General Electric Company Aircraft Engine Group

Plain-English summary

General Electric manufactured aircraft engines at its Evendale, Ohio, facility. OSHA cited an electrical enclosure on a building column under the rule for damp or wet locations. The area was dry during the inspection and normally stayed dry, although earlier rainwater had leaked through the roof and left stains on the column. The Secretary argued that the column's concrete foundation and the temporary roof leaks made the location wet and required a weatherproof enclosure. The judge held that the regulation expressly allows a normally dry location to be temporarily damp or wet and found the Secretary's broader interpretation inconsistent with the rule's plain language. He vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.305(e)(1).
• Outcome: Vacated. The judge found that the cited enclosure was not in a damp or wet location covered by the standard.
• Key point: Temporary moisture from a repairable roof leak does not convert a normally dry indoor location into a wet location under the cited electrical rule.

Full text (OSHRC public release)

                                   UNITED STATES OF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMiSSldN
                                    One Lafayette Centre
                              1120 20th Street, N.W. - 9th Floor
                                 Washington, DC 200364419

wofe FAX:
cw(202)eQa-a1~ CO@WO2l#r
m cm -m ~6mmmmo

       SECRETARY       OF LABOR
                         Complainant,
                 v.                                                   OSHRC DOCKET
                                                                      NO. 92-2881
       GENERAL        ELECTRIC COMPANY AIRCRAFT
                           Respondent.


                              NOTICE OF DOCKETING     -
                       OF ADMINISTlL4TIVE U4W JUDGE’S DECISION
          The Administrative Law Judge’s Report in the above referenced case was
     docketed with the Commission on December 27, 1993. The decision of the Judge
     will become a final order of the Commission on January 26, 1994 unless a
     Commission member directs review of the decision on or before that date. ANY
   - PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
     COMMISSION MUST FILE A PEXI’ION FOR DISCRETIONARY REVIEW.
     Any such etition should be received b the Executive Secretary on or before
     January 1fr, 1994 in order to ermit sdi cient time for its review. See
     Commission Rule 91, 29 C.F.L. 2200.91.
         All further pleadings or communications       regarding this case shall be
      addressed to:
                             Executive Secretary
                             Occupational Safety and Health
                              Review Commission
                             1120 20th St. N.W., Suite 980
                             Washington, D.C. 20036-34 19
      Petitioning parties shall also mail a copy to:

                             Daniel J. &lick, Esq.
                             Counsel for Regional Trial Liti ation
                             Office of the Solicitor, U.S. DOf
                             Room S4004
                             200 Constitution Avenue, N.W.
                             Washington, D.C. 20210
      If a Direction for Review is issued by the Commission, then the Counsel for
      Regional Trial Litigation will represent the Department of Labor. Any party
      having questions about review rights may contact the Commission’s Executive
      Secretary or call (202) 6063400.

                                             FOR THE COMMISSION


     Date: December     27, 1993

DOCKET NO. 92-2881
NOTICE IS GLVEN TO TEE FCLLOWING:

Daniel J. MU, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So$ ‘citor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tg: e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

William V. Killoran, Jr.
Counsel - Environmental Affairs
GE Aircraft Engines
General Electric Co.
One Neumann Wa , MD T165A
Cincinnati, OH 45 l 15

Benjamin R. Lo e
Administrative fa w Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f!0204 3582

00103376547:05
 UIWED STAES of AMfRlcA
t)cCUPAllONAL SAFETY AND HEALTHREVIEWCOMMISSION
1244N. SPEER BOULEVARD
RooM2so

PHONE: FAX:
COM(303)w-2m cm (303) 84G3759
ns (303) 844-2281 m 003) 844-3759

-~-
SECRETARY OF LABOR,
Complainant,

        v.                                                   OSHRC Docket No. 92-2881

GENERALELECI’RICCOMPANY
AIRCRAFT ENGINE GROUP,
Respondent.
I

APPEARANCES:
Elhbctb R Ashky, Bq., Office of the Solicitor, U.S. Departmentof Lsbor,
aevltlond,
0th
wlliamV. Killotan,
Jt.,Esq.,OE Airaaft Engiaes, ChWatZ 0th

Before: Benjamin R. Lcye, Esq.

        This pmceedhg arises under the Occupational Safety and Health Act af 1970 (29

U.S.C section 651 a m.; hereafter called the “Act”).
Respondent, General Elextric Company, Aircraft Engine Group (GEM), at ail
times relevant to this action maintained a place of business at 1 Nueman Way, Evendale,
Ohio, where it was engaged in the manufacture of aircraft engines. Respondent admits it
is an employer engaged in a business affecting commerce and is subject to the require-
ments of the Act (Tr. 12).
 On June 2%23,1992 the Occupational safety and Health
. Administration (m)
aducwd an inspection of GEAE’s Evendak worksite pr. 17). As a result of the
inspection, GEAE was issued citations alleging violations of the Act together with pf01
posed penalties. By filing a timely notice of contest GEAE brought this proceed&
before the Occupational Safety and Health Review Commission (Commission).
Prior to hesring d items were set&d, with the exception Of “Serious” citation I.,
item 2, alleging violation of ~1910.3o~(e)(l). on September 14, 1993, a hearing was held
in Cincinnati Ohio, on the remaining issue. The parties have submitted brie& on the
issues and this matter is ready for disposition.
Issues
The sole issue to be determined here is the applicability of ~1910.305(ex1). T’he
cited section provides:
Et&suns for damp ur wet bcatihm. (1) Cabinets, cutout baom, &tings,
boxes, and panelboard enclosures in damp or wet locations shall be
installed s0 as to prevent moisture or water tirn entering 8nd
accumulating within the enclosures. In wet locations the enclosures &ill be
weatherproof. \
The Secretary maintains GEAE’s Column D-25, Buikiing B is a %et location”
both because the cohmn is sunk into a concrete foundatbn which is in contact with the
earth, and because the column was unprotected kom the weather due to roof leaks at
thetimeoftheirwpectian.

   ThcrekvantfWsinthiscascarenotindisputc.                 Thcpartiesstipulatethat:

hriq OsEIA &q&mcc 01E6icer(a)) John cobras June B,lm inspdcm ob
GEA,Es Building B, he examined the area around Column I%25 in the Jet Pacarea.
The column held a telephone, a switch for overhead lights, and an elect&al receptacle
with two three prcmged outlets. An electric water cooler was plugged into one of the
outlets. The area is normaI& dry. At the time of the inspection, conditions on and
around the column were dry; however, there was evidence of water stains runningdown
the column. Prior to the inspection, rainwater had leaked through the roof and run

                                            2

dm the cohmn during storms Fro 7-9; General Electric'r Response to scheduling
Order).
a June 2, 1992, and at times prior thereto, work orders were issued to repair
roof hks at &UIUI D-25 (Exh. R-l, R-22, R-26, R-27). The roof was eventually
replaced, and no kaks have been reported since September 1992 (Tr. 18,189,19748).

  Section 1910.305(e) dictates the type of electrical enclosures to be instakd in

damp or wet locations, dependent on the amount of moisture expected to be encoun-
tered in those locations. Locations are defined in 31920.399:
(i) Dump bcation. Partially protected locations under canopies, marquees,
roofed open porches, and like locations, and interior locations subject to
moderate degrees of moisture, such as some basements, some barns, and
some cold4orage warehouses.
(ii) By location. A location not normally subject to dampness or webxss.
A location classified as dry may be temporarily subject to dampness ar
wetness, as in the case of a buildingunder construction.
(iii) Wet tocation. Installations underground or in concrete SUN or
masonry in direct contact with the earth, and locations subject to saturatioa~
with water or other liquids, such a~ vehicle-washing areas, and locations
exposed to weather and unprotected.

   Building B in the GEAE facility is a roofed structure, located abovegrwnd Its

interior is not normally subject to moisture fbm exposure to the weather, direct contact
with the earth, or wet operations. Build& B is cleariy a “dzy area” which was tempo-
rarily subject to dampness due to roof feab.
complainant argues that its interpretationof the standard is entitled to deference.
a 0
However, the Supreme Court has bcld that a reviewing court, i.e. the Comrmsslon,
“should defer to the Secretary only if the secretary’s interpretation is wxmabk? Mbrzin
v. OSHRC (CFdilStccl Corp.), 111 S.Ct. 1171,118O (1991) (emphasis in the original).
Complainant’s interpretation is unreasonable, in that it is inconsistentwith the
plain language of the regulation itself. The definition of a “dry location” expressly pro-
vides for temporary exposures to dampness or wetness in covered buildins normally

                                           3

proteited
eomtheweather.
Thesecretary%interpretationlmlld include aq bb
temporarilycxpoed to weatherconditions(8~ wdl as aUbuiklinp with concrete fom-
tions) witbinthe dc6nitionprcnddcdfor Uwetlocations? Adoptingcomplainant’,hm-
pretation would extend the reach of ~1910.305beyond the standard’s plain meaning (LD~
deprive the empbyer of fair warning of the pro&iii conduct. It is well settled that the
Secretary may not so extend a standard’smeaning. Sb e.g., BWkhem SWt v. OSHRC,
573 F.2d 157 (3rd Ciro 1978); DPIM Corporationv, OSHRC, 613 F.2d 1227, (3rd C!k
1980).
The Secretary has failed to demonstrate the appkability of the cited standard
The citation will, therebre, be dismjsscd.

                     ridinns of Fact and Conclusionsof Laftr
     All 6ndin~ of f&t md concMons of law relevant and v             to a &ted

tion of the contested issues have been found specially and appear in the decision ati
h Ruk 52(a) of the Federal Rules of Civil Procedure.

1l Serious citafion 1, item 5 alleg@ violation of ~19lO3OS(e)(l) is VACATEID.

Dated: Demmber 17, 1993