GIBSON DISCOUNT CENTER, STORE #15
OSHRC Docket No. 14657
Occupational Safety and Health Review Commission
April 6, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Robert E. Rader, Jr., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
The decision of Administrative Law Judge Harold A. Kennedy dated July 12, 1976, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 Respondent, Gibson Discount Center, Store #15, excepts to Judge Kennedy's holding that it committed a nonserious violation of the Act through noncompliance with the Secretary of Labor's standard at 29 CFR § 1910.151(c). n2 We hold that the Secretary failed to prove noncompliance with the standard. Consequently, we reverse the Judge's decision with respect to the cited standard.
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n1 29 U.S.C. § 651 et seq. Referred to infra as "the Act".
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n2 § 1910.151 Medical services and first aid.
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(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.
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As a result of an August 15, 1975, inspection by the Occupational Safety and Health Administration of its Amarillo, Texas store, respondent was cited, among other things, for noncompliance with § 1910.151(c). This item of the citation alleged:
Suitable facilities for quick drenching or flushing of the eyes were not readily available during handling and filling of electrolyte (acid) in the battery charging area of the auto service center.
The store is divided into a front retail sales area and an open, rear, work area. The store's auto service department occupies part of the work area. The compliance officer, who conducted the inspection, testified that he observed car batteries being electrically charged by a portable charger in a section of the work area. He opined that since this type of operation created the possibility of battery acid contacting employees' eyes and hands, the standard required "running water" "within a reasonable distance." He defined "reasonable distance" in terms of the time it would take a splashed employee to reach the water source. He concluded that, at the most, this [*3] time should be "possibly a minute." He recommended to the Area Director that respondent be cited for noncompliance with the standard because the closest source of running water was more than 35 feet from the portable battery charger.
Mr. Dwight W. Russell, the store manager, testified without rebuttal that there is running water at four separate locations in the work area; and that from anywhere in that area the longest period of time necessary to reach one of these sources of water was 29 to 30 seconds at a normal walk.
The Judge affirmed the item based upon his determination that these facilities were not sufficiently proximate to the battery charging area. He specifically held the 29-30 second "distance" excessive based upon F. M. Charlton Co., Inc., 75 OSAHRC 36/B2, 2 BNA OSHC 3297, 1974-75 CCH OSHD para. 19,239 (No. 7850, 1975) (unreviewed judge's decision). There, a violation of § 1910.151(c) was found where the water facilities were more than 25 feet from, and outside of, the battery filling room.
We agree with respondent that this standard does not require water facilities to be within any specific linear distance. n3 Rather, the distance permitted depends on the [*4] particular circumstances; for example, the strength of the corrosive material and the configuration of the work area. See Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD para. 18,907 (No. 946, 1974).
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n3 Compare the cited standard with 1926.403(a)(6) which provides as follows:
Battery rooms and battery charging.
(a) General requirements.
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(6) Facilities for quick drenching of the eyes and body shall be provided within 25 feet of the work area for emergency use.
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Here, there is convincing testimony that physical contact with battery acid is not injurious if washed out within a short period of time. Based upon this factor, the compliance officer's testimony that an exposure time of possibly a minute is permissible, and the Secretary's failure to suggest how much closer the water facilities should have been, we conclude that the Secretary has failed to prove noncompliance with the standard. n4
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n4 Commission Rule 73, 29 CFR § 2200.73 Burden of proof
(a) In all proceedings commenced by the filing of a notice of contest the burden of proof shall rest with the Secretary.
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Accordingly, it is ORDERED that the item alleging noncompliance with § 1910.151(c) is vacated.