OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC DOCKET NO. 13-0531 ACADEMY ROOFING CORP., Respondent. Appearances: Robin Ackerman, Attorney U.S. Department of Labor, Office of the Solicitor, John F. Kennedy Federal Building, Room E-375 Government Center Boston, MA 02203 For the Complainant. Paul J. Katz, Attorney 749 Heath Street Brookline, MA 02467 For the Respondent. Before: Carol A. Baumerich Administrative Law Judge DECISION AND ORDER This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et seq. (“the Act”). As a result of an inspection of Academy Roofing Inc.’s (“Academy” or “Respondent”) worksite in Concord, Massachusetts, the Secretary issued to Respondent a citation alleging a single serious violation of the fire extinguisher standard at 29 C.F.R. §1926.150(a)(2). The citation was amended in the complaint, without objection, to allege a violation of 29 C.F.R. §1926.150(c)(1)(vi). The Secretary proposed a penalty of $1,200 for the violation. For the reasons stated herein, the citation and proposed penalty are vacated. FACTS On February 1, 2013 Respondent was working on the roof of a multistory construction site at 200 McGregor Street in Concord, Massachusetts. Academy was one of the seven to ten contractors on the site. (Tr. 20, 28). The general contractor was Harvey Construction. (Tr. 19-20). When the Academy crew arrived at the site, the roof had ice buildup. Academy employees began drying the roof with a propane torch. (Tr. 25, 30). At approximately 7:40 a.m., a small fire broke out when a rag caught on fire. (Tr. 105). The fire extinguisher on the roof needed to be recharged. Therefore, Academy foreman Jesse Hache went to his truck and retrieved an extinguisher, which he used to put out the fire. (Tr. 105). As a result, that extinguisher also needed to be recharged and was now unusable. (Tr. 106, 114). Respondent had no other fire extinguishers available at the site. (Tr. 25, 106-107, Ex. C-5). Because they no longer had a fire extinguisher, foreman Hache removed the propane torch from the site and placed it in the truck. (Tr. 115). Thereafter, employees used a heat gun Footnote to mold a piece on the roof curb. (Tr. 23, 62, Ex. C-4, Ex. R-3). Compliance Safety and Health Officer (CSHO) Joe LaRose arrived at the jobsite at approximately 9:15 a.m. that morning to conduct a programmed inspection. (Tr. 19). The CSHO inspected the sites of each of the contractors on the site, including Academy. (Tr. 48). During his inspection of Respondent, the CSHO saw two 5-gallon containers of a highly flammable cleaner and one 5-gallon container of a highly flammable roof adhesive. (Tr. 22, 96-98, 113, 142, 158 Exs. C-2, C-3) Footnote . To see the safety warnings on the sides of the container, the CSHO tipped them on their side. The CSHO testified that each container felt more than half full. (Tr. 22-23, 148-149). To the contrary, foreman Hache testified that, in total, the combined containers held three to three and a half gallons of product. (Tr. 113). There were other extinguishers at the jobsite. The CSHO observed extinguishers on the lower levels, throughout the site, where the plumbers were working. In his opinion, those extinguishers were not within 50 feet of the Academy employees working on the roof. (Tr. 145). A hatch at the worksite provided access to the lower level by using a ladder. In addition, foreman Hache testified that Harvey Construction maintains two-three extinguishers on each floor in designated areas. (Tr. 130, 133-134). He estimated that the closest extinguisher was no more than 30-32 feet from the Academy site. (Tr. 156-157). The CSHO testified that he did not see those extinguishers, but admitted that he wasn’t looking for them. (Tr. 151). As a result of the inspection, Academy was issued one citation alleging a serious violation of 29 C.F.R. §1926.150(a)(2) Footnote for failing to maintain fire extinguishers on the roof. The Secretary proposed a $1,200 penalty for the violation. Following Respondent’s timely filing of its notice of contest, the Secretary filed a complaint which amended the citation to allege a violation of 29 C.F.R. §1926.150(c)(1)(vi). That standard provides that: A fire extinguisher, rated not less than 10B, shall be provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the jobsite. This requirement does not apply to the integral fuel tanks of motor vehicles. Respondent did not object to the amendment. (Tr. 4). Before the hearing, the parties filed the following stipulations, as amended at the hearing: a. OSHA Compliance Officer Joseph LaRose inspected, inter alia, Respondent’s Worksite on February 1, 2013 (the “Inspection”). b. The Inspection included roofing work performed by Respondent on a new building, located at 200 McGregor Street in Manchester, New Hampshire (“the Worksite”). c. Respondent’s employees, Brian Michaud, Jamie Hughes, and Foreman Jesse Hache, performed work on the roof on February 1, 2013. d. No more than two fire extinguishers were present on the roof at any time on February 1, 2013. e. To prepare the Worksite on February 1, 2013, Respondent’s employees first transported and set up equipment and materials on the roof, including two five-gallon containers of “Weathered Membrane Cleaner” each of which displayed a label describing the fluid as “highly flammable”; a fire extinguisher was brought to the specific area in which the work was to be performed by Respondent’s Foreman. f. At approximately 8:00 am on February 1, 2013, a fire occurred at the Worksite when a rag caught on fire, requiring the use of the fire extinguisher that had been brought to the specific work area. g. After the fire on February 1, 2013, both fire extinguishers at the Worksite were exhausted, with needle gauges pointing to “RECHARGE.” h. At the time of the Inspection, Respondent’s employees were using rags to clean the rubber membrane layer that covered the roof surface. The rags had Weathered Membrane Cleaner on them. i. At the time of the Inspection, Respondent’s employees were also using a rag to apply “Sure-Weld Bonding Adhesive,” a flammable adhesive agent, to unconnected joints of the rubber membrane layer that covered the roof surface, and bonded the joint pieces together using a heat gun. j. Compliance Officer Joe LaRose began the Inspection at the Worksite on February 1, 2013 at approximately 10:00 a.m. Accompanying him on the roof were Respondent’s Foreman, Jesse Hache, Superintendent of Prime Contractor Harvey Construction, Michael Halliday, and Rich Levinus, Consultant for Contractors Risk Management. k. Between the time of the fire and the time of the Inspection on February 1, 2013, Respondent did not replace or refill the fire extinguishers at the Worksite. l. At the time that Compliance Officer Joseph LaRose began the Inspection on February 1, 2013, two five-gallon containers of Weathered Membrane Cleaner were present and in use at the worksite. m. Foreman Jesse Hache told Compliance Officer Joseph La Rose, during the Inspection, that the fire extinguishers at the Worksite were empty because it had been necessary to use them to extinguish the fire that had occurred when a rag ignited earlier in the day on February 1, 2013. n. After the fire, Respondent’s employees poured Weathered Membrane Cleaner from the five-gallon containers onto rags. o. On February 20, 2013, Complainant issued a Citation (the “Citation”) and Notification of Penalty resulting from the Inspection, alleging a violation of 29 CFR 1926.150(a)(2). p. On May 20, 2013, Complainant issued a Complaint in which it amended the Citation to allege a violation of 29 CFR 1926.150(c)(1)(vi) rather than 29 CFR 1926.150(a)(2). (Exhibit J-1) A hearing was held in Boston, Massachusetts on December 6, 2013. Both parties have filed briefs and reply briefs Footnote and this matter is ready for decision. Jurisdiction In its Answer Respondent admitted that it is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act. Respondent also admitted that jurisdiction in this matter is conferred upon the Commission by Section 10(c) of the Act. Therefore, I find that Respondent was an employer within the meaning of sections 3(3) and 3(5) of the Act and that the Commission has jurisdiction of the parties and subject matter of this proceeding. Applicable Law To establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies to the facts, (2) the employer failed to comply with the terms of that standard, (3) employees had access to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). Discussion It is undisputed that Respondent is engaged in construction work and that the cited standard applied to its worksite. The original standard, 29 C.F.R. §1926.150(a)(2), presumes that a fire hazard exists at construction sites and mandates that fire extinguishers be “available.” As noted, supra, the evidence establishes that fire extinguishers were available at various locations at the construction site. Where the employer is using more than 5-gallons of combustible fluids there is a substantially heightened hazard of fire. In such situations, the amended standard, 29 C.F.R. §1926.150(c)(1)(vi), requires that a fire extinguisher be available within 50 feet of the site. Therefore, to establish a violation of the amended standard, the burden is on the Secretary to establish, by a preponderance of the evidence, that (1) the employer had at least 5-gallons of flammable liquid in use, and (2) that there was no fire extinguisher within 50 feet of the jobsite. The evidence establishes that two 5-gallon containers of the “Weathered Membrane Cleaner” (“Cleaner”) and one 5-gallon container of Sure-Weld Bonding Adhesive (“Adhesive”) were in use at the time of the inspection. (Tr. 92, 112-113, 142, Stipulations (e), (i) and (l)). Two full 5-gallons of the adhesive were used only as a weight to secure some objects that were glued earlier. These two containers were not open and were not in use. (Tr. 138-139). The CSHO testified that, when he tipped Footnote the containers to read the labels, they felt “fairly full” and determined that each was more than half full. Therefore, he concluded that more than five gallons of flammable product was in use. (Tr. 22-23, 42, 148-149). He drew his conclusion based on his handling of the containers, his knowledge of 5-gallon containers, and his 20 years of experience. (Tr. 42, 150). Foreman Hache testified that each container of Cleaner and Adhesive contained less than a gallon of product. (Tr. 112-113). He testified that, as part of his routine morning inspection of the site, he checked to determine how much product was left by opening the cap and actually looking into each container. (Tr. 112). To look into the containers, he would pull the spout, unscrew the cap, and look inside. (Tr. 112). He testified that he could see clearly into the containers through the openings .which he estimated to be approximately the size of a Dixie Cup, or one and a half inches wide. (Tr. 126, 127). Hache testified that he has to determine the amount of product at the site because it is necessary to have sufficient quantity to do the job. (Tr. 132). He asserted that he has followed this procedure every morning for 17 years. (Tr. 132). Hache estimated that, in total, there was about three to three and a half gallons of product. (Tr. 113). He also testified that the CSHO never brought the quantity of product to his attention. He asserted that, if the CSHO had done so, he would have told him that there absolutely was not a total of five gallons of product in use. (Tr. 116). The record contains no indication that, during the inspection, CSHO LaRose was concerned about or considered the amount of product in use at the site. When he tipped the cans, he was not trying to determine the quantity of product, but attempting to read the warning labels. (Tr. 23, 42). The amount of product in the containers was not his focus. He made no comment or inquiry regarding the amount of product in the containers. (Tr. 115-116). No concern about the quantity of product was mentioned during the closing conference. (Tr. 70-71 120). Nowhere in his notes is there any mention regarding the amount of flammable product in use by Respondent. (Tr. 48, 57, Ex. R-2, pp. 2-3). Rather, his concern involved the originally cited standard which requires only “[a]ccess to all available firefighting equipment shall be maintained at all times Footnote .” Indeed, there is no evidence in the record to suggest that the CSHO even considered the quantity of the products in the containers until after the citation was amended. The inspection took place on February 1, 2013. The citation was issued nearly three weeks later, on February 20, 2013. Respondent’s notice of contest was filed on March 18, 2013. The Complaint, where the Secretary amended the citation, was not filed until May 20, 2013. The CSHO testified that he had no input in the decision to amend the citation (Tr. 36) and did not learn that the citation was amended until he learned that the matter was in contest. (Tr. 68). The record does not reveal when the CSHO learned that the matter was in contest. It is likely that the CSHO did not learn of the amendment until the complaint was filed, three and a half months after the inspection. However, at a minimum, it was some time after the notice of contest was filed, over one and a half months after the inspection. When he learned that the citation had been amended, the CSHO, for the first time, had to consider the quantity of product that was in each container. With no notes to refresh his recollection, the CSHO had to reach back into his memory to recall the quantity of product in use at the time of the inspection. When pressed for any documentation that the containers contained at least five gallons of product, he insisted that the documentation was in the photographs which showed only that the capacity of the containers was 5-gallons and his memory of the feel of the containers when tipped which, before the amendment, he never considered. (Tr. 67, Ex. C-3). Also, there were two identical cans of cleaner at the site. If, as he testified, the CSHO tipped the containers only to read the label, there was no reason for him to tip both containers of cleaner. This evidence demonstrates that the CSHO’s memory was inherently imprecise and unreliable Footnote . On the other hand, foreman Hache was responsible for the work. His job required him to pay attention to details of the site, including the amount of product on the job. Rather than merely tipping the containers to read the labels, he actually opened the containers and looked inside for the express purpose of determining the quantity of fluid inside each. His recollection of the amount of product in use was not something he was asked to recall, out of the blue, months after the event, not having paid any attention to it until the citation was amended. Rather, determining the amount of product on the site was an important part of his daily routine. Having observed the witnesses and considering the totality of the evidence and the circumstances surrounding the inspection, I credit the testimony of foreman Hache Footnote and find that the Secretary failed to establish, by a preponderance of the evidence, that Respondent had at least five gallons of flammable product in use at the time of the inspection Footnote . Findings of Fact and Conclusions of Law The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Conclusion and Order Having failed to establish by a preponderance of the evidence that Respondent had five gallons or more of flammable liquid in use at the time of the inspection, I find that the Secretary failed to establish a violation of 29 C.F.R. §1926.150(c)(1)(vi). Accordingly, it is ORDERED that citation 1, item 1 alleging a serious violation of 29 C.F.R. §1926.150(c)(1)(vi) and the proposed penalty are VACATED. So Ordered. . /s/ 13-0531academyroofingcorp-finaldecision.gif 13-0531academyroofingcorp-finaldecision1.gif Carol A. Baumerich Judge, OSHRC Dated: September 15, 2014