Yellow Freight Systems, Inc.
DOT rules did not preempt OSHA spill protections
Apply this precedent to your situation
This is citable Commission precedent from 1996, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
OSHA cited Yellow Freight after hazardous-material spills at its Colorado freight terminal. The Commission held that the governing transportation statute expressly prevented Department of Transportation actions from preempting OSHA enforcement for the cited working conditions. It remanded the emergency-action-plan and emergency-response-program items because the judge had vacated them solely on preemption and the record did not resolve their merits. The Commission affirmed an other-than-serious personal-protective-equipment item without penalty after an employee cleaned up Essentialube without chemical-resistant gear. It also affirmed four serious respirator-program violations arising from an epoxy cleanup, with a combined $1,800 penalty, and three other-than-serious respirator inspection and storage items without penalty.
Decision snapshot
- Cited standard(s): Ten provisions addressing emergency plans, hazardous-material emergency response, personal protective equipment, and respirator use, training, inspection, records, and storage.
- Outcome: Two emergency-planning items were remanded; the remaining reviewed items were affirmed, with a combined $1,800 penalty for the serious respirator violations.
- Key point: Congress expressly preserved OSHA authority over hazardous-material handling even where DOT also regulated transportation safety.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W.- 9th Floor
Washington, DC 20036-34 19
.
.
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 93-3292
.
YELLOW FREIGHT SYSTEMS, INC., :
Respondent. ..
.
TEAMSTERS LOCAL UNION NO. 17, ;
..
Authorized Employee Representative. :
..
DECISION
Before: WEISBERG, Chairman; MONTOYA, Commissioner.*
BY THE COMMISSION:
At issue here is whether the Secretary of Labor (“Secretary”) is preempted from
enforcing certain standards promulgated by the Occupational Safety and Health
Administration (“OSHA”) against Yellow Freight Systems, Inc, (“YFS”) because those
standards are preempted by regulations promulgated by the Department of Transportation
(“DOT”). The matter turns on whether language in the statute authorizing the DOT
regulations precludes their preemptive effect. Administrative Law Judge James H. Barkley
*Commissioner Daniel Guttman did not participate in this case.
1996 OSHRC No. 24
2
found that preemption was not precluded. We find that the language of the statute precludes
preemption and that the cited OSHA standards are enforceable against YFS.
The case arose out of a 1993 inspection OSHA conducted at YFS’ freight terminal
in Aurora, Colorado. OSHA subsequently issued one serious and one other than serious
citation. On review are seven items/subitems Tom serious Citation 1 and three subitems
from other than serious Citation 2. Except for subitems la and lb of serious Citation 1, the,,
case is before us on a stipulated record and two volumes of exhibits. We affirm all the
citation items and subitems on review, with two exceptions, which we remand to the
administrative law judge.
We turn first to YFS’ claim of preemption.
PREElMpTION
To prove an exemption under section 4(b)(l),’ 29 U.S.C. $ 653(b)(l), of the
Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. $5 65 l-678, an employer
must establish that another federal agency has the statutory authority to regulate the cited
working conditions and that it has exercised that authority by issuing regulations that have
the force and effect of law. Alaska Trawl Fisheries, Inc., 15 BNA OSHC 1699, 1703-4,
1991-93 CCH OSHD 7 29,758, p. 40,449 (No. 89-1017, 1992).
It is undisputed that DOT has the statutory authority to regulate the working
conditions cited here. Section 1805(a) of the Hazardous Materials Transportation Act,
enacted on January 3, 1975 (“1975 Hazmat Act”), provides:
‘Section 4(b)( 1) provides:
Nothing in this Act shall apply to working conditions of employees with
respect to which other Federal agencies, and State agencies acting under
section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021),
exercise statutory authority to prescribe or enforce standards or regulations
affecting occupational safety and health.
3
6 1805. Handling of hazardous materials
(a) Criteria. The Secretary is authorized to establish criteria for handling
hazardous materials. Such criteria may include, but need not be limited to, a
minimum number of personnel; a minimum level of training and qualification
for such personnel; type and fkequency of inspection; equipment to be used for
detection, warning and control of risks posed by such materials; specifications
regarding the use of equipment and facilities used in the handling and
transportation of such materials; and a system of monitoring safety assurance
procedures for the transportation of such materials. The Secretary may revise
such criteria as required.
It is also undisputed that DOT has promulgated regulations regarding motor carrier
safety and specifically pertaining to hazardous materials pursuant to this authority. See 49
C.F.R. Parts 171-180 (1994).
What is disputed is the meaning of the following language in section 1805(b), which
first appears in the amended version of the Hazmat Act, i.e., the 1990 Hazmat Act:
For purposes of section 4(b)( 1) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 653(b)(l)), no action taken by the [DOT] Secretary pursuant
to this section shall be deemed to be an exercise of statutory authority to
prescribe or enforce standards or regulations affecting occupational safety or
healk2
2That subsection in its entirety reads:
(b) Training criteria for safe handling and transportation. (1) Federal
requirements. Within 18 months after the date of the enactment of the
Hazardous Materials Transportation Uniform Safety Act of 1990 (“ the 1990
Hazmat Act”) [enacted Nov. 16, 19901, the [DOT] Secretary shall issue, by
regulation, requirements for training to be given by all hazmat employers to
their hazmat employees regarding the safe loading, unloading, handling,
storage, and transporting of hazardous materials and emergency preparedness
for responding to accidents or incidents involving the transportation of
hazardous materials.
(2) Different training requirements. The regulations issued under paragraph
(1) may provide for different training for different classes or categories of
hazardous materials and hazmat employees.
(3) Coordination of emergency response training regulations. In consultation
(continued...)
4
The judge rejected the Secretary’s contention that by using this language “Congress
extinguished the preemptive effects of all DOT regulations promulgated pursuant to section
1805 on OSHA regulations:”
The language relied upon by the Secretary is contained within subsection (b)
[of the 1990 Hazmat Act], which deals exclusively with training regulations
not yet promulgated. It is preceded in subsection (b)( 1) by a mandate to issue
training regulations, and earlier in subsection (b)(3) by an edict that said
training regulations not conflict with OSHA hazardous waste and emergency
response regulations. The remaining portions of subsection (b) relate solely
to training. The placement of the non-preemption language deep within
subsection (b) [of section 1805 of the 1990 Hazrnat Act] rather than under
subsection (a), which authorizes regulations covering the entire scope of
hazardous materials handling appears to limit the effect of the non-preemption
language to training regulations issued pursuant to 5 1805(b). The Secretary
has offered no evidence of a contrary intent by Congress. (emphasis supplied)
The DOT, at our invitation, provided the Commission with its interpretation of the
“reverse 4(b)( 1)” language:
The words “pursuant to this section,” found in 5 1805(b)(3), referred to the
entirety of 0 1805, entitled “Handling,” and not solely to subsection
1805(b)(3), which pertained to emergency response training. This view is
supported by the plain meaning of the word “section,“and the fact that
Congress used the word “subsection” in the sentence immediately preceding
2(...continued)
with the Administrator and the Secretary of Labor, the [POT] Secretary shall
take such actions as may be necessary to ensure that the training requirements
established under this subsection do not conflict with the requirements of the
regulations issued by the Occupational Safety and Health Administration of
the Department of Labor relating to hazardous waste operations and
emergency response contained in Part 1910 of title 29 of the Code of Federal
Regulations (and amendments thereto) and the regulations issued by the
Environmental Protection Agency relating to worker protection standards for
hazardous waste operations contained in Part 3 11 of Title 40 of such Code
(and amendments thereto). For purposes of section 4(b)( 1) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653(b)(l)), no action taken by the
[POT]Secretary pursuant to this section shall be deemed to be an exercise of
statutory authority to prescribe or enforce standards or regulations affecting
occupational safety or health.
5
the word “section” to refer to the emergency response training requirements
of $1805(b)(3). Congress clearly knew how to refer to subsection 1805(b)(3)
when it intended to do so.
We do not consider such statements controlling, but the Commission gives
considerable weight to representations by federal agencies that they do or do not have the
statutory authority to regulate certain working conditions, particularly where, as here, the
statute reasonably supports the agency’s interpretation. Northwest Airlines, 8 BNA OSHC
1982,1986,1988 & n.14,1980 CCH OSHD 7 24,751, p. 30,487 & n. 14 (No. 13649,198O).
We have looked at the language of section 1805 and reached a conclusion similar to that of
DOT. Giving the word section in $1805(b)(3) its intended meaning extends the effect of the
“reverse 4(b)( 1)” language beyond the training referred to in subsection 1805(b)(3) to all of
section 1805. Thus, the DOT regulations issued under the authority of section 1805 relied
on by YFS do not preempt the cited OSHA standards.
YFS’ arguments regarding the continuing effect and reach of the regulations on which
it relies do not affect our conclusion. We find here that Congress has eliminated any
preemptive effect such regulations might have had. We do not otherwise address the
continuing effect of those regulations. The reach of the “reverse 4(b)( 1)” language clearly
extends to regulations issued prior to the 1990 Hazmat Act along with post-1990 regulations.
The operative language in section 1805 refers to action taken by the Transportation
Secretary, which would refer to regulations already in existence in 1990 as well as those
issued under the 1975 Hazmat Act.
Congress reaffirmed its reverse-preemption intention in 1994, after the citations in this
case were issued. In the 1994 Recodification of the Hazmat Act, the c(Teverse4(b)( 1)”
language was relocated. 3 The passage now appears as follows:
Q 5107. Hazmat employee training requirements and grants
(f) Relationship to other laws.
3The Act was recodified at 49 U.S.C. 0 5107(f)(2) on July 5, 1994.
6
(2) An action of the Secretary of Transportation under subsections (a)-(d)[4]
of this section and sections 5 106,[‘] 5108(a)-(g)( 1) and (h)[6], and 5109[‘] of
this title is not an exercise, under section 4(b)( 1) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 653(b)(l)), of statutory authority to
prescribe or enforce standards or regulations affecting occupational safety and
health.
P.L. 103-272, July 5, 1994, 108 Stat. 745 (USSCAN, paper bound Vol. 5, August 1994).
This language confirms our conclusion that Congress intended to nullify the
preemptive effect of DOT actions taken under section 1805. It specifically encompasses
training provisions, as YFS argues, as well as section 5 106, the recodified version of the
4Subsection (a) is entitled “Training requirements,” (b) ‘Certification of Training,” (c)
“Certification of training,” and (d) “Coordination of training requirements.”
%ection 5 106 provides:
0 5106. Handling Criteria
The Secretary of Transportation may prescribe criteria for handling hazardous
material, including-
(1) a minimum number of personnel;
(2) minimum levels of training and qualifications for personnel;
(3) the kind and frequency of inspections;
(4) equipment for detecting, warning of, and controlling risks posed by the
hazardous material;
(5) specifications for the use of equipment and facilities used in handling and
transporting the hazardous material; and
(6) a system of monitoring safety procedures for transporting the hazardous
material.
%ection 5 108 is entitled “Registration.” Subpart (a) is entitled “Persons required to file,”
(b) “Form, contents, and limitation on filings,” (c) “Filing deadlines and amendments,” (d)
“Simplifying the registration process,” (e) ‘Cooperation with Administrator,” (f)
“Availability of statements,” and (g) “Fees.”
‘Section 5 109 is entitled “Motor carrier safety permits.”
7
broad materials handling provision formerly at section 1SOS(a)of the 1990 Hazmat Act.*
We now turn to the individual citation items.g
CITATION ITEMS
The judge found that YFS established preemption with regard to serious citation 1,
items la and lb. He rejected YFS’ preemption claim for the remainder of the items, finding
that the DOT regulations YFS relied on did not govern the cited working conditions. As we
held above, because all the DOT regulations relied on by YFS were promulgated pursuant
to section 1805, they do not involve an exercise of statutory authority that would preempt
OSHA; thus the cited OSHA standards are enforceable against YFS. We therefore need not
consider the judge’s reasons for finding that DOT regulations were or were not preemptive.
We consider only his treatment of the merits of each item.
Serious Citation 1, Items la and 1b
In Item la, the Secretary alleges that YFS violated 29 C.F.R. 5 1910.38(a)(2) by not
including the minimum required elements outlined in section 1910.38(b)(2)in its Emergency
Evacuation Plan. In Item lb, the Secretary alleges that YFS violated 29 C.F.R.
5 1910.12O(q)(1) by not developing and implementing an emergency response program to
handle hazardous materials emergencies involving the release of certain chemicals.
*YFS’reliance on unreviewed judges’ decisions is misplaced. Unreviewed judges’ decisions
do not constitute Commission precedent. E.g., Lauhotff Grain Co., 13 BNA OSHC 1084,
1087, 1986-87 CCH OSHD 5 27,814 (No. 81-984, 1987). In addition, we note that in Yellow
Freight System, Inc. (Docket No. 90-85, 199l)(consolidated)(ALJ), the Secretary’s decision
to withdraw a citation and pursue a matter at a later time was a matter of prosecutorial
discretion. See Peavey Co., 16 BNA OSHC 2022, 2026, 1994 CCH OSHD 7 30,572,
p. 42,324 (No. 89-2836, 1994). It was not a concession of DOT preemption.
gBut for the 1994 recodification of the Hazmat Act, Commissioner Montoya would have
affirmed Judge Barkley’s decision that OSHA was preempted. However, by incorporating
the exact language of section 4(b)(l) in this recodification, Congress has left no doubt that
it intends for DOT’s enforcement efforts under these provisions to have no effect on OSHA
enforcement authority, even if OSHA’s enforcement efforts would merely duplicate those
of DOT. Though she considers such an open invitation to duplicative regulation to have
been unwise, she believes the language of the recodification cannot be read any other way.
8
The judge vacated items la and lb because he found that the cited OSHA standards
were preempted by the DOT regulations at 49 C.F.R. $0 172.602-604. For the reasons set
forth above, we set aside the judge’s action. However, because the stipulations of the parties
do not cover the merits of items la and lb and there is no record evidence on the items, they
are remanded to the judge for further proceedings.
Serious Citation I, Item 3 :t
The Secretary alleges that YFS violated 29 C.F.R. 5 1910.132(a)10 by failing to
provide personal protective equipment such as boots, gloves or an apron to a dock
worker/driver who cleaned up a substance called Essentialube after his forklift truck blade
ruptured a shipping container and caused the release of about 15 gallons of that material.
The material safety data sheet for Essentialube indicates that it is made up of hazardous
components that include ccSeverelyhydrotreated” mineral oil and flammable liquid solvent,
and that plastic gloves and safety glasses are required for safe cleanup. It was stipulated that
the employee who cleaned up the Essentialube spill was not provided with “chemical
resistant gloves, boots, or an apron for use during the clean-up” [and that] “the employee was
not injured in any way nor did he require any medical treatment.” The judge affirmed the
item but downgraded the characterization to other than serious after finding that the Secretary
had not established a serious violation on a stipulated record that does not contain evidence
.
lOSection 19 10.132(a) provides:
0 1910.132 General requirements.
(a) Application. Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided, used, and
maintained in a sanitary and reliable condition wherever it is necessary by
reason of hazards of processes or environment, chemical hazards, radiological
hazards, or mechanical irritants encountered in a manner capable of causing
injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact.
9
of any health hazards associated with Essentialube beyond dermatitis. The judge did not
assess any penalty.
We agree with the judge. The stipulation of the parties that the employee engaged in
the spill cleanup was not provided with the appropriate personal protective equipment
establishes that YFS did not comply with section 1910.132(a). Since the Secretary does not
argue that the judge erred in characterizing the item as other than serious or in failing to
assess a penalty, we affirm an other than serious violation of section 19 10.132(a) and assess
no penalty.
Serious Citation I, Items 4a-4d
The Secretary alleges that YFS violated 29 C.F.R. $6 1910.134(e)(l), (e)(3), (e)(5),
and (e)(5)(i)” in that standard procedures were not developed for a specified Survivair
“Sections 1910.134(e)(l), (e)(3), (e)(5), and (e)(5)(i) provide:
6 1910.134 Respiratory protection.
& *Use of respirators. (1) Standard procedures shall be developed for
respirator use. These should include all information and guidance necessary
for their proper selection, use, and care. Possible emergency and routine uses
of respirators should be anticipated and planned for.
(3) &&ten procedures shall be prepared covering safe use of respirators in
dangerous atmospheres that might be encountered in normal operations or in
emergencies. Personnel shall be familiar with these procedures and the
v
...
available respirators.
is>F or safe use of any respirator, it is essential that the user be properly
instructed in its selection, use, and maintenance. Both supervisors and workers
shall be so instructed by competent persons. Training shall provide the men
an opportunity to handle the respirator, have it fitted properly, test its face-
piece-to-face seal, wear it in normal air for a long familiarity period, and,
finally, to wear it in a test atmosphere.
. . . .
(i) Every respirator wearer shall receive fitting instructions including
demonstrations and practice in how the respirator should be worn, how to
(continued.. .)
10
respirator used by an employee during a spill cleanup operation involving Nitrobond 881
Epov R~s~((e)m; written procedures were not prepared covering safe use of the Survivair
respirator and a Scottoramic gas mask used during the cleanup operation ((e)(3)); neither
supervisors nor employees were trained on the proper selection, use, and maintenance of the
Survivair or Scottoramic ((e)(5)); and both the Survivair and Scottoramic were worn under
conditions preventing a good face seal ((e)(5)(1)).
The subitems arose out of a September 29, 1993, incident in which the contents of a,
container of Nitrobond 881 Epoxy Resin spilled inside a trailer parked at a loading dock at
the YFS terminal. The following facts are stipulated: YFS employee Craig Strong was’
assigned to clean up the spill of the corrosive liquid (which may cause damage to the skin,
eyes, gastrointestinal tract and lungs). Strong was provided with a Scottoramic gas mask
respirator and a Survivair half-mask air-purifying respirator for use during the cleanup. He
wore a beard at the time and was not provided with a respirator fit test. Strong was exposed
to hazardous epoxy fumes during the cleanup and although he was wearing an unidentified-
type of respirator, he subsequently received “medical treatment” as a result of his exposure
to those fumes. YFS had not developed any written procedures for the safe use of either the
Survivair or Scottoramic respirator in dangerous atmospheres.
The judge affirmed all four subitems and assessed an $1800 penalty. He found that
YFS had failed to demonstrate that DOT had issued regulations intended to govern the cited
working conditions -- a hazardous spill clean-up -- and that YFS did not comply with the
“(...continued)
adjust it, and how to determine if it fits properly. Respirators shall not be worn
when conditions prevent a good face seal. Such conditions may be a growth
of beard, sideburns, a skull cap that projects under the facepiece, or temple
pieces on glasses. Also, the absence of one or both dentures can seriously
affect the fit of a facepiece. The worker’s diligence in observing these factors
shall be evaluated by periodic check. To assure proper protection, the
facepiece fit shall be checked by the wearer each time he puts on the
respirator. This may be done by following the manufacturer’s facepiece fitting
instructions.
11
cited provisions of section 1910.134. Because YFS has stipulated that its defense to all four
subitems is “based exclusively on DOT safety regulation preemption,” and we find no
preemption here, the stipulated facts amount to a concession by YFS that it violated the cited
standards. The facts also establish a violation. We therefore affm the four citation items.
The Secretary proposed a combined penalty of $1800 for these items and the judge
found that amount appropriate. YFS is a very large employer, with about 600 facilities
nationwide; it has been cited many times nationwide. While the gravity of these violations
is low to moderate, we note that the probability of an injury was relatively high. As the judge
pointed out, the use of an inadequate respirator in a toxic atmosphere by an employee who
thinks that he is adequately protected could lead to serious injury; the employee exposed here
did require medical treatment. Based on the statutory criteria in section 17(j) of the Act, 29
U.S.C. FJ666(j), and YFS’ failure to contest the amount of the penalty on review, we assess
a combined penalty of $1800 for these four subitems.
Other than serious Citation 2, Subitems la-lc
The Secretary alleges that YFS violated three standards: section 19 10. 134(f)(2)(i)12
*2Sections 1910.134@(2)(i), (f)(2)(iv), and (f)(5)(i) provide:
8 1910.134 Respiratory protection.
ii’M am enance and care of respirators.
l t
(2)(i> All respirators shall be inspected routinely before and after each use. A
respirator that is not routinely used but is kept ready for emergency use shall
be inspected after each use and at least monthly to assure that it is in
satisfactory working condition.
...
i iv )A record shall be kept of inspection dates and findings for respirators
maintained for emergency use.
(i)(i) ARer inspection, cleaning, and necessary repair, respirators shall be
stored to protect against dust, sunlight, heat, extreme cold, excessive moisture,
or damaging chemicals. Respirators placed at stations and work areas for
(continued...)
12
by failing to inspect monthly a specified Scottoramic gas mask kept ready for emergency use;
section 19 lO.l34@(2)(iv) by failing to maintain the required inspection records for the
Scottoramic gas mask; and section 19 10.134@(5)(i) by failing to clearly mark the storage
cabinet to indicate that it contained the Scottoramic gas mask and Survivair respirator. No
penalty was proposed.
The parties stipulated that:
Yellow did not conduct monthly inspections to ascertain the satisfactory
working conditions of the Scottoramic [Subitem 1a] . . . . Yellow did not
maintain records of inspection dates and results for the Scottoramic stored on
the South Dock Platform [Subitem lb]. The cabinet in which the Scottoramic
was stored was not labeled or marked to indicate that it was stored therein
[Subitem 1c].
The judge affirmed these subitems. YFS has stipulated that its defense is “based
exclusively on DOT safety regulation preemption,” thereby impliedly conceding that it
violated the cited OSHA standards. Furthermore, we find that the stipulated facts above
establish the violations. We therefore afErm other than serious violations of all three items.
ORDER
Accordingly, the Commission:
(1) Reverses the judge’s action in vacating subitems la and lb of serious Citation 1
and remands those items to the judge for further proceedings in accordance with this
decision;
(2) Affirms the judge’s finding of an other than serious violation, without penalty, of
item 3 of serious Citation 1;
12(..continued)
emergency use should be quickly accessible at all times and should be stored
in compartments built for the purpose. The compartments should be clearly
marked. Routinely used respirators, such as dust respirators, may be placed
in plastic bags. Respirators should not be stored in such places as lockers or
tool boxes unless they are in carrying cases or cartons.
13
(3) Affirms the judge’s findings of serious violations, with a combined penalty of
$1800, of subitems 4a-4d of serious Citation 1; and
(4) Affirms the judge’s findings, without penalty, as to subitems la-lc of other than
serious Citation 2.
AJk E. wQJAl%
Stuart E. Weisberg
Chairman
Velma Montoya
Commissioner
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Office of Phone: (202) 606-5400
Executive Secretary Fax: (202) 606-5050
SECRETARY OF LABOR,
Complainant,
.
.
v. . OSHRC Docket No. 93-3292
.
YELLOW FREIGHT SYSTEMS, INC., ..
..
Respondent. ..
..
TEAMSTERS LOCAL UNION NO. 17, ..
..
Authorized Employee Representative. ..
..
NOTICE OF COMMISSION DECISION AND REMAND
The attached decision and remand order by the Occupational Safety and Health Review
Commission was issued on July 3 1,1996.
FOR THE COMMISSION
t
Date: July 3 1, 1996 t
%f=JA,
Ray H. darling, Jr.
Executive Secretary
93-3292
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick Housh, Jr.
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105
David R. Kresser, Attorney
Anderson B. Scott, Attorney
Fisher & Phillips
1500 Resurgens Plaza
945 East Paces Ferry Road
Atlanta, GA 30326-l 125
Judith S. Kaleta, Chief Counsel
Nancy E. Machado, Attorney
U.S. Department of Transportation
400 7th Street, S.W.
Washington, DC 20590
Ron Schwab, President
Teamsters Local Union No. 17
3245 Eliot Street
Denver, CO 80211
James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204.3582
.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 93-3292
YELLOW FREIGHT SYSTEM, INC.,
Respondent,
TEAMSTERS LOCAL UNION NO. 17,
Authorized Employee
Representative.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 16, 1994. The decision of the Judge
will become a final order of the Commission on January 17, 1995 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 PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
January ?, 1995 in order to ermit sufficient time for its review. See
Comrmsslon Rule 91, 29 C.8 .R. 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. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOCKET NO. 93-3292
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 20210
Tedrick Housh, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105
David B. Mandelbaum, Esquire
Yellow Frei ht System, Inc.
10990 Roe i venue
Overland Parks, KS 66207
David Kresser, Esquire
Ste hanie M. Baldauff, Esquire
Fis Rer & Phillips
1500 Resurgens Plaza
945 East Paces Ferry Road
Atlanta, GA 30326 1125
Ron Schwab, President
Teamsters Local Union No. 17
State of Colorado
3245 Eliot Street
Denver, CO 80211
James H. Barkley
Administrative Law Jud e
Occupational Safety an (BHealth
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582
00106417694:OS
..
DOCKET NO. 93-3292
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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: December 16, 1994 ~~~~~~~~~
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
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Denver, Colorado 80204-3582
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I
SECRETARY OF LABOR, I
Complainant, I
I
v. I
I
YELLOW FREIGHT SYSTEM, INC., I
Respondent, I OSHRC DOCKET
I NO. 93-3292
I
TEAMSTERS LOCAL UNION NO. 17,
Authorized Employee
Representative.
I
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C., Section 651, et. seq, hereafter referred to as the Act).
Respondent, Yellow Freight System, Inc. (Yellow Freight), at all times relevant
to this action maintained a worksite at 15950 E. Smith Road, Aurora, Colorado, where
it operated a terminal facility incident to the interstate transport of freight. Yellow
Freight is an employer engaged in a business affecting commerce and as such is subject
to the requirements of the Act, except where its provisions are preempted by
Department of Transportation regulations at 49 CFR parts ‘171-180 (1994). See, this
judge’s Orders dated July 26, 1994, and September 7, 1994.
Pursuant to a 1993 inspection of Yellow Freight’s Aurora worksite, the Occupa-
tional Safety and Health Administration (OSHA) issued “serious” and “other ‘than
serious” citations, together with proposed penalties, alleging violations of the Act. By
filing a timely notice of contest Respondent brought this proceeding before the Occupa-
tional Safety and Health Review Commission (Commission).
In lieu of a hearing, the parties have elected to submit this case on a stipulated A
record, pursuant to Commission Rule 52200.61. This matter is now ready for
disposition.
L
Serious citation 1, items la and lb.
Summary Judgment granted in favor of Yellow Freight. See; this judge’s
September 7, 1994 Order.
Serious citation 1, item lc.
This item cites OSHA training regulations, which are specifically not preempted,
pursuant to $1805(b)(3) of the HMTA. See; this judge’s September 7, 1994 Order.
Citation 1, item lc alleges:
529 CFR 1910.120(q)(6): T raining was not based on the duties and function to be
performed by each responder of an emergency response organization:
(a) Supervisors and shift operations managers did not receive adequate training
on how to properly select and use personal protective equipment, the basic
hazard risk assessment techniques, and the techniques as detailed for the first
responder operations level employees in 191O.i2O(q)(6)(ii).
Facts
The parties have stipulated that Yellow Freight loads and unloads hazardous
,. inter da, the
materials incident to the transport of freight. Yellow’s operations include,
.I.
handling and shipping of containers of flammable and/or combustible paints, sulfuric
acid, ethyl alcohol (flammable), hydrochloric acid (combustible), flammable ink, alkali
liquids (combustible), acetic acid solution (corrosive), methylene chloride (corrosive),
naphtha (flammable), and nitric acid (oxidizer). [Stip. #2]
Yellow Freight provides hazardous materials training and testing for its
supervisory personnel including instruction on hazardous material release and emergency
response. [Stip. #16]
During the OSHA inspection at Yellow’s terminal on September 29, 1993, the
Compliance OfEicer (CO) attended a hazardous materials training session with two new
supervisors, Dudley Thompson and Doug Potts, who were hired on September 11 and
20, respectively. Both Thompson and Potts are “first responders” for purposes of the
cited standard. The 9/29 training session lasted approximately four hours and omitted
“module 5” material dealing with hazardous materials releases. At that time, neither
Thompson nor Potts were tested on their knowledge of hazardous materials release
procedures. [Stip. #18]
Discussion
Section 1910.12O(q)(6)(ii) requires that before “first responders” at the
operations level are permitted to take part in actual emergency operations, they shall
receive at least eight hours of training or have sufficient experience to objectively
demonstrate competency in:
Am Knowledge of the basic hazard and risk assessment techniques.
B. Know how to select and use proper personal protective equipment
provided to the first responder operational level.
C. An understanding of basic hazardous materials terms.
D. Know how to perform basic control, containment and/or confinement
operations within the capabilities of the resources and personal protective
equip&rent available with their unit.
E. Know .how to implement basic decontamination procedures.
F. An understanding of the relevant standard operating procedures and
termination procedures.
Complainant failed to show that Yellow Freight was in violation of
§1920.12O(q)(6)@). The stipulated record contains only portions of the written training
program [J. Exh. 6, 10, 111. Moreover, the standard specifically provides for the
substitution of experience for formal training. It is impossrble to state, based solely on
the facts in the record, that Yellow Freight’s program would not have ensured its “first
responder’s” familiarity with the topics listed in the standard. The undersigned,
therefore, cannot find that Yellow Freight’s hazardous materials training program was
4
inadequate.
Nor has Complainant shown that supervisors Thompson’s and Potts’ training was
inadequate under the standard. Both were recent hires who had been with the company
less than three weeks.*I. Nothing in the record establishes that either would
Y have been
permitted, at the time of the inspection, to take part in actual emergency operations, or
that they would not have completed their training prior to doing so.
Complainant has failed to establish, by a preponderance of the evidence, that
Yellow Freight was in violation of the cited standard. Citation 1, item lc is, therefore,
dismissed.
Serious citation 1, item 2a.
The citation alleges:
29 CFR 191O.llO(f)(2)(ii): LP gas container(s) stored inside were located near or in
area(s) normally used or intended for the safe exit of employees:
(a) In the south platform area on the loading dock, container&f propane were
stored adjacent to the stairwell leading down to the employee ‘4 restroom on or
about Septetiber 15 and 16, 1993.
Facts
At the time of the OSHA inspection Yellow Freight stored approximately 88
containers of liquid propane gas directly adjacent to a stairwell leading down to an
employee restroom, the only room at the bottom of the stair. There is no terminal exit
in the restroom area [Stip. #22; J. Exh. 18A]. In the event of fire, the cylinders could
rupture explosively [J. Exh. 281, blocking employee exit from the restroom area.
Discussion
The cited standard states:
Containers when stored inside shall not be located near exits; stairways, or in
areas normally used or intended for the safe exit of people. .
Yellow Freight’s storage of LP containers violates the plain language of the cited
standard, which prohibits storage of containers near stairways, as well as the purpose of
the standard, which is to eliminate additional fire hazards which might block employees’
means of egress. Complainant has established the cited violation.
4
Penalty
Yellow Freight is a large employer, with over 600 facilities nationwide. [Stip. #29]
Respondent employed approximately 160 workers at the Aurora facility at the time of
the inspection [Stip. #5]. There is no record of any prior violations of the Act at the
Aurora facility [St@. #29].
The cited violation is properly classified as serious, because the violation, in the
event an employee was trapped by fire, would likely result in serious injury. However,
the gravity of the violation is moderately low, based on the small number of employees
likely to be exposed to the risk of injury at any given time, resulting in a low probability
of occurrence of injury. See, Secretaryv. National Realty and Constndon Co., 1 BNA
OSHC 1049, 1971 CCH OSHD ll15,188 (No. 85, 1971).
The Secretary has proposed a combined penalty of $4,500.00 for this item and
item 2b, which has been settled by the parties. Based on the relevant factors, the
undersigned finds that Complainant overstated the gravity of the violation. A penalty
of $l,OOO.OOis deemed appropriate.
Serious citation 1, item 2b.
Settlement reached by the parties. See; Stipulation No. 11.
Serious citation 1, item 3.
Summary Judgment denied based on Respondent’s failure to demonstrate that
DOT has issued safety and health regulations, intended to govern the cited working
condition, i.e. hazardous spill clean-up. See; this judge’s September 7, 1994 Order.
This item alleges:
29 CFR 1910.132(a): Protective equipment was not used when necessary whenever .
hazards capable of causing injury and impairment were encountered:
(a) Personal protective equipment in the form of boots, gloves or an apron was
not provided to the combination dock worker/driver who was engaged in a
hazardous material spill clean up operation involving Essentialube a flammable
liquid during the second shift on or about September 28, 1993.
Facts
On September 28, 1993, a forklift truck blade ruptured a shipping container of
Essentialube, releasing approximately 15 gallons of the substance. [Stip. #23] The
MSDS for Essentialube indicates that it is made up of hazardous .components, i.e.
severely hydrotreated mineral oil and flammable liquid solvent, and that plastic gloves
and safety glasses are required for safe clean-up. [J. Exh. 19A] Yellow Freight
supervisors’ duties in response to a hazardous materials release clean-up include issuing
necessary protective equipment to employees. The employee who cleaned up the
Essentialube spill was not provided with chemical resistant gloves. [Stip. #23]
Discussion & Penaltv
Section 1910.132(a) requires that appropriate protective equipment be provided
wherever an employee may be injured through absorption, inhalation or physical contact
with chemical hazards. The stipulated facts establish the cited violation.
Complainant failed, however, to establish that the violation was “serious.” The
stipulated record does not mention any health hazards associated with Essentialube.
The MSDS lists no acute or chronic health hazards caused by skin contact with the
hazardous components found in Essentialube. The sole health hazard noted by the
OSHA CO is “dermatitis.” [J. Exh. 281. In the absence of additional evidence, this judge
cannot find that Complainant carried its burden of proof. Accordingly, the violation is
aFfirmed as an other than serious violation without penalty.
Serious citation 1, items 4a4d.
Summary Judgment denied based on Respondent’s failure to demonstrate that
DOT has issued safety and health regulations intended to govern the cited working
condition, i.e. hazardous spill clean-up. See; this judge’s September 7, 1994 Order.
Yellow Freight otherwise stipulates to these violations. [Stip. #12]
Penalty
The citations allege violations of the following:
29 CFR $1910.134(e)(l) Standard procedures shall be developed for respirator
use.
29 CFR 51910.134(e)(3) Written procedures shall be prepared covering safe use
of respirators in dangerous atmospheres that might be encountered in normal
operations or in emergencies.
29 CFR 51910.134(e)(5) m e respirator user must be] properly instructed in its
selection, use, and maintenance . . l Training shall provide the men an
l
opportunity to handle the respirator, have it fitted properly, test its face-piece-to-
face seal, wear it in normal air for a long familiarity period, and, finally, to wear
it in a test atmosphere.
29 CFR $1910.134(e)(5)(i) Respirators shall not be worn when conditions
prevent a good face seal.
Serious respiratory injury is the probable result of an accident resulting from an
employer’s failure to develop standardized procedures for respirator use, including user
training.
On September 29, 1993, Craig Strong, a Yellow Freight employee, was assigned
to clean up a spill of Nitrobond 881 Epoxy Resin, a corrosive liquid which may cause
damage to the skin, eyes, gastrointestinal tract and lungs [J. Exh. 211. Strong was
provided a Scottoramic gas mask respirator and Sun&air half mask air-pur@ing respira-
tor, but was not provided with a fit-test, and had a beard at the time he used the
respirator [Stip. #24, 251. As a result, Strong inhaled epoxy resin fumes. Strong
received medical treatment for bronchospasms and was placed on work restriction [Stip.
25; J. Exh. 221. ’
The Secretary has proposed a combined penalty of $l,SOO.OOfor these violations.
The probability of an untrained employee misusing respiratory equipment in a toxic
atmosphere, thinking he is protected, is high, as evidenced by Mr. Strong’s injury.
Taking into account the gravity of the violation, as well as the other relevant factors dis-
cussed above, the undersigned finds the proposed penalty appropriate.
7
Serious citation 1, item 5.
The citation alleges:
29 CFR 1910.151(c): Where employees were exposed to injurious corrosive materials,
suitable facilities for quick drenching or flushing of the eyes and body were not provided
within the work area for immediate emergency use.
(a) On the dock, the Respond Eyewash stations, located on the South Platform
and the North Platform were not suitable for the quick drenching of the body
and eyes in that a flushing capacity of at least fifteen minutes was not available
for employee use in the event of a spill or splash of corrosive materials during
freight unloading, loading or moving operations.
Facts
At the time of the OSHA inspection, Yellow Freight maintained five eyewash
stations at the Terminal. Each station was equipped with three sixteen-ounce spray
bottles of Eye and Skin Flushing Solution, Sterile and Isotonic. [Stip. #26; J. Exh. 231
In 1993 Yellow Freight has experienced spills of hazardous materials such as
sulfuric acid, ethyl alcohol, paint, corrosive cleaning compounds including ferric sulfate,
methylene chloride, and alkali liquids, hydrochloric acid, mineral spirits, acetic acid
solution insecticide and nitric acid. Most of the spills involved between a tablespoon
and a gallon of material [J. E!xh. 17,271.
Discussion
The cited standard requires that “suitable” facilities for quick drenching or
flushing be provided. The Commission has held that the suitability of a facility depends
on the nature and amount of the material to which the eyes are exposed and the
distance between the work area and the washing facility. E.I, DuPont DeNemours & Co.,
Inc., 10 BNA OSHC 1320, 1982 CCH OSHD lU5,883 (No. 76-2400, 1982).
Complainant introduced no evidence establishing the need for providing 15
minutes of uninterrupted flushing in the particular circumstances described here, or the
inadequacy of Yellow’s eyewash facility given its employees’ limited exposures to
hazardous materials normally sealed while in transit. The undersigned is unable,
therefore, to determine that Respondent’s facility was not “suitable.” The Secretary has
failed to carry his burden of proof, and the cited standard will be vacated.
8
Serious citation 1, items 6a, 6b. ‘..
i
Settlement reached by the parties. See; Stipulation No. 11.
Serious citation 1, item 7aJb
These items cite OSHA training regulations, which are specifically not preempted,
pursuant to 51805(b)(3) of the HMTA. See; this judge’s September 7, 1994 Order.
Item 7a alleges violation of 29 CFR 1910.12OO(b)(4)(iii), which provides:
(4) In work operations where employees only handle chemicals in sealed
containers which are not opened under normal conditions of use (such as are
found in marine cargo handling, warehousing, or retail sales), this section applies
to these operations only as follows:
***
(iii) Employers shall insure that employees are provided with information and
training in accordance with paragraph (h) of this section (except for the location
and availability of the written hazard communication program under paragraph
(h)(l)@)), to the extent necessary to protect them in the event of a spill or leak
of a hazardous chemical from a sealed container.
Paragraph (h) requires that employees be provided training in:
(i) methods and observations that may be used to detect the presence or release
of a hazardous chemical in the work area (such as monitoring conducted by the
employer, continuous monitoring devices, visual appearance or odor of hazardous
chemicals when being released, etc.);
(ii) The physical and health hazards of the chemicals in the work area;
(iii) The measures employees can take to protect themselves from these hazards,
including specific procedures the employer has implemented to protect
employees from exposure to hazardous chemicals, such as appropriate work
practices, emergency procedures, and personal protective equipment to be used;
(iv) The details of the hazard communication program developed by the
employer, including an explanation of the labeling system and the material safety
data sheet, and how employees can obtain and use the appropriate hazard
information.
Item 7a alleges that Yellow Freight did not ensure that its employees were
provided with information and training in accordance with 29 CFR 1910.1200(h), to the
extent necessary to protect them in the event of a spill or leak of a hazardous chemical
from a sealed container. Specifically, the citation states that combination dock
9
workers/drivers, do&workers, casual workers, and janitorial personnel working on the
Yellow Freight loading dock were not provided with appropriate information and train-
ing, including the location of material safety data sheets (MSDS) and:
an explanation of the information on the MSDS, how employees can obtain and
use the appropriate hazard information, and on the types of protective equip-
ment and measures available to be used in the event of a spill or leak of
hazardous chemicals such as but not limited to hydrochloric acid, flammable
paints, sulfuric acid, ethyl alcohol, epoxy paints.
Facts
Yellow Freight employees receive hazardous materials training and testing based
on their job classification [Stip. #15]. All employees are provided with a copy of Yellow
Freight’s Hazardous Materials Handbook, and Chemicals in the Workplace Guide [Stip.
14]. Those documents tell the employee how to recognize a hazmat exposure, how
to avoid exposure and who to contact in the event of a hazrnat incident. The contents
and means of obtaining an MSDS are listed [J. Exh. 6, 81.
In addition, Respondent conducts monthly safety meetings for employees covering
hazardous materials issues [Stip. #14]. Material covering hazmat protective equipment
was circulated to all employees; Respondent’s evacuation plan and hazcom program, as
well as charts showing the compatrbility and labeling of various hazardous materials are
posted throughout the terminal [Stip. #20, J. Exh. 16b through 16e]. Posters containing
emergency contact numbers are located throughout the terminal [Stip. #20; J. Exh.
16A] 0
Discussion
The intent of subsection 1200(b)(4) is to address the problem of employers such .
as Yellow Freight, who do not work with, but handle hazardous materials only in transit.
Their employees may encounter a large number of different types of chemicals, to which
they would be exposed only in the event of an accident. Those employees require
hazmat training which is not chemical specific, but is broad based, and provides them
with means of accessing appropriate hazard information when necessary.
Based on the limited evidence available, the undersigned is unable to say that
Yellow Freight employees do not receive the information required by the cited standard.
10
The Secretary has failed to demonstrate a violation of the cited standard. Item 7a will
be vacated.
Item 7b alleges:
29 CFR 1910.1200(h) Employees were not provided information and training as
specified in 29 CFR 1910.1200(h)(l) and (2) on hazardous chemicals in their work area
at the time of their initial assignment and whenever a new hazard was introduced into
their work area.
(a) Information and specific training such as the location of the material data
sheets and the written program, how to obtain and use the hazard information,
the specific physical and health hazards as outlined by the standard was not
conducted for the dock workers and the combination do&worker/drivers for the
propane used to operate the Toyota forklifts on the loading dock at Yellow
Freight Systems, Incorporated.
Facts
A copy of the MSDS for every chemical used or stored at the Yellow facility,
including propane, i&led in its Right to Know Manual, and is available in the office of
every Yellow Freight terminal [Stip. #14].
Discussion
Contrary to Respondent’s assertions, the chemical specific training requirements
of paragraph (h) are applicable where chemicals, such as propane, are routinely
maintained in the employees’ work area. Merely maintaining the MSDS for chemicals
to which employees are predictably exposed is insufficient to meet the training
requirements of the cited standard. ARA Living Centers of Tm, Inc., 1992 CCH
OSHD 1129,552(No. 89-1894, 1991). .
The Secretary .- has established the cited violation.
Penalty
The Secretary proposes a ,combined penalty of $3,150.00 for the hazcom
violations alleged in item 7a, which was dismissed, and item 7b.
The MSDS establishes that inhalation of propane may result in convulsions,
unconsciousness and death from asphyxiation. The violation is, therefore, properly
characterized as serious. Taking into account the gravity of the violation, which is
11
deemed moderately low, and the other relevant factors, discussed above, a penalty of
$l,OOO.OOis deemed appropriate.
Other than serious citation 2, items la-lc.
Summary Judgment denied based on Respondent’s fdure to demonstrate that
DOT has issued safety and health regulations intended to govern the cited working
condition, i.e. hazardous spill clean-up. See; this judge’s September 7, 1994 Order.
Yellow Freight otherwise stipulates to these violations, for which no penalty was
proposed. See; Stipulation No. 12.
Other than serious citation 2, item 2.
Summary Judgment granted in favor of Yellow Freight. See; this judge’s
September 7, 1994 Order.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a deter-
mination of the contested issues have been found specially and appear in the decision
above. See Rule 52(a) of the Federal Rules of Civil Procedure.
- Serious citation 1, item lc, alleging violation of §1910.12O(q)(6) is VACATED.
- Serious citation 1, item 2a, alleging violation of §1920.11O(f)(2)(ii) is
AFFIRMED, and a penalty of $l,OOO.OOis ASSESSED. - Citation 1, item 3, alleging violation of 51910.132(a) is AFFIRMED as an
“Other than serious,” violation without penalty. - Serious citation 1, item 4a-4d, alleging violations of 51910.134 et seq. are
AFFIRMED, and a penalty of $l,SOO.OOis ASSESSED. - Serious citation 1, item 5, alleging violation of §1910.15l(c) is VACATED.
- Serious citation 1, item 7a, alleging violation of ~1910.12OO(b)(4) is VACATED.
- Serious citation 1, item 7b, alleging violation of §1910.12OO(h) is AFFIRMED and
a penalty of $l,OOO.OOis ASSESSED.
8. Other than serious citation 2, items la-lc, alleging violations of §1910.134 et seq.
are AFFIRMED without penalty.
Dated: Dece!Ilber 9, 1994
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