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Bethlehem Steel Corp. v. Occupational Safety and Health Review Commission and Ray Marshall

filed: March 6, 1978.

BETHLEHEM STEEL CORPORATION, PETITIONER
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND RAY MARSHALL, SECRETARY OF LABOR, RESPONDENTS



Petition for Review of the Order of the Occupational Safety and Health Review Commission OSAHRC Docket No. 9968.

Adams, Biggs and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge

An Occupational Safety and Health Act standard for the use of industrial overhead cranes includes the phrase "under normal operating conditions." The Secretary of Labor and the Occupational Safety and Health Review Commission do not agree on whether maintenance operations are covered by the standard. We conclude they are not. Accordingly, we grant a petition for review and set aside a Commission order assessing a penalty against a crane owner.

Petitioner Bethlehem Steel was cited by the Occupational Safety and Health Administration on August 19, 1974 for a nonserious violation of a standard promulgated by the Secretary of Labor. The citation charged that petitioner maintained an unsafe condition near the overhead cranes in the open-hearth plant in Johnstown, Pennsylvania - specifically, that large electrical resistor banks were too close to the area where men worked and exposed them to the hazard of shock or burns. After a hearing, an administrative law judge (ALJ), affirmed the citation, and his action was sustained by an evenly divided Occupational Safety and Health Review Commission.

The dispute centers around two cranes which are part of Bethlehem's Johnstown plant. Crane No. 502 has a capacity of 35 tons and is located about 35 to 45 feet above the ground. It has two trolleys and runs on tracks and a runway. The cab in which the operator rides is below the rails. There are walkways alongside the crane with clearances varying in width from 26 to 43 inches, and at various points obstructions such as control cabinets and line shafts restrict movement. To enter the cab of Crane 502, the operator must use the walkway.

The other crane, No. 560, is larger and has a rating of 240 tons. It also uses rails, trolleys and a runway but the cab is some distance below the walkway and the operator enters from a separate platform.

The electrical systems for both cranes use banks of resistors which are activated when specific functions of the crane are desired. For example, one bank of resistors operates the hoist mechanism, another, the movement along the rails. The ALJ found that the resistors are in boxes approximately 18 inches long and 6 to 10 inches high, stacked in banks with 25 to 30 resistors set one on top of another, and that one of the banks was 8 or 9 feet high. The resistors are located at various points along the walkways, high above the floor of the plant. If used for a considerable time, the resistors become hot enough to burn the skin and, if energized, they are capable of giving off an electrical shock. There are no protective coverings over the top or front of the resistor banks, but they are guarded on the sides.

In addition to the usual work of lifting and moving heavy objects, the cranes are sometimes used for replacement of light bulbs near the roof of the plant. To carry out this work with Crane 502, an electrician stands on the roof of the cab to replace the bulb. While he is doing this, energy to the crane is cut off. In the course of light bulb replacement, the ALJ found, the electrician sometimes walks near the resistors.

While inspecting, troubleshooting, and repairing, maintenance men use the walkways, but when the cranes perform their usual work of lifting and moving heavy objects, Bethlehem forbids employees from being on the walkways. When normal operations are in progress, the operator remains inside the cab where he is not close enough to touch the resistors.

Generally, when repair work is being performed, the cranes are immobilized and the resistors are not energized. However, on some occasions, in order to detect the cause of a malfunction, it is necessary to operate the crane. This is done under the direction of the maintenance men.

The OSHA regulation which is claimed to have been violated is set forth at 29 C.F.R. ยง 1910.179(g)(2)(i) under the general heading of "Overhead and Gantry Cranes," and reads:

"(2) Equipment. (i) Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact ...


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