AMOCO OIL COMPANY

OSHRC Docket No. 3769

Occupational Safety and Health Review Commission

February 3, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor, U.S. Department of Labor

Jerry M. Gross, Standard Oil Company (Indiana), for the employer

James F. Smith, Oil Chemical & Atomic Workers International Union, Local 7-1, Inc., for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On May 6, 1974, Administrative Law Judge Sidney J. Goldstein issued his decision finding respondent employer, Amoco Oil Co., in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the "Act") for failure to comply with the occupational safety and health standard published at 29 CFR 1910.106(g)(1)(i)(a). n1

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n1 1910.106 Flammable and combustible liquids

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(g) Service stations

(l) Storage and handling

(i) General Provisions

(a) Liquids shall be stored in approved closed containers not exceeding 60 gallons capacity, in tanks located underground, in tanks in special enclosures as described in subdivision (ii) of this paragraph, or in above ground tanks as provided for in subparagraph (4)(ii), (b), (c) and (d) of this paragraph.

[*2]

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The case is before us to determine if, in view of the evidence of record and the provisions of the standard published at 29 CFR 1910.178(f)(1), n2 the Judge erred by holding that respondent violated the standard at 29 CFR 1910.106(g)(1)(i)(a).

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n2 1910.178 Powered Industrial Trucks.

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(f) Fuel handling and storage

(l) The storage and handling of liquid fuels such as gasoline and diesel fuel shall be in accordance with NFPA Flammable and Combustible Liquids Code (NFPA No. 30-1969).

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Answering that question in the negative, and finding no merit in respondent's exceptions, we affirm the action on the Judge.

Respondent operates a petroleum-refining plant in Whiting, Indiana. Near its warehouse, it maintains a cylindrical steel gasoline tank with a capacity of approximately 250 gallons of fuel. The tank is mounted five to six feet above ground on four steel legs and contains a dispensing hose and self-closing nozzle. [*3] The tank is maintained for the refueling of company fork lifts, although the evidence indicates that on occasion it was used by other vehicles.

Respondent argues that the cited standard is inapplicable to its storage tank because: (1) the cited worksite was not a "service station" as contemplated by the standard, and (2) it should have been cited under 1910.178(f)(1) because that standard is specifically applicable to fuel being stored for powered industrial trucks.

Respondent's arguments are unpersuasive. 29 CFR 1910.106(a)(3) defines an automotive service station as follows:

. . . that portion of property where flammable or combustible liquids used as motor fuels are stored and dispensed from fixed equipment into fuel tanks of motor vehicles and shall include any facility available for the sale and service of tires, batteries and assessories and for minor automotive maintenance work.

The evidence indicates that the tank involved, which has been in place since 1968, is fixed and installed for the purpose of refueling respondent's fork lifts, that are motor vehicles. We therefore hold that respondent's storage tank is a "service station" within the meaning of 1910.106(a)(3). [*4]

We also hold that the cited standard ( 1910.106(g)(1)(i)(a)) is applicable to respondent's workplace. We agree with respondent that, when two standards are applicable to a given set of circumstances, the more specific standard should apply. Plessy, Inc., 12 OSAHRC 577, 2 BNA OSHC 1302, 1974-75 CCHD para. 18,907 (No. 946, October 18, 1974). But we do not agree that 1910.178(f) is more specific than 1910.106(g)(1)(i)(a) in dealing with the facts of this case.

Section 1910.178(f)(1) is specific only insofar as it deals with powered industrial trucks. In contrast, 1910.106(g)(1)(i)(a) sets forth requirements for fuel storage at service station operations. Thus, it is conceivable that had respondent been cited under 1910.178(f)(1), it would have argued that it should have been cited under 1910.106(g)(1)(i)(a) since its operation qualified as a service station. The results of such a situation would be that an employer could effectively avoid the application of either standard, thereby frustrating the Congressional objective, set forth in section 2(b) of the Act, of assuring so far as possible every working man and woman in the Nation safe and healthful [*5] working conditions.

Also, as Judge Goldstein points out, respondent's interpretation would apply the standards to a single storage tank depending upon the type of vehicle refueling from the tank. The Secretary's contention that 1910.106(g)(1)(i)(a) is applicable would, however, avoid the problem of having duplicative regulations for one tank because that standard would apply regardless of the type of vehicle being serviced. In any event, there is evidence that on infrequent occasions the storage tank was used for fueling vehicles other than powered industrial trucks. Clearly, on such occasions 1910.106(g)(1)(i)(a) would be the applicable standard. Of course, regardless of the type of vehicle being serviced, the inherent danger presented by the tank remains the same. n4

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n4 Explosion and fumes from leaking gasoline are the primary hazards associated with the storage tank.

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Finally, as applied to this case, the two standards set forth the same substantive requirements. n5 Indeed, the only significant [*6] difference between the two standards is found in NFPA 30-1969, Chp. 1 General Provisions, 1040, incorporated by reference in 1910.178(f)(1), which exempts pre-existing structures unless the owner is given prior written notification that the structure presents a distinct hazard. n6 Section 1910.106(g)(1)(i)(a) contains no such provision, thereby affording employees greater protection than 1910.178(f)(1). When two standards are equally applicable to the same factual situation, the standard providing the greater protection for employees should control if the statutory purpose of the Act is to be best served. Cf. Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974).

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n5 Section 1910.106(g)(1)(i)(a) is derived from NFPA 30-1969, Chp. VII, Service Stations 7011, the same section of NFPA 30-1969 that respondent would have been charged with violating if cited under 1910.178(f)(1).

n6 Arguably, had respondent been cited under 1910.178(f)(1), it could have taken advantage of the escape clause, there being no evidence of record that it had previously been notified that the tank constituted a distinct hazard.

[*7]

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Accordingly, we find that Judge Goldstein correctly concluded that respondent was properly cited under 1910.106(g)(1)(i)(a).

In its brief, respondent also argues that the citation should be vacated since, pursuant to 29 CFR 1926.152, tanks larger than the one it maintained would be acceptable at construction sites. According to respondent, it does not promote equal enforcement of the law to place more stringent requirements on refineries whose workers are more proficient at handling combustible liquids than are construction workers. It is well-settled that this Commission will not pass upon the wisdom of standards. See Arkansas-Best Freight Systems, Inc., 15 OSAHRC 663, 2 BNA OSHC 1620, 1974-75 CCH OSHD para. 19,326 (No. 2375, February 21, 1975), petition for review docketed, No. 75-1249, 8th Cir., April 16, 1975. We, therefore, reject respondent's argument.

Regarding the penalty, we find that while respondent is a large corporation it has exhibited substantial good faith. The gravity was moderate. Weighing these factors, we find the $30 penalty assessed by the [*8] Judge to be appropriate.

Accordingly, it is ORDERED that the Judge's decision is AFFIRMED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

To one who has dissented from Commission decisions holding that the word "and" means the same as the word "or," n7 that when Congress used the term "Secretary of Labor" in a statute it really meant "Occupational Safety and Health Review Commission," n8 and that a roof is a floor, n9 it comes as no surprise to find that Messrs. Barnako and Cleary have now decreed that "a petroleum refining plant" is an "automotive service station."

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n7 Secretary v. Carpenter Rigging and Contracting Corporation, 15 OSAHRC 400 (1975).

n8 H.K. Porter Company, Inc., Thermoid Division v. Secretary, 11 OSAHRC 53, 57-81 (1974).

n9 Secretary v. S.D. Mullins Company, 4 OSAHRC 1415 (1973).

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Surely no ordinary prudent person would agree with that holding. Most people would have no difficulty distinguishing between a petroleum refining plant and an automotive service station. However, we are applying [*9] specific regulations and it is they that govern the determination. Consequently, I took the trouble - and I use the word advisedly - to carefully examine all the many thousands of words contained in 29 C.F.R. 1910.106 which, by its title, pertains to "Flammable and combustible liquids." (By actual count, there are in excess of 35,000 words in this one regulation). n10

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n10 By way of contrast the U.S. Constitution with all its amendments consists of 6,020 words.

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There are many indications therein that the term "automative service station" means just what any ordinary person thinks it means - a place familiar to motorists where a privately-owned automobile may obtain gas and oil. One indication of this is the terminology employed in the definition which is partially quoted in the majority opinion (it includes "any facility available for the sale and service of tires, batteries and accessories and for minor automotive maintenance work.") Another is the sentence in that definition which the majority has omitted [*10] from its quotation thereof:

"Major automotive repairs, painting, body and fender work are excluded."

Of course they are! Those functions are performed at an auto body shop. A service station is where you can buy gas and oil and "tires, batteries, and accessories" and get "minor automotive maintenance work."

To say that these things define the fuel storage facility at respondent's oil refinery is patent nonsense.

Subsection (g) of this regulation - entitled "Service stations" is further subdivided into such categories as "Private stations" defined as those "not open to the public" and "marine service stations" which are located "on shore, piers, wharfs, or floating docks" and dispense fuel into "tanks of self-propelled craft."

Respondent's storage tank was not open to the public. It did not sell tires or batteries or service automobiles. n11 It was used simply for a single purpose: to refuel respondent's own forklift trucks (also known as powered industrial trucks). I am not unmindful of the very positive assertion in he majority opinion that there were occasions when

". . . the storage tank was used for fueling vehicles other than powered industrial trucks."

However, I've [*11] been unable to locate any evidence of this in the record. Apparently Judge Goldstein, whose decision I incorporate herein by reference and attach hereto as Appendix A, couldn't find such evidence either, although he did say other vehicles may have refueled there. The only testimony of any kind on this subject came from a union representative n12 who said he had seen pickup trucks refueling from the tank on two occasions - but he could specifically recall only one instance which took place two-and-one-half years prior to the hearing in this case. n13 Even if this testimony went unrefuted - and it was denied specifically by respondent's superintendent of plant security n14 - it could not be relevant "evidence" in this case. The Act under which this respondent was tried contains a six-month statute of limitations. 29 U.S.C. 658(c).

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n11 Significantly, the majority doesn't explain why the definition of "automotive service station" would mention things like selling tires and batteries - or why there should be a separate category for marine service stations. In their view, apparently, any place which dispenses fuel is an automotive service station. In may view the regulation - writers could have saved themselves nearly 10,000 words if they had this Barnsko-Cleary concept in mind. Among the things they could have omitted is the definition of a refinery. See 1910.106(a)(28).

n12 The inspection which led to the citation at issue in this case was prompted by a complaint from the union.

n13 That hearing took place in January 1974.

n14 In addition, the government safety inspector's testimony on the tank's use was that "It was used for the fueling of industrial trucks."

[*12]

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I turn now to the question of which of the two regulations at issue in this case is the more specific.

The investigating officer testified that the allegedly noncomplying tank

". . . was not in a refining area. It is in an area off by itself."

He also testified that the tank contained gasoline and "was used to refuel industrial trucks." The respondent's evidence was similar: that the tank sits next to the shop storehouse, is used to fuel forklift trucks, and that trucks, cars and vehicles which travel on public roads are fueled at the truck garage in a different area of the respondent's refinery.

Given these facts, it is clear that the regulation at 29 C.F.R. 1910.178(f) which applies only to "Fuel handling and storage" for "Powered industrial trucks" is more specifically applicable than the regulation at 29 C.F.R. 1910.106 which applies to "Flammable and combustible liquids" of all kinds.

The majority rejects the foregoing because "it is conceivable," they say, that respondent's defense would have been exactly the opposite had it been cited under 1910.178(f). They add that their interpretation [*13] (transforming an oil refinery into an automotive service station) would avoid duplicative regulations. Apparently they feel that if there was erroneous action taken in promulgating this vast body of regulations or if there are loopholes therein, the respondent - not the Secretary of Labor - must take the consequences. It is not the respondent, however, who promulgated the two standards in question. The Secretary of Labor duly promulgated at least two different safety standards regulating the storage and handling of flammable liquids. n15 He made one of these specifically applicable to forklift trucks. If it is unfortunate that the application of the standards depends on the type of vehicle being refueled then the remedy lies elsewhere. As noted in the majority's opinion, we cannot pass upon the wisdom of standards. We cannot correct a result we consider anomalous by ignoring the clear import of a standard. If the Secretary deems it advisable to have one standard apply to all fuel tanks, appropriate administrative procedure is available to achieve that purpose. 29 U.S.C. 655(b).

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n15 Only those discussed herein have been called to the attention of the Commission in this case. It may well be that there are others.

[*14]

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Accordingly, I conclude that the majority's affirmance is an unwarranted departure from the Secretary's own regulations n16 and well-established Commission precedent which provide that a general standard is not operative when a specific standard applies to a particular condition. As we noted in Secretary v. Sun Shipbuilding and Drydock Company, 4 OSAHRC 1020, 1021 (1973):

"In the opinion of this Commission if a particular occupational safety and health standard is applicable, it should prevail over any other standard of more general application, whether the general standard be one promulgated by the complainant, or is the general duty clause itself."

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n16 At 29 C.F.R. 1910.5(c)(1) the Secretary has provided that:

"If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation or process."

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Furthermore, may colleagues' assertion in footnote 5, supra, that the respondent "would have violated" 1910.178(f)(1) if cited thereunder is clearly erroneous. NFPA 30-1969, to which the standard refers, provided for the continued use of existing equipment and structures for the storage, handling, or use of flammable or combustible liquids which were not in strict compliance with the Code unless they constitute a distinct hazard. It further provided for notification in writing to the owner or user of the structure by the regulating authority if a distinct hazard was deemed to exist. n17 Respondent's tank has been in use since 1968. There can be no question that it is therefore an existing structure, or existing equipment, within the meaning of the cross-referenced regulation. The record contains unrefuted testimony that there has been no prior notification that a distinct hazard was deemed to exist from respondent's continued use of the aboveground tank. n18 Consequently, it has not been established that respondent failed to comply with 29 C.F.R. 1910.178(f)(1).

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n17 NFPA 30-1969, Ch. 1, General Provisions, 1040.

n18 In direct examination respondent's Superintendent of Plant Security testified as follows:

"Q. Mr. Burk, has any city, county or state fire inspector ever told you that the use of this tank would constitute a distinct hazard to life or adjoining property?

A. No, sir."

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Finally, I turn to what Messrs. Barnako and Cleary choose to call "the inherent danger" presented by the tank and their assertion that the automotive service station regulation should apply to this refinery because the standard providing the "greater protection" for employees should control. Nowhere in the record of this case is there any testimony that the cited condition was dangerous or that there could be any "greater protection" than that which existed. The government safety inspector - who had more than 20 years experience as a safety professional, gave the following testimony:

"Q. Do you have any idea how many accidents they might have had at this location because of this tank being here?

A. I would assume they probably [*17] never have.

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Q. Do you know of any time where one of these small tanks has ruptured and caused a serious accident?

A. No, I do not."

The Chairman of the Union Safety Committee, a man with 29 years employment at respondent's plant, testified as follows:

"Q. How many times have you had a man hurt that you know about and I believe you are familiar with safety. How many times have you had a man hurt at this particular location?

A. To my knowledge, never . . . ."

The official in charge of plant safety at this plant also testified that no employee has ever been injured in conjunction with fueling a vehicle from this tank.

The evidence, then, is overwhelming: a perfect safety record. In the fate of this I suggest that those who think there could be "greater protection" should supply some supporting evidence or explanation - and those who see an "inherent danger" which no one familiar with this operation has been able to see, ought to explain just what that danger consists of. Their failure to do so merely underscores the infirmity of the foundation upon which this decision of the Commission is based.

APPENDIX A

DECISION

This matter arises under Section 10(c) of the [*18] Occupational Safety and Health Act of 1970, and involves the application of a regulation adopted thereunder relating to storage and handling of flammable and combustible liquids.

After an inspection of a work site of the Amoco Oil Company (sometimes hereinafter referred to as the Company of the Respondent) the Occupational Safety and Health Administration issued to it (1) a Citation listing several alleged violations of the Act and (2) a Notice of Proposed Penalty. The Respondent took issue with one of the Items of the Citation and submitted a Notice of Contest. Thereafter the Secretary of Labor filed with this Commission a Complaint to affirm the contested Item and penalty, and the Respondent filed its Answer. Upon these pleadings a hearing was held in Chicago, Illinois, on January 31, 1974.

The Citation charged the Respondent with a:

"Failure to prohibit the gasoline dispensing from an above ground tank with a capacity in excess of 60 gallons at the shop storage house."

in violation of a standard found at 29 CFR 1910.106(g)(l)(i)(a) which provides as follows:

(g) Service stations.

(l) Storage and handling.

(i) General provisions.

(a) Liquids shall be stored in approved [*19] closed containers not exceeding 60 gallons capacity, in tanks located underground, in tanks in special enclosures as described in subdivision (ii) of this subparagraph, or in aboveground tanks as provided for in subparagraphs (4)(ii), (b), (c) and (d) of this paragraph.

The facts in this case are not in substantial dispute and may be briefly summarized. The Company operates a petroleum refining plant in Whiting, Indiana. Near its warehouse it stored gasoline in a steel cylindrical tank with an approximate capacity of 250 gallons. Mounted on four steel legs and standing about five feet above the ground, this tank was utilized to fuel fork lift trucks, although other vehicles may have refueled there contrary to instructions. The fuel tank has been stationary since 1968 and never was involved in an accident. In addition no city, county, or state inspector ever informed the Company that the storage tank constituted a hazard.

On the basis of the foregoing facts it is not disputed that the Respondent's fuel tank did not meet the specifications of the standard.

Nevertheless the Respondent contends that the standard under which the Administration's Citation is based has no application [*20] because a Citation, if any, should have been based upon another regulation.

As stated in its brief:

"Amoco's argument is very simple. If there was a violation for which Amoco should have been cited as the result of the inspection of June 14, 1973, it should have been under 29 CFR 1910.178(f)(1) which relates specifically to the storage and handling of fuels for powered industrial trucks. Sec. 1910.178(a)(1) provides as follows:

"The requirements of this section apply to fire protection for fork trucks, tractors, platform lift trucks, motorized hand trucks and other specialized industrial trucks powered by electric motors or internal combustion engines. . . ."

Sec. 1910.178(f)(1) provides as follows:

"The storage and handling of liquid fuels such as gasoline and diesel fuel shall be in accordance with NFPA Flammable and Combustible Liquids Code (NFPA No. 30-1969).""

As pointed out by the Respondent, it is true the Commission has held that the failure to cite an applicable standard must result in the vacation of the Citation. for that reason. There workmen on a horizontal ladder were not protected by a safety belt or lifeline, but the Citation was for the alleged violation of a regulation relating to protective equipment for the eyes, face, head, or extremities if certain hazards were capable of causing injury through absorption, inhilation, or physical contact. It was held in that case that the standard actually violated was one which required lifelines, safety belts, and lanyards for the workmen in question. Since the company did not violate the standard shown in the Citation, it was dismissed.

The same situation does not appear in this matter. Here the regulation relates to a service station, and there is no question that the tank fell in that category inasmuch as powered industrial trucks were serviced from that point. If a service operation is in effect, then the fuel storage facilities must meet certain requirements, a situation not satisfied in this case.

Under the Respondent's theory the nature of the vehicle receiving the fuel would determine whether the violation took place, but no such restriction upon the storage of fuel is in the regulation. If the Respondent's view were adopted, the [*22] regulation regarding the storage of fuel would change in effectiveness whenever a different type of vehicle was permitted to refuel from the tank. It is to be remembered that the important consideration is safety in connection with the storage of fuel, not whether an automobile or fork lift received the gasoline. When the Respondent permitted the fuel storage tank in question on its premises, it was in violation of the Act. Whether or not it decided to permit fork lift vehicles instead of automobiles or trucks to refuel from that point should not change its responsibility to conform to the regulation concerning the storage of flammable or combustible liquid. For service stations the requirements are specific, and the provisions of 1910.106(g)(l)(i)(a) are not confined to any special motorized vehicle.

The Respondent next argues that the tank was not "fixed" and therefore did not fall within the definition of service station found in 29 CFR 1910.106 shown below:

Automotive service station shall mean that portion of property where flammable or combustible liquids used as motor fuels are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles and shall include [*23] any facilities available for the sale and service of tires, batteries, and accessories, and for minor automotive maintenance work. Major automotive repairs, painting, body and fender work are excluded.

The evidence at the hearing, however, disclosed that the tank was located in one position for years. There is no requirement that the container be immovable before it may be considered as "fixed" within the meaning of the regulation. In any event the Citation in issue was for the violation of a service station regulation, not necessarily an automotive service station.

In summary therefore it is concluded that the infraction occurred when the Respondent permitted the storage of fuel in violation of the regulation; that the term service station as contained in the regulation includes the distribution of fuel to the Respondent's fork lift trucks; and that the type of vehicle serviced by the tank did not alter the storage requirements of the regulation. Inasmuch as the evidence is uncontradicted that the Respondent did not comply with the requirements of the standard found at 29 CFR 1910.106(g)(l)(i)(a), the Citation is affirmed.

The Secretary proposed a penalty of $30 for the violation [*24] in issue. Inasmuch as it appears that the Administration has taken into account the various statutory factors in the determination of the proposed penalty, and since the Respondent made no issue with respect to the amount suggested, the proposed penalty is affirmed.

Sidney J. Goldstein, Judge, OSHRC

Dated: May 6, 1974