SECRETARY OF LABOR,

Complainant,

v.

GENERAL AMERICAN TRANSPORTATION
CORPORATION,
Respondent.

OSHRC Docket No. 79-7105

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Former Commission Judge Erwin L. Stuller affirmed five items of a citation issued to General American Transportation Corporation ("GATC").  Review was directed to determine whether the judge erred in affirming those five items.  The two participating Commission members are divided on whether the judge's decision should be affirmed or reversed with respect to each item on review. [[1]]

Item 1 of the citation alleges that oil-soaked ground and dry grass were located within 50 feet of a bulk oxygen storage tank, in violation of 29 C.F.R. 1910.104(b)(3)(x).[[2]]   Commissioner Cleary would affirm the judge's finding that the oil-soaked grass at issue was a combustible solid that would burn as rapidly as excelsior.  The testimony at the hearing was that there was long dry grass, saturated to some extent by oil, and that it was within three feet of the pad on which the oxygen storage tank was located. Commissioner Cleary notes that there is another standard, at 29 C.F.R. 1910.104(b)(10), that covers the hazard of the proximity of grass to storage tanks.  He concedes that that standard might also be applicable, but he would conclude that either standard could have been cited.  Commissioner Cleary would therefore affirm the judge.

Chairman Buckley would conclude that the cited standard does not apply to dry grass.  See Clement Food Co., 84 OSAHRC __, 11 BNA OSHC 2120, 1984 CCH OSHD 26,972 (No. 80-607, 1984), pet. for rev. filed, No. 84-2229 (10th Cir. Sept. 11, 1984) (The Secretary must establish the applicability of the cited standard as part of his prima facie case); Power Plant Division, Brown & Root, Inc., 82 OSAHRC 40/A2, 10 BNA OSHC 1837, 1982 CCH OSHD 26,159 (No. 77-2553, 1982) (same); Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD 23,440 (No. 76-1480, 1979) (same).  The judge correctly concluded that the standard does not apply to oil residues because oil is a liquid rather than a solid.  Moreover, because "long dry grass" is expressly permitted at a distance of 15 feet from a bulk oxygen storage container by these standards, see 29 C.F.R. 1910.104(b)(10), it necessarily follows that long dry grass is not among the solid materials that must be kept at least 50 feet away from the storage container under the standard cited by the Secretary.  Chairman Buckley would therefore vacate the item. Because the Secretary has not sought leave to amend under Fed.R.Civ.P. 15(b) and the parties did not try the issue of a violation of other standards, Chairman Buckley would not reach the question of whether a different standard applies or was violated.  See McWilliams Forge Co., 84 OSAHRC _____, 11 BNA OSHC 2128, 1984 CCH OSHD 26,979 (No. 80-5868, 1984), pet. for rev. filed, No. 84-3587 (3rd Cir. Sept. 14, 1984).

Item 2 of the citation alleges that paint spills in GATC's paint-mixing room were not cleaned up promptly in accordance with 29 C.F.R. 1910.106(e)(9)(i). [[3]] Commissioner Cleary would reject GATC's exceptions to the judge's disposition of this item.  He defers to the judge's credibility determination, which discredited the testimony that paint spills could not have been cleaned up more frequently.  The evidence is that the paint residues were quite thick and there were rags embedded within the paint.  In any event, even if the testimony relied on by GATC were to be credited, it would not meet GATC's burden of proving that it was impossible to comply with the standard by cleaning up paint spills promptly.  Commissioner Cleary would also affirm the judge's finding, based on the compliance officer's testimony, that the cited conditions created a serious fire hazard.  GATC raises no issue concerning the applicability of the cited standard to the cited conditions.  Commissioner Cleary would therefore affirm the judge without addressing the applicability issues raised by Chairman Buckley.

In Chairman Buckley's view, the Secretary failed to establish that the cited standard applies to the cited conditions.  See Clement Food Co., supra; Power Plant Division, Brown & Root, supra; Belger Cartage Service, Inc., supra.  The standard regulates "flammable or combustible liquids" as those terms are specifically and precisely defined in the standard.  See 29 C.F.R. 1910.106(a)(18) & (19).  Whether a liquid is categorized as flammable or combustible depends on the "flashpoint" of the liquid. The means to calculate the flashpoint is set forth in the standard as well.   See 29 C.F.R. 1910.106(a)(14).  Here the Secretary failed to prove that the spilled paints at issue were flammable or combustible using this calculation and the definitions in the standard.  Although the compliance officer expressed his opinion that the spilled paints were flammable or combustible, he did not explain the basis for his conclusory opinion and he did not testify that he based his opinion on the definitions in the standard. Accordingly, Chairman Buckley would vacate the item.[[4]]

Item 3 alleges that deposits of combustible paint residues had accumulated on the floors, walls, and catwalks of two paint-spraying areas in violation of 29 C.F.R. 1910.107(g)(2).[[5]]  Commissioner Cleary concludes that the Secretary met his burden of proving that the two paint-spraying booths identified in the citation were "spraying areas" as defined in section 1910.107(a)(2).  The standard provides that the Secretary must show either dangerous quantities of flammable vapors or mists or that combustible residues are present due to the operation of spraying processes.  The record in the case shows the existence of considerable deposits of combustible residues within the two booths.  In fact, it was not contested that these were spraying areas or that the residues were combustible.  In addition, Commissioner Cleary concludes that the record established GATC's noncompliance with the cited standard because (a) the cleaning schedule followed by GATC was inadequate to prevent hazardous and unnecessary accumulations of combustible residues and (b) more frequent cleaning of the booths would have been "practical."

Chairman Buckley concludes that this item must be vacated because the Secretary failed to prove that the two areas at issue were "spraying areas," and therefore failed to prove that the cited standard applies to the cited conditions.  See Clement Foods Co., supra; Power Plant Division, Brown & Root, Inc., supra; Belger Cartage Service, Inc., supra.  The Secretary did not demonstrate that "dangerous quantities of flammable vapors or mists" were present.  See 29 C.F.R. 1910.107(a)(2).  Nor did he sustain his burden of proving, as the standard requires, that the paint residues or deposits observed by the compliance officer constituted "dangerous quantities of . . . combustible residues, dusts or deposits."  See 29 C.F.R. 1910.107(a)(2).  Moreover, although some paint residues or deposits had accumulated in the two areas, there was no proof that the paints used by GATC were "combustible liquids" within the meaning of the Secretary's standards.  Because the standards pertain only to flammable or combustible liquids, paint residue cannot be classified as combustible unless the paint itself is combustible as a liquid.  See 1910.106(a)(14), (18) & (19).   Therefore, the Secretary failed to meet his burden of demonstrating the applicability of the cited standard to the two areas at issue and item 3 must be vacated.

Item 6 of the citation contains two separate but related allegations.  Subitem 6A alleges that GATC failed to immediately remove from service a crane sling with a badly burned link and that it thereby failed to comply with 29 C.F.R. 1910.184(d).  Subitem 6B alleges noncompliance with 29 C.F.R. 1910.184(f)(5)(i) based on GATC's failure to immediately remove two wire rope slings from service.  These two slings each had over 10 broken wires in one rope lay.[[6]]

Commissioner Cleary would hold that the Secretary established GATC's noncompliance with the cited standards and its violation of the Act by proving (a) that three defective slings were either in use or available for use and therefore not removed from service and (b) that GATC could have known of the defects with the exercise of reasonable diligence.  With respect to subitem 6A, Commissioner Cleary would adopt the judge's reasoning in affirming the allegation.  With respect to subitem 6B, Commissioner Cleary concludes, contrary to GATC's arguments, that the Secretary met his burden of proving (a) that the slings were available for use in a damaged condition and (b) that they had not been removed from service.

Chairman Buckley agrees with GATC that the Secretary failed to prove violations of the two cited standards.  The standards require employees to inspect slings at indicated times and to "immediately" remove slings from service when the inspection discloses conditions warranting removal.  The Secretary does not allege that GATC's inspections were inadequate or not timely.  Since GATC did inspect these slings as required and there is no evidence even suggesting that GATC was aware of the defects, the Secretary did not prove that GATC violated its duty to remove the slings from service immediately upon discovery.  Accordingly, Chairman Buckley would vacate the two subitems.

Finally, item 7 alleges that two areas of a multi-purpose, metal-working machine were not guarded so as to prevent employees from having any part of their bodies in the danger zone during angle-shear and bar-shear operations.  The standard allegedly violated is 29 C.F.R. 1910.212(a)(3)(ii).[[7]] The two Commissioners disagree as to whether the Secretary met his burden of proving that the angle-shear and bar-shear operations exposed the machine operator to injury.  Commissioner Cleary would hold that the Secretary sustained his burden of proving that guarding was required under the standard.  There was uncontroverted testimony that the operator of the machine could reach into the point of operation. 

Chairman Buckley would vacate the item.  The record establishes that the ordinary work station of the machine operator is on the side of the machine where the "feed slots" and the foot pedal are located.  All openings into the machine's points of operation on this side of the machine were guarded at the time of the inspection.  The unguarded openings at issue are the openings next to the off-load tables, which are on the right-hand side of the machine as seen by the operator from his normal working position.  Although the openings lead to the respective points of operations, the cutting blades are set back from the openings, apparently as much as 41 inches behind the off-load tables and the openings.  The record indicates that it would be difficult if not impossible for an operator to come into contact with the cutting blades while the machine is operating, due to the distance between the openings and the blades, as well as the location of the openings.  On this record, Chairman Buckley concludes that the Secretary failed to prove that either of the cited operations exposed the operator to injury.

Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  To resolve their impasse as to the issues before the Commission on review and to permit the case to proceed to a final resolution, Chairman Buckley and Commissioner Cleary have agreed to vacate the direction for review.  E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD 24,634 (Nos. 77-3040 & 77-3542, 1980).  The Commission members have discretion under the Act and the Commission's Rules of Procedure to direct review of a judge's decision.  Section 12(j), 29 U.S.C. 661(i); 29 C.F.R. 2200.92.  In the absence of a direction for review, the judge's decision becomes a final order of the Commission and can be appealed by an aggrieved party to a United States court of appeals.  Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. 659(c), 660(a) and (b), 661(i).  The judge's decision in this case therefore becomes the appealable final order of the Commission, but is accorded the precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  OCT 5, 1984




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FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.  Section 12(a), 29 U.S.C. 661(a).  Presently, the Commission has two members as a result of a vacancy.

[[2]] The standard provides:

1910.104 Oxygen.

(b) Bulk oxygen systems---

(3) Distances between systems and exposures -- (i) General.   The minimum distance from any bulk oxygen storage container to exposures . . . shall be as indicated in paragraphs (b)(3)(ii) to (xviii) of this section inclusive.

(x) Highly combustible materials.  Fifty feet from solid materials which burn rapidly, such as excelsior or paper.

[[3]] The standard provides:

1910.106 Flammable and combustible liquids.

(e) Industrial plants--
(9) Housekeeping -- (i) General.  Maintenance and operating practices shall be in accordance with established procedures which will tend to control leakage and prevent the accidental escape of flammable or combustible liquids.  Spills shall be cleaned up promptly.

[[4]] Chairman Buckley also notes that the cited standard is limited in its application to "industrial plants" where the use of flammables or combustibles is "only incidental" to the business of the company.  See 29 C.F.R. 1910.106(e)(1).  Assuming the paints are flammable or combustible, the record does not show whether GATC's workplace is one in which their use is "only incidental" to work done in the plant.  See St. Regis Paper Co., OSHRC Docket No. 77-1385 (August 28, 1984).

[[5]] The standard provides:

1910.107 Spray finishing using flammable and combustible materials.
(g) Operations and Maintenance--
(2) Cleaning.  All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary. . . .

The key term "spraying area" is defined at 1910.107(a)(2) as "[a]ny area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of spraying processes."

[[6]] The standards provide:

1910.184 Slings.
(d) Inspections.  Each day before being used, the sling and all fastenings and attachments shall be inspected for damage or defects by a competent person designated by the employer.  Additional inspections shall be performed during sling use, where service conditions warrant.  Damaged or defective slings shall be immediately removed from service.
(f) Wire rope slings.
(5) Removal from service.  Wire rope slings shall be immediately removed from service if any of the following conditions are present:

(i) Ten randomly distributed broken wires in one rope lay, or five broken wires in one strand in one rope lay.

[[7]] The standard provides:

1910.212 General Requirements for all machines.
(a) Machine Guarding--
* * *

(3) Point of operation guarding.
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.  The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.