Before: Edwards, Chief Judge, Sentelle and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 1995
On Petition for Review of an Order of the Occupational Safety and Health Review Commission
Opinion for the Court filed by Circuit Judge Tatel.
The Secretary of Labor cited American Bridge/Lashcon for violating safety regulations designed to protect workers from falls and to reduce the hazards from stored oxygen cylinders. The Occupational Safety and Health Review Commission sustained the citations and assessed fines. Relying on our decision in L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 675 (D.C. Cir. 1982) ("Willson I"), American Bridge argues that, because it protected its workers during a substantial portion of the workday, it did not violate the fall protection regulations. The cylinders, it claims, were not "in storage" within the meaning of the oxygen cylinder regulation. Holding that Willson I's "substantial portion of the work day" test applies only where workers face unusual or unpredictable situations, and finding such situations absent here, we sustain the fall protection citation. We also conclude that the Commission's finding that the cylinders were "in storage" is consistent with agency standards and supported by substantial evidence.
Petitioner, American Bridge/Lashcon, is a joint venture formed to erect the structural steel in a new office complex in Hoffman Estates, Illinois. According to its design, the complex would include a multi-story office building with parking garages on the east and west sides. Pedestrian walkways would connect the garages to the building. To construct the walkways, American Bridge erected two levels of horizontal steel beams, one to support the floors of the future walkways and the other to support their roofs. This case focuses on the beams erected to support the roof of the walkway connecting the west garage to the office building. The roof beams were about 75 to 100 feet long, 13 inches wide, and 28 feet above the ground. To protect employees working on the beams, American Bridge installed a one-half inch thick horizontal cable a few feet above the roof beam. Extending from the west garage to the office building, the cable was anchored at both ends and secured by four intermediate posts. While working on the walkway, workers "tied-off " to the cable: that is, they attached one end of a connector known as a lanyard to the cable and the other end to a safety belt worn around the waist.
Workers also used the roof beam as a temporary walkway to get supplies and food. When using the beam for these purposes, workers did not tie-off. Instead, they held onto the cable or placed their arms over it as they walked. This was consistent with American Bridge policy requiring workers to tie-off only when stationed.
During a routine inspection, an Occupational Safety and Health Administration compliance officer saw a worker who was not tied-off walk across the roof beam. No safety net was underneath the beam. The Secretary of Labor cited American Bridge for violating 29 C.F.R. 1926.105(a) (1994). Section 105(a), promulgated pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. Section(s) 651-678 (1988 & Supp. V 1993), requires:
Safety nets shall be provided when workplaces are more than 25 feet above the ground ... where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
The Secretary also cited American Bridge for improperly storing an oxygen cylinder next to a cylinder filled with propane gas. Like other steel erectors, American Bridge uses oxygen and propane gas to weld and trim steel. At the time of the inspection, workers were not using the cylinders, hoses were not connected to either, and the cylinders were capped. The Secretary cited American Bridge for violating an OSHA regulation that requires the separation of oxygen cylinders "in storage" from combustible materials, including gas cylinders, by a minimum of 20 feet or by a fire wall. 29 C.F.R. Section(s) 1926.350(j) (1994).
American Bridge challenged both citations, along with three others not at issue in this appeal, before the Occupational Safety and Health Review Commission. Following a hearing, an administrative law judge vacated all five citations. American Bridge/Lashcon, J.V., OSHRC Docket No. 91-0633, 1992 WL 50928 (ALJ June 28, 1994). The ALJ found that American Bridge had provided adequate fall protection by requiring employees to tie-off while stationed and working on the beam. Id., slip op. at 7, 1992 WL 50928, at *5. Finding that workers' trips across the beam totaled about twenty a day, each taking less than a minute, and relying on our decision in Willson I, the ALJ concluded that because workers tied-off for a substantial portion of the workday, American Bridge did not have to provide fall protection for them while walking across the beam. Id. The ALJ ...