Docket No. 14884

R. ZOPPO CO., INC.

OSHRC Docket No. 14884

Occupational Safety and Health Review Commission

February 27, 1981

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

John D. O'Reilly, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Furcolo affirmed a citation that alleged a serious violation of the explosives storage standard at 29 C.F.R. § 1926.904(b), and assessed a penalty of $400.

Former Commissioner Moran, sua sponte, directed review "for error" without specifying the issues to be considered by the Commission. On review, Respondent, R. Zoppo Co., Inc. ("Zoppo"), raises the following issues:

1. Whether the word "stored" in the cited standard, 29 C.F.R. § 1926.904(b), applies to the temporary placement of explosives on a job site;

2. Whether the judge erred in holding that Zoppo's storage shed is a "magazine" within the meaning of the standard;

3. Whether Zoppo established the affirmative defense of unpreventable employee misconduct. n1

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n1 Judge Furcolo also vacated three items of another citation that alleged nonserious violations. The parties have not taken issue with the judge's vacation of the alleged nonserious items, and there is no compelling public interest warranting Commission consideration of them. Accordingly, the Commission will not review those dispositions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). Such unreviewed dispositions are not precedent binding on the Commission. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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Zoppo is a general construction contractor that at the time of the inspection on August 12, 1975, was excavating a trench. One hundred pounds of dynamite and an unspecified number of blasting caps, in their original cardboard boxes, were located together in a metal storage shed on the worksite. [*3] Zoppo's permanent storage area was approximately six miles from the jobsite. Each morning, Mr. Turcotte, one of Zoppo's employees, brought dynamite and blasting caps from the permanent area to the worksite and returned the unused portions in the evening. The dynamite was transported on the back of a pick-up truck in a "day box," which was made of wood-lined steel and was approved by OSHA for the handling of explosives. The dynamite day box weighed approximately 800 pounds. The blasting caps were transported in the back of the same truck in a separate metal box, similar in construction to the day box. According to Zoppo's witnesses, both boxes, with their respective contents, normally were left outside the shed on the jobsite during the day.

Zoppo's foreman, Mr. England, testified that as a rule he would personally use a front-end loader to lift the 800-pound day box from the truck. The smaller box containing the caps was unloaded by hand. On the day of the inspection, however, Mr. Turcotte arrived at the jobsite before Mr. England was there to operate the front-end loader. Mr. Turcotte removed 100 pounds of dynamite from the day box and placed the dynamite in the metal storage [*4] shed, along with the blasting caps. He then drove the truck, with the empty day box, to another worksite. Mr. England testified that although the explosives had been delivered and the pick-up truck was no longer there when he arrived at the jobsite at about 7:45 a.m., the day box was not outside the shed.

The cited construction standard for explosives storage at 29 C.F.R. § 1926.904(b) states:

§ 1926.904 Storage of explosives and blasting agents.

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(b) Blasting caps, electric blasting caps, detonating primers, and primed cartridges shall not be stored in the same magazine with other explosives or blasting agents.

On review, Zoppo reiterates the arguments it made before the judge. Zoppo contended before the judge that the temporary placement of explosives in the shed is not "storage" within the meaning of the cited standard. In support of its argument, Zoppo cited several state and federal court decisions holding that the term "storage" connotes a certain degree of permanency as opposed to transiency. Acknowledging that Zoppo had a permanent storage site six miles from the inspected site, the judge nevertheless held that the blasting caps and explosives also were [*5] being "stored" at the jobsite.

Zoppo also argued before the judge that the utility shed on the jobsite is not a "magazine" within the meaning of the standard. Noting that the language of another standard n2 in Subpart U of the construction standards lists both "magazines" and "temporary storage . . . areas," Zoppo argued that where a term is used in one standard and excluded in another, the term should not be implied where excluded. Without addressing this specific argument, the judge held that the term "magazine" includes a temporary storage facility. He reasoned that any other interpretation of the standard would allow an employer to avoid the requirements of the standard simply by storing explosives and blasting caps together in any structure that did not technically qualify as a magazine. The judge also relied on the broad definition of magazine that applies to the standards in Subpart U. n3

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n2 29 C.F.R. § 1926.900(n) provides:

Subpart U - Blasting and the Use of Explosives

§ 1926.900 General provisions.

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(n) Delivery and issue of explosives shall only be made by and to authorized persons and into authorized magazines or approved temporary storage or handling areas.

n3 29 C.F.R. § 1926.914(p) provides:

§ 1926.914 Definitions applicable to this subpart.

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(p) "Magazine" - Any building or structure, other than an explosives manufacturing building, used for the storage of explosives.

[*6]

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Zoppo argued also that the citation should be vacated, or in any event modified to reflect a non-serous violation, because the allegedly violative condition was the result of unpreventable employee misconduct. It maintains that its employees were instructed not to store blasting caps and dynamite together, that Mr. England was an experienced blaster who conscientiously followed his employer's directions, and that Zoppo had no reason to believe that its instructions would be disobeyed. Zoppo also contends that the citation, if not vacated, should be reduced to nonserious, and only a nominal penalty assessed, because it "did not, and could not with the exercise of reasonable diligence, know of the presence of the violation" under section 17(k) of the Act. n4

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n4 Section 17(k) of the Act, 29 U.S.C. § 666(j), sets forth the requirements for a serious violation as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[*7]

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The judge found that Zoppo's employees were exposed to serious or fatal injuries because of the danger of an explosion, and that "[o]ne or more officers or supervisory personnel of [Zoppo] were aware of the hazardous conditions . . . and knew that employees were exposed to [them]." The judge affirmed the citation as serious and assessed a penalty of $400.

III

With respect to Zoppo's first contention that the term "storage" does not include temporary placement such as that on the jobsite, we agree with the judge's conclusion that the explosives were "stored" within the meaning of the standard. In Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD P19,128 (No. 1323, 1974), the Commission examined the nearly identical general industry standard, n5 and rejected as contrary to the purposes of the Act an interpretation of the term "stored" that would require a degree of permanence in the commingling of hazardous materials before compliance with the terms of the standard would be necessary. The Commission held instead that because these materials must be brought together to prepare [*8] primers or charges, the term "storage" would be interpreted as forbidding "any unnecessary storage of [blasting] caps and the like with other explosives." The state and federal court decisions cited by Zoppo are distinguishable because those cases concern zoning ordinances and insurance policies rather than matters covered by safety and health statutes such as the Act. Inasmuch as the blasting caps and dynamite were not in use and were unnecessarily brought together, however temporarily, they were "stored" within the meaning of section 1926.904(b).

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n5 That case involved the standard at 29 C.F.R. § 1910.109(c)(1)(ii), which provides:

§ 1910.109 Explosives and blasting agents.

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(ii) Blasting caps, electric blasting caps, detonating primers, and primed cartridges shall not be stored in the same magazine with other explosives.

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Zoppo's second argument on review is that the metal shed on the jobsite was not a "magazine" within the meaning of the standard. [*9] In support of its contention that the drafters of the cited standard intended to include only containers used for permanent storage, Zoppo cites a related standard, 29 C.F.R. § 1926.900(n), reproduced at note 2 supra, that mentions both magazines and temporary storage areas, and the compliance officer's testimony that the storage shed was not a magazine. We reject Zoppo's argument. First, the definition of "magazine" in section 1926.914(p), reproduced at note 3 supra, does not distinguish between permanent and temporary storage, but broadly includes "[a]ny building or structure, other than an explosives manufacturing building, used for the storage of explosives." Second, 29 C.F.R. § 1926.904(a) states that "[e]xplosives and related materials shall be stored in approved facilities required under the applicable provisions of the Internal Revenue Service regulations contained in 2[7] C.F.R. Part 181, Commerce in Explosives." The second sentence of 27 C.F.R. § 181.193 states that "[b]lasting caps shall not be stored with other explosive materials in the same storage facility." Thus, the common storage of blasting caps and dynamite is not permissible. We therefore conclude [*10] that Zoppo's storage shed is a "magazine" within the meaning of the cited standard.

Zoppo argues, however, that the citation should be vacated because "the violation was an isolated and unforeseeable one . . . ." Zoppo's argument raises the affirmative defense of unpreventable employee misconduct. In order to establish this defense, an employer must show that it has established work rules designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979).

Zoppo asserts that it had a work rule prohibiting the storage of dynamite and blasting caps together. The rule is listed on page 16 of a 17-page safety booklet. n6 The rule is one of several under the heading "Blasting and Use of Explosives," and states "[n]ever store detonating primers or blasting caps in the same magazine with other explosives or blasting agents."

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n6 The booklet (Ex. C-7) is entitled "Construction Workers Safety Guide" and is published by the National Utility Contractors Association.

[*11]

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Zoppo's evidence regarding the communication of the rule to its employees is limited to a showing that the safety booklet was distributed by it to Mr. England, who signed a statement on May 7, 1975, that he had read the booklet and agreed to abide by its rules. The employee's supervisor, Mr. DiSalvo, also signed a statement to the effect that he had reviewed the rules with the employee. Zoppo introduced no evidence, however, that the safety booklet was given to Mr. Turcotte, the driver whose conduct created the violative condition. Indeed, the record is silent as to whether any instructions were ever given to the driver with regard to how to handle or store dynamite and explosive caps.

Thomas Zoppo, the company's secretary-treasurer testified that "flagrant abuse of safety violations [sic] is cause for removal." Zoppo also introduced the page from the safety booklet that had a form for employees to sign that stated: "A deliberate violation of these rules is sufficient cause for disciplinary action." This is the only evidence Zoppo introduced with regard to enforcement of its safety rules. There [*12] is no evidence that Zoppo had taken steps to discover violations of its workrules. There is no evidence as to whether Mr. England or any other employees had violated any of the rules prior to this occasion, and if so, whether any disciplinary measures had been taken against the offenders. Moreover, there is no evidence as to whether Mr. England or Mr. Turcotte were disciplined following this incident. n7 On the evidence set out above, we conclude that Zoppo has not met its burden of proving the affirmative defense.

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n7 Evidence of discipline imposed following an inspection has been considered by the Commission in evaluating whether there has been effective enforcement of an employer's work rules. See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 7 BNA OSHC 2074, 1980 CCH OSHD P24,147 (No. 16162, 1979).

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We find that the violation was "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). n8 The Commission has held that in order to find that "there is a substantial probability that death [*13] or serious physical harm could result," it need not be likely that an incident occur. It is only necessary to prove that if an incident occurs, the probable result will be serious injury or death. See, e.g., Andy Anderson, 78 OSAHRC 34/A2, 6 BNA OSHC 1595 (No. 76-4082, 1978). The evidence establishes that the employees, who were working about 180 feet from the shed, could have been killed or seriously injured by metal fragments if an explosion occurred. The record also shows that the foreman and blaster, Mr. England, could with the exercise of reasonable diligence have known of the violative condition. Mr. England knew that Mr. Turcotte was to deliver 100 pounds of dynamite and caps to the worksite on the day of the inspection because Mr. England told the driver the night before that he needed the dynamite. When Mr. England arrived at the worksite, he noticed that the day box had not been delivered to its normal location outside the shed. In view of the highly hazardous and inherently dangerous properties of dynamite and blasting caps, and considering the large amount of explosives involved in the delivery, we hold that Mr. England, as the blasting foreman, had [*14] a duty under the Act to exercise reasonable diligence to locate the dynamite and caps once he realized that the day box was not in its usual location. See Automatic Sprinkler Corp. of America, OSAHRC , 8 BNA OSHC 1385, 1980 CCH OSHD P24,495 (No. 76-5089, 1980). For this reason, we find that if Zoppo's foreman, Mr. England, had exercised reasonable diligence to locate the dynamite, he would have known of the violative condition.

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n8 Section 17(k) states:

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Having considered the factors in section 17(j) of the Act, 29 U.S.C. § 666(i), [*15] we conclude that the $400 penalty assessed by the judge is appropriate.

Accordingly, it is ORDERED that the serious citation is affirmed, and a penalty of $400 is assessed therefor.

SO ORDERED.