Armco Steel Co., L.P.

Plain-English summary

Armco Steel operated a steel-manufacturing facility in Middletown, Ohio. OSHA cited an unguarded crane runway 34 feet above the floor under the open-sided-platform standard, alternatively alleged that employees needed safety belts and lanyards, and cited an unsecured acetylene cylinder under the indoor-storage rule. The judge found that the runway was built to support an overhead crane rail and was used only occasionally for emergency exit or repair access, so it was not a platform covered by the cited guardrail standard. He also found guardrails infeasible because they would interfere with crane operation, accepted Armco's handhold cable as meaningful alternative protection, and found no proof that a reasonable employer would require additional personal protective equipment for this limited use. On the cylinder item, the judge credited testimony that the cylinder had been delivered that morning for a job and was not in storage. Both serious citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.23(c)(1), 1910.132(a), and 1910.253(b)(2)(ii).
• Outcome: Vacated. The judge vacated both the crane-runway item and the acetylene-cylinder storage item.
• Key point: A standard must apply to the actual use of the cited surface or equipment, and the Secretary must prove the facts that trigger its requirements.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

PHONE:
COM (202) 606-5100
FTS (202) 606-5100

FAX:
COM (202) 606-5050
FTS (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-1010
ARMCO STEEL CO., L.P.
Respondent.

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 January 7, 1994. The decision of the Judge
will become a final order of the Commission on February 7, 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 petition should be received by the Executive Secretary on or before
January 27, 1994 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 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 Litigation
Office of the Solicitor, U.S. DOL
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
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: January 7, 1994 Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 93-1010
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Ave., N.W.
Washington, D.C. 20210

John H. Secaras

Regional Solicitor

Office of the 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

Benjamin R. Loye

Administrative Law Judge

Occupational Safety and Health
Review Commission

Room 250

1244 North Speer Boulevard

Denver, CO 80204-3582

00103376059 :05

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582
PHONE: FAX:
COM (303) 844-2281 COM (303) 844-3759
FTS (303) 844-2281 FTS (303) 844-3759

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 93-1010

ARMCO STEEL COMPANY, L.P.,
Respondent.

APPEARANCES:

Elizabeth R. Ashley, Esq., Office of the Solicitor, U.S. Department of Labor,
Cleveland, Ohio.

Robert A. Dimling, Esq., Frost & Jacobs, Cincinnati, Ohio.

Before: Administrative Law Judge Benjamin R. Loye
DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. Section 651 et seq.; hereafter called the “Act”).

Respondent, Armco Steel Company, L.P. (Armco), at all times relevant to this
action maintained a place of business at 1801 Crawford Street, Middletown, Ohio, where
it was engaged in steel manufacturing. Respondent admits it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.

In February 1993 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Armco’s Middletown worksite (Tr. 9). As a result of the

inspection, Armco was issued a “serious” citation alleging violation of §§1910.23(c)(1)

and 1910.253(b)(2)(ii) of the Act, together with proposed penalties. By filing a timely
notice of contest Armco brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).

Prior to the hearing citation 1, item 1 was amended to allege, in the alternative, a
violation of §1910.132(a). On September 15, 1993, a hearing was held in Cincinnati,
Ohio, on the contested issues. The parties have submitted briefs and this matter is ready
for disposition.

Alleged Violation of §1910.23(c)(1)

Serious citation 1, item 1 alleges:

29 CFR 1910.23(c)(1): Open sided floors or platforms 4 feet or more above the adjacent

floor or ground level were not guarded by standard railings (or the equivalent as speci-
fied in 29 CFR 1910.23(e)(3)(i) through (v)), on all open sides:

(a)

Location: Cold Strip

Condition: There was no standard guardrailing or equivalent protection along the open-
sided platform along the crane rails.

The cited standard provides:

Protection of open-sided floors, platforms, and runways. (1) Every open-sided

floor or platform 4 feet or more above adjacent floor or ground level shall

be guarded by a standard railing (or the equivalent . . .) on all open sides

except where there is entrance to a ramp, stairway, or fixed ladder....
Facts

A crane runway runs along the wall for the length of Armco’s Cold Strip Building,
approximately 150 feet (Tr. 13, 90-91). The runway is 34 feet above the floor below, is
between three and four feet wide and consists of steel girders which are supported by
columns 40 feet apart (Tr. 14-15, 91). Building support columns interrupt the runway
every 20 feet (Tr. 91). The rail on which Armco’s overhead cranes run rests upon the
crane runway, approximately six inches to a foot in from the runway edge (Tr. 14-15, 90,
93; Exh R-1). The clearance between the outside edge of the support columns and the

crane as it travels on the rail is 18 inches (Tr. 94).

The primary purpose of the crane runway is to support the rail on which cranes
ride (Tr. 90, 104). However, crane operators also use the runway for egress from their
crane cabs in the event of breakdown or emergency (Tr. 19), and maintenance personnel
use the runway for accessing cranes in need of repairs (Tr. 91). Crane operators and
electricians testified that they had been on the crane runway less than six times in the last
year (Tr. 67, 75, 82-83). Normally the cranes are accessed from a set of fixed stairs at
either end of the runway (Tr. 19, 48).

The edge of the runway is unguarded (Tr. 15). A cable three and one half to four
feet above the runway is strung between the columns and was used by employees on the
runway as a handhold (Tr. 15-16, 70-71, 78).

Raymond Ferguson, Armco’s cold strip section manager, testified that there was
no way to install a guardrail on the crane runway and still be able to operate the over-
head cranes (Tr. 94). CO Steve Brunette admitted that a guardrail which would allow
the cranes to operate could probably not be installed on the crane runway; Brunette
recommended the use of safety belts and lanyards as an alternative safety measure (Tr.
32, 52).

Discussion

In order to show a violation of §1910.23(c), the Secretary must demonstrate that
Armco’s crane runway is either an open-sided floor, a platform or a runway. The
Secretary concedes that the runway was not an open floor or a “runway” as defined by
§1910.21(a)(5). This judge finds that neither is the runway a “platform” as that term has
been interpreted by the Commission, and Complainant itself.

The term "platform" is defined at §1926.502(e) as “[a] working space for persons,
elevated above the surrounding floor or ground, such as a balcony or platform for the
operation of machinery and equipment.” The Commission has held that the term must
be interpreted in a reasonable manner, consistent with a common sense understanding of
its language, in order to provide employers with fair notice of what is required, Globe
Industries, 10 BNA OSHC 1596, 1982 CCH OSHD ¶ 26,048 (No. 77-4313, 1982). OSHA

Instruction STD 1-1.13 instructs inspection personnel to treat as “platforms”:

any elevated surface designed or used primarily as a walking or working
surface, and any other elevated surfaces upon which employees are
required or allowed to walk or work while performing assigned tasks on a
predictable and regular basis . . . .

Predictable and regular basis means employee functions such as, but not
limited to, inspections, service, repair and maintenance which are
performed:

a. At least once every 2 weeks, or

b. For a total of 4 man-hours or more during any sequential 4-week
period . . . .

The 150’ x 3’ crane runway which is the subject of this item does not fall within
the common sense meaning of the term “platform,” nor does it meet the definition of
“platform” provided by Complainant. The runway was not designed primarily as a
walking or working surface, but to support the overhead crane rail. Moreover, Armco’s
use of the runway as a means of access is limited to situations where a crane has broken
down, and so is neither regular nor predictable. There is no evidence in the record that
work was performed from the runway for more than four man hours during any four
week period.

Moreover, even were the standard applicable, Armco has made out the affirma-
tive defense of infeasibility. Armco’s contention that guardrails could not be installed
without interfering with the operation of the overhead cranes was undisputed. At the
hearing Complainant’s CO agreed that guardrails probably could not be installed.

As alternative fall protection, Armco provided a cable for employees to use as a
handhold while moving along the runway. Complainant argues that the handhold was
not adequate, and maintains that Armco must use the alternative protection it recom-
mends, i.e. safety belts and lanyards.

This judge disagrees. There is no requirement that an employer providing alterna-
tive safety measures second-guess the Secretary as to which measures are most appropri-

ate. The handhold supplied by Armco provides meaningful fall protection, substantially

similar to that of a safety belt; an employee walking along the runway has no other tasks
to distract him and can maintain a hold on the cable at all times, except when passing a
support cable; an employee wearing a lanyard would also have to unclip and clip the
lanyard every time he passed a support (Tr. 34).

Complainant’s alternative charge alleging a violation of §1910.132(a) must also
fail. Section 1910.132(a) provides that:

Protective equipment, including personal protective equipment for eyes,

face, head, and extremities, . . . shall be provided, used, and maintained in

a sanitary and reliable condition whenever it is necessary by reasons of

hazards of processes or environment . . . encountered in a manner capable

of causing injury or impairment in the function of any part of the body

through . . . physical contact.

Compliance with §1910.132(a), however, requires that personal protective equipment be
provided only when the employer had actual knowledge of a hazard requiring the use of
personal protective equipment, or a reasonable person familiar with the situation,
including any facts unique to the particular industry, would recognize a hazard warranting
the use of such equipment. Armour Food Co., 14 BNA OSHC 1817, 1990 CCH OSHD
¶ 29,088 (No. 86-247, 1990). The Secretary introduced no evidence, other than the unsup-
ported opinion of its CO, that a reasonable employer would have provided safety belts
and lanyards to employees walking on the crane runway.

Complainant argues that Armco recognized the need for safety belts and lanyards,
and points to its Safety Book (Exh. C-1) in which Armco requires employees who work
above floor or ground level to tie off where guardrails do not provide full protection (Tr.
27, 97, 104). The fall hazard involved in working from raised surfaces, where employees
have a task to attend to and cannot use their hands to grasp a safety line, is clearly dif-
ferent from that involved in this case, where employees can and do hold onto the cable
provided while they are walking on the elevated runway. Armco’s safety handbook is
insufficient, therefore, to demonstrate knowledge of a need for additional safety equip-
ment on the crane runway.

The Secretary has failed to carry her burden of proof, and the citation will be
vacated.

Alleged Violation of §1910.253(b)(2)(ii)
Serious citation 1, item 2 alleges:
29 CFR 1910.253(b)(2)(ii): Assigned storage places for cylinders was not located away

from elevator, stairs, or gangways where cylinders could not be knocked over or damaged
by passing or falling objects, or subject to tampering by unauthorized persons:

(a)

Location: Building #5263 Coil Distributing Bldg.

Condition: There was an acetylene cylinder standing unsecured and unprotected from
being knocked over.

The cited standard provides:

Inside of buildings, cylinders shall be stored in a well-protected, well-venti-

lated, dry location . .. . Cylinders should be stored in definitely assigned

places away from elevators, stairs, or gangways. Assigned storage spaces

shall be located where cylinders will not be knocked over or damaged by

passing or falling objects, or subject to tampering by unauthorized

persons ....

CO Brunette testified that he observed an acetylene cylinder standing between
two crane bays in the coil distributing building (Tr. 35-36). The cylinder was not attached
to a regulator and had a protective cap over the top of the valve (Tr. 36). An employee
working in the area told Brunette that the cylinder belonged to the rigger shop, but that
the riggers had not been in the area since the week before (Tr. 38). Glenn Rusk,
Armco’s rigger shop section manager, testified that the cylinder had been delivered to the
coil distribution building the morning of the inspection for a job, and had not been stored
at that location (Tr. 107).

Rusk’s first hand testimony is preferred to the CO’s inference that the acetylene
cylinder had been in the crane bay since the week before when the rigger shop had last
worked in the area. Because Complainant failed to show that the cylinder was “in
storage” the cited standard is not shown to be applicable, and citation 1, item 2 must be

vacated.

Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determina-

tion 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.

ORDER

1. Serious citation 1, item 1, alleging violation of §1910.23(c)(1) is VACATED.
2. Serious citation 1, item 2, alleging violation of §1910.253(b)(2)(i) is VACATED.

Benjamin R. Loye
Judge, OSHRC

Dated: December 30, 1993