McWane, Inc., d/b/a Atlantic States Cast Iron Pipe Company

Plain-English summary

Atlantic States Cast Iron Pipe Company used a seven-foot-deep earthen pit to capture molten metal spilled during its pipe manufacturing process. Employees entered the pit each workday to remove debris, but no fixed stairs or ladder were in use when OSHA inspected. The company argued that the fixed industrial stairs rule did not apply because the pit was an unimproved dirt excavation rather than a constructed structural level. The judge held that the standard expressly covers pits and does not exclude earthen excavations. The serious violation was affirmed, and the parties' stipulated $1,500 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.24(b)
• Outcome: The serious fixed-industrial-stairs violation was affirmed, with a $1,500 penalty.
• Key point: The fixed industrial stairs standard's reference to pits includes an unimproved earthen pit used regularly by employees.

Full text (OSHRC public release)

McWane, Inc.,d/b/a Atlantic Pipe Company, Docket No. 05-0482

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 05-0482

McWANE, INC., d/b/a ATLANTIC

STATES CAST IRON PIPE COMPANY,

Respondent.

Appearances:    Esther D. Curtwright, Esquire                          William K. Principe, Esquire

U.S. Department of Labor                                Constangy, Brooks & Smith, LLC

Office of the Solicitor                                       Atlanta, Georgia

New York, New York                                                  For the Respondent.

For the Complainant.

Before:              COVETTE ROONEY

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . (“the Act”). Respondent, Atlantic States Cast Iron Pipe Company, operated a
pipe manufacturing facility in Phillipsburg, New Jersey, at all times relevant to this case. Respondent
admits that it is an employer engaged in a business affecting commerce within the meaning of
section 3(5) of the Act.

Background

From October 5, 2004 to January 13, 2005, the Occupational Safety and Health
Administration (“OSHA”) conducted an inspection of Respondent’s work site. As a result of that
inspection, on February 3, 2005, OSHA issued a single-item serious citation to Respondent alleging
that on or about October 5, 2004, “employees were observed jumping in and climbing out of the lime
pit,” and that Respondent violated 29 C.F.R. § 1910.24(b) by its failure to provide fixed industrial
stairs into the “lime pit.” The citation proposed a penalty of $2,500.00. By filing a timely notice of
contest, Respondent brought this proceeding before the Commission. A hearing was held before the
undersigned on September 23, 2005.

Stipulated Statement

At the commencement of the hearing in this case, the parties submitted a stipulated statement
based on stipulated facts. The stipulated statement entered into by the parties reads as follows:

Atlantic States operates a pipe manufacturing facility in Phillipsburg, New Jersey.
The manufacturing process at the facility includes the pouring and transfer of molten
metal to and from ladles. To capture molten metal spilled during this transfer process,
there is an excavated dirt pit inside the facility called the “bull ladle pit” by the
Company and the “lime pit” by OSHA. The parties have stipulated that (1) the “lime
pit” referenced in Citation 1, Item 1, is a dirt excavation measuring approximately 10
feet in diameter and 7 feet deep; (2) there is nothing built inside of or on the bottom
of the dirt pit; (3) the bottom of the pit consists of soil, lime, and spilled debris from
the molten metal transfer; (4) three sides of the dirt pit are vertical, with the fourth
side consisting of a dirt slope containing loose granular lime and pieces of molten
metal debris; (5) typically during the third shift each workday, employees enter and
exit the lime pit to remove spilled debris, (6) there were no ladders or fixed stairs
being used for access to the lime pit at the time of the OSHA inspection, and (7) the
lime pit is located inside respondent’s pipe manufacturing facility.

The parties have further stipulated that the condition at this worksite was abated by
the use of a portable ladder in lieu of fixed industrial stairs.

On August 10, 2005, Respondent filed a Motion for Summary Judgment, arguing that
section1910.24(b) was not applicable to the lime pit because the lime pit is an
unimproved dirt excavation, not a “structure level” as set out in the standard. The
Secretary opposed Respondent’s Motion for Summary Judgment and filed a Cross-Motion for Summary Judgment on August 24, 2005, to which Respondent filed a
reply brief on August 25, 2005.

On August 29, 2005, Judge Rooney issued an order denying Respondent’s motion
and granting Complainant’s cross-motion. In the order, it was determined that
section 1910.24(b) was applicable to the lime pit at Respondent’s facility.

Based upon Judge Rooney’s decision that section 1910.24(b) is applicable to
Respondent’s lime pit, Respondent does not dispute the characterization of the cited
condition as serious; it also does not dispute either that employees of Respondent
were exposed to the cited condition at the time of the inspection or that Respondent
knew or could have known of the exposure. Consequently, the parties agree that the
only issue remaining to be resolved is the amount of the penalty to be assessed. The
parties stipulate that a penalty of $1,500.00 is appropriate.

To avoid the expense of an evidentiary hearing, in that the underlying facts are
undisputed and the Administrative Law Judge has already determined that the cited
standard applies, the parties have agreed to the admission of the foregoing stipulated
statement as part of the evidence of record. The parties further agree that
Respondent’s Motion for Summary Judgment with Supporting Memorandum of Law,
Respondent’s Reply Brief and supporting exhibits, and Complainant’s Opposition
and Cross-Motion for Summary Judgment will be admitted into evidence as part of
the record that the Judge will consider in entering a final order in this case.

Tr. 3-6.

Discussion

I have examined the record before me, which consists of the citation, the notice of contest,
the complainant and answer, the parties’ stipulated statement, Respondent’s Motion for Summary
Judgment with Supporting Memorandum of Law, Respondent’s Reply Brief and supporting exhibits,
and Complainant’s Opposition and Cross-Motion for Summary Judgment. I have also considered
“Exhibit A,” attached hereto and incorporated by reference, which is a copy of my order dated
August 29, 2005, wherein I found that section 1910.24(b) was applicable to the lime pit at
Respondent’s facility. Based on the record, I find that the Secretary has met her burden of proof and
has established a violation of 29 C.F.R. § 1910.24(b). I further find that the stipulated penalty in the
amount of $1,500.00 is appropriate.

Findings of Fact and Conclusions of Law

The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon the foregoing, it is hereby ORDERED that:

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1910.24(b) is AFFIRMED,
and a penalty in the amount of $1,500.00 is assessed.

/s/

Covette Rooney

Judge, OSHRC

Dated: October 18, 2005

Washington, D.C.

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 05-0482

McWANE, INC., d/b/a ATLANTIC
STATES CAST IRON PIPE COMPANY,

Respondent.

ORDER

Under consideration is Respondent’s Motion for Summary Judgment and Complainant’s
Cross-Motion for Summary Judgment in the above-captioned matter. The record reveals that on
February 3, 2005, OSHA issued a single-item citation to Respondent, alleging a violation of 29
C.F.R. § 1910.24(b) for failure to provide fixed industrial stairs into a “lime pit.”

Respondent
operates a pipe manufacturing facility in Phillipsburg, New Jersey. The manufacturing process at that
facility necessarily includes the pouring and transfer of molten metal to and from ladles. To capture
molten metal spilled during this process, there is an excavated dirt pit called the “bull ladle pit” by
Respondent and the “lime pit” by OSHA. Clean-up employees enter the pit each night to clean up
spilled molten metal debris. The alleged violation was corrected during the inspection by securing
in place in the pit a portable ladder for employees to use to enter and exit the pit.

It is Respondent’s position that the cited standard is not applicable because the pit, i.e. , a dirt
excavation, does not constitute a “structural level” within the meaning of the standard. The
Complainant asserts that fixed ladders must be provided whenever employees must travel from one
level of a “structure” to another. She also asserts that, pursuant to the application provision at 29
C.F.R. § 1910.24(a), “pits” are among the types of “structures” contemplated by the standard; in her
view, earthen pits are not excluded, and the cited standard thus applies to the activity in question.
Respondent, in turn, argues that the term “structure” in section1910.24(b) means something that is
constructed; a “pit” covered by the standard, therefore, is something that has been constructed rather
than an unimproved dirt excavation such as the one at issue.

In support of their respective positions, both parties have moved for summary judgment
pursuant to Rule 56 of the Rules of Civil Procedure. The parties agree that there are no genuine
issues of fact and have stipulated that (1) the lime pit referenced in Citation 1, Item 1, is a dirt
excavation measuring approximately 10 feet in diameter and 7 feet in depth; (2) there is nothing built
inside of or on the bottom of the dirt pit; (3) the bottom of the pit consists of soil, lime, and spilled
debris from the molten metal transfer; and (4) three sides of the dirt pit are vertical, with the fourth
side consisting of a dirt slope containing loose granular lime and pieces of molten metal debris.

I find that the cited standard applies, based upon the application provision of the fixed
industrial stairs standard. See Application of Requirements , 29 C.F.R.§ 1910.24(a). This section
expressly states that “pits” are subject to the requirements of the fixed industrial stairs standard. The
term “pits” is not limited or restricted in any way, and I therefore conclude that the word
encompasses a broad range of “pits.” The ordinary, commonsense meaning of the term “pit”is a
“hole, shaft, or cavity in the ground” or an area “sunken or depressed below the adjacent floor
area....”

Accordingly, I find that “pits” of any type are among the kinds of “structures” contemplated
by the standard.

The specific inclusion of the term “pits” and the ordinary meaning of the word
makes the standard applicable to the instant unimproved dirt excavation.

In view of the forgoing, Respondent’s Motion for Summary Judgment is DENIED, and the
Secretary’s Cross-Motion for Summary Judgment is GRANTED.  

SO ORDERED.

/s/

COVETTE ROONEY

Judge, OSHRC

Dated: August 29, 2005

Washington, D.C.