THE SCHUNDLER COMPANY

OSHRC Docket No. 15548

Occupational Safety and Health Review Commission

January 30, 1978

[*1]

Before CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

Peter Schundler, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerome Ditore is before the Commission for review pursuant to section 12(j) of the Act. n1 The issue is whether Schundler violated 29 C.F.R. 1910.157(a)(1) n2 due to the presence in its plant of a fire extinguisher which was discharged, inoperable, and not in its designated mount. The Judge held that Schundler did not violate the standard because adequate fire extinguisher coverage otherwise existed. We conclude that his disposition was proper but for different reasons.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

n2 This standard provides:

Portable extinguishers shall be maintained in a fully charged and operable condition and kept in their designated places at all times when they are not being used.

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Schundler manufactures [*2] and sells horticultural soil mixtures. On October 2, 1975 Schundler's Edison, New Jersey, workplace was inspected by an OSHA Compliance Officer, who observed a discharged and inoperable fire extinguisher standing on the floor in the furnace room. The furnace room covered an area of 40 by 42 feet, contained two furnaces, and was constructed of concrete and steel. The room contained no combustible material other than Number 2 oil which fueled the furnaces.

The Compliance Officer testified that he did not observe other operable fire extinguishers in the furnace room. Schundler's plant engineer stated that three fire extinguishers, including the inoperable one, were in the room. In rebuttal, the Compliance Officer conceded that one of the extinguishers to which the plant engineer referred may have been present. Both witnesses agreed that other operable extinguishers were located near the furnace room.

Judge Ditore found that the extinguishers located near the furnace room provided adequate protection to Schundler's employees n3 in the event of a fire, and he concluded that where adequate coverage otherwise exists, the cited standard does not require that an empty extinguisher [*3] be either operable or mounted. The Secretary takes exception to this conclusion. He contends that the standard concerns the condition and positioning of whatever fire extinguishers are to be found in the workplace, and does not address the problem of adequate coverage. Thus, he argues that the presence of an inoperable extinguisher establishes a violation of the standard.

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n3 The judge did not specifically find whether there were other operable extinguishers in the furnace room itself. We note, however, that the testimony of the compliance officer is consistent with the plant engineer's assertion that there was at least one operable extinguisher in the room. In any event, the Secretary does not dispute that the existing fire extinguisher coverage was adequate.

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We agree with the Secretary that the plain words of the standard require all extinguishers found in the workplace to be fully charged and mounted, regardless of coverage elsewhere. We conclude, however, that Respondent was in compliance with the requirements [*4] of the standard under the circumstances of this case.

Although the standard requires extinguishers to be "maintained" in a fully charged and operable condition, it does not address how the matter of maintenance is to be accomplished. The evidence establishes that Schundler had a regular maintenance program for its extinguishers. Under that program, a service company made monthly visits to Schundler's plant to recharge used extinguishers and remout them in their designated locations. In our view, Schundler's maintenance program was sufficient to satisfy the requirements of 1910.15(a)(1) under a test of reasonableness.

Similarly, the standard does not address what an employer is to do with an empty extinguisher before it is recharged. Clearly, the standard does not require the mounting of discharged extinguishers; the mounting of such an extinguisher would give it the appearance of being ready for use, thus creating rather than alleviating a hazard. See Plawner Toy Mfg. Corp., 73 OSAHRC 23/D6, 1 BNA OSHC 1238, 1971-73 CCH OSHD para. 16,185 (No. 731, 1973). n4 Under the circumstances, we conclude that the presence of the discharged extinguisher on the floor of the furnace [*5] room did not violate the standard.

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n4 Chairman Cleary's direction for review asked, among other things, whether the Commission's decision in Plawner Toy should be overruled. We do not reach that issue. We conclude that Plawner Toy is not controlling because that case involved an alleged violation of 1910.157(a)(5) rather than 1910.157(a)(1).

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Accordingly, the Judge's decision is affirmed.