CAPA IRON WORKS, INC.

OSHRC Docket No. 14275

Occupational Safety and Health Review Commission

April 6, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

S. Paul Bunea, Secy/Treas., CAPA IRON WORKS, INC., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A December 31, 1975, decision of Review Commission Judge Seymour Fier, attached hereto as Appendix A, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation which alleged that respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.352(d). For reasons that follow, that decision is affirmed.

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n1 Chairman Barnako does not agree to this attachment.

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Respondent's worksite was inspected by an authorized representative of the Department of Labor on June 25, 1975. Thereafter, a citation was issued alleging a failure to comply with 29 C.F.R. 1926.352(d) in that a suitable fire extinguisher was not available where employees [*2] were using an acetylene torch. Section 1926.352(d) provides that:

"Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use."

Judge Fier vacated the citation on the basis that respondent had provided suitable alternative firefighting equipment as authorized by 29 C.F.R. 1926.150(c)(1)(ii). n2 That standard provides that:

"One 55-gallon open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating."

Although there was a conflict in the evidence as to whether respondent had provided equipment which fully conformed with this alternative requirement, the Judge resolved the conflict in favor of respondent.

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n2 Although the Judge referred to 29 C.F.R. 1926.150(2)(c)(ii), it is clear that he meant 29 C.F.R. 1926.150(c)(1)(ii).

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Complainant contends that the alternative permitted by section 1926.150(c)(1)(ii) was not available to respondent because a dry chemical class B, rather than [*3] a class 2A, extinguisher was required to extinguish fires "caused by [acetylene] gas." Complainant also contends that, even if section 1926.150(c)(1)(ii) provides an exception in this case, the evidence establishes that respondent has not complied therewith. We disagree with both contentions.

The latter contention pertains to Judge Fier's credibility determination. After seeing and hearing the witnesses, he concluded that respondent had properly provided the alternative equipment permitted by 29 C.F.R. 1926.150(c)(1)(ii). We find no basis for setting aside the credibility determination he made in reaching this conclusion. Secretary v. Paul L. Heath, d/b/a Paul L. Heath Contracting Co., 20 OSAHRC 297 (1975).

The former contention requires an analysis of the Secretary of Labor's fire safety standards. The cited standard requires the immediate availability of "suitable fire extinguishing equipment." Since the type of equipment required is not delineated, we may look to the general welding, cutting, and brazing standards set forth at 1910.252 for guidance.

Section 1910.252(d)(2)(ii), covering fire prevention and protection, provides as follows:

"Suitable fire extinguishing [*4] equipment shall be maintained in a state of readiness for instant use. Such equipment may consist of pails of water, buckets of sand, hose or portable extinguishers depending upon the nature and quantity of the combustible material exposed." (Emphasis added.)

This makes it clear that the suitability of firefighting equipment depends not on the nature of the ignition source, but on the type of combustibles which may be affected. Therefore, complainant's contention that firefighting equipment utilizing water would not be effective for fires caused by gas is without merit. n3

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n3 we also note that respondent's employees were working in a pit that was fully lined with concrete and which contained no debris. Thus, no combustible material was exposed.

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Accordingly, the Judge's decision is affirmed.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I cannot join in the majority's reading of 29 CFR 1926.352(d) and the associated fire protection standards. Respondent [*5] was cited for a failure to comply with that standard's requirement that "[s]uitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use." The standard is directed to fire prevention during welding and similar operations, work which respondent's employees were performing at respondent's workplace. The question is therefore whether suitable fire extinguishing equipment was immediately available in the work area and maintained in readiness for instant use.

The first question is what fire extinguishing equipment is suitable for the operations. I accept for the moment the Judge's finding that respondent provided a 55-gallon open drum of water with two fire pails, which according to 1926.150(c)(1)(ii) may be substituted for fire extinguishers having a 2A rating. I nevertheless find that this standard is not wholly apposite to this case.

I note that 1926.150(c)(1)(i) and (ii) are requirements generally applicable to all construction sites and are not especially directed to welding. Subdivision (c)(1)(vi), which the majority overlooks, is however directed toward flammable gases, and it specifically [*6] requires that "[a] fire extinguisher, rated not less than 10B, shall be provided within 50 feet of wherever more than . . . 5 pounds of flammable gas [is] being used. . . ." This is consistent with the compliance officer's testimony that the suitable fire extinguisher for flammable gases such as are used in welding (here, acetylene) is a B type extinguisher. To the same effect, see sections 1910.156(b), and 1910.157(b)(2) which define "Class B fires" as "fires in flammable liquids, gases, and greases" and require class B extinguishers for such fires.

Further, the majority's interpretation of 1910.252(d)(2)(ii) is in any event too narrow. True, the standard speaks generally to the danger of a fire from combustible materials in the area where welding is performed. The question, however, is not only what type of fire extinguisher is suitable to extinguish a fire in which the burning materials are combustibles such as paper, or building materials, but also to extinguish the burning acetylene gas itself. In other words, the acetylene itself is a very "combustible material" that should be considered.

To extinguish the former type of blaze, an A type extinguisher was needed. [*7] For acetylene, however, a B type was required. Yet, the majority's interpretation leads to the absurd and dangerous result that employers are now free to use class A extinguishers and substitutes under 1926.150(c)(1) for burning acetylene, even though it is clear from the standards these means are inadequate to fight such fires. n4

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n4 In many cases the use of fire extinguishing equipment against burning acetylene may be futile and even dangerous. My opinion should not be interpreted as an attempt to force employers to use such equipment in every case where acetylene is burning out of control. See the excellent discussions of the problem in C.W. Bahme, Fire Protection for Chemicals 82-85 (NFPA 1961); Fire Protection Handbook 5-153 (NFPA, 13 ed. 1969); N.I. Sax, Dangerous Properties of Industrial Materials 206, 372-373 (3d ed. 1968); and Fire Protection Guide on Hazardous Materials 325M-10, 325M-19 (NFPA, 4th ed. 1972). I point out, however, that in my view it is the duty of the employer to familiarize his employees with the proper procedures to follow in the event of such a fire, and to provide qualified personnel to determine how the fire hazard is to be fought. Section 29 CFR 1926.150(a) and (a)(5). See 1910.252(d)(2)(iii)(b). It is nevertheless required that suitable equipment be readily available for use.

[*8]

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Nevertheless, after reviewing the evidence I concur in the vacation of the citation to the extent that it is alleged that a B type extinguisher should have been used. Section 1926.150(c)(1)(vi) clearly requires this type of extinguisher when there are more than five pounds of flammable gas. I am unaware of any other standard that is more specifically applicable. There is no evidence however indicating whether this quantity was at the site. Also, there is testimony that respondent's acetylene bottles were unusually small.

I would affirm the citation, however, to the extent that it would require a 2A fire extinguisher to extinguish burning debris and other combustibles at the site. There is no serious doubt that no such extinguisher was immediately available as required by 1926.352, and so the question becomes whether, as respondent claims, there was at the site a 55-gallon drum of water as a substitute for a 2A extinguisher under 1926.150(c)(1)(ii). The Judge found, based on his assessment of the credibility of a witness, that there was such a water drum. The Secretary's objection to this [*9] finding, however, is well taken. Even credibility evaluations by Administrative Law Judges must, in order to merit deference, reflect the entire record and resolve an actual conflict between the testimony of two witnesses. Here the compliance officer testified that when he arrived at the workplace, he saw a 55-gallon drum that was only partially filled with water, and was sitting under a water faucet that was so rusty and encrusted with concrete that the handle could not be turned by hand. During the inspection, the handle was put into working order with grease, and the water was turned on. Later, the respondent's Secretary-Treasurer, Mr. Bunea, arrived at the worksite. He testified that the drum was full of water. The Judge de lared that Mr. Bunea was a credible witness and found that the drum was filled with water. I find it unnecessary to disregard the testimony of either witness on the ground of credibility, for their testimony is consistent. Mr. Bunea could only testify to the volume of water of the drum as it stood after the faucet had been greased and the drum filled further with water. The compliance officer testified to conditions as they existed at the time that [*10] work was underway at the commencement of the inspection, and when the violation is alleged to have occurred. Accordingly, I conclude that respondent failed to provide a 55-gallon drum of water, as required by 1926.150(c)(1)(ii).

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Jack R. Fisher, for complainant

S. Paul Bunea, Secy.-Treasurer, Capa Iron Works, Inc., for respondent

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent contests the citation and penalty for one nonserious violation. The citation dated July 15, 1975, was based on an inspection conducted June 25, 1975. The citation and proposed penalty were issued pursuant to section 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act, 29 U.S.C. 659(c), respondent through a letter dated July 17, 1975, noted its timely contest of the citation and proposed penalty.

The citation for an alleged nonserious violation sets forth the following:

CITATION NO. 1

Item

Standard

Description of Alleged Violation

1.

29 CFR 1926.352(d)

Employees were using acetylene torch.

A suitable fire extinguisher was not

available in the work area for instant

use.

Location: 1st floor.

[*11]

Standard as promulgated

"29 CFR 1926.352 Fire prevention.

(d) Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use."

A penalty of $50.00 was proposed.

ISSUES

1. Whether the respondent committed a violation of the Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with 29 CFR 1926.352(d) and by so doing, did it violate section 5(a)(2) of the Act.

3. If the respondent is shown to have violated the standard as alleged, what penalty, if any, is appropriate.

STATEMENT OF THE EVIDENCE

The respondent conceded that it is a corporation organized under the laws of the State of New York. It is engaged in construction and ornamental iron works. It employs between 2 and 8 workers on a daily basis and uses materials manufactured outside of New York State. In the preceding year it had gross revenues of $140,00.00 (Tr. 4). n1

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n1 Refers to transcript page of the hearing.

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The Compliance Officer, Peter Richardson (hereafter referred to as C.O.) during the course of an inspection on June 25, 1975, at the Clelsea Recreation Center, observed a worker subsequently identified as being employed by the respondent, ignite an acetylene torch (Tr. 7, 8). The C.O. thereafter cited the respondent for failure to comply with 29 CFR 1926.352(d). The C.O. stated that although there was no fire extinguisher in sight, he did see a 55-gallon drum half filled with water positioned under a water faucet (Tr. 9). The testimony of the C.O. indicated that the proper firefighting equipment would be a fire extinguisher with a class B rating (Tr. 10). The probability of a serious injury resulting was not high and for this reason a nonserious violation was given (Tr. 12). The C.O. observed approximately 5 or 6 men in the area at the time (Tr. 13).

OPINION

The complainant in issuing the citation alleges that the respondent did not have firefighting equipment. It is also noted that the C.O. did concede that there was a pail within 10 feet of the water drum (Tr. 20). It was also conceded that the C.O. did observe that the faucet directly over the water drum was operable [*13] (Tr. 14). The evidence indicates that the respondent testified that there were 2 pails; and that the 55-gallon drum was filled with water when he spoke to the C.O. at the time of the inspection (Tr. 29). The respondent also testified that there was no debris at the time (Tr. 29). In addition, the C.O. in reply to the respondent's questions, did concede that the 55-gallon drum and the two pails could substitute for a fire extinguisher having a 2A rating (Tr. 35). The respondent referred to 29 CFR 1926.150(2)(c)(ii) n2 as being applicable to the above situation and justifying a dismissal of the citation. It is quite apparent that the complainant has failed to sustain its burden of proof. Where the respondent in its defense put forth the suitability of another standard to satisfy the proposed violation, the Secretary failed to show that the alternate standard would not satisy the requirements of the Act.

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n2 29 CFR 1926.150(2)(c)(ii) - Fire Protection and Prevention - One 55-gallon open drum of water with two fire pails may be substituted for a fire extinguisher having a 2A rating.

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The Review Commission has also previously dismissed a citation where a 55-gallon drum and pails could be adequately substituted under similar circumstances. Secretary v. D'Adderio Construction Company, Inc., 15 OSAHRC 68 (1975). It is significant that the same C.O. testified in both cases.

The Administrative Law Judge has observed the respondent and finds his testimony to be capable of belief. On the basis of the foregoing, the citation must be vacated.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent, Capa Iron Works, Inc., is in the construction and ornamental iron works business and receives, handles and uses goods from states other than New York, and is an employer within the meaning of the Act.

2. At the time and place in question, the respondent did have a 55-gallon drum with water and two fire pails as required by 29 CFR 1926.150(2)(c)(ii).

3. At the time and place in question, the respondent's use of the 55-gallon drum was an alternate means to provide firefighting protection [*15] in place of the 2A fire extinguisher required in 29 CFR 1926.352(d).

4. The evidence fails to demonstrate that the alternate standard would not meet the requirements of providing adequate fire fighting equipment.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein, engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent was not in violation of i9 U.S.C. 654(a)(2) by allegedly failing to comply with 29 CFR 1926.352(d).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby ORDERED that:

The citation 29 CFR 1926.352(d) is vacated.

SEYMOUR FIER, JUDGE, OSAHRC

Dated: December 31, 1975

New York, New York