SECRETARY OF LABOR,
Complainant,

v.

MONARCH WATER SYSTEMS, INC.,
Respondent.

OSHRC Docket No. 83-0943

DECISION

BEFORE:  BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), 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).

At issue is whether Administrative Law Judge Paul L. Brady erred in vacating two citation items.

Citation 1, Item 4:  29 C.F.R. § 1926.152(f)(3), Flammable Liquids Near Ignition Sources.

In Item 4 of citation 1, the Secretary alleged that Monarch violated 29 C.F.R. § 1926.152(f)(3), which provides:

§ 1926.152  Flammable and combustible liquids.

* * *
(f) Handling liquids at point of final use.

* * *
(3) Flammable liquids may be used only where there are no open flames or other sources of ignition within 50 feet of the operation, unless conditions warrant greater clearance.

It was undisputed that on August 2, 1983, two of Monarch's employees, Eugene Wright and James Pinney, were involved in spraying flammable paint onto the inside walls of a tank in a shed.  While applying the paint inside the tank, Wright became affected by the paint fumes.  Pinney, who was outside the tank, then began to ventilate the tank using a suction pump referred to as a "blower."   Both the blower and an ordinary hand lamp used for illumination were positioned inside the shed within 50 feet of the spraying operation.  The Secretary asserts that the hand lamp and blower were "sources of ignition" within the meaning of section 1926.152(f)(3) and that, because they were within 50 feet of the flammable paint being sprayed, Monarch violated the standard.

Jack Glaser, Monarch's president, had instructed Wright and Pinney, as well as their foreman Bobby Estes, to use, instead of the ordinary hand lamp, a "Vapotech" lamp.  Glaser thought at the time that the "Vapotech" lamp was not a source of ignition.  Glaser had also told Wright and Pinney to use a blower for ventilation and place it outside the shed on a small scaffold which he estimated to be 70 feet from the tank opening.  Monarch's work rules also required that the ventilation blower be put into use before employees enter a tank.  Moreover, employees were not permitted to turn the blower off while they were in a tank.

In his decision, Judge Brady noted that under Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, p. 31,900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982), the Secretary must establish that Monarch knew or could have known of the violative condition with the exercise of reasonable diligence.  The judge stated that "the ventilation equipment was specifically provided to eliminate the accumulation of flammable liquid spray vapors," and "there would have been no source of ignition for flammable liquids if the safety rules [on use of that ventilation equipment] had been followed."  The judge additionally noted that Wright and Pinney failed to follow Glaser's instructions to use the Vapotech lamp and place the blower outside the shed.  Concluding that the evidence did not prove the alleged violation, Judge Brady vacated the item.

We conclude that the judge's ruling on this item should be set aside and the item remanded.  The judge incorrectly viewed the condition addressed by the standard to be the accumulation of flammable vapors, which he found could have been eliminated by using the ventilation equipment provided by Monarch.   Section 1926.152(f)(3) does not mention "accumulations" of "vapors." Rather, it prohibits the use of flammable "liquids" within 50 feet of an ignition source.  It is therefore irrelevant to this item whether the ventilation equipment could have reduced the amount of flammable vapors had it been used continuously during the spraying operation.

As the judge noted, to establish a violation of a standard, the Secretary must prove that Monarch knew or with the exercise of reasonable diligence could have known of the violative conditions.  In rebutting the Secretary's evidence on knowledge, the employer may, among other things, show that it took reasonable precautions to prevent the violative conduct of its employees.  See Automatic Sprinkler Corporation of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1387-88, 1980 CCH OSHD ¶ 24,495, pp. 29,926-27 (No. 76-5089, 1980).

Because it was not relevant to Judge Brady's rationale, the judge made no finding regarding Monarch's actual or constructive knowledge that the blower was being used within 50 feet of the paint, nor did he determine whether Monarch knew or reasonably could have known that the hand lamp was in use.  We have examined the record to determine if it compels certain findings on the knowledge issue.   We conclude, however, that Judge Brady should, based on the present record, make the necessary findings because they turn in part on the credibility of witnesses.

There is little direct evidence that on August 2, 1983--the day the violation is alleged to have occurred--Monarch had actual or constructive knowledge that the blower was located near the tank opening and that the hand lamp was being used instead of the Vapotech lamp.  None of Monarch's supervisors were at the worksite that day, and Glaser had told Wright and Pinney to place the blower outside the shed on a scaffold 70 feet from the tank opening and to use the Vapotech lamp.   However, foreman Estes was at the worksite on August 1, 1983, the day before the violation allegedly occurred, when Wright and Pinney were performing the same spray-painting operation in the same tank.  According to the compliance officer, Pinney told him that on that day the blower was outside of the shed.  However, Pinney gave conflicting testimony on direct examination that on that day the blower was inside the shed near the tank opening.  Pinney stated that on August 2 the blower was within a few inches of the tank opening, and was in the same place on the preceding day, August 1, when Estes was at the worksite.  Pinney also stated that the hand lamp was used on both August 1 and August 2.  The judge could therefore find that on August 1, Estes knew, or with the exercise of reasonable diligence could have known, of the placement of the blower and the use of the ordinary hand lamp; from that, the judge might also find that Monarch could have known, with the exercise of reasonable diligence, of the conditions that prevailed on August 2.

The judge should therefore make a finding of fact whether on August 1, 1983, the day before the alleged violation, the blower was located more than 50 feet from the paint being sprayed in the tank.  To do that, it will be necessary to resolve the conflict between Pinney's testimony that the blower was eight inches from the tank opening,[[1]] and the compliance officer's testimony that Pinney told him that the blower was placed outside.[[2]]  If the judge finds that the blower was within 50 feet of the paint on August 1, he should make an additional finding regarding whether foreman Estes knew or reasonably could have known of that fact, in light of the testimony that Estes was "in that vicinity inside the building."[[3]]   Similarly, the judge should make a finding as to whether this evidence is sufficient to establish that Estes was aware or reasonably could have been aware that the hand lamp was being used.

If the judge finds that the blower was placed within 50 feet of the spray-painting operation on August 1 and that Estes knew or reasonably could have known of that fact or of the fact that the hand lamp was in use, the judge should make a finding as to whether Monarch rebutted that evidence of knowledge by establishing that it took reasonable measures to prevent the proscribed conduct by implementing an adequate safety program.

The judge should also make findings on whether the blower or the hand lamp was proven to be a "source of ignition" within the meaning of section 1926.152(f)(3).  The judge stated in his decision at page 10 only that the blower and hand lamp were "not approved for use in explosive atmospheres."  If the judge finds that a source of ignition existed, he should make further findings on whether Monarch knew or with the exercise of reasonable diligence could have known that.[[4]]

Citation 2, Item 1:  29 C.F.R. § 1910.134(b)(1), Respirator Procedures.
The question here is whether Monarch contested item 1 of citation 2.  The item alleges that Monarch had violated 29 C.F.R. § 1910.134(b)(1), which provides that "[w]ritten standard operating procedures governing the selection and use of respirators shall be established."  In its notice of contest, Monarch specifically contested every item in the citations issued to it except for item 1 of citation 2.  Yet, in its post-hearing brief Monarch argued that, although it had technically violated section 1910.134(b)(1) because it had no written respirator procedures, no violation should be found because of the safety training provided by Monarch to its employees.  In his decision, Judge Brady vacated the item because he found it to lack merit.  He did not make a specific finding that the item had been contested.

Section 10(a) of the Act, 29 U.S.C. § 659(a), provides in part:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, . . . the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

The Commission has construed notices of contest liberally in order to determine the intent of the contesting party.  E.g., Gil Haugan, 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1957, 1977-78 CCH OSHD ¶ 22,248, p. 26,779 (No. 14675, 1977), aff'd, 586 F.2d 1263 (8th Cir. 1978).  For example, the Commission has construed a notice of contest facially limited to the penalty as also contesting the underlying citation when the employer subsequently pleaded that such was its intent during the contest period. Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1782-83, 1975-76 CCH OSHD ¶ 20,221, pp. 24,085-86 (No. 7413, 1975).   However, the intent to contest may not be an afterthought.  Gil Haugan, 586 F.2d at 1266.

In this case Monarch admits in its brief on review that it did not challenge this item in its notice of contest but may have "inadvertently" contested it in its post-hearing brief.  However, nothing in its pleadings or in the record suggests that Monarch had an intent to challenge item 1 of citation 2 during the contest period.  Under section 10(a) of the Act, that item then became a final order of the Commission at the close of the contest period and is not subject to review.  We therefore conclude that the judge lacked jurisdiction over this item, and we reverse his decision to vacate it.

Accordingly, we set aside the judge's decision regarding the alleged violations of sections 1910.134(b)(1) and 1926.152(f)(3).  Item 1 of citation 2 is declared to be a final order of the Commission under section 10(a) of the Act.  Item 4 of citation 1 is remanded to the judge for a decision including specific findings of fact based on the present record regarding the alleged violation of section 1926.152(f)(3).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  July 7, 1986


The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

 

 

 

FOOTNOTES:

[[1]] See Tr. 109, 112.

[[2]] See Tr. 254, 257-58.

[[3]] See Tr. 110.

[[4]] It could be argued that a finding that Monarch knew or could have known that the hand lamp was a source of ignition would be unnecessary if Glaser knew or reasonably would have known that the lamp he had instructed the employees to use--the Vapotech lamp--was a source of ignition.  The record does not support such a finding as to the Vapotech lamp, however.  Glaser reasonably thought at the time that the Vapotech lamp was not an ignition source.  Glaser testified that the name of the Vapotech lamp gave him the impression that it was not an ignition source.  He also testified that it was only when compliance officer Medlock pointed out during the closing conference that the Vapotech lamp was not approved for use near flammable vapors and that the literature for the lamp was misleading, that he realized his error.