BELGER CARTAGE SERVICE, INC.

OSHRC Docket No. 76-1480

Occupational Safety and Health Review Commission

March 12, 1979

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

J. Lowell Whorton, Belger Cartage Service, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge Harold Kennedy rendered on December 23, 1976, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 651 et seq. Judge Kennedy held that Belger Cartage Service, Inc. (Belger) violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with 29 C.F.R. 1926.350(j). n1 The judge found that the violation was de minimis and not repeated; therefore, he vacated the proposal penalty.

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n1 29 C.F.R. 1926.350 Gas welding and cutting.

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(j) Additional rules. For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, z49.1-1967, Safety in Welding and Cutting, shall apply.

Section 3.2.4.3 of ANSI standard z49.1-1967 entitled "Safety in Welding and Cutting" provides:

3. Installation and Operation of Oxygen - Fuel Gas Systems for Welding and Cutting.

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3.2.4.3. Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least 1/2 hour.

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The Secretary of Labor issued Belger the following citation on March 19, 1976, for a nonserious, repeated violation of section 5(a)(2) of the Act for noncompliance with 29 C.F.R. 1926.350(j):

Oxygen cylinders were not separated from fuel-gas cylinders (acetylene) by 20 feet or by a noncombustible barrier at least 5 feet high, having a fire resistance rating of at least 1/2 hour as required in ANSI z49.1; i.e., compressed gas cylinders (oxygen and acetylene) stored adjacent to the door of the tool shed located on the north side of the cell building.

After reviewing the record, we conclude that the judge erred in his analysis of the repeated and nonserious aspects of the violation, and find that the violation was nonserious and repeated.

On February 18, 1976, a compliance officer from the Occupational Safety and Health Administration (OSHA) inspected the jobsite of Belger, which was one of 19 subcontractors on a construction site in Bartlesville, Oklahoma. The foreman and about six other employees of Belger were working on the adjustment of some overhead crane rails, which involved the use of cutting [*3] torches requiring oxygen and acetylene. Two torch units were in use that day. During his inspection, the OSHA compliance officer observed a cylinder containing acetylene, a fuel gas, standing directly beside two cylinders of oxygen. A fourth cylinder containing propane, which was used to operate a nearby stove, was standing next to the cylinder of acetylene. These four cylinders were located against the side of Belger's tool shed near the doorway, and had been there, according to the testimony of Belger's foreman, for "either one or two days." Based on the compliance officer's observation, the Secretary issued Belger the citation on March 19, 1976.

Belger's employees entered the shed regularly since it contained, among other things, employees' lunch boxes and street clothes, as well as small construction tools that were used on a regular basis. Employees were known to have smoked close to the cylinders. A trash barrel containing paper waste stood adjacent to the cylinder of oxygen nearest the end, and paper and other debris was strewn around the cylinders. Belger's foreman testified that the cylinders were placed together solely because they were unloaded together. He also [*4] testified that he believed that some oxygen was left in one of the two oxygen cylinders, and that the cylinder of acetylene was probably full.

A constant supply of cylinders of oxygen and acetylene was kept in reserve on the site to replace the bottles used for cutting torches that became empty during the day. The torches each simultaneously used a bottle of oxygen and a bottle of acetylene that were connected to a cutting unit. Two valves on the cutting unit mixed the oxygen and acetylene in proportion to create a hot flame. Empty cylinders on the site were exchanged for full ones from Belger's storage yard in Tulsa two or three times a week.

The Compliance officer testified that acetylene gas burns when mixed with air and ignited, and that the only purpose the oxygen serves is to intensify the flame of the cutting torch. He further stated that storing cylinders of oxygen next to one of acetylene poses the hazard that if a fire should occur, the flame would be greatly intensified due to the presence of oxygen. Belger's foreman admitted in his testimony that if the shed had caught fire, the fire would be intensified by the acetylene and oxygen. The compliance officer testified [*5] that the probability of such an accident happening is low, but that the injury likely to result if a fire occurred would most probably be a burn requiring treatment by a physician and possibly hospitalization.

The parties stipulated at the hearing before the judge that Belger was issued a citation on October 9, 1973, for noncompliance with 29 C.F.R. 1926.350(j), the same standard that allegedly was violated in this case, and that that previous citation was not contested and thus became a final order of the Commission by operation of law. 29 U.S.C. 659(a).

Judge Kennedy held that Belger violated section 5(a)(2) of the Act in this instance by failing to comply with 29 C.F.R. 1926.350(j), since he considered the cylinders to have been "in storage" based on Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD P19,128 (No. 1323, 1974). The judge also determined that the violation was de minimis. In his analysis of the case, Judge Kennedy stated that the credible evidence of record indicated that positioning of the cylinders together presented no hazard, and that a de minimis notice would have been more appropriate as the violation had no direct relationship [*6] to safety or health.

He went on to find that the violation at issue was not repeated despite the one prior violation of the same standard in 1973. Judge Kennedy concluded that inasmuch as he found the violation in the instant case to be de minimis, he had no grounds for deciding that it was a repeated violation. He also based his determination that the violation was not repeated on Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157 (3d Cir. 1976), which requires a showing of, besides more than two violations, the employer's "flouting" of the Act to establish that a violation was repeated. Judge Kennedy found no "flouting" of the Act on Belger's part. He concluded that, as only a de minimis violation was found, there was no basis for assessing any penalty.

The Secretary petitioned the Commission for review, arguing that the judge erred in characterizing the violation as de minimis, rather than nonserious, on the basis that no hazard was posed by noncompliance with the standard. The Secretary also maintains that the judge erred in concluding that the violation was not repeated. Review was directed by Chairman Cleary on these two issues and by former Commissioner Moran "for error." [*7] The Secretary submitted a brief discussing the de minimis issue and specifically relying on his argument in his petition for discretionary review with regard to the repeated nature of the violation. Belger did not submit a brief. n2

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n2 Belger has not taken exception to the judge's conclusion that the cylinders were "in storage" within the meaning of 1926.350(j), despite the opportunity to do so on review. The specific issues raised in Chairman Cleary's direction for review put Belger on notice that the judge's finding of a de minimis violation could be reversed, resulting in the entry of an abatement order. In addition, where a general direction for review has been issued, the issues considered by the Commission include those raised in petitions for discretionary review and review briefs filed by the parties. However, Belger did not file a review brief before the Commission. Accordingly, finding no compelling public interest that would warrant Commission review of the judge's finding that the cylinders were in storage, we adopt without review the judge's finding on this issue. See Water Works Installation Corporation, 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).

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In order to prove a violation of section 5(a)(2) of the Act, the Secretary must establish that a particular standard applies to the facts, that the cited employer failed to comply with the standard, and that the cited employer's employees had access to the hazard. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1197, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976).

The clear language of the standard contemplates a hazard when oxygen and fuel gas cylinders are stored closer than 20 feet or are not separated by the described fire resistant barrier. Here, the existence of a hazard is established by noncompliance with the express terms of the standard. Vecco Concrete Constr., Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1961, 1977-78 CCH OSHD P22,247 (No. 15579, 1977), Dic-Underhill, A Joint Venture, 76 OSAHRC 41/A2, 4 BNA OSHC 1051, 1052, 1975-76 CCH OSHD P20,563 (No. 3257, 1976). Thus, the judge erred when he stated that the credible evidence indicated that no hazard existed, thus implying that the Secretary was required to prove a hazard. National Rolling Mills Co., 76 OSAHRC [*9] 121/D7, 4 BNA OSHC 1719, 1720, 1976-77 CCH OSHD P21,114 (No. 7987, 1976).

We concur in the finding of the judge that there was a failure to comply with the standard. The employees regularly entered the shack adjacent to the cylinders, thus establishing access to the hazard. We disagree, however, with the judge's conclusion that the violation was de minimis.

The Commission has said that:

A violation is properly characterized as de minimis where it has only a negligible relationship to safety and health and where it is thus inappropriate to require that the violation be abated or to assess a penalty.

National Rolling Mills Co., supra at 1720.

As indicated by the compliance officer's testimony, the purpose of 29 C.F.R. 1926.350(j) is to prevent intensification of an existing fire that would occur if the oxygen and acetylene in the cylinders were simultaneously exposed to a fire. The compliance officer testified further that, although the probability of such an accident occurring was low, the resultant intense fire could cause significant injury.

Belger failed to offer any evidence at the hearing to show that the intensified fire resulting from the simultaneous [*10] exposure of oxygen and acetylene to air and fire was so unlikely or was so harmless to employees as to have only a negligible relationship to safety or health, and that an abatement order would have been inappropriate. Hood Sailmakers, Inc., 77 OSAHRC 212/C12, 6 BNA OSHC 1206, 1208, 1977-78 CCH OSHD P22,422 (No. 13996, 1977); National Rolling Mills Co., supra. Moreover, Belger did not file a brief with the Commission after review was directed. Therefore, based on the evidence presented, we conclude that the violation was nonserious rather than de minimis.

We also find that the judge erred in his analysis of whether the violation was repeated. As determined by the Commission in Potlatch Corp.,    OSAHRC    (No. 16183, January 22, 1979), in order to establish a prima facie showing that a violation is repeated under section 17(a) of the Act, the Secretary must show by a preponderance of the evidence that the cited employer had been issued a prior citation for failing to comply with the same standard. n3 He must also prove that at least one such previous citation has become a final order of the Commission before the date of the occurrence of the alleged repeat violation. [*11] As rebuttal, the cited employer can prove that the factual circumstances of the immediate violation are so disparate from those of the previous violation that no reasonable relationship exists between them. We also stated in Potlatch Corp. that we will not follow the repeated test employed by the United States Court of Appeals for the Third Circuit in Bethlehem Steel Corp., supra, and used by the judge in this case.

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n3 In a case of this type that relies solely on a prior violation of the same standard, this is all that the Secretary must show. When a previous violation of another standard is the basis for the characterization as repeated, then other proof is necessary according to Potlatch Corp.

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The parties stipulated at the hearing that Belger was cited on October 9, 1973, for noncompliance with 29 C.F.R. 1926.350(j), the identical standard at issue here, and that Belger did not contest that earlier citation. It beceme a final order of the Commission, by operation of law, well before the [*12] date of the alleged repeated violation. Thus, the Secretary has proven that the violation observed on February 18, 1976, was a repeated violation under the two-step analysis set out in Potlatch Corp. The evidence of record in this case demonstrates that the earlier citation was for storage of oxygen and acetylene cylinders in an alleyway next to a structure, a violation virtually identical to the violation in this instance. Since on the facts of this case the respondent could not have rebutted by showing factual dissimilarities between the present violation and the earlier one, no remand is necessary.

We conclude that the $80 penalty proposed by the Secretary is appropriate given the severity of the injury that could result from the violation, Belger's size (approximately one million dollars of business done in Tulsa in the year directly preceding the violation at issue), good faith, and history of violations.

Accordingly, it is ORDERED that the judge's decision concluding that the violation of section 5(a)(2) of the Act for noncompliance with 29 C.F.R. 1926.350(j) was de minimis and not repeated is reversed. The citation issued by the Secretary for a nonserious, repeated [*13] violation is affirmed, and a penalty of $80 is assessed therefor.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

I agree with the majority that the standard at 29 C.F.R. 1926.350(j) contemplates a hazard when fuel gas and oxygen cylinders are stored closer than 20 feet together and are not separated by the described fire resistant barrier. Unlike the majority, however, I would not find that the cylinders here were being "stored" in the present state of the record. n1 Instead, I would afford the parties the opportunity to brief this question.

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n1 Although the majority, in footnote 2, of their opinion, insist they are not reaching the question of whether the cylinders were "in storage," they later "concur in the finding of the judge that there was a failure to comply with the standard," and they find the existence of a hazard because "the standard contemplates a hazard when oxygen and fuel gas cylinders are stored closer than 20 feet or are not separated by the described fire resistant barrier." (emphasis added). Thus, despite their disclaimer, I interpret the majority opinion as including a specific finding that the cylinders were "in storage" within the meaning of the standard. Indeed, without such a finding, there would be no reason to inquire into whether the violation was de minimis, for a finding of a violation must precede an inquiry into how that violation should be characterized.

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In order to maintain a constant supply for welding purposes, oxygen and acetylene cylinders are kept in reserve at the site to replace cylinders which become empty during the day. Reserve cylinders, such as those observed against the tool shed, are available in the event a cylinder runs out during the day and are available for immediate use at any time as needed. Two to three times per week, empties are picked up at night and taken to Respondent's yard, where they are exchanged for full cylinders.

In Grossman Steel and Aluminum Corporation, 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD para. 23,097 (No. 76-2834, 1978), the Commission found that certain oxygen and fuel gas cylinders were not "in storage" within the meaning of 29 C.F.R. 1910.252(a)(2)(iv)(c), a standard worded identically to that cited in this case. The cylinders there were standing together beside the employer's trailer on the worksite; they were not being used and did not have hoses and regulators attached. The Commission concluded, however, that the cylinders were not in storage because they were available for use in an [*15] area where welding was to be performed on an intermittent basis.

In this case, Respondent argued before the Judge that its cylinders were not in storage within the meaning of the standard. Although the Judge resolved this question adversely to Respondent, the Judge ultimately decided the case in Respondent's favor in finding the violation to be de minimis. As Respondent was not aggrieved by the Judge's decision, it had no occasion to seek Commission review on the storage issue. See Westburne Drilling, Inc., 77 OSHCRC 79/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD para. 21,814 (No. 15631, 1977). The Secretary, however, was aggrieved by the Judge's result, and petitioned for review on the issues the Judge had resolved adversely to him: whether the violation was de minimis and whether it was repeated. The Secretary's petition was granted, and the Commission afforded the parties an opportunity to brief the issues raised in the Secretary's petition. Moreover, a notice was sent to the parties along with the direction for review specifically limiting the issues that could be briefed to those raised in the direction for review. Therefore, the parties have not briefed the storage [*16] question, nor have they had the opportunity to do so. n2

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n2 The majority concludes the Belger had the opportunity to brief this question for two reasons. They first state that Chairman Cleary's specific direction for review notified Belger that the Judge's de minimis holding might be reversed. They next state that Belger could have briefed the storage issue in response to Commissioner Moran's "for error" direction for review. I am not as willing as the majority to assume such foresight on Belger's part.

The Executive Secretary of the Commission sent notice of both directions for review to the parties under a cover letter that stated, in pertinent part:

Review has been directed of the Judge's decision previously filed in the above case.

Submission of briefs are invited with respect to (see attached).

Briefs are invited specifically with respect to the above-referenced issues.

My colleagues insist that the storage issue is independent of the de minimis question. See footnote 1 of this opinion. Yet, they think that notice of the opportunity to brief the de minimis issue placed Belger on notice that it should have briefed the storage issue. I do not agree, for I think Belger was entitled to rely on the plain language of the notification sent by the Commission with the directions for review.

I also do not think it is fair to assume that Belger should have interpreted the phrase "the above-referenced issues" to include the storage issue simply because of Commissioner Moran's "for error" direction. The Commission itself has referred to such directions for review as raising "no specific issues." E.g. Perini Corporation, 77 OSAHRC 136/A2, 5 BNA OSHC 1596, 1977-78 CCH OSHD P21,967 (No. 11007, 1977). My colleagues now, however, assume that employers can divine specific issues inherent in such directions.

While it is true that the Commission considers issues briefed by the parties when such a direction for review has been filed, the Commission does so because of the ambiguity inherent in such directions. See the Commission's Policy Statement at 41 Fed. Reg. 53015 (Dec. 3, 1976). That ambiguity works both ways; a party may also interpret the direction for review as raising "no specific issues" and requiring no response. It is patently unfair for the Commission to hold that such a direction for review places employers on notice that they may brief issues beyond those listed in a specific direction for review issued at the same time and under the same cover letter as the "for error" direction.

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Resolution of the storage question is essential to the disposition of this case. There are both factual similarities and distinctions between this case and Grossman Steel and Aluminum, supra, so it cannot be said that the issue is clearly controlled by precedent. Moreover, as described above, the parties have not had an opportunity to brief the issue. Under the circumstances, I would afford the parties such an opportunity before resolving the storage issue or any of the other issues presented by the direction for review.