General American Transportation Corporation

Plain-English summary

The judge affirmed citation items involving combustible material near oxygen storage, paint-spill cleanup, paint-residue accumulations, damaged crane slings, and machine guarding at General American Transportation's plant. Commissioner Cleary would have affirmed each item based on the cited conditions and the employer's compliance obligations. Chairman Buckley would have vacated them because he found gaps in proof that the standards applied or that employees were exposed, or because the company lacked notice of sling defects. The two Commissioners vacated the direction for review to resolve their deadlock. The judge's affirmance of the five items therefore became the appealable final order, but retained only the precedential value of an unreviewed judge's decision. The Commission decision does not state penalty amounts.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.104(b)(3)(x), 29 C.F.R. § 1910.106(e)(9)(i), 29 C.F.R. § 1910.107(g)(2), 29 C.F.R. § 1910.184(d), 29 C.F.R. § 1910.184(f)(5)(i), and 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Direction for review vacated; the judge's affirmance of all five citation items became final.
• Key point: The Commissioners' item-by-item deadlock left the judge's rulings in place without Commission precedent on the merits.

Full text (OSHRC public release)

Docket No. 79-7105

SECRETARY OF LABOR,

Complainant,

v.

GENERAL AMERICAN TRANSPORTATION

CORPORATION,

Respondent.

OSHRC Docket No. 79-7105

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

Former Commission Judge Erwin L. Stuller affirmed five items of a citation
issued to General American Transportation Corporation ("GATC").  Review was
directed to determine whether the judge erred in affirming those five items.  The two
participating Commission members are divided on whether the judge's decision should be
affirmed or reversed with respect to each item on review. [[1]]

Item 1 of the citation alleges that oil-soaked ground and dry grass were located within 50
feet of a bulk oxygen storage tank, in violation of 29 C.F.R. � 1910.104(b)(3)(x).[[2]]
  Commissioner Cleary would affirm the judge's finding that the oil-soaked grass at
issue was a combustible solid that would burn as rapidly as excelsior.  The testimony
at the hearing was that there was long dry grass, saturated to some extent by oil, and
that it was within three feet of the pad on which the oxygen storage tank was located.
Commissioner Cleary notes that there is another standard, at 29 C.F.R. � 1910.104(b)(10),
that covers the hazard of the proximity of grass to storage tanks.  He concedes that
that standard might also be applicable, but he would conclude that either standard could
have been cited.  Commissioner Cleary would therefore affirm the judge.

Chairman Buckley would conclude that the cited standard does not apply to dry
grass.  See Clement Food Co ., 84 OSAHRC __, 11 BNA OSHC 2120, 1984 CCH
OSHD � 26,972 (No. 80-607, 1984), pet. for rev. filed , No. 84-2229 (10th Cir.
Sept. 11, 1984) (The Secretary must establish the applicability of the cited standard as
part of his prima facie case); Power Plant Division , Brown &
Root , Inc ., 82 OSAHRC 40/A2, 10 BNA OSHC 1837, 1982 CCH OSHD � 26,159 (No.
77-2553, 1982) (same); Belger Cartage Service, Inc ., 79 OSAHRC 16/B14, 7 BNA
OSHC 1233, 1979 CCH OSHD � 23,440 (No. 76-1480, 1979) (same).  The judge correctly
concluded that the standard does not apply to oil residues because oil is a liquid rather
than a solid.  Moreover, because "long dry grass" is expressly permitted at
a distance of 15 feet from a bulk oxygen storage container by these standards, see
29 C.F.R. � 1910.104(b)(10), it necessarily follows that long dry grass is not among the
solid materials that must be kept at least 50 feet away from the storage container under
the standard cited by the Secretary.  Chairman Buckley would therefore vacate the
item. Because the Secretary has not sought leave to amend under Fed.R.Civ.P. 15(b) and the
parties did not try the issue of a violation of other standards, Chairman Buckley would
not reach the question of whether a different standard applies or was violated.  See
McWilliams Forge Co ., 84 OSAHRC _____, 11 BNA OSHC 2128, 1984 CCH OSHD � 26,979
(No. 80-5868, 1984), pet. for rev. filed , No. 84-3587 (3rd Cir. Sept. 14, 1984).

Item 2 of the citation alleges that paint spills in GATC's paint-mixing room
were not cleaned up promptly in accordance with 29 C.F.R. � 1910.106(e)(9)(i). [[3]]
Commissioner Cleary would reject GATC's exceptions to the judge's disposition of this
item.  He defers to the judge's credibility determination, which discredited the
testimony that paint spills could not have been cleaned up more frequently.  The
evidence is that the paint residues were quite thick and there were rags embedded within
the paint.  In any event, even if the testimony relied on by GATC were to be
credited, it would not meet GATC's burden of proving that it was impossible to comply with
the standard by cleaning up paint spills promptly.  Commissioner Cleary would also
affirm the judge's finding, based on the compliance officer's testimony, that the cited
conditions created a serious fire hazard.  GATC raises no issue concerning the
applicability of the cited standard to the cited conditions.  Commissioner Cleary
would therefore affirm the judge without addressing the applicability issues raised by
Chairman Buckley.

In Chairman Buckley's view, the Secretary failed to establish that the cited
standard applies to the cited conditions.  See Clement Food Co. ,
supra ; Power Plant Division, Brown & Root , supra ; Belger
Cartage Service, Inc., supra .  The standard regulates "flammable or
combustible liquids" as those terms are specifically and precisely defined in the
standard.  See 29 C.F.R. �� 1910.106(a)(18) & (19).  Whether a
liquid is categorized as flammable or combustible depends on the "flashpoint" of
the liquid. The means to calculate the flashpoint is set forth in the standard as well.
  See 29 C.F.R. � 1910.106(a)(14).  Here the Secretary failed to prove
that the spilled paints at issue were flammable or combustible using this calculation and
the definitions in the standard.  Although the compliance officer expressed his
opinion that the spilled paints were flammable or combustible, he did not explain the
basis for his conclusory opinion and he did not testify that he based his opinion on the
definitions in the standard. Accordingly, Chairman Buckley would vacate the item.[[4]]

Item 3 alleges that deposits of combustible paint residues had accumulated on
the floors, walls, and catwalks of two paint-spraying areas in violation of 29 C.F.R. �
1910.107(g)(2).[[5]]  Commissioner Cleary concludes that the Secretary met his burden
of proving that the two paint-spraying booths identified in the citation were
"spraying areas" as defined in section 1910.107(a)(2).  The standard
provides that the Secretary must show either dangerous quantities of flammable vapors or
mists or that combustible residues are present due to the operation of spraying
processes.  The record in the case shows the existence of considerable deposits of
combustible residues within the two booths.  In fact, it was not contested that these
were spraying areas or that the residues were combustible.  In addition, Commissioner
Cleary concludes that the record established GATC's noncompliance with the cited standard
because (a) the cleaning schedule followed by GATC was inadequate to prevent hazardous and
unnecessary accumulations of combustible residues and (b) more frequent cleaning of the
booths would have been "practical."

Chairman Buckley concludes that this item must be vacated because the
Secretary failed to prove that the two areas at issue were "spraying areas," and
therefore failed to prove that the cited standard applies to the cited conditions.  See
Clement Foods Co. , supra ; Power Plant Division, Brown & Root, Inc .,
supra ; Belger Cartage Service, Inc ., supra .  The Secretary did
not demonstrate that "dangerous quantities of flammable vapors or mists" were
present.  See 29 C.F.R. � 1910.107(a)(2).  Nor did he sustain his burden
of proving, as the standard requires, that the paint residues or deposits observed by the
compliance officer constituted "dangerous quantities of . . . combustible residues,
dusts or deposits."  See 29 C.F.R. � 1910.107(a)(2).  Moreover,
although some paint residues or deposits had accumulated in the two areas, there was no
proof that the paints used by GATC were "combustible liquids" within the meaning
of the Secretary's standards.  Because the standards pertain only to flammable or
combustible liquids, paint residue cannot be classified as combustible unless the paint
itself is combustible as a liquid.  See �� 1910.106(a)(14), (18) & (19).
  Therefore, the Secretary failed to meet his burden of demonstrating the
applicability of the cited standard to the two areas at issue and item 3 must be vacated.

Item 6 of the citation contains two separate but related allegations.
 Subitem 6A alleges that GATC failed to immediately remove from service a crane sling
with a badly burned link and that it thereby failed to comply with 29 C.F.R. �
1910.184(d).  Subitem 6B alleges noncompliance with 29 C.F.R. � 1910.184(f)(5)(i)
based on GATC's failure to immediately remove two wire rope slings from service.
 These two slings each had over 10 broken wires in one rope lay.[[6]]

Commissioner Cleary would hold that the Secretary established GATC's
noncompliance with the cited standards and its violation of the Act by proving (a) that
three defective slings were either in use or available for use and therefore not removed
from service and (b) that GATC could have known of the defects with the exercise of
reasonable diligence.  With respect to subitem 6A, Commissioner Cleary would adopt
the judge's reasoning in affirming the allegation.  With respect to subitem 6B,
Commissioner Cleary concludes, contrary to GATC's arguments, that the Secretary met his
burden of proving (a) that the slings were available for use in a damaged condition and
(b) that they had not been removed from service.

Chairman Buckley agrees with GATC that the Secretary failed to prove
violations of the two cited standards.  The standards require employees to inspect
slings at indicated times and to "immediately" remove slings from service when
the inspection discloses conditions warranting removal.  The Secretary does not
allege that GATC's inspections were inadequate or not timely.  Since GATC did inspect
these slings as required and there is no evidence even suggesting that GATC was aware of
the defects, the Secretary did not prove that GATC violated its duty to remove the slings
from service immediately upon discovery.  Accordingly, Chairman Buckley would vacate
the two subitems.

Finally, item 7 alleges that two areas of a multi-purpose, metal-working
machine were not guarded so as to prevent employees from having any part of their bodies
in the danger zone during angle-shear and bar-shear operations.  The standard
allegedly violated is 29 C.F.R. � 1910.212(a)(3)(ii).[[7]] The two Commissioners disagree
as to whether the Secretary met his burden of proving that the angle-shear and bar-shear
operations exposed the machine operator to injury.  Commissioner Cleary would hold
that the Secretary sustained his burden of proving that guarding was required under the
standard.  There was uncontroverted testimony that the operator of the machine could
reach into the point of operation. 

Chairman Buckley would vacate the item.  The record establishes that the
ordinary work station of the machine operator is on the side of the machine where the
"feed slots" and the foot pedal are located.  All openings into the
machine's points of operation on this side of the machine were guarded at the time of the
inspection.  The unguarded openings at issue are the openings next to the off-load
tables, which are on the right-hand side of the machine as seen by the operator from his
normal working position.  Although the openings lead to the respective points of
operations, the cutting blades are set back from the openings, apparently as much as 41
inches behind the off-load tables and the openings.  The record indicates that it
would be difficult if not impossible for an operator to come into contact with the cutting
blades while the machine is operating, due to the distance between the openings and the
blades, as well as the location of the openings.  On this record, Chairman Buckley
concludes that the Secretary failed to prove that either of the cited operations exposed
the operator to injury.

Under section 12(f) of the Act, 29 U.S.C. � 661(e), official action can be
taken by the Commission with the affirmative vote of at least two members.  To
resolve their impasse as to the issues before the Commission on review and to permit the
case to proceed to a final resolution, Chairman Buckley and Commissioner Cleary have
agreed to vacate the direction for review.  E.g ., Texaco, Inc. , 80
OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD � 24,634 (Nos. 77-3040 & 77-3542, 1980).
 The Commission members have discretion under the Act and the Commission's Rules of
Procedure to direct review of a judge's decision.  Section 12(j), 29 U.S.C. �
661(i); 29 C.F.R. � 2200.92.  In the absence of a direction for review, the judge's
decision becomes a final order of the Commission and can be appealed by an aggrieved party
to a United States court of appeals.  Sections 10(c), 11(a) and (b) and 12(j), 29
U.S.C. �� 659(c), 660(a) and (b), 661(i).  The judge's decision in this case
therefore becomes the appealable final order of the Commission, but is accorded the
precedential value of an unreviewed judge's decision.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  OCT 5, 1984

The Administrative Law Judge decision in this matter is unavailable in this format.
 To obtain a copy of this document, please request one from our Public Information
Office by e-mail ( [email protected] ),
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FOOTNOTES:

[[1]] As established by the Act, the Commission is composed of three members.
 Section 12(a), 29 U.S.C. � 661(a).  Presently, the Commission has two members
as a result of a vacancy.

[[2]] The standard provides:

� 1910.104 Oxygen .

(b) Bulk oxygen systems ---

(3) Distances between systems and exposures -- (i) General .
  The minimum distance from any bulk oxygen storage container to exposures . . .
shall be as indicated in paragraphs (b)(3)(ii) to (xviii) of this section inclusive.

(x) Highly combustible materials .  Fifty feet from solid
materials which burn rapidly, such as excelsior or paper.

[[3]] The standard provides:

� 1910.106 Flammable and combustible liquids .

(e) Industrial plants --

(9) Housekeeping -- (i) General .  Maintenance and operating practices
shall be in accordance with established procedures which will tend to control leakage and
prevent the accidental escape of flammable or combustible liquids.  Spills shall be
cleaned up promptly.

[[4]] Chairman Buckley also notes that the cited standard is limited in its
application to "industrial plants" where the use of flammables or combustibles
is "only incidental" to the business of the company.  See 29 C.F.R.
� 1910.106(e)(1).  Assuming the paints are flammable or combustible, the record does
not show whether GATC's workplace is one in which their use is "only incidental"
to work done in the plant.  See St. Regis Paper Co. , OSHRC Docket No.
77-1385 (August 28, 1984).

[[5]] The standard provides:

� 1910.107 Spray finishing using flammable and combustible materials .

(g) Operations and Maintenance --

(2) Cleaning .  All spraying areas shall be kept as free from the accumulation
of deposits of combustible residues as practical, with cleaning conducted daily if
necessary. . . .

The key term "spraying area" is defined at � 1910.107(a)(2) as
"[a]ny area in which dangerous quantities of flammable vapors or mists, or
combustible residues, dusts, or deposits are present due to the operation of spraying
processes."

[[6]] The standards provide:

� 1910.184 Slings .

(d) Inspections .  Each day before being used, the sling and all fastenings and
attachments shall be inspected for damage or defects by a competent person designated by
the employer.  Additional inspections shall be performed during sling use, where
service conditions warrant.  Damaged or defective slings shall be immediately removed
from service.

(f) Wire rope slings .

(5) Removal from service .  Wire rope slings shall be immediately removed from
service if any of the following conditions are present:

(i) Ten randomly distributed broken wires in one rope lay, or five broken
wires in one strand in one rope lay.

[[7]] The standard provides:

� 1910.212 General Requirements for all machines .

(a) Machine Guarding --

(3) Point of operation guarding .

(ii) The point of operation of machines whose operation exposes an employee to injury,
shall be guarded.  The guarding device shall be in conformity with any appropriate
standards therefor, or, in the absence of applicable specific standards, shall be so
designed and constructed as to prevent the operator from having any part of his body in
the danger zone during the operating cycle.