American Bridge/Lashcon, J.V.

Plain-English summary

American Bridge/Lashcon employees repeatedly crossed a 13-inch-wide beam 28 feet above the ground while wearing safety belts that were not tied off. The Commission held that protection was required for this discrete crossing task even though employees tied off while performing other work. It also found that adjacent oxygen and propane cylinders were in storage because they had not been used and might remain unused for another day or two. The unseparated cylinders created fire, explosion, and projectile hazards. The Commission reversed the judge, affirmed both serious violations, and assessed penalties totaling $800.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.105(a) and 1926.350(j).
• Outcome: Affirmed. Serious fall-protection and cylinder-storage items were affirmed with penalties of $560 and $240.
• Key point: Brief or recurring tasks still require effective fall protection, and idle gas cylinders may be considered in storage even when crews expect to use them again.

Full text (OSHRC public release)

            OCCUPATIONAL           SAF~~;E~~E~~~~~c~E”,~W                   COMMISSION
                                         One Lafayette Centre
                                   1120 20th Street, N.W. - 9th Floor
                                      Washington, DC 20036-3419


                                                                                          E&o2)~
                                                                                          Frs(202) 6ow5o5o
                                                        ..

 SECRETARY             OF LABOR,                        ..
                                                         ..
                           Complainant,                   ..
                                                           ..
                                                        .
                  V.                                    .          OSHRC Docket No. 91-633

 AMERICAN         BRIDGE/LASHCON,           J.V.,

                           Respondent.




                                             DECISION

 Before:     WEISBERG,       Chairman, FOULKE and MONTOYA, Commissioners.
 BY THE COMMISSION:
           The Secretary issued a citation alleging that American Bridge/Lashcon,      J.V. (“ABL”)

. violated construction standards governing fall protection and cylinder storage at its workplace
- in Hoffman Estates, Illinois. An administrative law judge of this Commission vacated both
items. For the reasons that follow, we reverse the judge and affirm both items.
Section 1926105(a); Fall ProtectionAllegation
The Secretary alleged that ABL violated 29 C.F.R. 8 1926.105(a)’ because its
employees who walked across a thirteen-inch wide beam, twenty-eight feet above the ground,
“were not protected from falling to the ground below by the use of safety nets, safety belts

 ’ Section 1926.105(a) provides:

           8 1926.105 Safety nets.

           (a) Safety nets shall be provided when workplaces are more than 25 feet
           above the ground or water surface, or other surfaces where the use of ladders,
           scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
           impractical.

2

 or other fall protection.”      The beam, which formed the upper level of what was to be a
 pedestrian   walkway, was seventy-five to one hundred feet long.        Employees who walked
 across the beam wore safety belts and lanyards, but were not tied off to the catenary (safety)
 line that had been strung between vertical posts attached to the walkway’s steel skeleton.
 Nor was there a safety net beneath.        ABL took the position that the use of tied-off safety
 belts was impractical because employees would have to hook and unhook at each post, a
 procedure which could present problems if the employees traversing the beam were carrying
 tools or materials.     Employees who actually performed work on the walkway structure did
 use tied-off safety belts.     The number of employees who crossed the beam each day is in
 dispute but was between four and twenty-five.           Each employee who traversed the beam
 made the (less than one-minute)        trip up to twenty times a day.
                                               Dhusion
        To prove that safety nets are required under section 1926.105(a), the Secretary must
 show that employees were subjected to falls of twenty-five feet or more and that none of the
 other safety devices listed in the standard were practical -- meaning that they are either not
 in use or are in use but not practical because they do not protect against the cited fall
 hazard for a substantial      portion of the workday.    Brock v. L.R W&m & Sons (‘W&on             .
 III”), 773 F.2d 1377,1388 (D.C. Cir. 1985). Here, the judge found that because the employ-

.-
ees wore tied-off safety belts for a substantial portion of the work day, safety belt use was
practical under the “substantial portion of the work day” test, -- and the standard’s safety
net requirement was not triggered. We disagree with the judge’s reasoning. The circum-
stances in which providing fall protection for a substantial portion of the work day may
constitute full compliance with section 1926.105(a) are extremely limited.* See L.R FVZZkon
& Sons, Inc. v. Donovan (‘Willson I”), 685 F.2d 664 (D.C. Cir. 1982) (stability of structure
made tying off infeasible for a short period). Except in those limited circumstances, section
1926.105(a) requires protection against hazards even though they are of short duration.

 2 Chairman Weisberg notes that, in his view, the standard does not permit employers to
 leave employees unprotected against fall hazards even though the employees may be
 protected most of the time. See CenturySteel Erectors v. Dole, 888 F.2d 1399, 1404 (D.C.
 Cir. 1989).

3

 WUson~III at 1386 and cases cited therein.       See ako Century Steel Erecton; supra n.2 (use of
 safety belts for substantial     portion of the work day not relevant when no protection         is
 provided for another discrete operation).      Here, four to twenty-five employees each crossed
 the beam up to twenty times a day. When ABL realized that employees walking across the
 beam could not be protected against falls by safety belts because of the need to hook and
 unhook at each post, ABL was required by the cited standard to provide safety nets or one
 of the other listed methods of protection.
         ABL argues that Century Steel, 888 F.2d at 1404-05, requires             the Secretary   to
 overcome the employer’s evidence of industry custom and practice in order to prove that
 safety devices other than nets are impractical.         However, proof of industry custom and
 practice is not relevant where, as here, the parties are not arguing about the practicality of
 any of the fall protection   ‘devices listed in the standard.   ABL also argues that the catenary -
 line which it supplied provides adequate fall protection.       We disagree.   Although under the
 right circumstances,   the catenary line could have been used as a lifeline, one of the fall
 protection methods referred to in the standard, a lifeline is defined at 29 C.F.R. 5 1926.107
 as “a rope, suitable for supporting one person, to which a lanyardor safety belt (or hmzess)
 is attached, (emphasis supplied). Significantly, the catenary line failed to meet this definition
 and consequently it actually provided protection only if the untied-off employee was able to

.*
grab onto it. See Willson III, 773 F.2d at 1384 (section 105(a) “is not satisfied simply by the
use of one of the devices listed in that section without regard to whether such use provides
adequate fall protection to employees,” citing National Ikius. Constructors, Inc., 9 BNA
OSHC 1871, 1872, 1981 CCH OSHD ll 25,404, p. 31,657 (No. 76-891, 1981)).
We therefore find that ABL violated cited section 1926.105(a). Because ABL
employees who walked unprotected across the beam could have fallen 28 feet and sustained
death or serious physical harm, we also find that the violation is properly characterized as
serious under section 17(k), 29 U.S.C. 8 666(k), of the Occupational Safety and Health Act
of 1970, 29 U.S.C. 05 651-678 (the “Act”). The Secretary proposed a $560 penalty for this
item. ABL stipulated that the penalties for both the items under review were arrived at
 4

 properly.    Taking into account the penalty factors of section 17(j) of the Act, 29 U.S.C. 5

 wj),    we assess the proposed $560 penalty.
                         Section 1926.350(j): Qlinder StorageAllegation
         The Secretary     alleged that ABL violated   29 C.F.R. $ 1926.350(j)3 by failing to
 separate -- by a minimum distance of 20 feet or by a noncombustible        barrier at least five
 feet high - an oxygen cyhnder and a propane gas tank stored adjacent to each other in the
  eastern portion of a parking garage. The cylinders (or “bottles”) were not in use. No hoses
 were connected to either cyhnder, and the oxygen cylinder was capped.
         The Commission has addressed the issue of whether cylinders are “in storage” within
 the terms of the standard on numerous occasions.      In the earlier cases, evidence that cylin-
 ders were either going to be used or were available for immediate use was found sufficient
 to withstand a finding that the cylinders were “in storage.” See MCC of Florida,
                                                                                Inc.,9 BNA c

. OSHC 1895,1897,1981 CCH OSHD ll25,420, p. 31,681 (No. 15757,198l); Grossman Steel
& Alm Corp., 6 BNA OSHC 2020,2023-24,1978 CCH OSHD 123,097, p. 27,915 (No. 76
2834, 1978). More recently, however, in determinin g whether the standard applies, the
Commission has considered other factors, including the length of time the cylinders are not
in we. See Navport N;aus and Shipbuildingand DtlyDock Co., 16 BNA OSHC 1676,1679-80,
1994 CCH OSHD ll 30,380, ppb 41,91617 (No. 90-2658, 1994)(cylinders at site of ongoing
-I~-kunin~~oDerations which would not be used up in a day were “in storage” under 29 C.F.R.

  3 Section 1926.350(j) provides:

         5 1926350 Gas Welding and Cutting.

               l (j) Additional n&s. For additional details not covered in this subpart,
         aiplicable technical portions of American National Standards Institute, 249.1.
         1967, Safety in Welding and Cutting, shall apply.

         ANSI 249.1-1967 provides, in pertinent part:

         Oxygen cylinders in storage shall be separated from fuel-gas cylinders or
         combustible materials (especially oil and grease) a minimum distance of 20
         feet or by a noncombustible barrier at least 5 feet high having a fire resistance
         rating of at least l/2 hour.

5

8 1910.253(b)(4)@)); Hackney/BtightonCop., 15 BNA OSHC 1884,1887-88,1991-93 CCH
OSI-ID ll 29,815, pp. 40,618-19 (No. 88-610, 1992)(where acetylene cylinder kept together
with Oxygen cylinders in oxygen cylinder storage area between 3:00 p.m. one day and 9:30
a.m. next day, cylinders “in storage” under 29 C.F.R. 8 1910.252(a)(2)(iv)(c)).
In vacating this item, the administrative law judge found that the testimony of project
superintendent Lewis established that the cylinders were not “in storage” but rather were
available for immediate use under A4CC ofFlorida. Although portions of Ixwis’ testimony
may be read as supporting a finding that the cylinders were going to be used quite soon, we
believe, contrary to the judge, that the evidence as a whole establishes that the cylinders had
not been used during the previous day and might not have been used for another day or two.
See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S.
903 (1976) (Commission is the ultimate fact-finder). In this regard, when asked directly by t
the judge if he knew “of. . [his] own knowledge” whether the bottles were being utilized
l

on the day of inspection, Lewis testified that he did not latow. When asked when the cylin-
ders were last used, Lewis initially testified that the two bottles were being used by a “detail
crew on the east end of the crossover bridge,” but that employees sometimes get switched
from working in one area to working in another and. that, although he was “quite sure that

a those bottles were being used the day before . . . and the people intended to come back and
use the bottles, maybe even before the day was out, Idon’t how.” From this testimony, it
is unclear when the cited cylinders were last used or when they were to be used next. It is
clear, on the other hand, that while the crew intended to come back, the cylinders were not
going to be used immediately and may well have been left out on the site for one or two
nights. Indeed, it is entirely possible that the cylinders remained unused for at least two
days, the day of the inspection and the day before the inspection. Accordingly, we find that,
consistent with Commission precedent set forth above, the cylinders were “in storage” within
the meaning of the standard.4 The cited standard requires that such cylinders be separated

                                        .

4 In finding that these cylinders were “in storage,” Chairman Weisberg would also rely on
the fact that some twenty potentially combustible cylinders were not routinely put away after
a day’s use but rather were left scattered around the site for employees to use whenever they
(continued...)
by a minimum distance of twenty feet or by a proper noncombustible barrier. There being
no dispute that they were not separated as required, we find that ABL violated the cited
standard. Because storing the cylinders together could result in an explosion that could
produce a serious fire hazard or could turn the cylinders into harmful projectiles, we also
find that the violation is properly characterized as serious under section 17(k), 29 U.S.C. 0
666(k), of the Act.
Because we decide this case on the basis of established Commission precedent and
affirm the Secretary’s citation item, it is not necessary for us to address the Secretary’s
argument that the Commission must defer to his interpretation of “in storage” under the
dictates of Martin v. OSHRC (CF. & I. Steel), 499 U.S. 144, 150-58 (Ml)? See Newpopoti
News, 16 BNA OSHC at 1680, 1994 CCH OSHD at p. 41,917.
The Secretary proposed a $240 penalty. ABL stipulated that the penalty was arrived c
at properly. After a consideration of the penalty factors found at 29 U.S.C. 0 666(j), we
assess a $240 penalty.
Order
Accordingly, we reverse the judge and affirm Serious Citation 1, Item 1, alleging a
violation of section 1926.105(a) and assess a $560 penalty. We also reverse the judge and

4(...continued)
were needed, be it the next day or a few days later. Worker safety is better assured by
permitting only those Oxygen cylinders actually in use or available for immediate use to be
within twenty feet of fuel gases.

5 The Secretary contends that his interpretation of “in storage” is reasonable and deserving
of deference because it comports with the construction given the terms “cylinder storage”
by the American National Standards Institute (“ANSI”) since 1973 and the National Fire
Protection Association (“NFPA”) since 1974. ANSI 249.1-1973, ll 2.6; NFPA 5 l-1974, p.
51-4. However, as the Secretary has readily acknowledged, neither the ANSI nor the NFPA
definition has been made a part of the OSHA standards despite considerable litigation on
the meaning of “in storage” over the years. Including these definitions in the OSHA
standards through the exercise of rulemaking would significantly reduce the amount of case-
by-case litigation concerning “cylinder storage” and in the process conserve resources.
 7
affirm Serious Citation 1, Item 2, alleging a violation of section 1926.3500) and assess a $240
penalty.

                                                      Stuart E. Weisberg
                                                      Chairman




                                                      Edwin G. Foulke, Jr.
                                                      Commissioner

Dated: June 28, 1994