Armco Steel Company, L.P.

Plain-English summary

Armco Steel operated a steel-manufacturing plant in Middletown, Ohio. The judge affirmed a serious violation for an unguarded seven-foot-high pulpit area where operators regularly retrieved supplies, finding that the area functioned as a covered work platform, and assessed $700. He also affirmed a serious runway violation because a long elevated crane-access walkway had only a single cable instead of standard railing, rejected Armco's special-purpose and greater-hazard arguments, and assessed $1,000. An extension cord exposed to pedestrian traffic was affirmed as other-than-serious with no penalty because the Secretary proved possible plug damage but not the more serious vehicle-damage theory. The judge vacated an uncovered-switch-box item because the cited standard applied only when the box was within reach of a conductive surface, and the nearby concrete floor was not shown to be conductive. Total penalties were $1,700.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.23(c)(1), 1910.23(c)(2), 1910.305(a)(2)(iii)(G), and 1910.305(c)(2).
• Outcome: Mixed. Two serious guarding items and one other-than-serious cord item were affirmed, one switch-box item was vacated, and $1,700 was assessed.
• Key point: Applicability turns on how an elevated area is actually used and on every limiting condition in the cited standard.

Full text (OSHRC public release)

                                   UNITED STATES OF AMERICA
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                    One3Lafayette Centr8
                              1120 20th Street, N.W. - 9th Floor
                                 Washington, DC 200364419

PHONE: FAX
COM(202)6m-6100
m@02)6066100 $gg!!ggO

       SECRETARY       OF LABOR                                     I
                          complaiIlan~
                  v.                                                    OSHRC DOCKET
                                                                        NO.93-0608
       ARMCO STEEL CO
                    Respondent.                                     i


                              NOTICE OF DOCKETING
                       OF ADMINISTRATIVE LAW JUDGE’S DECISION
            The Administrative Law Judge’s Report in the above referenced case was
       docketed with the Commission on December 27, 1993. The decision of the Judge
       will become a final order of the Commission on January 26, 1994 unless a
       Commission member directs review of the decision on or before that date. ANY
       PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
       COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
       Any such etition should be received b the Executive Secretary on or before
       January 1fr, 1994 in order to ermit suii cient time for its review. See
       Comrnrssion Rule 91, 29 C.F. & . 2200.91.

          All further pleadings or communications       regarding this case shall be
       addressed to:
                              Executive Secretary
                              Occupational Safety and Health
                               Review Commission
                              1120 20th St. N.W., Suite 980
                              Washington, D.C. 20036-3419
       Petitioning parties shall also mail a copy to:

                              Daniel J. Mick, Esq.
                              Counsel for Regional Trial Liti ation
                              Office of the Solicitor, U.S. DO5
                              Room S4004
                              200 Constitution Avenue, N.W.
                              Washington, D.C. 20210
       If a Direction for Review is issued by the Commission, then the Counsel for
       Regional Trial Litigation will represent the Department of Labor. Any party
       havmg questions about review nghts may contact the Commission’s Executive
       Secretary or call (202) 606-5400.
                                              FOR THE COMMISSION


      Date: December    27, 1993

DOCKET NO. 934608
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Re ‘onal Trial Liti ation
%‘citor, U.S. DOt
Office of the SO
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tg:e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Robert A. Dimling, Esq.
Frost and Jacobs
2500 P.N.C. Center
201 E. 5th Street
Cincinnati, OH 43202

Lori Freno-Engman, Esq.
Kircher, Robinson, Cook, Newman &
Welch
Suite 1000 125 East Court St.
Cincinnati, OH 45202

Benjamin R. Lo e
Administrative Ai w Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582

00102592482:OS
 UNmO STATES
OFAaEFIlcA
ECUPATIONAL SAFETY AND HEALH REVIEW COhhhhlSSlON
12U N. SEER BOuEwRO
mows0
DENVER,coLoRmo 80204-3502

PW@E:                                                                             FAX:
cm (300) w-m1                                                                     CoM003)w-375e
FTS(303) 644-228~                                                                 m 003)644-3759
     --

     SECRETARY OFIABOEC,
         Complainant,

              v.                                                    OSHRC DocKm
                                                                    NO. !&0608
     ARMcosmELcoMpANy,                I&
              Respondent,




                     EIizabahR Ashky,Esq.,OfIke of the!bIidux, US. Depammt of-,
                      clad&   Ohio.




              Fbt the Autbtizcd Empbya Reptacatatim
                      hi FtcmEngnan, Eq., Kitdiet, Rdhm,~k&wman        & Welch,
                       aJbd!ma& om


     Before:         AcimidstrativeLaw Judge BenjaminR bye

. This prouxding arises under the Occupational Safety and Health Act of 1970
(29 U.S.C. Section 651 et seq.; hereafter called the UActw).
 Respondent, Anxm Steel Cbmpany,LP. (Am@, at dl times rckvant to t&
action maintained a place of business at 1801 Crawlord Street, lkkkiletown, Ohio,
where it was engaged in the manufacture of steel. Respondent admits it is a
employer engaged in a business affectingcommerce and is subject to the requirements
0ftheActa
In February 1993, the Occupational safety and Health Administration (OSI3,A)
conducted 8I1 iIMpCtiOIl Of Armoo’S Middletown worksite Fre l3). AS a rtsuft Of the
inspection Arm0 was issued citations alleg@ violations of the A@ together with
jXOpOSCd~IldtiCSe ~filinga~c~noticcofcontest Armeobrouebt~p~~

before the Occupational safety and Health Review &n&sion (OmWssti).
At the hariag citation 1, item 5 ~8s vacated (Tre ‘7-8). Remainingat ibsue m
citation 1, items 1 through 4 alleging violations of 29 CFA ~191&23(c)(l) 8nd
(c)(2), and of %1910.305(a)(Qo(~~) and (c)(2) of the Act to@k with propod
pcnaltics. On September 15,1993, a hewing was held in Ciwinna& obio, on thaw
issues. “he parties have submittedbrie& and this matter is readyfm d&pm&h.

    5eriouf         citation 1, item 1 alleges:

29 CFR 1910023(c)(1):open s&d fkDr(s) or pladonn(nn(s) 4 f- of more above the
adjacent floor or ground kvtl were not guarded by standard railing (a the equivaknt
as specified in 29 CFR 1910023(e)(3)(i)
through (v)X on all open si&E

    a)  At the DesulphurizationStation at the BOF (Basic m         Funrace),
    empluyec8 who retrieve thermoax~pks fkom the &ids On the pIdOrm bC8ted
    west d the opcratofs pulp& were ucposed to fuk of 7 fi;eet &unn the
    uquadcdnorthandwcstsidcsofthcpIatio~



    Every open-sided floor or platform 4 fwt or more above adjacent &or
    or ground kve1 shall be guarded by a standard railing (or the quivaknt
    .  l
       ) on all open sidts except whtrc there is entrance to a mp, SW-
         l




    way, or fixed ladder        l   0   l   l

The pulpit at the Middletown plant’s desutfwi;mtion station sits on a raised
pulpit approximately seven feet above the ground rr. 19,21; Exb C-l). A six and l/2
foot by eight foot section on one comer of the pulpit is unguarded Fro 21). Skidr
holding boxes of thermocouples and pin samplers are placed on the pulpit once every
week or two vr. 88, 98, 110, 151). The station operators retrieve baxes from the
skids on a daily basis (Tr. 24,84-85,98). David Chamberlain and William Kuth, the
desulf operators, testi&d that wben retrieving the last ftw boxes from tbe sMds they
would come ‘%&in inches” or “right on the edge” ol the pulpit vr. 88, B). Kuth

stated that be had previously complained about the open-sided pulpit to management
rr. 99). Compliance OfIicer (CO), Willian Wilkersoh ttstified that the p&&k
result of a fail from seven feet would be broken bones Crr, 23)
Discrrrrion
In order to prove a violation of section S(a)(2) of the Act, the SwWuy mmt
show by a preponderance of the evidence that (1) tk cited standard applies, (2) there
was a failure to comply with the cited standard, (3) empk~~eeshad access to the Gob
tive condition and (4) the cited employer either lmew or could have known of the
condition with the exercise of reasonable diligence. & eg, lViz& Tm Cqp, 14
BNA OSHC 2072,20’74,1991WH OSHD 129239, p. 39,157 (No. 8%1359,199l).
The &kncc regarding the violative condition employee access and anpkgcr
hmwkdge is uncontroverted Armco argues, however,that the cited standard ir inap
plicabk because the storage area of the operator’s pulpit is not a uplat60rmmfbr tht
pllrpmesoftbcstandard
A platkm is defined at ()1910.21(a)(4) as ya] worbg space for pcm
ekvatcd above the surrounding floor or ground; such as a balcony or platiorm for the
operation of machinery and equipment.” OSHA Instnxtion s1[1) l-1.13 furtbtr in=*
prets the term to include “any elevated surface designed or used primarily as a
walking or working surface, and any other elevated surfaces upon which employees arc

                                          3

This jue finds that the Secrews interpretation of the de&&ion of
~“platf&orm” is reasonable here, and so is entitled to deference. hfiu& v. OSHRC
(CFM Stcd Carp), 111 S.Ct. 1171, 1180 (1991). It is clear that %ork” includes the
rttiwa,l of supplies necessary for the performance of an employ=‘s duties. An area
where this task is performed on a regular and predictable basis, therefore,is properly
cbssibd as a working surface, and, if raised abuw ground kvel, as a “platform.”
In addition, this judge finds that a rmnabk employer u&d understand the
operator%pulpit to be a “platform,” based on its appcanmcc and fimction,and on the
common sense meaning of the word. Set; Gbbe Iiu&&& Inc, 10 BNA OSHC 15%
1598ljl992CCH OSHD v26@& pp. 3% 71849 (No. 77-4313,1982)m
The Scaetaq has established the cited violation.

     The Secretary has proposed a iine of $2,000.00.
     The gravity of the cited standard is moderately low. The Ws unamtrwwted

testimony establishes that the cited violation could result in broken bona, and ao is
%eriod in nature. However, only two desulf operators were cxpowd to the Ml
hazard for a f&wBnds each shift as they retrieved thermocouples and pin sampkm
from the skid on the platiofm. The stacked skids prevented opemtozs from
approaching the open edge much of the time. AdditionaIly, there m no need to
approach the edge of the platform so long as more than a few boxes remained on the
.
Skid&

     Complainantintroducedm evidence of bad f&ithor of a prior history of 06HA


      Based on the relevant factors, this judge Ends that the proposed penalty is

exccssk. A penanalty
of $700.00will be aswsed.
29 a 1910e23(cx2):Runwayswere not guarded by standard milinp (or the equiva.
lent as se in 29 m 1910023(e)(3)(i)through (v)) on alI open sides 4 f& 0~
more above floor or ground kvel:

    a) At the BOF, the crane access runway on the south side of the charging aisle
    was not protected by a standard guardrail on its north edge in that between tbc
    east and west crane access ope&gs the runway ~8s quipped oniy with a
    single steel cable at a height of approximately 42 in&s.        ’

    The cited standard provides:

    Every runwayshall be guarded by a standard railing (or the qmnt      . .) on
                                                                             l



    all open sides 4 feet or more above floor or gro& level. WhcxWer took
    machine parts, or materials are likely to be used on the runway, a toeboard
    shall also be provided on each exposed side.

    Runways used exchsiveIy for special puposes (such as oiiing, shaft@
    or filling tank cars) may have the railing on one side omitted where
    operating conditions necessitate swh omissian, providing the Mling
    hazardis~byusingarunwayofnotleJsthan18~~
    wide   l   0 0 0




    East and west from the desulkrization station, a walkway CXUXKIS
                                                                  along the

south waif of the building vr. 30, 158). The r~way is approximatelynine f&t wide,
N-600 feet long and is 30 to 40 feet abave the operating floor, and 60 to 80 fett
above ground level rr. 29-31,s 156). Columns or girders extend through the run-
way apprdmately one and a half feet from the edge every 3040 feet (n. 133). The

apprdmately 400 feet of the rumrvayis guarded only with a single &bk strung 42
inches above the runwaybetween the columns (Tr. 3& 3635,42,11%2Q Exh G3).
Two cranes ride on rails parallel to the walhuay (Tk. 30). The crane operators
use the runway several times daily to gain access to their cranes vr. 3840, 118).
Crane operator James Whitaker testified that he can stop the crane anywhere along
the my, and that he has acctssbd bit cab from the poti of the q
guardedody by a singlecableQ’r.11&121).
Mainteaancepersonnelalsousetbe~toacesstbe~as~natfor
storage of equipment, including welders, hoses and electrical cables (Tr. 124,156).
Whitaker stated that the walkwayis frequently covered with Ti&* metal flakes
Tom the dcsulf operation, and that he has slipped and gone down on one knee wbik
traveling the walkway pr. 124-125). Co Wilkerson testified that a fhll to either the
ground or the operating floor would probably result in death pr. 3637).
Discrrrrion
Armco does not dispute the cl[istencc of the violative condition employee
eqpsure to it, or its knowkdge of the condition. A maintains that the cited
standard is inapplicable to nine foot “aisks,” and alternatively that the WalLwayis I
%pechl purpose runway excepted from ~1910.23(~)(2)~s
standard railing require-
Anna3 also argues that the Secretary%Instruction SID l-l.8 exempts the cited nmq
from application of ~1910.23&).
The undersigned finds that Armco’saisk is a @passagewayti p ekvatcd
above the surrounding floor or ground kvel” and so is a runway as ddinal lq

1910.21(a)(5)subject to the rquirements of ~1910.23@)(2). At&& m Ca,

197374 CCH 06HD 117317, relied upon by Annco, d&sts an unreviewedadmi&
trative law judget opinion, and is without precedential vah~~
Thewalkwayisnot,howcver,as~purposeNnway,aodtnotaapted
from the standard railing requirement. The walkway b used by maintem pem
nei and for storage, and is not e&AveIy used by crane operators to access their ah
Moreover, a& to the cranes does mt -&ate the omission uf standard railingr;
whitatert~thathecouWa~~cab~manypointalopgtbenmwap,
in&ding those potions where a standard rail bad been erected. In addition,gates
could be, and were, installed in the standard railing to facilitate crane a-
The Secretary has demonstrated a violation of the cited standard
Though not argued as such in its brie& in its answer Armco raised the af6rma-
tive defense of greater hazard. Evidence was presented on the issue; Donald Farreil,

                                        6

the BOF section manager, testified that in@lation of a starbrd railing would prevent
the rapid exit of crane operators Born their cabs in the event of an emergency rr.
155459).
In order to establish tbc dative defense of a vter hazard, the employer
must show that 1) the hazards of compliance are greater than the hazards of nonm
compliance; 2) alternative means of protection are unavailabk; and 3) an application
for a variant would be inappropriate. See WuLkzr Towtrg carp, 14 BNA OSHC
2072,2078,1991CCH OSHD 129,239,p. 39,161 (No. 87-1359,199l).
Because AMWBintroduced no evidence indicating that an application for a
variance would have been inappropriate, it cannot establish its af6rmativc defense; the
first two elements of the defense, therefore, need not be dkxssed bcre.
penrrlhc
The Secretary has prop~~I a penalty of $S9UXM0.
Armco points to OSHA Instruction STD l-l.8 which states that optIl sides d
runways “in areas where work is performed in preparation fat, during, or in the w
pletion of hot metal pouring operations” shall be considered& minimitviolationsof
the Act.
The Commission has consistently rejected emplopen’ attempts to hoId the
Secretary to internal guidelines, stating that OSHA enfatctmeat guide- are meant
to promote eBiency and *do not have the force and effect of law, nor do they accord
important procedural or substantive rights to individuals? JIM! 0q~, 5 BNA =HC
1707,1710,1977-78CCH OSHD tZ,0609 p. (NO. 13155,W’7’) See 01$4 GM Cbqx,
6 BNA OSHC l20$1977-78 CCH OSHD (22,391 (lk 77~1&1977). The cited SII)
is, therefore, affarded no weigh&
The cited violation was properly classified as %exio&@since a f&Ufrom tbe
cited walkway could result in death. However, the likelihood of an accident, and,
correspondingly, the gravity of the violation, are low. The walkway was wide; there
was no need for maintenance personnel or crane operators to walk near the edge,
except when actualy accessing the crane cabs. Moreover, the cable, though

                                         7

te&&aUy not in c0mpliancc with the standar& served to warn employee8to stq back
behind tbc columns between which it was strung, a foot and one half from the edge.
Taking into consideration the relevant factors, the proposed penalty is
considered ~~tssjvt, A penalty of $l,OOO.oO
is considered appropriate.
Alleged Violationsof ~1910.305(aH2Wii
29 CFR 1910305 (a)(2)@)(g): Flexible cords and cables of temporary circuitswere
not protected from accidental damage:

  a)  At the Desulphurization Station at the BOF, an extension cord used to
  power beat lamps mounted above the lance indexing motors located east of the
  desulpburization unit, was laying on the floor exposed to a&dental damage
  &om pedestrian ad truck traf6~

  The cited standard requires thatz

  Flexiiiilecords and cables shall be protected from accidental damage.
  Sharp comers and projections shall be avoided. Where passing throu@
  doorways or other pinch points, flexiibk cords and cabks shall . be
  provided with protection to avoid damage.


   Radiant heat lamps on the floor at the desuifMzation station were powered

with extension cord plugged into an outlet 20 to 25 feet away vr. 47). ‘Ibe area
through which the cords ran was used by pedestziaq Kuth testBed that he was in the
area about twke per shift cleaning the lance tip he uses in the dcsulfkiza~ process
(Tr. 54,100). Kuth also testi&d that maintenance personnel would go through the
are8 with a tow motor loaded with supplies vr. 101).
Armco’s BOF manager, Donald FarN, test&d that there was no tnxk traEic *
intheareaobtbeoterwioncord(Tr.1~~~didThomatJohason,~~erot
the BOF maintenance shop Fro 160). Johnson stated that the tow motor ti by
maintenance would not fit through the area because of the congestion of the desulf
tanks (Tr. 174-76). Wilkerson obsemd neither truck traffic in the area, nor damage
to the cord (Tr. 56). Johnson stated that he had never been requested to repair a
damaged extension cord in the desulf area (Tr. 171).

                                      8

CO Wilkerson testified that employees kicking the axd could damage the
prongs by wenchiq them from side to side in the socket. Damaged pro-
according to Wilkemn, could cause an employee removing the plug to sustain an
ekctrk shock vr. 5243). Wilkerson also testified that industrial trucks running over
the cord could break the insulation and expose the conductors, resulting in an ckctre
cution hazard rr. 53).
-
The cited standard rquires employers to protect flexiiiiiikcords and cables from
accidental damage. The CO% testimony that pedestrian trafEic could damage the
prong of the cited ekctrical cord was uncontradicted, as was the testimony regarding
employee expwre and employer knuwledge. ‘IBe Secretary has ma& out her prima
facie case.
Hmmvcr, the testimony that no industrial truck tMic was present in the area
around the cord is crcdiR& and this judge f&s that the Secretary failed to prove the
cord was subjected to pressures which might rupture the insulation.

   The Secretary has proposed a fine of S2,W.OO.
   co     Wilkerson’stestimony that bent prong could result in a shock hazard is

insuHcient to sustain a &ding that the proven hazard was usc~” in nature. ‘l%e
violation will, therefore, be affirmed as “other than serious.” No penalty is deemed
appropriate.
#ilked Violationsof ~1910.3OSfc~

29 CFR 1910305(c)(2): Flush snap switches that were mounted in ungrounded metal
boxes and located within reach of conductingfloors of(sic)

   a) A anap switch mounted on the south wall adjacent to the east side of the
   door oppo&e the sub dumping area at the BOF Dcsulphuization Station, was
   not providedwith a faceplate and live parts were exposed.

The cited sta&rd provides:

   Flush snap switches that are mounted in ungrounded metal boxes and
   located within reach of conducting floors or other conducting surfaces
   shaIl be provided with faceplates of nonconduct@ noncombustiiik
   material,



   At the time of the inspection, there was no taceplate on a dipok ekct&al

switch four and one half feet above the cement floor on the south wall near the de&
fwization station vr. 58,60). The switch was not in use, as it was not attached to any
quipment; however, exposed wiring inside the switch was energized (Tr. S-60). An
employee coming into contact with the wires or terminal connections on the switch
could sustain an elect&al shock (Tr. 79). Mr. Kuth test&d that he was in the area
near the switch fie or six times a shift (Tr. 105).
Thomas Johnson test&d that the terminal connectjons for the switcihwere on
the back of the switch, opposite the snap switch (Tr. 173). Both Wilkemn and
Johnson stated tbat concrete or cement is not a conductive surf&e p’. 172).
Discurrion
It is clear from the express language of 1910.305(c)(2) that the standard applies
only to ungrounded tktrical boxes “located within reach of conducting floors or other
conducting surfaces? There is no evidence in the record that the uncovered boa on
the south wall of the BOF was within reach of a conducting &am. The seaetary
has fhikd to show the applicabilityof the cited standad; citation 1, item 4 must,tbcre
fore,be vacated.
0 l
J?iiiiidmesof F act and Conclusxms of La
W

  All fhdinp of fact and conclusions of law relevant and necesary to a deter-

mination of the contested issues have been found specially and appear in the decision
above. See Rule 52(a) of the Federal Rules of Civil Procedure.

                                        10

1a Serious citation 1, item 1, alleging violation of ~1910.23@)(1) is AFRRMED,

and a penalty of $700.00 is ASSESSED.

2a Serious citation 1, item 2, alleging violation of ~191023(c)(2), is AFFIRMED,

and a penalty of $l,ooO.OOis ASSESSED.

3l Citation 1, item 3, alleging violation of 51910.305(a)(2) (iii)(g) is AFRRMED

as an “other than serious” violation, without penalty.

4l Citation 1, item 4, alleging violation of ~1910.305(c)(2) is VACATED.

Dated: b
kw%er 17, 1993

                                    ,
                                        11