Marshall v. Pittsburgh-Des Moines Steel Co., PITTSBURGH-DES

• Decision Date: 22 September 1978
• Docket Number: Nos. 77-1809,WHEELING-PITTSBURGH,77-1810,PITTSBURGH-DES,s. 77-1809
• Citation: 584 F.2d 638
• Parties: 6 O.S.H. Cas.(BNA) 1929, 1978 O.S.H.D. (CCH) P 23,057 Ray MARSHALL, Secretary of Labor, Petitioner, v.MOINES STEEL COMPANY and Occupational Safety and Health Review Commission, Respondents. Ray MARSHALL, Secretary of Labor, Petitioner, v.STEEL CORPORATION and Wheeling Corrugating Company, Division of Wheeling-Pittsburgh Steel Corporation, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 638

584 F.2d 638

6 O.S.H. Cas.(BNA) 1929, 1978 O.S.H.D. (CCH) P 23,057

Ray MARSHALL, Secretary of Labor, Petitioner, v. PITTSBURGH-DES MOINES STEEL COMPANY and Occupational Safety and Health Review Commission, Respondents.

Ray MARSHALL, Secretary of Labor, Petitioner, v. WHEELING-PITTSBURGH STEEL CORPORATION and Wheeling

Corrugating Company, Division of

Wheeling-Pittsburgh Steel Corporation,

and Occupational Safety and

Health Review

Commission,

Respondents.

Nos. 77-1809, 77-1810.

United States Court of Appeals, Third Circuit.

Argued May 2, 1978.

Decided Sept. 22, 1978.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Associate Counsel for Appellate Litigation, Nancy L. Southard, Atty., U. S. Dept. of Labor, Washington, D. C., for petitioner Secretary of Labor.

Leon G. Krasinski, Counsel, Nancy Jane Palmer, Associate Counsel, Pittsburgh-Des Moines Steel Co., Neville Island, Pittsburgh, Pa., for respondent Pittsburgh-Des Moines Steel Co.

Henry J. Wallace, Jr., Patrick W. Ritchey, Reed Smith Shaw & McClay, Pittsburgh, Pa., for respondent Wheeling-Pittsburgh Steel Corp.; George Raynovich, Wheeling-Pittsburgh Steel Corp., Pittsburgh, Pa., of counsel.

Allen Sachsel, Appellate Section, Civil Div., U. S. Dept. of Justice, Washington, D. C., for respondent Occupational Safety and Health Review Com'n.

Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Before us are two petitions for review filed by the Secretary of Labor pursuant to 29 U.S.C. § 660(b), asking this court to set aside certain orders of the Occupational Safety and Health Review Commission. In separate proceedings, the Commission vacated citations issued by the Secretary to respondents Pittsburgh-Des Moines Steel Company (PDM) and Wheeling-Pittsburgh Steel Company for alleged violations of two occupational safety and health standards relating to overhead and gantry cranes.

With respect to existing equipment, the overhead and gantry crane regulations provide that "cranes constructed before August 31, 1971, should be modified to conform to (these) design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of (these regulations)." 29 C.F.R. § 1910.179(b)(2) (1977). Because the regulation indicates that older cranes "should" be modified, the Commission held that the standards were merely advisory with respect to the cited cranes, which were installed before the standards became effective. It is that ruling that the Secretary challenges here.

I.

The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq., was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." 29 U.S.C. § 651(b). To that end, the Act authorized the Secretary of Labor "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce," and created the Occupational Safety and Health Review Commission "for carrying out adjudicatory functions (of the Act)." 29 U.S.C. § 651(b)(3). In order to provide for implementation of the Act as soon as practicable, the Secretary was authorized to "promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard," within two years of the effective date of the Act, without regard to the rule-making provisions of the Administrative Procedure Act, 5 U.S.C. § 500 Et seq., 29 U.S.C. § 655(a). The term "national consensus standard" is defined in the Act as:

any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

29 U.S.C. § 652(9).

The Act became effective on April 28, 1971, and one month later the Secretary promulgated occupational safety and health standards as a new Part 1910 of the Code of Federal Regulations. 36 Fed.Reg. 10466 (May 29, 1971). Subpart N of the new OSHA regulations dealt with "Materials Handling and Storage." As the section of this subpart dealing with overhead and gantry cranes, the Secretary adopted the pertinent safety code of the American National Standards Institute (ANSI) as a national consensus standard. 29 C.F.R. §§ 1910.179, 1910.183; 36 Fed.Reg. 10466, 10617-22, 10629 (May 29, 1971).

The OSHA standards that respondents allegedly violated were taken verbatim from Chapter 2-1 of the ANSI Code, sections 2-1.7.7a (guards for moving parts) and 2-1.9.2a (electrical equipment). ¹ Both regulations use the word "shall," characterizing them as mandatory rules of the ANSI Code as defined by Section V of the Code's Introduction:

Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.

At the core of this dispute is 29 C.F.R. § 1910.170(b)(2) (hereinafter "(b) (2)"), which was derived from Section IV of the Introduction to the ANSI Code:

Section IV New and Old Installations

After the date on which this Code becomes effective, all new construction and installation shall conform to its rules. Equipment installed prior to that date should be modified to conform to its rules unless administrative or regulatory authorities deem that the equipment as installed cannot economically be altered and that the equipment substantially complies with the requirements of the Code.

The Commission viewed the use of the word "should" with reference to the modification of existing cranes as making that rule advisory for cranes installed prior to the effective date of the ANSI Code.

When the Secretary promulgated the ANSI Code as a national consensus standard, not all of the ANSI rules were adopted as OSHA standards. In his statement accompanying the newly-promulgated OSHA regulations, the Secretary stated that the "national consensus standards contain only mandatory provisions of the standards promulgated by (ANSI). The standards of ANSI . . . may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910." 36 Fed.Reg. 10466 (May 29, 1971). In several instances the Secretary replaced ANSI's "should" with a mandatory "shall." Compare ANSI §§ 2-1.7.2a (bridge bumpers) and 2-1.7.3a (trolley bumpers) With 29 C.F.R. §§ 1910.179(e)(2)(i) and (e)(3)(i). Most importantly, (b)(2), as originally promulgated, provided that pre-existing cranes "shall be modified . . .." 36 Fed.Reg. 10618 (May 29, 1971).

Furthermore, although ten regulations retained "should" from their ANSI prototypes, ² the Secretary deleted Section V of the ANSI Code's Introduction. That section provided for the distinction, in terms of compliance, between "shall" ANSI rules and "should" ANSI rules. In view of the Secretary's contemporaneous statement that only mandatory rules were adopted in the original Part 1910, the deletion of ANSI Section V might indicate that all of the promulgated OSHA standards were intended to be mandatory, regardless of their wording. This construction comports with the statute's grant of authority to the Secretary "to set Mandatory occupational safety and health standards . . . ." 29 U.S.C. § 651(b)(3) (emphasis supplied).

Ten weeks after his original promulgation of Part 1910, the Secretary amended those standards as a result of subsequent review that "pointed up the need for some clarifications, corrections, and changes in effective dates of standards." 36 Fed.Reg. 15101 (Aug. 13, 1971). Specifically, (b)(2) was revised "in order to give some time for the modification of existing overhead and gantry cranes, and to reflect accurately the (ANSI) standard from which the provision is derived." Id. With the exception of the setting of dates for modification of existing cranes, (b)(2), as amended, substantially tracks the language of Section IV of the ANSI Code Introduction:

New and existing equipment. All new overhead and gantry cranes constructed and installed on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967. Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to those design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section.

36 Fed.Reg. 15106 (Aug. 13, 1971). The term "design specifications" was substituted for the term "rules" in Section IV of the ANSI Code Introduction. In making these changes in the wording of the OSHA standards, the Secretary noted that adherence to the rule-making requirements of the Administrative Procedure Act, 5 U.S.C. § 553, was "unnecessary because of the nature of the amendments, and impracticable, because of the need to give as much advance notice as possible of the changes before August 27, 1971, when the standards in Part 1910 become effective." 36 Fed.Reg. 15101 (Aug. 13, 1971).

The citations before us were issued under these amended provisions. The Secretary charged that PDM operated an overhead traveling crane with unguarded moving parts, in violation of 29 C.F.R. § 1910.179(e)(6)(i)....