.\t\t\t\t\t\t\t\t\t\tThe record, however, fails to show the location of any public way in relation to either the\t\t\t\t\t\t\t\t\t\tdomestic or foundry screening stations. Indeed, Judge Worcester specifically found that the\t\t\t\t\t\t\t\t\t\tintervening ramp does not conduct from or onto a public way and is nothing more than a means\t\t\t\t\t\t\t\t\t\tto connect two pieces of manufacturing equipment, or two work stations, somewhere inside the\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tplant. I agree.\t\t\t\t\t\t\t\t\t\tComplainant, though, contends that only the \u2018exit discharge\u2019 need join with a public way. The\t\t\t\t\t\t\t\t\t\tnecessary conclusion from this argument and the lead opinion is that every walkway within a\t\t\t\t\t\t\t\t\t\tbuilding is a means of egress, because every walkway, no matter where it is located, will\t\t\t\t\t\t\t\t\t\tultimately reach a public Such an interpretation in my view is much too broad for it ignores the\t\t\t\t\t\t\t\t\t\tlimiting language of the definition that the means of egress be \u2018continuous and unobstructed.\u2019\t\t\t\t\t\t\t\t\t\tIn this case employees may use the ramp to enter or leave each work station or they may\t\t\t\t\t\t\t\t\t\tuse the ladder or stairs leading to and from each station. It logically follows from Complainant\u2019s\t\t\t\t\t\t\t\t\t\targument that employees could exit the plant within the meaning of the standard by climbing the\t\t\t\t\t\t\t\t\t\tladder 68 feet to the foundry station, crossing the ramp, and descending another 68 feet down the\t\t\t\t\t\t\t\t\t\tstairs from the domestic station. That such a means of egress would be neither continuous nor\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tSection 1910.35 further defines the three parts of a \u2018means of egress\u2019 as follows:\t\t\t\t\t\t\t\t\t\t(b) Exit access. Exit access is that portion of a means of egress which leads to an\t\t\t\t\t\t\t\t\t\tentrance to an exit.\t\t\t\t\t\t\t\t\t\t(c) Exit. Exit is that portion of a means of egress which is separated from all other\t\t\t\t\t\t\t\t\t\tspaces of the building or structure by construction or equipment as required in this\t\t\t\t\t\t\t\t\t\tsubpart to provide a protected way of travel to the exit discharge.\t\t\t\t\t\t\t\t\t\t(d) Exit discharge. Exit discharge is that portion of a means of egress between the\t\t\t\t\t\t\t\t\t\ttermination of an exit and a public way.\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tI would conclude that the ramp is a \u2018walking-working surface\u2019 within subpart D rather than a\t\t\t\t\t\t\t\t\t\tmeans of egress under subpart E because it falls within the definition of a \u2018runway\u2019 at 29 C.F.R.\t\t\t\t\t\t\t\t\t\t\u00a7 1910.21(a)(5): \u2018A passageway for persons, elevated above the surrounding floor or ground\t\t\t\t\t\t\t\t\t\tlevel, such as a footwalk along shafting or a walkway between buildings.\u2019 No standard in this\t\t\t\t\t\t\t\t\t\tsubpart governs the slope of a runway but railings are required.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tunobstructed is obvious. Accordingly, I would vacate for inapplicability of the cited standard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner, CONCURRING:\t\t\t\t\t\t\t\t\t\tI concur in the disposition of this case for the reasons given below.\t\t\t\t\t\t\t\t\t\tFirst, I conclude that the cited standard is applicable to the ramp between the foundry\t\t\t\t\t\t\t\t\t\tscreening station and domestic screening station. The ramp is an integral part of a means of\t\t\t\t\t\t\t\t\t\tegress from the\t\t\t\t\t\t\t\t\t\tSecondly, I concur in the holding of the lead opinion that the standard at section\t\t\t\t\t\t\t\t\t\t1910.37(j) does not incorporate the slope requirements for ramps found at Table E\u20131 of the\t\t\t\t\t\t\t\t\t\tstandard in section 1910.37(c)(1)(iii) for the reasons stated in that opinion.\t\t\t\t\t\t\t\t\t\tNevertheless, under the general requirements of section 1910.26(a), a means of egress\t\t\t\t\t\t\t\t\t\tmust be \u2018safe\u2019. For example, the slope of a ramp cannot be so steep as to render its use\t\t\t\t\t\t\t\t\t\tdangerous.\t\t\t\t\t\t\t\t\t\tI hold that the D\u201314 ramp was safe on the facts recited by my colleagues, its actual slope,\t\t\t\t\t\t\t\t\t\tand the fact that there have been no injuries to employees while using the D\u201314 ramp during the\t\t\t\t\t\t\t\t\t\tnine years of its existence.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 6448\t\t\t\t\t\t\t\t\t\tPHILADELPHIA COKE DIV. EASTERN\t\t\t\t\t\t\t\t\t\tASSOCIATED COAL CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHoward K. Agran, Esq. of Philadelphia, Pa.\t\t\t\t\t\t\t\t\t\tfor the Secretary\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRaymond K. Denworth, Jr., Francis J. Connell III Drinker, Biddle & Reath, of\t\t\t\t\t\t\t\t\t\tPhiladelphia, Pa.\t\t\t\t\t\t\t\t\t\tfor the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBen D. Worcester, Judge, OSAHRC\t\t\t\t\t\t\t\t\t\tThis proceeding arises pursuant to a remand order of the Review Commission reversing a\t\t\t\t\t\t\t\t\t\tformer Order of this Judge dismissing the matter sua sponte on the ground that the Occupational\t\t\t\t\t\t\t\t\t\tSafety and Health Review Commission did not have jurisdiction of the subject matter. The\t\t\t\t\t\t\t\t\t\tmatter came on to be heard pursuant to the remand order in Philadelphia, Pennsylvania on\t\t\t\t\t\t\t\t\t\tNovember 15, 1974.\t\t\t\t\t\t\t\t\t\tThe Issues\t\t\t\t\t\t\t\t\t\tThe procedural history is noteworthy because of its present abstruse posture on remand.\t\t\t\t\t\t\t\t\t\tThe Secretary performed an inspection of Philadelphia Coke\u2019s premises on December 11 and 12,\t\t\t\t\t\t\t\t\t\t1973. On January 9, 1974, a citation consisting of 22 separate allegations of violation of the\t\t\t\t\t\t\t\t\t\tstandards Commission and the record of trial reveal, the next communication between the parties\t\t\t\t\t\t\t\t\t\twas on January 30, 1974, when Philadelphia Coke sent a letter to the Secretary saying:\t\t\t\t\t\t\t\t\t\t\u2018Pursuant to the citation issued to this company, and our subsequent visit to your\t\t\t\t\t\t\t\t\t\toffice, please be advised that the following is a status report of the several items\t\t\t\t\t\t\t\t\t\tlisted in the citation.\u2019 (Emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAfter naming the date upon which the various items the status report pertained to could\t\t\t\t\t\t\t\t\t\tbe abated the following request was made:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u2018An extension of time to complete the necessary work required for compliance is\t\t\t\t\t\t\t\t\t\trespectfully requested for the following items:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Items 12(a), (b), (c) in the subject citation have been omitted from this reply,\t\t\t\t\t\t\t\t\t\tsince it was stated in our conference that a revised citation would be issued by\t\t\t\t\t\t\t\t\t\tyour department. We assume that we will then have the customary time to reply\t\t\t\t\t\t\t\t\t\tto the revised citation.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNo item was contested. The Secretary transmitted the petition to the Commission\t\t\t\t\t\t\t\t\t\ttogether with this response:\t\t\t\t\t\t\t\t\t\t\u2018Respondent, by his Counsel, has reviewed Petitioner\u2019s petition for Modification\t\t\t\t\t\t\t\t\t\tof Abatement Period, and finds no reason to object to the requested extension. \u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe matter was docketed as a petition for modification of abatement but before any action was\t\t\t\t\t\t\t\t\t\ttaken the following letter from Philadelphia Coke dated February 20, 1974, was received by the\t\t\t\t\t\t\t\t\t\tSecretary:\t\t\t\t\t\t\t\t\t\t\u2018Reference: CSHO No. C 5653 Amended as to Violation No. 12\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018Upon notice by the Inspector, at the time of inspection Mr. Stout ?? conference in\t\t\t\t\t\t\t\t\t\tyour office, the above instructions were modified to permit maintenance work on\t\t\t\t\t\t\t\t\t\tthe conveyors within the Galleries.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018We propose to post these areas. An extension of time will be necessary to obtain\t\t\t\t\t\t\t\t\t\tsigns.\t\t\t\t\t\t\t\t\t\t\u2018Item 12(c) is a difficult problem to solve for several reasons:\t\t\t\t\t\t\t\t\t\t1. Present Engineering Schedules preclude study of problem for several months.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Construction of Air Pollution Abatement Equipment in area, will prevent any\t\t\t\t\t\t\t\t\t\tother activity from being carried out successfully at the same time.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn view of the above, we request an extension of time in this matter. Our\t\t\t\t\t\t\t\t\t\trecommendation is that Philadelphia Coke Division be given until January 1,\t\t\t\t\t\t\t\t\t\t1975, to complete this work.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Respondent had taken no position as to Item 12 prior to February 20, either as to the\t\t\t\t\t\t\t\t\t\tcitation, the penalty or the time for abatement, but on February 20, 1974, a request for\t\t\t\t\t\t\t\t\t\tmodification of time for abatement (and nothing else) was made: The Secretary then took an\t\t\t\t\t\t\t\t\t\tadverse position saying:\t\t\t\t\t\t\t\t\t\t\u2018Petitioner requests an extension of time, until January 1, 1975 to correct the\t\t\t\t\t\t\t\t\t\tproblem of employees using conveyor housing ramp D\u201314 for egress and as\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\treason therefor alleges \u2018(1) Present engineering schedules preclude study of\t\t\t\t\t\t\t\t\t\tproblem for several months\u2019 and \u2018(2) Construction of Air Pollution Abatement\t\t\t\t\t\t\t\t\t\tEquipment in area, will prevent any other activity from being carried out\t\t\t\t\t\t\t\t\t\tsuccessfully at the same time\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018We submit that the safety hazards created by the use of the said conveyor ramp\t\t\t\t\t\t\t\t\t\tfor egress demand that engineering schedules be rearranged to give immediate\t\t\t\t\t\t\t\t\t\tattention to abatement. The said conveyor ramp is the only means of ingress or\t\t\t\t\t\t\t\t\t\tegress to Petitioner\u2019s building on the floor where it enters. In addition to the ramp,\t\t\t\t\t\t\t\t\t\tthere is only a fixed ladder on another floor of this multi-storied building to\t\t\t\t\t\t\t\t\t\tprovide any ingress or egress. Neither doors nor steps to the outside exist at all.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018If, as Petitioner alleges, construction of air pollution abatement equipment is\t\t\t\t\t\t\t\t\t\tbeing carried on in the said area, we urge and submit the absolute necessity to\t\t\t\t\t\t\t\t\t\tsimultaneously contruct safe means of egress for the said location.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018WHEREFORE, the Secretary of Labor urges that Petitioner\u2019s Petition for\t\t\t\t\t\t\t\t\t\tModification of Abatement Period be denied.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt has now been revealed, through the Secretary\u2019s post-hearing brief, that Philadelphia\t\t\t\t\t\t\t\t\t\tCoke had written a letter to the Secretary on January 17, 1974, asking for a meeting to discuss\t\t\t\t\t\t\t\t\t\titems 7 and 12 of the citation; that such meeting was held on January 21, 1974, and that the\t\t\t\t\t\t\t\t\t\tSecretary had amended item 12 of the citation on January 24, 1974. A copy of the citation which\t\t\t\t\t\t\t\t\t\twas filed with this Commission when the case was docketed does not clearly show the January\t\t\t\t\t\t\t\t\t\t24 date and, since there is no complaint in the record for reasons which will be explained below,\t\t\t\t\t\t\t\t\t\tthe fact that an amended citation pertaining to item 12 had been issued was not revealed until the\t\t\t\t\t\t\t\t\t\tfiling of the Secretary\u2019s brief. The January 24 amended citation apparently did not reach\t\t\t\t\t\t\t\t\t\tPhiladelphia Coke before the January 30 letter was written, so no position was taken as to item\t\t\t\t\t\t\t\t\t\t12, as amended.\t\t\t\t\t\t\t\t\t\tWhen an employer finds that, after a good faith effort to comply with the abatement\t\t\t\t\t\t\t\t\t\trequirements of the citation, abatement has not been accomplished because of factors beyond his\t\t\t\t\t\t\t\t\t\treasonable control, he has the right to file a petition for modification of the time for abatement\t\t\t\t\t\t\t\t\t\twith the Secretary, 29 U.S.C. Section 659(c). The Commission\u2019s remand order cited its prior\t\t\t\t\t\t\t\t\t\tdecision in Secretary of Labor v. H. K. Porter Company, OSAHRC Docket No. 1210\u2013p (March\t\t\t\t\t\t\t\t\t\t22, 1974), paragraph 17471, CCH Occupational Safety and Health Decisions, 1973\u20131974, in\t\t\t\t\t\t\t\t\t\twhich the majority said at page 21951:\t\t\t\t\t\t\t\t\t\t\u2018Ordinarily, such express statutory language would be controlling. In the present\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tcase, however, we are convinced that the language in the key sense is erroneous\t\t\t\t\t\t\t\t\t\tand we are required, therefore, to disregard it.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tI now find myself in a position similar to that of Chief Justice John Marshall in\t\t\t\t\t\t\t\t\t\tRichmond, Virginia, on Monday, August 31, 1807, where he had presided over the trial of the\t\t\t\t\t\t\t\t\t\tthen unpopular Aaron Burr as a circuit judge in which Burr had been charged with committing\t\t\t\t\t\t\t\t\t\ttreason. In his charge to the jury he felt compelled to advise them that the United States had\t\t\t\t\t\t\t\t\t\tfailed to sustain the burden of proof, which made it incumbent upon him in the course of his duty\t\t\t\t\t\t\t\t\t\tand responsibility as the trial judge, to direct a verdict for acquittal saying, among other things,\t\t\t\t\t\t\t\t\t\tthe following:\t\t\t\t\t\t\t\t\t\t\u2018That this court dares not usurp power is most true.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018That this court dares not shrink from its duty is not less true.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u2018No man is desirous of placing himself in a disagreeable situation. No man is\t\t\t\t\t\t\t\t\t\tdesirous of becoming the peculiar subject of calumny. No man, might he let the\t\t\t\t\t\t\t\t\t\tbitter cup pass from him without self reproach would drain it to the bottom. But if\t\t\t\t\t\t\t\t\t\the have no choice in the case, if there be no alternative presented to him but a\t\t\t\t\t\t\t\t\t\tdereliction of duty or the opprobrium of those who are denominated in the world,\t\t\t\t\t\t\t\t\t\the merits the contempt as well as the indignation of his country. Who can hesitate\t\t\t\t\t\t\t\t\t\twhich to embrace.\u2019 John Marshall\u2014A Life in Law\u2014Leonard Baker (1974), page\t\t\t\t\t\t\t\t\t\t514.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn the case of Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579; 72 S. Ct.\t\t\t\t\t\t\t\t\t\t8637; 96 Law Ed. 1153 (1952). The court, speaking through Mr. Justice Black, said in part:\t\t\t\t\t\t\t\t\t\t\u2018In the framework of our Constitution the President\u2019s power to see that the laws\t\t\t\t\t\t\t\t\t\tare favorably executed refutes the ides that he is to be a lawmaker.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis statement was buttressed upon the language of Section 1, Article I of the\t\t\t\t\t\t\t\t\t\tConstitution of the United States which provides that:\t\t\t\t\t\t\t\t\t\t\u2018All legislative powers herein granted shall be vested in a Congress of the United States .\t\t\t\t\t\t\t\t\t\t. ..\u2019\t\t\t\t\t\t\t\t\t\tThe court said that the Constitution did not subject this lawmaking power to presidential . . .\t\t\t\t\t\t\t\t\t\tcontrol. If the President cannot disregard an act of Congress and thus become a lawmaker\t\t\t\t\t\t\t\t\t\thimself, subordinates of the President cannot disregard an act of Congress. For that reason, I\t\t\t\t\t\t\t\t\t\tdisclaim any intention to do so, but I am bound by the order of the Review Commission\t\t\t\t\t\t\t\t\t\tremanding this matter to me as if there were a notice of contest.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tBy means of a transmutation in the abstruse the Review Commission converted a\t\t\t\t\t\t\t\t\t\tcomplex question into a simple one. Because Philadelphia Coke had apparently not seen the\t\t\t\t\t\t\t\t\t\tJanuary 24 amendment of item 12 of the citation at the time it drafted its January 30 letter it\t\t\t\t\t\t\t\t\t\tneither denied nor admitted a violation as alleged in item 12 of the citation as amended January\t\t\t\t\t\t\t\t\t\t24, but the Commission has now decided that this letter was a notice of contest. It therefore is a\t\t\t\t\t\t\t\t\t\tnotice of contest.\t\t\t\t\t\t\t\t\t\tOriginally, issues were joined on the petition of Philadelphia Coke and the Secretary\u2019s\t\t\t\t\t\t\t\t\t\tacquiescence in response. When the matter was remanded with the positions of the parties\t\t\t\t\t\t\t\t\t\treversed as if it arose from a notice of contest of the citation, the Secretary refused to file a\t\t\t\t\t\t\t\t\t\tcomplaint because he adheres to his previous position that it arises from a petition for\t\t\t\t\t\t\t\t\t\tmodification of abatement. Philadelphia Coke, on the other hand, deferred to the conclusion of\t\t\t\t\t\t\t\t\t\tthe Commission that the citation was contested. What are the issues under these circumstances?\t\t\t\t\t\t\t\t\t\tBecause the Secretary has filed no complaint, Philadelphia Coke has filed no answer. In its only\t\t\t\t\t\t\t\t\t\tpleading Philadelphia Coke did not dispute the allegations of violation as described in the\t\t\t\t\t\t\t\t\t\tcitation, but the Commission has nevertheless proclaimed the issue to be a timely notice of\t\t\t\t\t\t\t\t\t\tcontest of both the citation and reasonableness of the time fixed for abatement. Accordingly, I\t\t\t\t\t\t\t\t\t\tconclude that the issue is whether Philadelphia Coke violated the provisions of 29 CFR\t\t\t\t\t\t\t\t\t\t1910.37(j) on December 11 and 12 as alleged in the citation and if so, what is a reasonable time\t\t\t\t\t\t\t\t\t\tfor abatement of the violation? Since there are no pleadings, the only means of identifying the\t\t\t\t\t\t\t\t\t\tissues in dispute is from the arguments of the parties in their post-hearing briefs.\t\t\t\t\t\t\t\t\t\tTHE FACTS\t\t\t\t\t\t\t\t\t\tThe Secretary says that the applicable standard requires that means of egress which are\t\t\t\t\t\t\t\t\t\tnot substantially level shall be negotiated by stairs or ramps and that, implicitly when considered\t\t\t\t\t\t\t\t\t\tin light of 29 CFR 1910.37(a), an exit shall consist only of the improved components. It is\t\t\t\t\t\t\t\t\t\tcontended that the facts stipulated by the parties show that the slope of the ramp in Respondent\u2019s\t\t\t\t\t\t\t\t\t\tCoke plant was far in excess of the slope permitted by the regulations because the slope was\t\t\t\t\t\t\t\t\t\tbetween 4 and 4 1\/2 inches and 12 inches.\t\t\t\t\t\t\t\t\t\tPhiladelphia Coke is a corporation engaged in the manufacture of industrial coke and\t\t\t\t\t\t\t\t\t\tcoke by-products. In this process, raw materials are transported through a number of elevated\t\t\t\t\t\t\t\t\t\tstations. The particular stations involved in the instant case are the foundry screening station and\t\t\t\t\t\t\t\t\t\tthe domestic screening station. A 40-foot conveyor ramp runs between the two stations at an\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tincline of approximately 18 degrees, 4 1\/2 vertical inches for each 12 horizontal inches. The\t\t\t\t\t\t\t\t\t\tramp is a totally enclosed structure containing a conveyor which carries coal from the foundry\t\t\t\t\t\t\t\t\t\tscreening station to the domestic screening station. The conveyor is 5 feet 4 inches wide. There\t\t\t\t\t\t\t\t\t\tis a passageway on either side of the conveyor, one of which is 3 feet wide and the other 2 feet 9\t\t\t\t\t\t\t\t\t\t1\/2 inches wide. Employees traveling up and down the ramp use the 3-foot wide passageway\t\t\t\t\t\t\t\t\t\twhich is equipped with a handrail. The floor of the ramp is diamond-plated. Cleats\t\t\t\t\t\t\t\t\t\tapproximately 1 inch high are welded to its surface to provide a secure foothold.\t\t\t\t\t\t\t\t\t\tComing now to consideration of the standard under which the Respondent was cited,\t\t\t\t\t\t\t\t\t\tSection 1910.37(j). The heading of this section is \u2018Means of Egress, General.\u2019 Section\t\t\t\t\t\t\t\t\t\t1910.35(a) defines \u2018means of egress\u2019 as follows:\t\t\t\t\t\t\t\t\t\t\u2018A means of egress is a continuous and unobstructed way of exit travel from any\t\t\t\t\t\t\t\t\t\tpoint in a building or structure to a public way and consists of three separate and\t\t\t\t\t\t\t\t\t\tdistinct parts: The way of exit access, the exit, and the way of exit discharge. A\t\t\t\t\t\t\t\t\t\tmeans of egress comprises the vertical and horizontal ways of travel and shall\t\t\t\t\t\t\t\t\t\tinclude intervening room spaces, doorways, hallways, corridors, passageways,\t\t\t\t\t\t\t\t\t\tbalconies, ramps, stairs, enclosures, lobbies, escalators, horizontal exits, courts,\t\t\t\t\t\t\t\t\t\tand yards.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA public way has been defined as a way open to all people without distinction for passage\t\t\t\t\t\t\t\t\t\tand repassage at their pleasure (Wray v. Norfolk and Western Railway Company, 61\t\t\t\t\t\t\t\t\t\tSoutheastern 2d, 65, 69, 191 Va. 212). A bridge resting at each end upon land dedicated by a\t\t\t\t\t\t\t\t\t\tmunicipality under the laws of the State to a public purpose is a public way, Town of Nahant v.\t\t\t\t\t\t\t\t\t\tUnited States, 136 Fed. 273, 277. The true test of a public way is in the general use of it by the\t\t\t\t\t\t\t\t\t\tgeneral public. State v. Floyd, 17 S.E. 505, 39 South Carolina 23, 25.\t\t\t\t\t\t\t\t\t\tUnder the facts in the instant case it cannot be said that the ramp involved, which has no\t\t\t\t\t\t\t\t\t\tmeans of egress from or onto a public way and serves only as a means of access between two\t\t\t\t\t\t\t\t\t\tpieces of manufacturing equipment inside of Philadelphia Coke\u2019s coke manufacturing plant is a\t\t\t\t\t\t\t\t\t\tpublic way. For that reason, item 12(c) of the citation of January 24, 1975 should be, and hereby\t\t\t\t\t\t\t\t\t\tis, vacated.\t\t\t\t\t\t\t\t\t\tThe motion of the Respondent to withdraw its notice of contest of items 5(c), 11(a),\t\t\t\t\t\t\t\t\t\t21(a), 13(a) and 18(a) having been granted, each of said citations have become a final order, not\t\t\t\t\t\t\t\t\t\treviewable by any court or agency by operation of law.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tBEN D. WORCESTER\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: APR 25, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHyattsville, Maryland\t\t\t”