EDDY'S BAKERIES COMPANY

OSHRC Docket No. 77-1084

Occupational Safety and Health Review Commission

July 31, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Daniel Teehan, Regional Solicitor, USDOL

D. Blair Clark, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Erwin L. Stuller is before the Commission for review 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"). In his decision, Judge Stuller found that Respondent, Eddy's Bakeries Company, had violated section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n1 by failing to isolate gasoline fumes from open flame wall heaters during refueling operations at one of Respondent's warehouses. We affirm the judge's decision.

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n1 Section 5(a)(1) of the Act provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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I

Respondent manufactures and distributes baked [*2] goods throughout Montana, Oregon and Idaho. Its Twin Falls, Idaho worksite was a 120 foot by 50 foot warehouse which included a retail bakery or thrift shop and indoor gasoline pumps to refuel Respondent's delivery trucks. The thrift shop was located in the northeast corner of the warehouse. The west wall of the thrift shop had an entrance into the warehouse. On either side of this entrance were open-flame natural gas heaters, with the open flames only six to eight inches above the ground.

The truck entrance was on the north side of the warehouse, directly beside the thrift shop. The two indoor gasoline refueling hookups were located along the west wall of the warehouse, approximately twenty feet from the entrance to the thrift shop and the open-flame heaters. However, when a truck was being refueled, the truck's gasoline tank and the gasoline nozzle were closer than twenty feet to the thrift shop entrance.

On March 5, 1977, a gasoline fire and explosion destroyed Respondent's thrift shop and warehouse. Wayne Hanks, an employee of Respondent, was filling the tank of his delivery truck inside Respondent's warehouse when he left the truck to make a telephone call. Apparently, [*3] the gasoline nozzle fell out of the truck's gasoline tank or the automatic shutoff device on the nozzle failed to engage. Whatever the reason, several gallons of gasoline spilled out on the warehouse floor. The fumes from the spilled gasoline were ignited by one of the two open flame wall heaters located only a few feet from where the truck was being refueled. Supervisors of the Respondent testified that the company had a workrule that required drivers to remain near their vehicles when refueling. However, employees of Respondent, including several drivers, testified that drivers regularly left their vehicles unattended during refueling.

After the fire, the workplace was inspected by a compliance officer of the Occupational Safety and Health Administration ("OSHA"). The Respondent was cited for a serious violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2). The citation claimed Respondent had failed to comply with 29 C.F.R. 1910.106(g)(6) in that "the two natural gas heaters located on the north wall and east wall of the thrift shop were not installed as specified in 29 C.F.R. 1910.106(g)(6)(i) through 1910.106(g)(6)(v)." n2 In his complaint, however, the Secretary [*4] amended the citation, because of the "apparent inapplicability of 29 C.F.R. 1910.106(g)(6) to the factors as alleged," to instead allege a section 5(a)(1) violation for failing to "effectively isolate the gasoline vapor and fumes generated by the fueling from one or more open flame wall heaters. . . ."

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n2 29 C.F.R. 1910.106(g)(6) contains requirements for the installation of heating equipment in service stations, where flammable and combustible liquids are used.

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II

Before the judge, Respondent argued that the Secretary had not set forth the violation with sufficient particularity as required under section 9(a) of the Act, 29 U.S.C. 658(a). n3 Respondent claimed it "could have easily been misled or prejudiced" by the Secretary changing the original citation for violation of a specific, but inapplicable, standard to a complaint for violation of section 5(a)(1) of the Act, as well as by the citation's vague description of the alleged violation.

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n3 Section 9(a) provides in pertinent part that,

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

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Respondent further contended the hazard in this case was not a "recognized" hazard within the meaning of section 5(a)(1). In this regard, Respondent pointed out that no accident had happened in seventeen years of fueling its trucks in this manner and that any spill which had occurred in the past had been less than one gallon with the gasoline and fumes flowing out the entrance of the warehouse and away from the heaters. Respondent noted that indoor fueling of vehicles and automatic shutoff gasoline nozzles are both approved by the National Fire Protection Association ("NFPA"). Respondent had been inspected by a fire inspector only a few months before the fire and no mention was made of any fire hazard created by Respondent's fueling operations. n4

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n4 Respondent claims the following testimony of the local fire chief, Mr. Boros, demonstrates it was unaware of the hazard.

Q. Isn't the best way to inform a businessman as to whether or not his business is proposing a fire hazard is to inspect it?

A. Yes.

Q. I'd like you to make an assumption for a moment, that this business -- Eddy Bakeries, Company, Twin Falls warehouse -- had been inspected by the fire marshal, Twin Falls, Idaho and that no report had ever been given to Eddy Bakeries Company concerning the method of dispensing or fueling of gasoline prior to March 5, 1977.

Now, if such an inspection did occur and if no such warning was given, do you have an idea as to how else Eddy Bakeries Company in Twin Falls would have known of such?

A. No.

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Finally, Respondent attempted to place the responsibility for the fire on Mr. Hanks. If Mr. Hanks had not left his vehicle during refueling, which Respndent contends was contrary to Respondent's instructions, then the fire and explosion never would have happened.

Judge Stuller rejected all of Respondent's arguments and found [*7] that "[t]he preponderance of the creditable evidence establishes Eddy failed to maintain the workplace free from a recognized hazard that was likely to cause serious physical harm or death to its employees." In making this finding, Judge Stuller depended heavily on testimony by the local fire chief and the OSHA area director that Respondent's fueling operations created a very serious hazard and that this hazard was well-known among businesses that fueled their own vehicles. n5 Judge Stuller also discounted the fact that indoor fueling and automatic shutoff gasoline nozzles are permitted by the NFPA because those were not the hazard in this case. The failure to isolate gas fumes and possible gas spills from nearby open flames was the recognized hazard.

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n5 Mr. Boros, the local fire marshall, testified:

Q. BY MR. NAYFACH: Do you have an opinion based on your training, background and experience as to whether Idaho businesses which are engaged in fueling their own industrial vehicles generally recognize the hazard that you've described here today?

A. Yes.

Q. And what is that opinion?

A. Okay. It is my opinion that through our conference and so on that the employers and business people are alerted to the hazards of gasoline. And, of course, any time that we have people even that deliver the flammable liquid to the people that are going to use it for their business and so on, they also are instructed to lecture people purchasing the flammable liquid on safety rules and regulations and so on and how to handle the flammable liquid and so on.

Q. Is it your opinion that they generally recognized this hazard?

A. Yes.

In addition, Mr. Jackson, the OSHA area director, testified:

Q. BY MR. NAYFACH: Mr. Jackson, in your opinion is the hazard as described by you, as a significant extreme fire explosion hazard, one that is generally recognized by the employers in the State of Idaho that make use of their own facilities for fueling vehicles of these employers?

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THE WITNESS: I would have to say this is a widely recognized hazard.

THE COURT: By employers who fuel their own vehicles?

THE WITNESS: That's correct.

[*8]

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The judge explained Respondent's seventeen years without an accident as "extraordinarily good luck." Judge Stuller pointed out that the hazard had existed all that time and so could not be blamed upon the carelessness of one employee. Accordingly, he rejected Respondent's claim that the hazard arose from unpreventable employee misconduct. He also said that several possible means of abating the hazard were available. Among the possible abatement procedures were placing the fuel pumps outside the warehouse, raising the heaters to a much higher level or changing to a different means of heat. Moreover, he found that Respondent's defense had not been prejudiced by the fact that the violation described in the complaint was different from the violation described in the original citation.

On review, Respondent takes numerous exceptions to the judge's decision, essentially challenging all of the judge's findings, conclusions and reasoning. n6 We affirm Judge Stuller's decision for the following reasons.

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n6 Former Commissioner Barnako granted Respondent's petition for review of the judge's decision. The Secretary did not submit a brief on review.

[*9]

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III

In order to establish a section 5(a)(1) violation, the Secretary must show that: (1) an employer failed to render its workplace free from a recognized hazard; (2) the occurrence of an incident was reasonably foreseeable; and (3) the likely consequence in the event of an incident was death or serious physical harm to its employees. Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC    , 9 BNA OSHC 1681, 1691, 1981 CCH OSHD P25,363 at p. 31,547 (No. 76-450, 1981). The Secretary must also demonstrate that there were feasible means available to abate the hazard. Id.; National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); see Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981); Empire [*10] Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978). Furthermore, it is the hazard, not a specific incident that resulted in injury, which is relevant in determining the existence of the recognized hazard. See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977).

The hazard in this case is an explosion resulting from the ignition of gasoline vapors. The danger presented by the presence of gasoline vapors near a source of ignition is a matter of common knowledge, and this is confirmed by the testimony of the local fire chief and the OSHA area director, on which Judge Stuller relied. See note 5 supra. Respondent argues that it was not specifically informed of the hazard, see note 4 supra, but the testimony of the local fire chief indicates that employers who, like Respondent, refuel their own vehicles have been informed and are aware of the hazard. See note 5 supra. Furthermore, the NFPA code, on which Respondent relies, only shows that the use of indoor fueling is not prohibited [*11] under all circumstances. It does not establish that the possibility of vapors from spilled gasoline exploding in the presence of an ignition source was not recognized. See Continental Oil Co. v. OSHRC, supra, 630 F.2d at 449; General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 464 (1st Cir., 1979). Thus, the record establishes the existence of a recognized hazard at Respondent's worksite.

The citation alleged that Respondent did not free its workplace of the hazard because it failed to "effectively isolate" gasoline fumes from the open-flame heaters. The Secretary suggested several ways in which Respondent could have eliminated or materially reduced the hazard, such as isolating the heaters from the fueling operation, placing the pumps outside, or changing the heating system. In rebuttal, Respondent contended that it required employees to remain at the pumps while a truck was being refueled. However, such a workrule would only reduce, not eliminate, gasoline fumes from the area surrounding the open-flame heaters. Thus, even if the workrule was adequately implemented, n7 it would not fulfill the duty placed on Respondent by section 5(a)(1). [*12] See Ted Wilkerson, Inc., 81 OSAHRC    , 9 BNA OSHC 2012, 2016, 1981 CCH OSHD P    (No. 13390, 1981). The other methods suggested by the Secretary would have eliminated entirely the presence of gasoline fumes near open flames. Although Respondent contends that space limitations would have precluded it from placing the gasoline pumps outside, Respondent has not contended that the other means of abatement suggested by the Secretary are infeasible.

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n7 The record establishes that the workrule was honored more in the breach than the keeping. Thus, even if compliance with the workrule would have eliminated the hazard, Respondent's failure to adequately implement the rule would still render it in violation of 5(a)(1). See Western Mass. Elec. Co., 81 OSAHRC    , 9 BNA OSHC 1940, 1944-45, 1981 CCH OSHD P25,470 at pp. 31,765-66 (No. 71-1174, 1981).

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Having concluded that Respondent failed to render its workplace free of the recognized hazard of explosions, we must determine whether an incident was reasonably [*13] foreseeable and the likely result of an incident would be death or serious physical harm to Respondent's employees. Bomac Drilling, supra. n8 An explosion caused by ignited gasoline fumes was reasonably foreseeable. Testimony established that several spills had occurred in the past. Gasoline spills occurring in proximity to open flames make an explosion highly foreseeable. The fact that an explosion had not occurred in the past seventeen years was, as Judge Stuller said, "extraordinarily good luck."

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n8 Commissioner Cleary believes that it is inappropriate to inquire into whether an incident is reasonably foreseeable in determining whether an employer violated 5(a)(1). Bomac Drilling, supra (Cleary concurring). He notes that the United States Court of Appeals for the Second Circuit has also stated that reasonable foreseeability is an improper inquiry under 5(a)(1). Pratt & Whitney Aircraft v. Secretary of Labor, 9 BNA OSHC 1554, 1557, 1981 CCH OSHD P25,329 at p. 31,412-13 (2d Cir. April 20, 1981). However, the discussion in this case is consistent with the precedent established by the Commission majority in Bomac Drilling, supra, and Commissioner Cleary agrees to follow that precedent for the purposes of deciding this case.

[*14]

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The results of an explosion are all too evident. The explosion and ensuing fire in this case destroyed the Respondent's entire Twin Falls worksite. Respondent's employees were in danger of death or serious injury from explosion and fire. Therefore we conclude that the likely result of an incident would have been death or serious physical harm.

Thus, the testimony has established each of the elements of a section 5(a)(1) violation. Judge Stuller properly found a violation, and we affirm his decision. n9 SO ORDERED.

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n9 We conclude that Judge Stuller properly rejected Respondent's argument concerning the particularity of the citation for the reasons he gave.

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