Peavey Grain Company

Plain-English summary

Peavey Grain operated a grain-handling facility where a temporary employee suffocated after becoming buried in grain inside a storage building. OSHA cited Peavey's emergency action plan because it lacked provisions for rescue and medical duties and did not provide an employee alarm system. The Commission treated the rescue-duty allegation as abandoned because the parties tried the case on the premise that such duties had to be listed only when employees were assigned to perform them. It affirmed the alarm-system violation because an employee in the tunnel below the storage building needed warning to shut down operations or evacuate, but could not reliably hear a shouted alarm from above. The violation was serious, and the Commission affirmed a $700 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.272(d); 29 C.F.R. § 1910.38(a)(2)(iv); 29 C.F.R. § 1910.38(a)(3)(i); 29 C.F.R. § 1910.165(b)(5)
• Outcome: The serious emergency-alarm violation was affirmed with a $700 penalty; the rescue-duty allegation was treated as abandoned.
• Key point: Direct voice communication satisfies the small-workplace alarm exception only when every employee who needs the warning can hear it.

Full text (OSHRC public release)

Docket No. 89-3046

SECRETARY OF LABOR,

Complainant,

v.

PEAVEY GRAIN COMPANY,

Respondent.

OSHRC Docket No. 89-3046

DECISION

Before: FOULKE, Chairman: WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

In Hereford, Texas, a town located approximately
40 miles southwest of Amarillo, Peavey Grain Company ("Peavey" or "the
Company"), a division of ConAgra, Inc., operates a grain-handling and merchandising
facility.  It consists of an office, two grain elevators and various grain storage
sheds.  After a fatality in a grain storage shed during the month of June 1989, the
Occupational Safety and Health Administration ("OSHA"), of the United States
Department of Labor, conducted an inspection and issued a serious citation.  One item
of the citation alleged noncompliance with OSHA standards regarding emergency action
plans.  Peavey contested the citation, and the parties presented evidence to an
administrative law judge of the Commission, who thereafter affirmed the citation item
regarding Peavey's emergency action plan. [[1]]

I. The Relevant Standards

A. The Standards Cited in the Pleadings and
Tried by the Parties

29 C.F.R. � 1910.272(d) requires employers who
operate grain handling facilities to "develop and implement an emergency action plan
meeting the requirements contained in � 1910.38(a) [of 29 C.F.R. Part 1910]."  
Peavey's citation alleged noncompliance with � 1910.272(d) and � 1910.38(a), in that:

[Peavey had not] developed and implemented an
emergency action plan which meets the requirements contained in 1910.38(a): Elements of
the emergency action plan that need to be emphasized are 1910.38(a)(2)(iv) rescue and
medical duties for those that are to perform them and 1910.38(a)(3)(i) alarm system for
use during an emergency situation.

Section 1910.38(a)(2)(iv) specifies the
following element that--"at a minimum"--an employer must include in any
emergency action plan: "Rescue and medical duties for those employees who are to
perform them[.]"  Section 1910.38(a)(3)(i) specifies that the employer must
"establish an employee alarm system which complies with � 1910.165 [of 29 C.F.R.
Part 1910]."  At the hearing and in their arguments, the parties referred
particularly to � 1910.165(b)(5).  It states:

The employer shall establish procedures for
sounding emergency alarms in the workplace.  For those employers with 10 or fewer
employees in a particular workplace, direct voice communication is an acceptable procedure
for sounding the alarm[,] provided [that] all employees can hear the alarm.  Such
workplaces need not have a back-up system.

B. Standards that Explain the Requirement for an
Emergency Alarm

The purposes of the emergency alarm that employers must have are standard in �
1910.165(b)(1): "[To] provide warning for necessary emergency action as called for in
the emergency action plan, or for reaction time for safe escape of employees from the
workplace or the immediate work area, or both."  The purposes are reiterated in
� 1910.165(b)(3), which indicates that the alarm shall be "a signal to evacuate the
work area or to perform actions designated under the emergency action plan."

Section 1910.165(b)(4) indicates that employers'
emergency action plans do not necessarily have to designate use of the alarm for the
purpose of summoning the local fire department or rescue squad or alerting the appropriate
person to do so; instead, employers may train employees in the use of the telephone or
other devices for accomplishing these particular emergency actions:

The employer shall explain to each employee the
preferred means of reporting emergencies, such as manual pull box alarms, public address
systems, radio or telephones.  The employer shall post emergency telephone numbers
near telephones, or employee notice boards, and other conspicuous locations when
telephones serve as a means of reporting emergencies.  Where a communication system
also serves as the employee alarm system, all emergency messages shall have priority over
all non-emergency messages.

Also, � 1910.38(a)(3)(ii) states: "If the
employee alarm system is used for alerting fire brigade members, or for other purposes, a
distinctive signal for each purpose shall be used."  Moreover, one element that
� 1910.38(a)(2)(v) includes in an emergency action plan is "[t]he preferred means of
reporting fires and other emergencies[.]"  In sum, an alarm system is not the
only "means" that the standards permit for "reporting fires and other
emergencies."

II.  The Facts

Seven persons comprised the full-time workforce
at the plant: the Plant Manager, Mark Black; two office secretaries; the plant
superintendent, Joseph Neville; a lead man, Jesse Andrade; and two laborers, Lane Warren
and Rodney Eubank.  The four temporary employees were Kenneth Hackworth, Pete Gaitan,
Tim Goodman, and Harold Sanders.  Employee Hackworth was about twenty-five years old;
the three others were eighteen or nineteen.

A.  The Accident

Plant Manager Black hired the temporary
employees to partly empty a "flathouse," a barn-like grain-storage shed
measuring 205 feet long, 78 feet wide, and more than 25 feet high.  The flathouse was
capable of holding approximately 490,000 bushels of corn, but at the time it held fewer
than 200,000 bushels.  Some grain had been drained through trapdoors in the floor,
below which was a conveyor belt in an underground tunnel leading to the building's
exterior; there, the grain was loaded onto trucks.  Supervisors positioned the
temporary employees in the flathouse on the concrete floor that had been cleared, near the
two westernmost trapdoors, about 15 to 20 feet inside the western entrance.  The
employees' assignment was to shovel into the trapdoors the grain remaining piled against
the walls.  While the employees were "pulling" the grain down from piles,
which were approximately 20 to 25 feet high, there may have been up to several feet of
grain where the employees were standing.  During this work, employee Sanders got
"stuck" under a pile of grain.  It collapsed around and over him: he became
buried, could not be uncovered quickly enough, and suffocated.

The record indicates that the temporary
employees were inexperienced in grain-handling.  The two temporary employees who
testified, Hackworth and Gaitan, had never before worked in a grain-handling facility, and
two of the young men, Gaitan and Sanders, had just graduated from high school.  Their
supervisors had not specified what they should do in an emergency, or whom they should
contact.[[2]]  There was no alarm in the flathouse or in any other part of the plant.
  Also, in the flathouse there was no means by which to stop the conveyor that
operated in the tunnel below.  According to employee Hackworth and OSHA compliance
officer Guadalupe Rodriguez, whose testimony was based on an inspection that included
interviews with employees and supervisors, the temporary employees panicked when employee
Sanders became stuck in the grain.  Employee Hackworth estimated that approximately
15 to 20 minutes elapsed from his first realization that there was an emergency to the
arrival of fire department personnel.  Of this time, 10 minutes or more may have been
lost while the employees themselves tried to uncover employee Sanders; employee Hackworth
estimated that the fire department arrived approximately 5 to 10 minutes after he sent one
or more of the temporary employees to get help.

At the time of the accident, superintendent
Neville was down in the tunnel below the flathouse, operating the conveyor and blending
grain. [[3]]  He came outside not because he heard any outcry from the temporary
employees but because he saw a truck outside waiting to be loaded.  When he looked
toward the flathouse, he noticed a temporary employee outside talking to laborer Eubank.
Realizing that something must be wrong, Neville went over, learned what had happened and
told the temporary employee to run to the office to tell Plant Manager Black.  The
plant manager, on learning of the accident, called the fire department.  Located only
several blocks away, it responded promptly.  In the meantime, Neville had hurried to
the western end of the flathouse.  The testimony of several witnesses indicates that,
at some point, someone returned to the conveyor under the flathouse and shut the conveyor
off.

B. The Investigation

Compliance officer Rodriguez came to the
worksite the day after the accident.  He photographed the area where the body of
employee Sanders was found, approximately 60 feet from the western end of the flathouse.
  He noticed that Peavey had posted emergency telephone numbers, including the fire
department's, but he did not obtain a copy of an emergency action plan.

According to Plant Manager Black, a plan was in
effect at the plant when the accident occurred, and a copy is in evidence.  Also in
evidence is a loss prevention report generated by ConAgra's insurance company, based on
its own inspection shortly after the emergency.  Under the heading of "Important
Changes," the report notes that "[a]n adequate Emergency Action Plan and
self-inspection program are being maintained."  This notation of a change
suggests that Peavey only recently began maintaining a plan as extensive as the one that
is in evidence.

Peavey's emergency action plan does not
specifically address the hazard of sliding grain, although a number of other hazards are
addressed, including chemical exposures, fire and explosion, severe weather and nuclear
attack.  The plan does not designate employees to perform rescue or medical duties
and does not provide for an alarm.  Instead, in event of emergency, the affected
employees are to turn off utilities and shut down operations before evacuating, report the
emergency to the supervisor or the office, and assemble at the office. [[4]]

Compliance officer Rodriguez believed that the
Company did not have all of the elements of a prescribed emergency action plan. He
testified specifically that Peavey should have had an alarm system equipped to sound
different alarms corresponding to the different work areas at the facility, so that the
managers could immediately ascertain where any emergency was taking place.  He
believed that an alarm system's primary purpose is to alert personnel outside of the
immediate area in which an emergency is taking place.  Because the Company's
employees worked in different buildings or task areas, separated by distance or physical
barriers, and therefore could not hear shouted outcries of alarm from one task area to
another, the compliance officer believed that Peavey's facility needed to have an alarm
system.  On the basis of his inspection and interviews with Peavey's employees and
supervisors, the compliance officer formed the opinion that an employee in the tunnel
underneath the concrete floor of the flathouse "wouldn't have been able to hear
anybody hollering" in the flathouse; in this particular instance, Superintendent
Neville "didn't really hear anybody" while he was inside the tunnel, and didn't
emerge because he heard anything.  Therefore, the compliance officer believed that
the supervisor would not have heard the employees, even "had they been hollering
inside there."[[5]]

Darrel Neely, ConAgra's Associate Corporate
Safety Director and Senior Risk Analyst, testified regarding his opinion that Peavey's
emergency action plan met all applicable OSHA requirements.  He had participated in
the promulgation of OSHA's grain-handling standards and, based on that experience and
experience as ConAgra's safety director, he had understood the standards to permit voice
communication instead of an alarm system in buildings having ten or fewer employees.
  He believed that the standards' purpose is to ensure the swift evacuation of a
building or work area.

He also commented that it is inadvisable to rely
on employees to perform rescue operations, because fatalities only multiply when employees
instead of professional rescuers try to intervene.  Therefore, safety director Neely
noted that the industry does not train its own rescuers.

III. The Judge's Decision and the Parties'
Arguments

At the hearing, which was conducted by
Administrative Law Judge Dee C. Blythe, the parties' attorneys did not make opening or
closing statements to articulate their positions in detail.  The Secretary's attorney
only used his examination of the compliance officer to suggest the Secretary's positions
regarding the interpretation and application of the cited standards.  The Secretary's
attorney did not submit a brief after the hearing.  Only Peavey's attorney filed a
brief, arguing that the grain-handling facility had a complying emergency action plan and
that an alarm system was not required for the flathouse because it had contained fewer
than ten employees, who were able to hear each other and alert each other to emergencies.
[[6]]

In his decision, Judge Blythe noted that
Peavey's emergency action plan lacked a provision specifying employee "rescue and
medical duties," a matter which � 1910.38(a)(2)(iv) addresses.  The judge also
noted that the plan did not provide for an alarm system that complied with �
1910.38(a)(3)(i).  Because the whole grain-handling facility employed more than ten
persons and the employees "were scatt[er]ed among several structures on the
premises[,] including the office, the conveyor tunnel and a silo," the judge decided
that there should have been an alarm system.  The judge reasoned: "Obviously, an
alarm system could have shortened th[e] process" of calling the fire department to
the flathouse.  The judge did not consider Peavey's argument that the flathouse
itself was a "particular workplace" containing fewer than eleven persons and, as
such, did not require an alarm system.

Chairman Foulke directed the following issue for
review:

Whether the Administrative Law Judge erred in finding that Respondent failed to qualify
for the exception permitting use of a direct voice communication alarm system under 29
C.F.R. � 1910.165(b)(5)?

On review, Peavey continues to press its trial
position on this issue; namely, that a separate structure or work area having ten or fewer
employees is a "particular workplace" in which direct voice communication may be
used. 

T he Secretary, having now filed a brief,
acknowledges the essential validity of Peavey's position, but asserts that there remain
sufficient grounds for affirming the citation item.

The Secretary does not rely on Judge Blythe's
view that the exemption stated in � 1910.165(b)(5) is limited to entire facilities that
have ten or fewer persons. The Secretary also does not rely on compliance officer
Rodriguez's view that an alarm's purpose is to facilitate the summoning of emergency
services by alerting personnel throughout a whole plant to an emergency in one area of it.
[[7]] Instead, the Secretary refers to compliance officer Rodriguez's testimony that
Peavey should have had an alarm because voice communication from the flathouse could not
be heard in the tunnel under the flathouse. The Secretary agrees that a "particular
workplace" can be a particular work area or operation, but she argues that the
flathouse and the tunnel in this case would constitute one "particular
work-place" because, for one thing, an employee in the tunnel could not hear a
shouted request from the flathouse to turn off the conveyor and stop the grain flow. The
Secretary further argues that employees in the tunnel will, "[i]n all
likelihood," be exposed to "the devastating effects of a fire or explosion
occurring in the flathouse." The Secretary states that an alarm system's purpose is
"to notify affected employees of emergencies that may affect them." The
Secretary explains:

The standard differentiates between small
workplaces, where a simple shout will be sufficient to warn employees of an emergency, and
other multi-story buildings or a single-story building with interior sub-divisions, where
a more traditional type of alarm is necessary.... Therefore, the type of employee alarm
system that is acceptable under the standard will vary depending upon the characteristics
of the particular workplace in question. The suitability of the alarm is ultimately judged
upon whether all affected employees can be timely warned by the system that is used.

Neither party addresses that part of Judge
Blythe's decision that upheld the item because of Peavey's failure to designate
"[r]escue and medical duties for those employees who are to perform them[,]" as
required by � 1910.38(a)(2)(iv). The Company, in its petition and briefs, does not argue
that, Judge Blythe erred in upholding the item on the basis of � 1910.38(a)(2)(iv), but
the Secretary does not specifically argue that Peavey infringed � 1910.38(a)(2)(iv).

IV. Analysis

As we have indicated, the item alleged
noncompliance with � 1910.38 (a)(2)(iv) regarding rescue and medical duties and
noncompliance with � 1910.38(a)(3) regarding an alarm.  We will separately address
these charges.

A. Rescue and Medical Duties

Section 1910.38(a)(2)(iv) requires that an
emergency action plan include "[r]escue and medical duties for those employees who
are to perform them[.]" Judge Blythe found, accurately, that the Company's written
plan lacked any provision for medical and rescue duties.  The lack of such provision
does not, however, automatically establish a violation according to the theory under which
the parties evidently tried this case. All of the relevant testimony assumes that an
employer must designate rescue and medical duties only if the employer has assigned
employees to perform such duties.  This is the compliance officer's testimony:
"If [persons] have been trained in rescue, then they have to have certain procedures
that they follow..." (Emphasis added).  Although he testified that Peavey did
not have a prescribed emergency action plan, he did not testify that Peavey had trained
employees to perform rescue tasks. ConAgra's safety director explained that the industry
considers it unsafe to rely on employees as rescuers, and does not do so. The Secretary
did not refute the testimony of this witness familiar with the industry.

In short, the parties tried this case as if the
cited standard were nonmandatory, and the Secretary has not argued otherwise. We therefore
conclude that the Secretary has abandoned that part of the item that alleges that Peavey
violated � 1910.38(a)(2)(iv). [[8]]

B. The Lack of an Alarm System

At issue between the parties is the meaning in
this case--the factual application--of the phrase "a particular workplace,"
found in � 1910.165(b)(5), the standard to which the parties referred at the hearing and
one of the standards which, as we set forth at the outset of this opinion, the cited
standards incorporate by reference.  Section 1910.165(b)(5) establishes a requirement
that employers "establish procedures for sounding emergency alarms in the
workplace," but creates an exception for "employers with 10 or fewer employees
in a particular workplace."  These employers may use "direct voice
communication" to sound an alarm, "provided [that] all employees can hear the
alarm."

At the evidentiary hearing in this case, the
Secretary proved without dispute that Peavey had not established any procedure for the
sounding of an alarm at the workplace.  The record reveals that Peavey did not have
an alarm system at the workplace, and that Peavey's emergency action plan did not provide
for the sounding of any alarm.  Also, the parties did not dispute that the employees
had access to the various parts of the facility to which the cited standard indisputably
applies, and the parties did not dispute Peavey's knowledge of the allegedly violative
conditions.  See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD �
29,239, p. 39,157 (No. 87-1359, 1991) (elements of the Secretary's prima facie case).
  It therefore became Peavey's burden to establish that the Company qualified for the
exception stated in � 1910.165(b)(5). See StanBest, Inc., 11 BNA OSHC 1222, 1226, 1983-84
CCH OSHD � 26,455, p. 33,619 (No. 76-4355, 1983) (the party claiming an exception has the
burden to prove it comes within the exception). [[9]]

Peavey had more than ten employees, full-time
and temporary, at its facility, but the parties now agree that "a particular
workplace" can refer to something less than a whole facility.  That is, the
phrase can refer to separate work areas in the facility or structures comprising it. 
See 29 C.F.R. � 1910.165(b)(1) (an alarm "shall provide warning...for safe escape of
employees from the workplace or the immediate work area, or both" (emphasis added));
29 C.F.R. Part 1910, Subpart L, Appendix A, � 1910.165 Employee alarm systems, at 3.
Reporting alarms (employers may assure "that entire plants or high-rise buildings are
not evacuated for one small emergency").  Peavey has unquestionably established
that, in the various work areas or structures of its facility, there were ten or fewer
employees.  The remaining question raised by this record and actively disputed
between the parties is, then, whether "all employees can hear the alarm."

Reasonably construed, this language of �
1910.165(b)(5)'s exception indicates that a "direct voice communication" used to
sound an alarm in "a particular workplace" must be able to reach at least
"all employees" who need to hear the alarm; otherwise, the employer would not
have an effective alarm system.  An employer cannot define "a particular
workplace" so limitedly as to exclude those employees who need to hear an
alarm.  This is the exact proposition stated in the appendix to the standard, 29
C.F.R. Part 1910, Subpart L, Appendix A, to which the parties refer in their briefs on
review.  Regarding "[r]eporting alarms," the appendix specifies:

[I]n small workplaces, a simple shout throughout
the workplace may be sufficient to warn employees of a fire or other emergency.  In
larger workplaces, more sophisticated equipment is necessary so that entire plants or
high-rise buildings are not evacuated for one small emergency...The goal of this standard
is to assure that all employees who need to know that an emergency exists can be notified
of the emergency.  The method of transmitting the alarm should reflect the situation
found at the workplace.

As this passage indicates, one purpose of an
alarm is to assure prompt evacuation in the event of an emergency, such as a fire.
  In fact, as the standards set forth at the outset of this opinion indicate,
evacuation is the only specific purpose for which the Secretary has actually required an
alarm.  Employers, in their emergency action plans, may institute additional
purposes, but the Secretary has not actually required employers to plan any additional
purposes.  This scheme is prescribed in � 1910.165(b)(1): "The employee alarm
system shall provide warning for necessary emergency action as called for in the emergency
action plan, or for reaction time for safe escape of employees from... the immediate work
area...." See also 29 C.F.R. � 1910.165(b)(3) ("a signal to evacuate the work
area or to perform actions designated under the emergency action plan"); 29 C.F.R. �
1910.38(a)(3)(ii) (" [i]f the employee alarm system is used for alerting fire brigade
members...." (emphasis added)).  In sum, unless an employer's emergency action
plan calls for an action in addition to evacuation, evacuation is the function of an
alarm, including a voice alarm to warn ten or fewer employees in "a particular
workplace."  Peavey's emergency action plan calls for evacuation (if necessary),
turning off the utilities and shutting down operations (if time permits), and the
assembling of employees at the office in the event of certain emergencies (major fire,
tornado, explosions, major chemical releases from any nearby train derailment, and nuclear
attack or bomb threat). Also, in the case of explosion or major fire, the plan calls for
employees to telephone the fire department, or report the emergency to supervisors, or
radio the office.

We do not consider these reporting duties,
including contacting the office, to be emergency action for which the Secretary has
required an alarm.  As we have discussed, the Secretary has not specified that an
alarm is required for reporting an emergency to supervisors or for summoning the fire
department.  On the contrary, the Secretary's standards affirmatively indicate that
for these purposes, employers may use other means than alarms and, moreover, must
prescribe the particular reporting method in the emergency action plan.  See 29
C.F.R. � 1910.165(b)(4) (" [t]he employer shall explain to each employee the
preferred means of reporting emergencies, such as manual pull box alarms, public address
systems, radio or telephones"); 29 C.F.R. � 1910.38(a)(3)(ii) ("[i]f the
employee alarm system is used for alerting fire brigade members . . . ." (emphasis
added); � 1910.38(a)(2)(v) (one element of an emergency action plan--in addition to the
alarm--is "[t]he preferred means of reporting fires and other emergencies").

Evacuation and shutdown, however, are emergency
actions for which an alarm is required under � 1910.165(b)(1) and (3) of the Secretary's
standards.  As Peavey's plan indicates, evacuation and shutdown are responses to the
hazards of explosion or major fire, among other things.  The Secretary's citation in
this case was broad and general, not mentioning any particular hazards.  Because the
fatality in this case was caused by sliding grain in the flathouse, the parties focused
their evidence on that particular hazard rather than on other applicable hazards, such as
explosion or major fire in the flathouse.  However, the emergency action plan that
Peavey introduced into evidence establishes the potential for such hazards, and certain
testimony given at the hearing tends to confirm that such hazards can exist in the
flathouse.

Testimony from Peavey's supervisors reveals that
Peavey forbade smoking in the flathouse because of the dry grain and that the employees
shoveling grain in the flathouse wore, and were required to wear, dust masks because the
atmosphere was dusty.  Also, according to the compliance officer's testimony, he was
concerned not to trigger a dust explosion in the flathouse when he took photographs there.
  A preponderance of the evidence establishes that, in the event of a major fire
igniting the grain of the flathouse or an explosion combusting the dust, the tunnel would
likely be affected.  The dry grain in the flathouse flowed down into the tunnel and,
although the flathouse was separated from the tunnel by the concrete floor, one or more
trapdoors were open while the conveyor was running and an employee was down in the tunnel.

As we have stated, Peavey has the burden to
establish that it comes within the exception of � 1910.165(b)(5) permitting voice alarms
if all employees can hear them.  The burden therefore rested on Peavey to establish,
if possible, that any hazard arising in the flathouse would be limited to the flathouse,
where a shout of alarm could possibly be heard by all affected employees.  On this
record, however, we cannot find that a flathouse fire or explosion would necessarily have
been limited; in fact, we must find that a fire or an explosion in the flathouse would
likely have endangered an employee in the tunnel, as well as the employees in the
flathouse.  It is more likely than not, on this record, that employees in both work
areas would have had to be warned to evacuate if an explosion or a major fire occurred.

Peavey's proof that it qualifies for the
exception is even less strong regarding the shutdown of operations.  The parties
presented considerable evidence at the hearing, including testimony from several witnesses
showing that it was necessary to shut down the conveyor quickly when temporary employee
Sanders was buried in the sliding grain.  This testimony confirms the Secretary's
position that any employee in the tunnel must be able to hear an alarm emitted in the
flathouse and that the two work areas are one "particular workplace" within the
meaning of � 1910.165(b)(5).

Peavey presented no evidence to demonstrate that
a shout of alarm in the flathouse could be heard in the tunnel below, even though there
was testimony that tends to show the contrary.  The compliance officer's testimony
indicated that his inspection and interviews with Peavey's employees and supervisors led
him to conclude that an employee in the tunnel underneath the concrete floor of the
flathouse would not have been able to hear an alarm shouted in the flathouse.  Also,
the compliance officer found and Superintendent Neville's testimony indicates that, in
this case, the superintendent had not heard the temporary employees in the flathouse.
  We therefore conclude that Peavey has not established that its operations come
within the exception to � 1910.165(b)(5). The Secretary having established her case (in
particular, Peavey's failure to have an alarm between the flathouse and the tunnel), and
Peavey having failed to establish the exception, we affirm the citation item, as did the
judge. [[10]]

C. Fair Notice

Peavey strenuously argues on review that the
Secretary failed to give fair notice of her theory on the issues underlying the exception.
Peavey asserts that the Secretary's trial theory of these issues was not only amorphous
but materially different than the theory given in her brief on review, and that the
Secretary's failure to reveal her present theory at the trial below prejudiced Peavey's
ability to prove the exception.  For the following reasons, we reject Peavey's
arguments.

As we have discussed, � 1910.165(b)(5) and the
related standards in � 1910.165 and � 1910.38, as well as the appendix to � 1910.165,
give explicit notice as to the scope of the exception.  That is, these provisions and
amplifications, carefully and reasonably read, reveal to employers that, in OSHA's view,
they must consider the nature of the hazard that might arise and must ascertain which
employees need to be alerted to its occurrence. [[11]]  Therefore, even though the
compliance officer did not clearly explain the purpose of an alarm system under the
relevant OSHA standards or the reasonable meaning of the phrase "a particular
workplace," and the Secretary's attorney at the hearing did very little to illuminate
these matters, Peavey had an adequate opportunity to bring to light any pertinent facts
showing that the Company did qualify for the exception stated in � 1910.165(b)(5).

Furthermore, the record supports a finding that,
contrary to Peavey's assertions on review, the Secretary did sufficiently raise, at the
hearing, the theory that she now asserts on review, i.e., that the flathouse and tunnel
are one "particular workplace" which must have an alarm system, to alert the
employees to shut down operations and evacuate.  Several witnesses, including the
compliance officer, the two temporary employees, and Superintendent Neville, gave
testimony indicating that, when temporary employee Sanders was buried in the grain, it was
necessary to shut down the conveyor quickly.  The compliance officer and the two
testifying temporary employees also addressed the necessity to communicate with the tunnel
so that the conveyor could have been stopped in time to prevent the suffocation death.
  This evidence revealed that the hazard of suffocating in the flathouse was
connected with the operation of the conveyor in the tunnel, and gave notice regarding the
issue of whether the two areas must be considered one "particular workplace."
  In fact, the compliance officer explicitly propounded the view that the two areas
must be considered one, when he opined that Peavey did not qualify for the exception
permitting a voiced alarm because a shout from the flathouse could not be heard in the
tunnel, to summon help from that employee.

VI. Serious Classification and Penalty

Judge Blythe affirmed the violation as serious
and assessed a penalty of $700.  The record affirmatively establishes that the
Company's management knew of the lack of an alarm system and that the noncompliance
presented a substantial probability of death or serious physical harm.  Section
17(k), 29 U.S.C. � 666(k).  Also, the record reveals that Peavey employs up to 1000
employees at several facilities and, although the Company had no history of OSHA
violations and the compliance officer did not raise any question as to the Company's good
faith, the gravity of the violation was high in light of the hazards potentially involved.
We therefore affirm the penalty assessment of $700, on the basis of the factors stated in
� 17(j), 29 U.S.C. � 666(j).

VII. Order

Accordingly, for the reasons given in this
opinion, we affirm the citation item insofar as it alleges a serious violation of 29
C.F.R. � 1910.272(d) and � 1910.38(a)(3)(i).  We assess penalty of $700.

Edwin Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya Commissioner

Dated: November 20, 1991

SECRETARY OF LABOR,

Complainant,

v.

PEAVEY GRAIN CO., INC.,

Respondent.

OSHRC DOCKET NO. 89-3046

DECISION AND ORDER

Appearances:

Jerome T. Kearney, Esq., of Dallas, Texas

for the Complainant.

Dean G. Kratz, Esq., of Omaha, Nebraska

for the Respondent.

BLYTHE, Judge:

PROCEDURAL HISTORY

On his third day as a temporary laborer scooping
grain for the respondent, Peavey Grain Co., Inc. ("Peavey"), a grain storage and
shipping facility at Hereford, Texas, 18-year-old Harold Sanders was suffocated when he
was covered by moving grain on June 15, 1989.  He and three other young men were
hired to move corn to a conveyor running beneath a large rectangular storage building
called a "flathouse" which is capable of storing 500,000 bushels of corn but
then containing about 200,000 bushels.  Openings in the floor called
"doors" were opened to permit stored grain to fall on the conveyor.  The
four temporary employees scooped corn and moved it toward these doors.  Sanders
climbed too high on the pile of corn and was covered by it when it moved beneath him.
Efforts by his fellow workers and local firemen to rescue and resuscitate him were
unavailing.

A compliance officer ("CO") of the
Occupational Safety and Health Administration ("OSHA") investigated the fatality
on June 16 and 20, 1989, and as a result one citation was issued September 20, 1989, to
Peavey alleging serious violations of � 5(a)(2) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. � 651-678 ("the Act") and safety standards promulgated
thereunder. Peavey timely contested the citation and proposed penalty, thus involving the
jurisdiction of the Occupational Safety and Health Review Commission ("the
Commission"), a separate and independent tribunal established by Congress under �
10(c) of the Act to adjudicate contested issues arising thereunder.  A complaint
filed by the Secretary of Labor ("the Secretary") and an answer thereto from
Peavey put this cause at issue, and a hearing on the merits was held at Amarillo, Texas,
on March 15, 1990.  Only Peavey has filed a post-hearing brief.  It has also
filed proposed findings of fact and conclusions of law.

THE ISSUES

The jurisdiction and coverage allegations of the
complaint were admitted by Peavey's answer and were stipulated at the hearing. The issues
remaining to be determined are whether Peavey violated 29 C.F.R. � 1910.272 (e)(1)(ii)
(training of employees) and � 1910.272 (d) (emergency action plan) and the appropriate
penalty, if any.

THE STANDARDS

Item la of Citation 1 alleges a serious
violation of 29 C.F.R. � 1910.272(e)(1)(ii), which provides:

(e) Training .  (1) The employer
shall provide training to employees at least annually and when changes in job assignment
will expose them to new hazards.  Current employees, and new employees prior to
starting work, shall be trained in at least the following:

(ii) Specific procedures and safety practices
applicable to their job tasks including, but not limited to, cleaning procedures for
grinding equipment, clearing procedures for choked legs, housekeeping procedures, hot work
procedures, preventive maintenance procedures and lock-out/tag-out procedures.

Item 1b of Citation 1 alleges a serious
violation of 29 C.F.R. � 1910.272(d), which states:

(d) Emergency action plan .  The
employer shall develop and implement an emergency action plan meeting the requirements
contained in � 1910.38(a).

In turn, � 1910.38(a) provides, in pertinent
part as alleged in the citation:

(2) Elements .  The following
elements, at a minimum, shall be included in the plan:

(iv) Rescue and medical duties for those
employees who are to perform them;

(3) Alarm system .  The employer
shall establish an employee alarm system which complies with � 1910.165.

BACKGROUND FACTS

The flathouse where the fatality occurred is so
called to distinguish it from other grain storage facilities such as bins, silos and tanks
(Tr. 14).  Its width is greater than its height (Tr. 119).  As stated above, the
flathouse has a storage capacity of about 500,000 bushels and at the time here involved it
contained 200,000 bushels of corn (Tr. 18, 20, 119).

The flathouse is used to blend different grades
of corn (Tr. 14, 22, 118), and for this purpose a conveyor belt running through a tunnel
connected it with other storage facilities on the premises (Tr. 22).  To allow the
grain to flow by gravity onto the conveyor belt, there were sliding "doors" in
the floor of the flathouse (Tr. 22).  However, it was necessary to move the grain
toward the doors with shovels or scoops.  Four young men, three of them 18-year-olds
recently graduated from high school, were hired as temporary employees (Tr. 11).
  They worked less than three days when Sanders was killed (Tr. 12).

DISCUSSION AND OPINION

The parties disagreed at the hearing (Tr. 47) on
whether item 1(a) of the citation was limited to the final sentence thereof or whether all
employee training mentioned in the cited standard was at issue.  Despite a ruling in
favor of the first concept, both parties introduced extensive evidence on all aspects of
Peavey's training of new employees.

Therefore, the issue was waived.

There are numerous conflicts in the testimony
about this training.  In general, the surviving temporary employees testified that
the training was minimal, while Peavey's permanent employees testified otherwise. Probably
the truth lies somewhere in between.  Some of the temporary employees changed their
testimony on cross-examination.  Peavey's posthearing brief used over 16 pages
analyzing this testimony, but I do not deem it necessary to go into such detail.
  Peavey's five witnesses agreed that the temporary employees were told by Manager
Mark Black that they must not climb up on the piles of corn above their boot tops; that
corn tended to roll and was dangerous; that they should work from the west side where the
grain was shallow and scoop it toward the "doors" in the floor to the conveyor;
that they must not smoke and must wear dust masks; that they should avoid becoming
overheated and that they should take frequent drinks of water.  Exhibit R-1 contains
notes made by Manager Black to remind himself, before the employee interviews, of the
safety points to be covered. It seems logical to me that these essential points were
covered and I so find.

There is one gap in the testimony about safety
instructions, however.  The four temporary employees worked part of the second day in
the tunnel under the storage buildings (Tr. 148, 183-184), yet there is nothing in the
record about training the employees for this work.  However, the Secretary had the
burden of proof, and Peavey had no obligation to introduce such evidence since the
Secretary did not.

Of course, everybody was concerned with the
fatality, although the purpose of this proceeding is not to establish blame for the
accident.  Dye Const. Co. v. O.S.H.R.C ., 698 F.2d 423 (10th Cir. 1983).

As previously mentioned, the citation and
complaint specify the alleged lack of training as employees were "permitted to work,
walk and/or stand on grain more than waist height".  Technically, this does not
spell out a lack of training, but the parties litigated this point as if it did.
  Under either interpretation, Peavey would prevail.  There was ample proof that
the temporary employees were sufficiently instructed on this point.

Item 1b of citation 1 alleges a serious
violation of 29 C.F.R. � 1910.272(d), which is set out above.  Specifically this
subitem alleges:

1b

29 C.F.R. 1910.272(d):  Employer has not
developed and implemented an emergency action plan which meets the requirements, contained
in 1910.38(a):

Establishment at 101 S. Lee, Hereford, Texas:
  Elements of the emergency action plan that need to be emphasized are
1910.38(a)(2)(iv) rescue and medical duties for those that are to perform [sic] them and
1910.38(a)(3)(i) alarm system for use during an emergency situation.

The cited standard adopts by reference 29 C.F.R.
� 1910.38(a), which in turn adopts by reference 29 C.F.R. � 1910.165.  Section
1910.38(a), provides that the plan shall include "rescue and medical duties for those
employees who are to perform them."  Peavey's plan contains no such provision.
  Section � 1910.38(a)(3) requires "an employee alarm system which complies
with Section � 1910.165," which is lengthy and will not be set forth in full.
  It requires an auditory or visual alarm system, which Peavey did not provide.
  Peavy relies on an exception in � 1910.165(b)(5), which provides:

(5)  The employer shall establish
procedures for sounding emergency alarms in the workplace.  For those employers with
10 or fewer employees in a particular workplace, direct voice communication is an
acceptable procedure for sounding the alarm provided all employees can hear the alarm.
  Such workplaces need not have a back-up system.

Peavey claims that it qualifies for this
exemption because it had only nine employees, and that they were close enough together for
voice communication.  Peavey has the burden of proving that it comes within this
exemption.  Finnegan Construction Co. Inc ., 78 OSAHRC 31/B3, 6 BNA OSHC 1496,
1978 CCH OSHD � 22,675 (No. 14536, 1978).  It failed to bear this burden in one and
perhaps two respects.  First, its employees were scatted among several structures on
the premises including the office, the conveyor tunnel and a silo.  Second, it
apparently had 11 employees, and not the 9 it claims.  The names of 9 appear in the
transcript, and in addition there were "secretaries" (plural) in the office,
according to Black's testimony (Tr. 140, 1 .25).

When the fatal accident occurred, there were
four temporary employees in the flathouse.  While two attempted to dig out the doomed
employee, the fourth Pete Gaitan, ran outside but seemed at a loss as to what to do.
  Joe Neville, a permanent employee had been working in the tunnel but had came out
and was loading a truck when he saw two other permanent employees standing near a corner
of the flathouse.  One of them, Tim Goodman, was waving his arms so Neville ran to
him, learned that a man was buried in the corn, and sent him to the office to alert Black.
  Black called the Hereford fire department and an ambulance, and the firemen took
over the rescue effort.  Obviously, an alarm system could have shortened this
process.  I find that Peavey's emergency action plan failed to meet the requirement
of � 1910.272(d).

The final issue is the appropriate penalty.
  The citation proposes and aggregate penalty of $800 of a possible $1,000 for the
two items.  If one assumes that the two items are of equal seriousness, the penalty
might be equally divided.  However, in my view the � 1910.272(d) item is the more
serious.  I find that there was a substantial probability that death or serious
physical harm could result from this violation, so it is serious under � 17(k) in the
Act.

Section 17(j) of the Act requires the
Commission, in assessing penalties, to consider the gravity of the violation and the
employers size, good faith and history of previous violations.  These factors need
not be accorded equal weight, but the gravity is usually of greater significance than the
others.  Colonial Craft Reproductions , 72 OSAHRC 11/B10, 1 BNA OSHA 1063,
1971-73 CCH OSHD � 15,277 (No. 881, 1972).  Elements to be considered in determining
gravity include the number of employees exposed to risk of injury, duration of the
exposure, precautions taken against injury, and the degree of probability of occurrence of
an injury. National Realty & Construction Co., Inc. , 72 OSAHRC 9/A2, 1 BNA OSHC
1049, 1971-73 CCH OSHD � 15,188 (No. 85. 1972) rev'd on other grounds , 489 F.2d
1257 (D.C. Cir. 1973).

Peavey is a large corporation with numerous
facilities for handling grain.  It has about 1,000 employees.  It is a
subsidiary of ConAgra, Inc.

No history of previous violations as proved.
  Its good faith was not questioned.  The gravity of the violation was high.
  On balance, I find a penalty of $700 to be appropriate.

FINDINGS OF FACT

1.  Peavey's answer admits the jurisdiction
and coverage allegations of the complaint.

2.  Peavey, a subsidiary of ConAgra Inc.,
is a large employer with approximately 1,000 employees.  It operates a grain handling
and storage facility at Hereford, Texas, which was the site of a fatal accident on June
15, 1989.

3.  An OSHA compliance officer investigates the fatality on June 16 and 20, 1989.
  As a result, one citation was issued to Peavey alleging two serious violations of
OSHA safety standards.

4.  On June 13, 1989, Peavey hired four
temporary employees to shovel grain (corn) in a large rectangular storage building called
a flathouse.  On the third day of their employment, one of the temporary employees,
Harold Sanders, was suffocated when the grain covered him.  On June 13, the four new
employees were instructed by Manager Mark Black on safety matters, including not getting
into grain over their boot tops.  These instructions were adequate for the work to be
performed.

5.  Peavey had an emergency action plan,
but it was deficient in that it did not provide for designation of employees to perform
rescue and medical and duties and it did not provide for an alarm system to summon aid in
an emergency.

6.  Peavey had at least ten and perhaps
eleven employees who were scattered in various facilities on the premises so that voice
communication among all of them was not possible.  Peavey does not qualify for the
exemption from the requirement for an alarm system.

7.  There was a substantial probability
that death or serious physical injury could result from this violation.

8.  The appropriate penalty is $700.

CONCLUSIONS OF LAW

1.  The Commission has jurisdiction of the
parties and of the subject matter of this proceeding.

2.  On June 16 and 20, 1990, Peavey was not
in violation of 29 C.F.R. � 1910.272(e)(1)(ii).

3.  On said date, Peavey was in serious
violation of 29 C.F.R. � 1910.272(d).

ORDER

1.  Subitem 1a of citation 1, alleging a
serious violation of 29 C.F.R. � 1910.272 (e)(1)(ii) is VACATED.

2.  Subitem 1b of citation 1, alleging a
serious violation of 29 C.F.R. � 1910.272(d) is AFFIRMED and a penalty of $700 is
ASSESSED.

3.  All proposed findings of facts and
conclusions of law inconsistent with this decision are DENIED.

So ORDERED.

DEE C. BLYTHE

Administrative Law Judge

Date: June 4, 1990

FOOTNOTES:

[[1]] The judge vacated another citation item, of which the Secretary does not seek
review, that alleged noncompliance with a standard pertaining to employee training.

[[2]] Plant Manager Black testified:

They were aware of who was in charge and who[m]
to report [to] in case they had any problems whatsoever.  Again, they have no need to
know who[m] to call and who[m] to contact or to use the phone. Our full-time employees
would take care of that as long as they are alerted to a problem.

[[3]] There were two tunnels at the plant, one
under the flathouse and the other connected to the elevator.  Lead man Andrade was in
the elevator tunnel on the day of the accident.  Superintendent Neville may have been
with him on the two preceding days, but the superintendent's testimony implies that he was
in the flathouse tunnel on the day of the accident.  He stated, in the context of
questions about the temporary employees' position in the flathouse on the third day:
  "I didn't see [laborer] Lane [Warren] place the [temporary] employees that
morning .... I proceeded to go underneath the concrete and blend grain." (Emphasis
added).

[[4]] Plant Manager Black gave his opinion that
an alarm system would have caused further delay in this case because, on hearing a signal,
someone would have had to find out what was the matter, then hurry to the office to
request that a telephone call be put through to the fire department.  He posited that
the existing system had been satisfactory in that the temporary employees were working
near each other, knew their supervisors, and could send someone to the office for help.

[[5]] Superintendent Neville did not state
specifically that he had been unable to hear any voice communication from the flathouse
while he was in the tunnel below, but his testimony gives rise to that inference.
  Moreover, Plant Manager Black did not make any claim in his testimony that
employees down in the tunnel could have heard shouts from the flathouse; nor did any other
witness provide such testimony.

[[6]] Peavey also argued that an alarm system
was not required for the whole facility because it had fewer than ten employees.  As
we have set forth, however, the number of employees on the worksite became eleven when the
four temporary employees arrived for work.  Judge Blythe so found and, on review,
Peavey explicitly accepts this finding.

[[7]] Although not arguing that employers must
use alarms to report emergencies, the Secretary notes that � 1910.165(b)(4) requires all
employers, regardless of number of employees, to inform employees of "the preferred
means of reporting emergencies" and argues that Peavey had not established any
"preferred means."  In the citation, however, the Secretary did not cite
this standard, nor did the parties address it at the hearing; they litigated only the lack
of an alarm.  Therefore, we will not consider the Secretary's arguments alleging a
need for improved instructions to the employees.  Compare Power Fuels, Inc., 14 BNA
OSHC 2209, 2210 n.3, 1991 CCH OSHD � 29,304, p. 39,343 n.3 (No. 85-166, 1991)
(affirmative defenses neither pleaded nor tried by consent); Stacey Manufacturing Co., 10
BNA OSHC 1534, 1537-38, 1982 CCH OSHD � 25,965, p. 32,560 (No. 76-1656, 1982)
("[t]he Commission will not generally consider nonjurisdictional issues that have not
been raised before the administrative law judge").

[[8]] Review necessarily includes any matter
essential to accepting or rejecting a judge's resolution of a citation item, see Donovan
v. A. Amorello & Sons, Inc., 761 F.2d 61 (1st Cir. 1985); Seward Motor Freight, Inc.,
13 BNA OSHC 2230, 2233, 1987-89 CCH OSHD � 28,506, pp. 37,785-86 (No. 86-1691, 1989), but
in this case we will not reach any issues of the merits of the alleged violation of �
1910.38(a)(2)(iv), including any issues of interpretation posed by the standard.

[[9]] The exception that � 1910.165(b)(5)
creates is similar to an affirmative defense in that, if established, it eliminates an
employer's duty to comply with the more particularized requirements of the standard.
  Compare Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1223-24 (No.
88-8821, 1991) (employer's burden of proof regarding affirmative defense justifying relief
from compliance); Stone Container Corp., 14 BNA OSHC 1757, 1751, 1987-90 CCH OSHD �
29,064, p. 38,817(No. 88-310, 1990) (circumstances constituting legal excuse for
noncompliance).

[[10]] Peavey's emergency action plan was
insufficient in that it made no provision for an alarm and Peavey's facility was
inadequately equipped in that it did not have an alarm system between the flathouse and
the tunnel.  The Company must train the employees in the operation of the alarm and
the hazards that may require its use.  See A.P. O'Horo Co., 14 BNA OSHC 2004, 2008,
1991 CCH OSHD � 29,223, pp. 39,129-30 (No. 85-369, 1991) (indicating that an employer's
safety rules ought to be more than "a paper program").

[[11]] See Armour Food Co., 14 BNA OSHC 1817,
1825, 1987-90 CCH OSHD � 29,088, p. 38,887 (No. 86-247, 1990) (reference to other
standards or codes to give meaning to broad terms found in OSHA standards); Vanco Const,
Inc., 11 BNA OSHC 1058, 1061, 1983-84 CCH OSHD � 26,372, pp. 33,453-54 (No.79-4945,
1982), aff'd, 723 F.2d 410 (5th Cir. 1984) (same).  See also Brennan v OSHRC (Santa
Fe Trail Transport Co.), 505 F.2d 869, 872 (10th Cir. 1974) (broad terms may be given
specific meaning by reference to the evident purpose of the standard and a reasonable
consideration of the facts to which it is to be applied); Ormet Corp., 14 BNA OSHC 2134,
2135-36, 1991 CCH OSHD � 29,254, p. 39,200 (No. 85-531, 1991) ("[g]iven the purpose
of the standard... the word 'near' means close enough... that it is reasonably foreseeable
that [employees] could be hit"); Cleveland Consol., 13 BNA OSHC 1114, 1116-17,
1986-87 CCH OSHD � 27,829 p. 36,428 (No. 84-696, 1987) ("'proximity' is an imprecise
word" that must be "examined in context," taking into account the
"evident purpose of the standard"); L.E. Myers Co., 12 BNA OSHC 1609, 1617,
1986-87 CCH OSHD � 27,476, p. 35,607 (No. 82-1137, 1986), rev'd only as to another item,
818 F.2d 1270 ("imprecise and relative terminology," such as the term
"area," must be applied in light of the factual circumstances relevant to the
hazard against which the standard is directed).