EQUITY SUPPLY COMPANY
OSHRC Docket No. 180
Occupational Safety and Health Review Commission
January 16, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: This matter is before the Commission as the result of my order to direct review of a decision rendered by Judge Paul E. Dixon. The issues before Judge Dixon involved the questions of whether Respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter "the Act"): (1) by storing combustible liquids in unapproved containers contrary to the requirements of the safety standard prescribed by 29 C.F.R. 1910.106(e), and (2) by having not complied with the requirements of 29 C.F.R. 1910.157 regarding periodic inspections of the extinguishers. After trial the Secretary conceded that Respondent had not violated the occupational safety regulation regarding fire extinguishers. That position is maintained on review. The question left for Judge Dixon's determination was whether Respondent violated 29 C.F.R. 1910.106(e).
As regards this question the Secretary alleged that Respondent was in violation because it stored combustible liquid in unapproved containers in its maintenance shop; (1) in the center of the shop floor area; and (2) along the north wall. Judge Dixon concluded that Respondent was in violation as to item (1) and was not in violation as to item (2). Accordingly, he affirmed the citation insofar as it alleged a violation of 29 C.F.R. 1910.106(e) and the proposed penalty of $13.
We have reviewed the entire record, the Judge's decision and the briefs of the parties. We find the Judge's ruling in error insofar as it concludes that Respondent violated the standard prescribed by 29 C.F.R. 1910.106(c). Accordingly, Judge Dixon's decision is adopted as the final order of the Commission only to the extent that it is consistent with the following.
Respondent's vehicle maintenance shop was inspected by the Secretary's safety and health compliance officer Hubbell. He was accompanied on his inspection by Roy Moody, a compliance officer of the State of Montana's Bureau of Safety. Respondent's mechanic, Mr. Lyle Spaugh, was also in the shop area at the time of the inspection. During the course of the inspection Hubbell and Moody noticed an open bucket or container in the center of the shop area. The bucket contained a liquid which Moody described as being dark in color. Neither compliance officer took a sample of the liquid. Rather, Hubbell smelled it and based on this test alone concluded that the bucket contained a combustible solvent or diesel fuel. Hubbell did say that it appeared that the liquid was used to clean parts, and that cleaning fluids might be anything ". . . from plain tap water to very exotic fluids."
Mr. Spaugh testified that fluid was being used by mechanics to clean brakes. Respondent's general manager testified that ". . . we use lye over there to wash off our dirty parts and motors, hot lye water."
The evidence in this case does not establish a violation of the standard. 29 C.F.R. 1910.106(e) requires that flammable or combustible liquids be stored in tanks or closed containers. However, combustible liquids are defined by 29 C.F.R. 1910.106(a)(18) as meaning those liquids having a flashpoint ". . . at or above 140 degrees F(60 degrees C.). . ." Certainly, Hubbell's identification, based only on his sense of smell, does not establish that the liquid contained in Respondent's bucket had a flashpoint at or above 140 degrees F. n1 Moreover, Hubbell's identification is in conflict with the general manager's statement that lye water is used to clean parts. Yet had lye water been used to clean brakes it would be dark in color as Moody stated, and it would have had an odor not inconsistent with that described by Hubbell. Of course, lye water used to clean brakes may have a flashpoint below 140 degrees F. n2
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n1 It would have been good technique to have taken a sample of the liquid since laboratory tests could establish its properties among which would be its flashpoint.
n2 The Secretary did not charge Respondent with a violation based on storage of a flammable liquid in an unapproved container. The result would have been the same even had the Secretary made such charge. A flammable liquid for the purpose of 29 C.F.R. 1910.106 is defined by 29 C.F.R. 1910.106(a)(19) as having a flashpoint below 140 degrees F and a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees F. There is no evidence concerning the flashpoint or the vapor pressure of the liquid contained in Respondent's bucket.
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On these facts we cannot make a determination as to the identity of the liquid contained in Respondent's open bucket. It follows that the Secretary has failed to carry his burden to prove by a preponderance of the evidence that Respondent stored a combustible liquid in an unapproved container contrary to the requirements of 29 C.F.R. 1910.106(e).
Accordingly, it is ORDERED that: (1) items 3 and 4 of the Secretary's citation and the penalties proposed therefor be and the same are hereby vacated, and (2) items 1, 2, 5 and 6 of the citation and the penalties proposed therefor be and the same are hereby affirmed.
[The Judge's decision referred to herein follows]
DIXON, JUDGE, OSAHRC: This case is before the undersigned upon assignment by the Occupational Safety and Health Review Commission involving the citations issued November 1, 1971, and followed by Notification of Proposed Penalty for the alleged citations under the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 USC 651 et. seq. ).
Notice of contest was made by respondent and thereafter a complaint was filed by the solicitor of labor on behalf of the Secretary of Labor.
The following stipulations were entered into between complainant and respondent:
1. That respondent is a Montana Corporation;
2. Employing approximately 70 employees engaged in interstate commerce;
3. That an inspection took place September 1, 1971;
4. That there was a violation of section 1910.22(a) pertaining to housekeeping;
5. That there was a violation under section 1910.23(c) relating to railings and toe boards;
6. That there was a violation as to floor elevator being unprotected under section 1910.23(b);
7. That there was a violation of 1910.132(a) regarding inadequate protection from acid;
8. That there was a violation of section 1910.133(a) providing for grinder shielding;
9. That there was a violation of section 1910.157(a) with fire extinguishers being located over five feet high;
10. That there was a violation of section 1910.169(b) in that an air compressor was installed improperly;
11. That there was a violation of section 1910.309, 310, 314, and 315, referrable to faulty wiring.
It was further stipulated that all violations had been abated.
29 CFR 1910.106(e)
Flammable and combustible liquids.
Combustible liquids stored in unapproved container -- vehicle and maintenance shop, north wall and center of shop floor area.
29 CFR 1910.157(d)
Second Floor Storage, Fire Extinguisher Checked Last March. Boiler Room, Extinguisher Checked October 1969.
(d) Inspection, maintenance, and hydrostatic tests -- (1) general.
(i) The owner or occupant of a property in which extinguishers are located shall be responsible for such inspection, maintenance, and testing.
(ii) For details of conducting needed inspections, proper maintenance operations, and required tests, the NFPA No. 10A-1970, maintenance and use of portable fire extinguishers.
(i) Extinguishers shall be inspected monthly or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and to detect any obvious physical damage, corrosion, or other impairments.
(i) At regular intervals, not more than one year apart, or when specifically indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed.
29 CFR 1910.106(2)
Incidental storage or use of flammable and combustible liquids --
This shall be applicable to those portions of an industrial plant where the use and handling of flammable or combustible liquids is only incidental to the principal business, such as an automobile assembly, construction of electronic equipment, furniture manufacturing, or other similar activities.
(ii) Containers. Flammable or combustible liquids shall be stored in tanks or closed containers.
(d) Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a containers or portable tanks by gravity through an approved self closing valve . . .
29 CFR 1910.106(29)
Safety can shall mean an approved container, of not more than 5 gallons capacity, having a spring closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure.
Mr. Kenneth Hubbell, compliance officer, Occupational Safety and Health Administration, conducted an inspection of respondent's plant September 1, 1971. In the vehicle maintenance shop he found two different containers, one in the mid center of the shop which was an open type bucket (T. 8) and which his sense of smell indicated to him was diesel fuel or combustible solvent. Another can was located on the north wall in the proximity of a toilet and the lid was off the can. The can was labeled "turpentine" and his sense of smell indicated that's what was contained in the can. He felt there was potential hazard in that vapor would travel from the can to a nearby water heater and could explode. The water heater was described as gas fired by a Mr. Hubbell but was further described as electrically heated by respondent's employee. One mechanic was working in and around the shop.
Mr. Roy J. Moody, compliance officer, Bureau of Safety, State of Montana, accompanied Mr. Hubbell on his walk around. He did not take notes but remembered a container in the maintenance shop located in the center of the shop but did not make any test of liquid contained therein. He described the container of being approximately one gallon to two gallons in size and open with a liquid in it. The liquid was dark colored. (T. 40)
Mr. Lyle Spaugh, mechanic, with Equity Supply twelve years, testified the two inspectors were in the shop area approximately five minutes but did not observe the inspectors examining the liquids. Mr. Spaugh testified that there was no turpentine in the shop. Further, that there was no occasion to have turpentine in the shop. It was his opinion that the container near the center of the floor referred to in his testimony contained a cleaning solvent where a mechanic was working on brakes. (T. 61) Further, that it was possible the mechanic was using the solvent for cleaning purposes. After completion of use it would have been dumped out immediately. Referring to the container on the north wall it was Mr. Spaugh's testimony it contained brake fluid but was in a container with a turpentine label. (T. 62)
He explained that brake fluid was purchased in five gallon drums and they utilized a closed turpentine can to contain the brake fluid and that the can contained a dispenser on it with a pump and a hose and that the can was covered. Mr. Spaugh also identified the source of heat for the hot water heater as being electric. (T. 64) Spaugh agreed that cleaning solvent has a high flashpoint and that brake fluid is also volatile. (T. 65)
Numerous fire extinguishers were located throughout respondent's premises and reference was made to a fire extinguisher in the boiler room which had a date tag of October 1969. There was no indication of any kind of monthly inspection. (T. 41) There was a fire extinguisher located on the second floor storage with a notation of "March." There was no indication on the tags of a monthly inspection. Mr. Hubbard made no inquiry of the plant manager as to whether monthly inspections were in fact made. The tags attached to the fire extinguishers were so called "standard tags" with the tag having entries for each month of a twelve month calendar year.
Mr. Stanley Halvorson, general manager of the Equity Supply Co. for 26 years accompanied the inspectors through their walk through and did not recall either of the gentlemen pointing out to him the combustible materials in the unapproved containers. (T. 45) Upon receiving citations regarding the combustible materials he went to the shop area and was advised there were no combustible materials. (T. 46) Further, he testified that his company used lye to wash off dirty parts on motors and the only time he had ever seen an open container was when a motor was being repaired to drain the oil. Mr. Halvorson further testified that he understood each fire extinguisher had to be inspected on an annual basis and that his company employed the ABC Service in Kalispell, Montana to make inspections. Further, he has delegated the responsibility of fire extinguisher inspection to the departmental foremen and all of his help is alerted to check fire extinguishers. He was unable to locate the two fire extinguishers mentioned in the citation and upon receiving the citation requested ABC to make a report but they had no report to make. His instructions to his various department heads varied according to the circumstances. In some instances, they are to observe the fire extinguishers every hour, in other instances every day and in other instances it might be weekly or monthly. (T. 52)
Equity Supply is insured by Mill Mutual which furnishes Equity Supply with self-inspection forms on a bi-weekly or monthly basis with all forms including entries for fire extinguishers and inspections.
Mr. Timothy M. Holsapple, co-owner of the ABC Fire Protection, testified that Equity Supply was one of their customers for approximately 12 to 13 years since about 1959. (T. 67) When contacted by Mr. Halvorson, following receipt of the citations (November 1970), the ABC Company personally went over the complete plant facility, as they had just completed their annual service several weeks prior to that and found all units in proper position and functioning. Mr. Holsapple found absolutely no units with tag dates of over one year, and described their procedure as having previously done a complete annual on Equity Supply twice a year. This would involve doing half of the plant in March and half of the plant in October. Commencing in October 1971, they started doing a complete annual once a year for convenience sake.
FINDINGS OF FACT
With respect to the alleged violation of 29 CFR 1910.106(e), the evidence is somewhat ambiguous. The compliance officer, with reference to an open can in the center of the shop, felt that respondent had either diesel fuel or combustible solvent in an open type bucket. This finding upon inspection was buttressed by the admission of respondent's mechanic that the container near the center of the floor referred to contained a cleaning solvent and further that such solvent was volatile. The Secretary has sustained his burden of proof as to this issue.
With respect to the other can referred to, along the north wall, referred to as the open "turpentine can" the compliance officer in his testimony testified his sense of smell indicated turpentine. Mr. Moody, who accompanied the compliance officer noticed the open container in the center of the shop but made no reference to the "turpentine" can along the north wall.
Mr. Spaugh was quite explicit in his testimony that brake fluid was stored in a turpentine can, which was closed, and which was equipped with a dispenser and a hose with a lid attached with three bolts which would be quite difficult to remove. The weight of the probative evidence favors the respondent on this citation. Based upon the foregoing this portion of the citation shall be vacated.
With reference to the alleged violation of 29 CFR 1910.157(d) the overwhelming weight of the probative evidence is to the effect that respondent has an active safety program in operation throughout his plant as evidenced by the uncontroverted testimony of Mr. Halvorson as to his instructions to all departmental heads with reference to fire extinguishers and with full collabozation by Mr. Holsapple of many long years of active fire extinguisher maintenance.
In accordance with provisions of section 17(j) of the Act, giving due consideration to the size of the business, the gravity of the violation, the good faith of the employer and the history of no previous violations, the foregoing citation with reference to fire extinguishers should be vacated.
CONCLUSIONS OF LAW
1. Respondent is, and at all material times was, an employer within the meaning of section 5(a) as defined in section 3(3) and 3(5) of the Act.
2. Jurisdiction is conferred upon the commission by section 10(c) of the Act and the citations issued were in accordance with section 9(a) of the Act.
3. Respondent by stipulation admitted violations of sections 1910.22(a); 1910.23(c); 1910.23(b); 1910.132(a); 1910.133(a); 1910.157(a); section 1910.169(b) and section 1910.309, 310, 314, and 315.
4. Proposed penalties stand as assessed and abatement has been completed.
5. Respondent was in violation of 29 CFR 1910.106(e) with improper storage of a combustible liquid in the center of his maintenance area and the proposed penalty as assessed is appropriate under section 17(j) of the Act.
6. Alleged violation of section 29 CFR 1910.157(d) was unsupported by substantial probative evidence and the aforesaid citation and proposed penalty are vacated.
It is hereby ordered that the citations previously issued and stipulated to be affirmed as to the violations, abatement periods and proposed penalties, and that the citations with reference to 29 CFR 1910.157(d) referrable to fire extinguishers be and hereby are vacated.