Aero Tec Laboratories, Inc.
Plant safety items largely affirmed with reduced penalties
Apply this to your situation
This order from 1996 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Aero Tec manufactured fuel tanks and containment vessels at its New Jersey plant. The judge rejected its claim that OSHA had promised no penalties or exceeded the scope of consent because management accompanied the open inspection without objecting. The decision affirmed items involving an unguarded storage platform, flammable-liquid storage, lockout procedures, fire-extinguisher training and maintenance, battery-charger protection, machine guarding, hazardous-chemical labels and training, injury logs, and an unsecured drill press. Several items were reduced from serious to nonserious, some proposed penalties were lowered, and three withdrawn items were vacated. The assessed penalties totaled $10,625 rather than the proposed $15,050.
Decision snapshot
- Cited standard(s): Nineteen provisions covering fall protection, flammable-liquid storage, hazardous-energy control, fire extinguishers, industrial trucks, machine guarding, hazard communication, recordkeeping, and machine anchoring.
- Outcome: Most items were affirmed, several were reclassified or received reduced penalties, three withdrawn items were vacated, and total penalties of $10,625 were assessed.
- Key point: Management's participation in an open inspection without timely objection supported consent, while the merits and classification of each observed condition still required item-specific proof.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
.
Phone:(202)606-5400
Fax:(202)606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-0055
AERO TEC LABORATORIES, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTk4” MW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on August 19, 1996. The decision of the Judge
will become a final order of the Commission on September 18, 1996 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
September 9, 1996 in order to permit sufficient time for its revrew. See
Commission Rule 91,29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shah also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
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
havmg questions about review rrghts may contact the Commission’s Executive
Secretaryor call (202) 606-5400.
Date: August 19, 1996
DOCKET NO. 94-0055
NOTICE IS GIVEN TO THE FOLLOWING:
Patricia Rodenhausen, ml l
Re l onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 70;
New York, NY 10014
Peter J. Regna, President
Aero Tee Laboratories, Inc.
S ear Road Industrial Park
IQamsey, NJ 07446
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
00109050070:02
.: .
- -4
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
McCormack Post Office and Courthouse, Room 420
Boston, Massachusetts 02 109-450 1
c
Phone: (6 17) 223-9746 Fax: (6 17) 223-4004
SECRETARY OF LABOR, ..
Complainant, ..
v. OSHRC
Docket No. 94-0055
AERO TEC LABORATORIES, INC., ..
Respondent. ..
Appearances:
Steven Riskin, Esq. Peter J. Regna, President, Pro Se
Office of the Solicitor Aero Tee Laboratories, Inc.
U.S. Department of Labor Ramsey, New Jersey
For Complainant For Respondent
Before: Administrative Law Judge Richard DeBenedetto:
DECISION AND ORDER
Aero Tee Laboratories, Inc. (ATL), was cited on December 6, 1993, for both
serious and nonserious violations of various safety standards and for failing to maintain a log of
occupational injuries and illnesses. The Secretary has proposed penalties totaling $15,050. ATL
contested the matters.
ATL is a developer and manufacturer of impact-resistant fuel tanks, containment vessels for
flammable and hazardous materials and other specialty products along the line of containment
vessels (Tr. 771-75). The OSHA inspection which resulted in the citations involved ATL’s main
manufacturing facility in Ramsey, New Jersey.
THE INSPECTION
ATL contends that the inspection was invalid because of OSHA’s failure to conform with
two conditions which were indispensable to ATL’s consent to the search, namely, that no fines or
penalties would be imposed if the hazardous conditions were timely corrected, and that only the
alleged hazardous conditions listed in the written complaint would be investigated. ATL’s
posthearing brief. It is claimed that OSHA agreed to these conditions during a September 14, 1993,
telephone conference between the lead compliance officer and ATL’s president at which time the
latter gave his consent to the warrantless search.
A written complaint was filed with OSHA alleging six hazardous conditions existed
“plantwide:”
1. Inadequate personal protective equipment for employees working with
harmful solvents.
2. Exposure to radio frequency waves and failure to have appropriate
warning signs.
3. Incomplete material safety data sheets.
4. Lack of training in chemical hazards.
5. Improper handling and storage of flammables.
6. No emergency evacuation plan.
(Exh. R-2)
On September 14,1993, two OSHA compliance officers visited ATL’s facility to investigate
the alleged hazardous conditions. On arrival at the plant, compliance officers Skowronski and
Anderson were met by ATL’s vice president of operations @‘AI&O ) and vice president of research
and development (Barris) who informed the compliance officers that they could not allow them to
conduct an inspection without permission from ATL’s president (Regna). Although he was out of
the office at the time, D’Amico succeeded in reaching Regna by telephone at which point
compliance officer Skowronski spoke to Regna in the presence of both D’Amico and compliance
officer Anderson (Tr. 25, 540-41, 578).
On direct examination, Skowronski described the telephone conversation he had with Regna:
the six hazardous conditions listed in the complaint were read to Regna; when informed that
Skowronski was prepared to conduct tests in analyzing air samples for air contaminants, Regna
2
refused to permit such testing but otherwise allowed the inspection to proceed; Regna expected to
be at the plant soon and they would meet during the course of the inspection (Tr. 25).
Although his testimony on cross-examination was vague and uncertain at times as to whether
the question of penalties (or fines) was discussed with Regna during their telephone conversation,
Skowronski was unequivocal and unshaken in denying that he agreed to waive any penalty if a
hazardous condition was corrected within a certain time period (Tr. 51-54. 58-59).
The waiver-of-penalty issue was raised by ATL in its notice of contest and answer to the
complaint. Regna testified as follows regarding his September 14 telephone conversation with
Skowronski (Tr. 777-78):
Mr. Skowronski identified himself as an OHSA inspector, and
he told me that he was responding to a complaint against Aero Tee,
and he and I discussed my right to refuse his entry, if I so sought, and
I was aware of that right.
I’m also aware, and I was at the time, that he has the then
right to get a warrant to enter my premises. We, or he talked about
the complaint and indicated that there were six items in this
complaint, but he would not tell me where the complaint came from.
He went over the list of six items, and I asked him if it was possible
to reschedule the appointment, and that I would perhaps allow entry,
but I would like an opportunity to look over the list and consider his
request for entry and could he come back in a few days. He said, no,
that that was not possible, that I needed to make a decision to either
allow his entry or not. I said: “Well in that case, would there be any
fines involved if you found anything on your list that you felt was a
violation?”
And he said:’“There’s a time period for correcting fine [sic],
for correcting violations, and if you correct the violation within the
given time period, that there would be no fine for that situation.”
I said: “Well, if that’s the case, and if we have the six items
that you have recited, then I will permit entry. Let me talk to Mr.
D’Amico, and I will give him my authorization because he doesn’t
have the authorization to, to give you directly,” which he already
knew.
Mr. D’Amico got on the telephone, and I told him that I had
made the arrangement with Mr. Skowronski that there would not be
fines as long as anything he found, we were able to correct within a
given time period.
And I told Mr. D’Amico to be cooperative with Mr.
3
Skowronski and that I would be on my way down to Aero Tee
shortly, and I would meet up with them when I arrived. That’s the
gist of the conversation.
Regna produced a note which he stated was written,lby him during his conversation with Skotionski.
The note reflects four topics listed singly, one below the other: Matt Skowronski; “6 complaint[s];
time period; no fine” (Tr. 776, Exh. R-5).
The record as a whole does not support Regna’s version of the telephone conversation with
Skowronski. There is no dispute that both compliance officer Anderson and D’Amico were with
Skowronski during the telephone conversation. Anderson testified that he was “listening attentively”
to the conversation because of his concern over the possible need to obtain a search warrant, and that
Skowronski’s statements over the telephone were limited to the six-item complaint without reference
to penalties (Tr. 540041,549-5 1).
It is of compelling significance that ATL called D’Amico (its vice president of operations)
to testify about virtually the entire range of issues in this case, including the matter of the telephone
conversation between Regna and Skowronski. Here, in pertinent part, is D’Amico’s testimony when
questioned by Regna on direct examination (Tr. 578-79):
Q Did Mr. Skowronski, do you recall, recite the six alleged
violations over the phone?
A Yes, I believe he read the -- he read the complaint to you.
Q And do you recall whether he mentioned anything about doing
air monitoring?
A I do not recall if during the conversation there was any
discussion of air monitoring.
Q Okay.
Do you know if there was any discussion of investigating ATL on a
plantwide basis?
A No, there was no discussion of a plantwide basis. My
understanding, when they came to the window and presented the list
of complaints, was that they were there to inspect for those specific
complaints.
Q When Mr. Skowronski got off the phone, did I speak with you
and give my permission to allow entry to Aerotec?
A Yes, you did.
Q Okay.
Did I at that time tell you to cooperate fully with Mr. Skowronski?
A. Yes, you did.
4
Q Did you have any discussions or did Mr. Skowronski or Mr.
Anderson mention to you that there would be any peripheral
inspection or anything other than six items? For example, fire
extinguishers, machine shop equipment, molding equipment,
anything of that sort?
A No. We had no discussion beyond the contents of the list.
Q Did they present you with any other documents that indicated
that there would be penalties assessed for alleged violations?
A No, they did not.
It is remarkable that Regna would fail to interrogate D’Amico about the alleged statement
made by Regna to D’Amico during the phone conversation when Skowronski turned the phone over
to D’Amico at which point Regna purportedly told D’Amico “there would not be fines as long as
anything that he found, we were able to correct within a given time period.” The failure to elicit
such corroborating testimony cannot reasonably be attributed to carelessness or neglect, particularly
in view of Regna’s persistent arguments on the issue made throughout the course of the hearing.
It is also noteworthy that when Skowronski concluded his seven-day inspection, he held a
closing conference on November 30,1993, with Regna’ D’Amico and Barris. Regna left the meeting
at about the time Skowronski finished covering the “observed violations.” The meeting continued
with D’Amico and Barris who, in accordance with routine procedure, were informed about such
subjects as abatement methods and dates, possible penalties, and contest rights (Tr. 27,412.13).
When questioned as to whether he was present during the entire closing conference, Regna
testified, in part, as follows (Tr. 790):
A I was not. I’m told that the closing conference went on even
after I left, and I’m told that Mr. Skowronski, after I left, then brought
up, once it was a fait accompli, at the closing, after all the inspection
had been done, I am told, or I understand from his testimony, that he
suggested to Mr. D’Amico and Mr. Barris that there could be fines
for these items, which is somewhat inconsistent with what he actually
did because there are two items that he brought up to us that he did
not write up citations for and did not fine us on....
This testimony may fairly be described as ambiguous and self-contradictory.
Appraising Skowronski’s testimony by his demeanor and by the manner in which it hangs
together with other evidence, it is concluded that Skowronski’s statements regarding the penalty
discussions are credible.
It is also contended that the inspection was invalid because the compliance officers went
beyond the scope of ATL’s consent, which was limited to the six-item complaint. The Secretary
correctly points to a number of factors that are clearly established by undisputed testimony: at least
some of the citation items were in plain view during the time the compliance officers were inspecting
the six-item complaint; when the compliance officers began their physical inspection, Barris and
D’Amico were given a copy of the complaint and they thereupon led the compliance offkers to the
locations where the subjects of the complaint could be observed; at least one and sometimes both
ATL’s vice presidents accompanied the compliance officers throughout the physical inspection,’ and
Regna himself acknowledged that he was present at the plant “most of the time” during the seven
separate occasions that the compliance offkers returned to the facility to continue with their
investigation, and that Regna did not express an objection at any time regarding the presence or
conduct of the compliance officers (Tr. 67).
ATL’s consent argument was squarely met and disposed of in fiopp Forge Co. v. Secretary
of Labor, 657 F.2d 119 (7th Cir. 1981). There the written complaint leading to the inspection
alleged a carbon monoxide hazard. During the initial inspection, the OSHA compliance officer felt
that the noise in the plant might exceed the permissible level of the standard. The compliance officer
returned to test the noise level. The court ruled that the noise inspection was proper:
The record shows, however, that at all times on December 13, the
compliance officer was accompanied by Kropp’s Safety Director and
that on December 19, she and a second compliance officer were
accompanied by the Safety Director and Kropp’s General Manager.
Both men had been informed that noise sampling would be
conducted, and they raised no objections to the approximately five
hours of sampling conducted on each day.... Since Kropp’s
representatives were present at all times during these inspections and
did not raise any objections when informed of the intended sampling,
any Fourth Amendment objection to these surveys was waived.
Id. at 121-22. See also Stevenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1023-4 (5th Cir.
‘When asked on direct examination as to whether he cooperated with the compliance officers during their
inspection, D’Amico stated: “I believe we cooperated fully with them. We took them wherever they wanted to go
and allowed them to, you know, see the entire plant” (Tr. 581).
6
1978) (company consented to walk-through inspection when its representative accompanied the
inspector and failed to raise any objections).
In its posthearing brief, ATL presents the following catchall argument for invalidating the
inspection:
Mr. Skowronski entered the premises upon false, misleading and
illegal pretexts. He further extended his investigation “plant wide”
without notice of potential jeopardy to ATL and totally without
warrant, cause or authority. He used his position and false statements
as a confidence scheme to entrap and intimidate ATL employees and
to “fabricate” a list of purported hazards.
All three of ATL’s officers who dealt with the compliance officers throughout the period of the
inspection (which extended from the initial visit on September 14’1993, until the closing conference
on November 30, 1993) were well aware of their right to refuse a warrantless inspection. It is also
clear that the entire inspection was conducted openly and with the full knowledge of ATL. It should
also be noted that the challenge to the inspection was not raised as an issue by ATL in either its
notice of contest or its answer to the complaint. In fact, it was first mentioned by ATL during a
telephone conference held by the judge with the parties shortly before the hearing. Nor should we
overlook the fact that the language used in ATL’s catchall argument is strikingly at odds with the
conciliatory tone expressed in its notice of contest: I
We have received your recent notification, and ATL requests an
informal conference as you have offered.
In particular, we wish to contest the suggested penalties since we
were assured that fines are levied only if conditions are not corrected.
Additionally, ATL contests several of OSHA’s technical findings,
and we wish to reserve a formal hearing if this is necessary.
Many of the items have already been addressed, and ATL will be
proceeding with other safety modifications even before the
conference.
May I say that we appreciate Mr. Skowronski’s explanatory meeting
and the literature he provided. Kindly have him call us to arrange the
conference at a mutually convenient time.
There is nothing in the record to support the allegation that the compliance offkers practiced some
form of deceit or trickery regarding their mission at ATL’s plant.
ATL also contends that the six-item complaint was nothing more than “a ‘vendetta’ list of
a disgruntled employee with no basis in fact.” ATL fails to point to any evidence that suggests
OSHA had no reasonable grounds to believe that the alleged violations or dangers described in the
employee complaint existed, and we are unable to find any evidence to support such a notion.
ATL further contends that the Secretary failed to comply with the procedures regarding
discovery (interrogatories were not answered until the judge issued an order to compel response) and
prehearing disclosure (witness list and photo exhibits not provided within 10 days before hearing
as required by prehearing order). These matiers were discussed during the early stage of the first day
of hearing. ATL was informed that the sanction of dismissal could not be imposed unless it could
demonstrate that it was prejudiced in preparing its defense to the Secretary’s charges due to failure
of the Secretary to comply with procedural rules or the prehearing disclosure order. See NatZ. Indui
Constructors v. OSHRC, 583 F.2d 1048, 1053-54 (Th Cir. 1978). No claim of prejudice has been
made by ATL.
ATL further contends, in effect, Skowronski’s testimony which “included hearsay reports
of workers’ remarks without the workers’ presence in court” should be stricken because ATL was
deprived of its right to cross-examine those workers. This argument, which was also made during
the hearing, relates to the compliance officer’s testimony concerning statements of certain named
ATL employees made to the compliance officer in the course of the physical inspection of the plant.
Federal Rule of Evidence 80 1(d)(2)(D) provides:
A statement is not hearsay if - ...
The statement is off&red against a party and is...
(D) a statement by the party’s agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship.
If ATL had reason to believe that the employee statements (which were offered by the Secretary as
admissions by ATL under the federal rule of evidence) were not accurate, ATL was free to arrange
for those named employees to appear as rebuttal witnesses at the hearing; the Secretary had no
obligation to call them as his witnesses because their out-of-court statements are not subject to
exclusion under the prohibition against hearsay.
THE FALL-PROTECTION STANDARD AT § 1910.23(c)(l)
The 23(c)( 1) standard requires every platform 4 feet or more above lower levels to be
guarded by a standard railing (or equivalent) on all open sides except where there is an entrance to
a ramp, stairway, or fixed ladder. The locus of the alleged violation involved the roof of a room
inside the main manufacturing facility. The roof, which was 9 feet high and flat, was used to store
materials, and was open on two sides.
The Secretary contends that although a forklift was used to raise and lower materials,
employees also used “a stairway on roller” to climb to the roof and walk on the surface in order to
handle the materials (Tr. 36). There was no railing along the open sides. The compliance officer
testified that although he did not observe any employee on the roof; he was informed by both vice
president D’Amico and another employee, Paul Sheridan, that employees walked on the roof to
handle the materials being stored. He actually observed the rolling stairway in the plant, and stated
that the materials were stored in such a position that they could not have been placed there simply
by a forklift (Tr. 81-82).
ATL claims that the roof in question was nothing more than a storage shelf and not a work
place. ATL’s answer to complaint. D’Amico flatly denied telling compliance officer Skowronski
that work was performed on the surface of the roof. He maintained that there was no means of
access to the roof area, that it was “a dead storage area” for materials no longer used, and that the
stored materials were placed on pallets and moved by forklift (Tr. 588-89).
D’Amico’s testimony was in direct conflict with Skowronski’s; however, the assertions of
Skowronski are credible for the following reasons: he gave positive testimony that he saw the
materials stored on the roof in a manner that could not have been effected had the materials been
handled exclusively by mechanical equipment such as a forklift, as ATL claims. He also saw certain
materials on the floor of the plant apparently in preparation for use in making flexible tanks, which
materials were previously observed by him when they were stored on the roof (Tr. 33). This
testimony was not undermined in any way.
As previously discussed, ATL repeatedly took issue with the compliance officer’s testimony
regarding statements said to have been made by employees to the compliance officer during the
. 9
inspection. ATL argues that it was deprived of the opportunity to cross-examine those employees
because they were not present at the hearing. On several occasions during the hearing, the hearsay
rule and legal nature and effect of out-of-court statements that qualify as admissions were explained
to ATL’s representative who apparently understood the import of the admissibility of the employees’
statements as admissions of the employer (Tr. 32, 3 17-18). It is noteworthy that while ATL
produced D’Am.ico as a witness to refute much of the testimony of the compliance officer, it did not
bother to call its other employee, Paul Sheridan, whose statements to compliance officer Skowronski
were in direct conflict with D’Amico’s testimony.2
Based upon the foregoing considerations, it is concluded that the events and circumstances
recounted by compliance office Skowronski are credible, consequently item 1 of citation number 1
is sustained as a serious violation in view of the 9-foot fall hazard stemming from the unguarded
open sides of the roofYp1atfon-narea traversed by ATL’s employees. The $700 penalty proposed by
the Secretary, being consistent with the statutory penalty criteria of section 17(j) of the OSH Acty3
is assessed.
THE STANDARD 5 1910.106(d)(4)(i) FOR CONSTRUCTING
INSIDE STORAGE ROOMS FOR FLAMMAB LE LIQUIDS
The second item of the citation charges that ATL failed to provide its inside storage room
opening with noncombustible liquid-tight raised sills or ramps at least 4 inches in height, in
accordance with the 106(d)(4)(i) standard.4
Compliance officer Skowronski testified that ATL’s storage room was structured so that the
back half of the 30-by-15 foot room, where 55-gallon drums of flammable liquids were placed, was
2ATL offered no explanation for the failure to call Sheridan whom one would expect to be produced by
ATL if the facts known by Sheridan were favorable to ATL.
3Section 17((j), 29 U.S .C. 0 666(j), provides that the Commission shall assess an appropriate penalty for
each violation, giving due consideration to the size of the employer, the gravity of the violation, the good faith of
the employer, and the employer’s history of previous violations.
4The standard provides two permissible alternates to the sill or ramp: where the floor in the storage area
is at least 4 inches below the surrounding floor, or where there is an open-grated trench inside the room which
drains to a safe location. These two options were not in issue.
10
divided by a berm made of vinyl or rubber material covering wooden planks. According to
Skowronski, there were three major flaws in the room’s set-up: there was no raised sill, ramp or
berm at the opening of the room; the berm was not made out of noncombustible materials;.part of
the berm was moved whenever the drums were moved in and out of the storage area (Tr. 100-03).
Skowronski explained that the purpose of the standard is to contain spills and leaks of flammable
liquids within the fire-resistive storage room; otherwise, the spill could flow under the door and into
adjacent work areas where there were many ignition sources (Tr. 103-07).
D’Amico’s testimony regarding the combustibility of the berm cover, suffers from internal
contradictions: on direct examination, he stated that the material covering the berm consisted of “a
secondary containment liner” (one of ATL’s own product lines), that the material was liquid-tight,
solvent resistant, and accepted by the local fire department, thus suggesting that the covering was
noncombustible (Tr. 600-02). On redirect examination, D’Amico testified that shortly after the
citations were issued, both ATL and offrcials of the local OSHA area o&e met to discuss the
citations and it was agreed than an acceptable method of correcting the sill violation would be simply
to cover the interior wooden sill with noncombustible material, which ATL then proceeded to do (Tr.
756-58). The Secretary did not dispute the witness’s testimony on this point, which was elicited
during a debate between the parties as to the infeasibility of installing a sill at the opening of the
storage room, as the standard requires, rather then being located along the room’s interior midway
point (Tr. 744-58).
Although the issue of infeasibility was not raised by ATL as an affirmative defense in the
pleadings, there is no reason to disturb the agreement of the parties when the record provides
satisfactory evidence that the issue was examined and resolved upon thoughtful consideration by
both parties.
Because ATL failed to provide a raised sill of noncombustible material, the citation item is
affirmed as a serious violation; the $875 penalty proposed by the Secretary is modified to $500.
THE STANDARD 5 1910.106(d)(7)(i)(a) FOR
MAINTAINING FIRE EXTINGUISHERS WHERE
FLAMMABLE LIQUIDS ARE STORED
The third item alleges that ATL failed to provide a portable fire extinguisher located outside
11
of, but not more than 10 feet from, the flammable liquid storage room door opening. There is no real
dispute regarding the violation of this standard. Skowronski testified that while a fire extinguisher
was placed inside the storage room itself, the nearest one outside the room was located some-30 feet
from the door opening (Tr. 28). According to D’Amico, the distance between the exterior,of the
door opening and the nearest fire extinguisher was more like 15 to 20 feet (Tr. 604).
Inasmuch as the standard requires maximum distance of 10 feet, it is immaterial whether the
fire extinguisher was actually located 15 feet or 30 feet from the storage room door opening.
However, the Secretary alleges that the distance violation was serious, but there is nothing in the
record to explain why the 200foot difference was of such consequence that it would warrant a serious
classification within the meaning of the OSH Act. This item is affirmed as a nonserious violation
and penalty of $100 is assessed instead of the $700 proposed by the Secretary.
CONTROL OF HAZARDOUS ENERGY UNDER § 1910.147
In items 4, 5 and 6 of the citation, the Secretary contends that ATL violated three energy
control standards, including the ftilure to establish an energy control (or lockout/tagout) program
pursuant to 9 1910.147(c)(1), failure to provide protective materials and hardware for securing
machines or equipment from the energy source as required by $ 1910.147(c)(5)(i), and failure to
provide certification of employee training in accordance with 6 19 lO.l47(c)(7)(iv).
The compliance officer testified that ATL used a variety of machines requiring a
lockout/tagout program, including metalworking and woodworking equipment, heat sealing
machines and a large, complex piece of equipment called a “rot0 molder” (Tr. 130-3 1). Upon
interviewing several employees, including vice presidents D’Amico and Barris, the compliance
officer was informed that servicing and maintenance of the machines and equipment were performed
by the employees, and that ATL did not have a lockout/tagout program or established procedures
in accordance with the cited standards (Tr. 141’143,147). During the course of the hearing, ATL’s
representative acknowledged that the requirements of the three cited energy control standards had
not been complied with (Tr. 623), and no serious defense regarding these matters was presented.
The three items are affirmed as serious violations and a penalty of $1225 is assessed for each, as
proposed by the Secretary
12
EDUCATIONAL PROGRAM FOR USE OF
FIRE EXTINGUISHERS UNDER 8 1910.157(g)(l)
The standard requires that where the employer has provided portable fire extinguishers for
employee use, the employer shall also provide an educational program in their use and the
recognition of the hazards involved with incipient stage fire fighting. During the inspection, the
compliance oficer noted the presence of a number of fire extinguishers placed in various locations
in the shop. On questioning D’Amico, the compliance offker testified that he was informed
employees were expected to use the fire extinguishers, but were not provided with training for their
use (Tr. 146).
D’Amico’s testimony conflicts with that of the compliance officer. D’Amico denied that
employees were required to use fire extinguishers. He stated that ATL operated under an emergency
response plan which required employees to evacuate the plant in the event of a fire and to call on the
fire department and emergency response team to deal with the problem..
D’Amico’s testimony is seriously undermined by two factors: ATL’s emergency response
plan (“ERP”) called for employee use of “personal protection [sic] equipment” in situations
involving ?ninor incident or in imminent danger of life and health.” The plan specified that the
“[elquipment available shall include fire extinguishers, goggles, gloves and absorbent” (Emphasis
added.) “All other emergencies [were to be] handled by evacuation and deferral to professional
teams.“5 ATL’s ERP, 7 Mm
The second countervailing factor is the previously discussed 5 1910.106(d)(7)(i)(a) standard
which requires that a portable fire extinguisher be provided outside of the liquid storage room door
opening. The fire extinguisher’s use would clearly fall within the ambit of ATL’s emergency
response plan as “safety equipment to be used [by employees] in minor incident or in imminent
danger.”
The Secretary having sustained his burden of proof, item 7 of the citation is affirmed as a
serious violation, and a penalty of $1225 is assessed, as proposed by the Secretary.
?h.is matter was raised during the hearing by the Secretary’s counsel who indicated that a copy of the
plan was obtained by the compliance officer during the inspection. A copy of the plan was submitted by ATL as
part of its posthearing brief (Tr. 64142, 647-48).
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PROTECTING BATTERY CHARGING APPARATUS:
8 1910.178(g)(2)
One of the safety requirements relating to industrial trucks powered by electric motor is
protecting the charging apparatus from damage by trucks pursuant to 8 1910.178(g)(2). ATL
maintained a battery charger on the floor near a wall of the plant (Tr. 149-50; Exh. C-l). The
compliance officer testified that the charger was exposed to danger of being struck by a forklift truck
when the operator approached the installation to energize the battery. According to the compliance
officer, such a collision exposed the forklift operator to either an electrocution or a fire hazard (Tr.
151,43 1). Thus, the situation called for either a barrier guard or raising the installation several feet
above floor level (Tr. 152).
While acknowledging that a hazard existed had the battery charger been struck by the forklift
truck even if the charger were deenergizied at the time (Tr. 665)’ ATL steadfastly maintained that
because of the procedure used by the operator in approaching the apparatus before the electric power
is turned on, the condition should be classified as nonserious instead of serious (Tr. 652-53,659.6 1,
665). ATL’s argument has merit. Item 8 of the citation is affirmed as a nonserious violation, and
the $700 penalty proposed by the Secretary is reduced to $350.
Items 9 and 10 of citation number 1, dealing with machine guarding, were withdrawn by the
Secretary during the hearing (Tr. 154).
SAFETY REQUIREMENTS FOR WOODWORKING MACHINERY:
5 1910.213
According to the citation, items 1la and 1lb, which involve the same radial saw, “have been
grouped because they involve similar or related hazards that may increase the potential for injury.”
Item 11a alleges violation of 5 1910.2 13(b)(3) which calls for a power control to prevent a machine
from automatically restarting upon restoration of power after power failure or other interruption of
power. Item 11b concerns the woodworking standard at 6 1910.213(h)(4) which requires the radial
saw to be installed in such a manner that the front end of the unit will be slightly higher than the rear
so as to cause the cutting head to return gently to the starting position when released by the operator.
During the inspection, the compliance offker noticed the radial saw just outside ATL’s office
14
area. In testing the saw for presence of a power control switch, the compliance officer requested that
the saw’s power supply be “unplugged” and then reconnected, upon which the saw started up,
’ indicating that there was no power control or “restart” switch ( 154-55). c
On cross-examination, the compliance officer was questioned as to whether the power control
requirement under § 19 10.2 13(b)(3) was duplicative of the requirements of the lockout/tagout
regulations which are the subject of items 4’5, and 6 previously discussed. The compliance officer
correctly explained that the former addresses power control of the saw during production while the
$1910.147 lockout/tagout standard deals with the control of energy during service and maintenance
(Tr. 442).
When the compliance officer tested the installation of the saw by pulling the cutting head
forward and releasing it, the cutting head did not return to the starting position (Tr. 157, 16 1).
D’Amico testified that the saw was used only on rare occasions and not on a regular
production basis (Tr. 669). His testimony was not challenged by the Secretary. Although the
potential hazard was serious in nature, the overall &avity of the violation was such that a penalty of
$350 is assessed instead of the $700 proposed by the Secretary.
GUARDING OF PULLEYS AND BELTS:
55 1910.219(d)(l) and 219(e)(l)(i)
ATL’s milling machine is the subject of two violations which have also been grouped
because they both involve power-transmission apparatus: item 12a relates to pulleys which require
guards when they are seven feet *or less from the floor (9 1910.2 19(d)( 1)); item 12b concerns
horizontal belts which also require guards when seven feet or less fi-om the floor
($1910.219(e)(l)(i)).
The compliance officer testified that the milling machine had two sets of pulleys and one belt
located six feet above the floor level and they were not guarded. The compliance officer
acknowledged that the machine was located in a “laboratory room” and was not used in regular
production (Tr. 163-68, 445). D’Amico testified that the milling machine was equipped with a
single guarding device that safeguarded both the pulleys and belt, but the guard was on the floor
nearby at the time of the OSHA inspection, where it had been placed to change the belt setting.
15
D’Amico noted that the machine was not being used when the compliance officer observed the
machine (Tr. 677-82). I
D’Amico’s testimony is at odds with ATL’s answer to the complaint which contained the
following relevant comments:
[Items] 12a.) Milling machine is used for plastic and
hard rubber. Safety glasses and gloves are
provided. Guard prevents odd shaped pieces
from being machined.
12b.) Guard installed as suggested.
D’Amico’ s testimony regarding the guarding of the milling machine lacks credibility.
Operation of the machine without appropriate safeguards created a potentially serious risk of injury
should an accident have occurred. Based upon the compliance officer’s own testimony concerning
modification of the recommended penalty for the grouped violations based upon infrequent use, a
penalty of $575 is assessed in lieu of the original proposed penalty of $700.
GUARDING OF SPROCKET WHEELS AND CHAINS: § 1910.219(f)(3)
The 5 1910.219(f)(3) standard requires all sprocket wheels and chains to be enclosed unless
they are more than seven feet above the floor. Item 13 of the citation concerns a revolving drum
mixing machine equipped with sprocket wheels and chains which were partly guarded on one side
and completely unguarded on the other (Tr. 170-74; Exh. C-3).
The only issue raised by ATL is the Secretary’s classification of the violation as serious.
Based upon D’Amico’s testimony, ATL claims that the violation should be classified as nonserious
because of the remoteness of the probability of an injury occurring due to the location of the wheels
and chains, and because of the relatively low one-half horsepower of the motor which would have
likely caused the motor to stall before anyone sustained serious injury (Tr. 687-89). The Secretary
did not present any evidence to rebut D’Amico’s testimony. Accordingly, this item is sustained as
a nonserious violation, and a penalty of $350 is assessed in lieu of the $700 proposed by the
Secretary.
16
LABELING CONTAINERS OF HAZARDOUS CHEMICALS:
$5 1910.1200(f)(5)(i) and 1200 (f)(5)(ii)
Grouped items 14a and 14b of the citation allege that ATL utilized numerous one-gallon cans
of adhesives and solvents of a hazardous nature which were not labeled with the identity of the
hazardous chemicals contained therein, nor with the appropriate hazard warnings in accordance with
8 5 1910.1200(f)(5)(i) and (f)(5)(ii), respectively.
ATL’s Technician’s Information Sheet contains a list of six solvents that were used in the
manufacturing process, including acetone and methanol. The information sheet states that all six
chemicals (or solvents) “ are considered hazardous,” are highly flammable, and are productive of
irritation in the eyes, the gastrointestinal system, and the skin (Exh. R-l).
It is undisputed that the 550gallon drums of solvents kept in the storage room were properly
labeled (Tr. 182). The solvents were used as additives in the adhesives to achieve the proper
viscosity. This procedure was accomplished by first transferring the solvents into one-gallon
containers and then mixing them with adhesives (Tr. 729). During the course of the hearing ATL
argued that the one-gallon containers were intended for “immediate use, Cctherefore, it was not
required to label or mark such containers, according to OSHA regulations (Tr. 501-02).6 This
argument is effectively undercut by the compliance officer’s credible testimony and corroborating
photographic evidence which clearly demonstrate that the containers of chemicals were not in the
process of being used but, in fact, were stored on worktables and available to any employee who
might have a need to use the material. The controlled conditions that would qualify for the labeling
exemption did not exist at ATL’s plant. ATL’s witness, D’Amico, admitted as much in his
testimony (Tr. 177083,738; Exhs. C-4, C-5).
ATL, in effect, also advanced the argument that because the compliance officer ftiled to test
the adhesive-solvent mixture, no proper evaluation was made to determine the hazardous effects of
629 C.F.R. 0 1910.1200(f)(7) provides, in relevantpart:
The employer is not required to label portable containers into which hazardous
chemicals are transferred from labeled containers, and which are intended only
for the immediate use of the employee who performs the transfer.. . .
17
the mixture, therefore, the Secretary failed to prove the existence of a hazard of either a serious or
nonserious nature (Tr. 461-96,692-96,729.3 1).
The Secretary meets this argument by calling our attention to the testimony of D’Amico who
stated that the concentration of solvents in the mixtures was in the range of “maybe 10 or 15 percent”
or “maybe 15 or 20 percent” (Tr. 73 1). The Secretary correctly points out that reducing the
concentration of hazardous chemicals by mixing them with other chemicals does not exempt the
resulting mixtures form the labeling requirements of the hazard communication regulations..
Secretary’s brief at 27.
Employers who mix chemicals for use in the workplace are required to determine the hazards
of the mixtures by either testing the mixture as a whole, the results of which are to be used to
determine whether the mixture is hazardous or, where, as here, a mixture has not been tested as a
whole to determine whether the mixture is a health hazard, ‘“themixture shall be assumed to present
the same health hazards as do the components which comprise one percent (by weight or volume)
or greater of the mixture.” 29 C.F.R. $ 1910.1200(d)(5)(i) and (ii).
There is ample evidence in the record to support the Secretary’s case as to items 14a and 14b;
they are affirmed as serious violations and the proposed penalty of $1,225 is assessed.
EMPLOYEE TRAINING ON HAZARDOUS CHEMICALS:
5 1910.12OO(h)(3)(iv)
Item 15, the last item in citation number 1, alleges serious violation of the standard at
“5 19 lO.l2OO(h)(2)(iv)” in that:
Employee training did not include 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 appropriate hazard
information.
This language appears at 5 19lO.l2OO(h)(3J(iv) and not at 12OO(h)@(iv) as described in both the
citation and the complaint. Because the record is clear that the actual issue tried by the parties
related to the 12OO(h)(3)(iv) training standard, the harmless error is corrected pursuant to Fed. R.
Civ. P. 15(b).
The compliance officer testified that during the course of his inspection he interviewed a
18
number of production employees, including a Paul Sheridan and a David White, who were
questioned about the hazard communication program. According to the compliance officer, the
employees displayed a lack of knowledge and training regarding material safety data sheets and the
hazard communication program in general (Tr. 186-89).
When questioned on cross-examination concerning certain records signed by employees
indicating they had read ATL’s hazard communication program and “worker right-to-know manual”,
the compliance officer stated that he was informed by the employees that ‘ctheywere told to sign this
when they started and that was it. They said they did not receive any training” (Tr. 505).
The substance of ATL’s defense is revealed in the following exchange on direct examination
of D’Amico (Tr. 70940):
Q And do you know personally of anyone in the ATL plant who
is oblivious to the MSDS program and who doesn’t know what a
sheet is or would know where to find it?
A I can’t imagine that there is because, as I mentioned before,
there’s several signs around the shop about worker right to know and
what an MSDS sheet is.
There’s specific instructions right in the front of the shop on
what an MSDS sheet is.
The books are right there, in a bright yellow folder, black
label says MSDS sheets on the front.
I mean, its attached with a chain to the shop manager’s office
so it can’t be removed.
I mean, its -- I mean, I can’t imagine that there’s anyone in the
plant who is oblivious to the fact of what an MSDS sheet is and
where they are and how to get the information off it.
Q Is it not --
A And they’re certainly made aware of it when they start. And
they’re certainly available for anyone who wants them on a day-to-
day basis. We don’t have them locked away in safe. We don’t have
them in the back room. We don’t have them in the office. They’re
right there at the front of the shop for any employee to look at any
time he wants to look up and open the book.
Q Isn’t that true ---
A I don’t think we can do much more than to make them
available and try to tell them what’s there. I don’t think we have to
spoon feed the information to each employee from every sheet.
What is noticeably missing from D’Amico’s testimony is the notion that training consists in some
19
form of instruction by telling and showing what the employees are to know based on clearly defined
objectives consistent with the employee training standard. The Secretary is correct in faulting ATL’s
system of simply providing a written hazard communication program and posting notices to inform
employees of the location and availability of that hazard communication program.
Item 15 is affirmed as a serious violation and the proposed penalty of $1,225 is assessed.
LOG OF OCCUPATIONAL INJURIES AND ILLNESSES: tj 1904.2(a)
The first item of citation number 2 alleges nonserious violation of the recordkeeping&
regulation at 5 1904.2(a). It is undisputed that for the years 1992 and 1993, ATL did not maintain
in its workplace a log and summary of all recordable work injuries and illnesses for that
establishment, as required by the regulation. The compliance officer was informed by ATL that
since 1992 all its payroll, accounting records and the OSHA logs and summaries of injuries and
illnesses were maintained by an outside firm which it engaged to handle those matters (Tr. 19l-92).
ATL not having presented any serious defense to this first item of the nonserious citation,
it is affirmed and no monetary penalty is assessed, as recommended by the Secretary.
The second item of the citation was withdrawn by the Secretary at hearing (Tr. 192).
MAINTENANCE OF PORTABLE FIRE EXTINGUISHERS: 8 1910.157(e)(3)
The standard cited in the third item of the citation requires the employer to assure portable
fire extinguishers undergo an annual maintenance check. Of the four extinguishers inspected by the
compliance officer, one did not have a current inspection tag (Tr. 193).
No defense to this item was made by ATL. Item 3 is affirmed and no monetary penalty is .
assessed in accordance with the Secretary’s recommendation.
ANCHORING MACHINERY: 5 1910.212(b)
The fourth and last item of citation number 2 alleges that a drill press located near the
assembly area “was not anchored to the floor.” The 212(b) standard provides that “[mlachines
designed for a fixed location shall be securely anchored to prevent walking or moving.”
The compliance officer testified that the drill press, a pedestal type, was mounted on a l%-
foot base with holes in each corner of the base for inserting bolts to secure the machine. The
20
machine was used on a periodic basis and was not secured or anchored in any way (Tr. 194). While
the compliance officer acknowledged that he did not test the machine for stability, he was
unwavering in his assurance that he had experience in working with the same type of drill press and
was knowledgeable about the hazard posed by the unsecured machine (Tr. 286-87).
The only points made by ATL during the hearing were its concern over the $350 penalty
proposed by the Secretary and its assertion that the company never had a safety problem with the
press during a period of 15 years (Tr. 288-89)).
The fact that no injury resulted from the cited condition is neither a defense to the merits of
the Secretary’s case nor a reason to modify or annul the penalty where, as here, the $350 proposed
by the Secretary is substantially less than the maximum $7,000 penalty allowed by the OSH Act for
both serious and nonserious violations 29 U.S.C. $ 666(b)and (c). The amount proposed by the
Secretary is obviously scaled to reflect the low gravity of the violative condition, which is consistent
with the penalty assessment criteria of 29 U.S.C. $ 666(j). Therefore, the fourth item of the
nonserious citation is affirmed and a $350 penalty is assessed.
Based upon the foregoing findings and conclusions, it is
ORDERED that item 1 of citation number 1 relating to the fall-protection standard at 5
1910.23(c)( 1) is affirmed, and a penalty of $700 is assessed. It is further
ORDERED that item 2 of citation number 1 relating to construction of flammable liquid storage
room under $ 1910.106(d)(4)(i) is affirmed, and a $500 penalty is assessed. It is further
ORDERED that item 3 of citation number 1 relating to fne extinguisher near storage room door
under 9 1910.106(d)(7)(‘)(
1 a) is
’ aff nmed, as a nonserious in lieu of a serious violation, and a $100
penalty is assessed. It is further
ORDERED that items 4’5 and 6 of citation number 1 relating to control of hazardous energy under
$ 1910.147 are affirmed, and a penalty of $1,225 is assessed for each of the three items. It is further
ORDERED that item 7 of citation number 1 relating to educational program for use of fire
extinguishers under § 19lO.l57(g)( 1) is affirmed, and a penalty of $1,225 is assessed. It is further
ORDERED that item 8 of citation number 1 relating to protection of battery charging apparatus
under 5 19 10.178(g)(2) is affirmed as a nonserious in lieu of a serious violation, and a penalty of
$350 is assessed. It is further
21
ORDERED that items 9 and 10 of citation number 1, having been withdrawn by the Secretary, are
vacated. It is further
ORDERED that grouped items 1la and 1lb of citation number 1 relating to safeguards for a
woodworking machine under $ 19.10.213 are armed, and a penalty of $350 is assessed. It is
further
ORDERED that grouped items 12a and 12b of citation number 1 relating to guarding pulleys and
belts under 6 1910.2 19 are afffirmed, and a penalty of $575 is assessed. It is further
ORDERED that item 13 of citation number 1 relating to guarding sprocket wheels and chains under
$1910.219(f)(3) is aff nmed as a nonserious in lieu of a serious violation, and a penalty of $350 is
assessed. It is further
ORDERED that grouped items -14aand 14b of citation number 1 relating to labeling containers of
hazardous chemicals under $ 1910.1200(f)(5) are affirmed, and a penalty of $1,225 is assessed. It
is further
ORDERED that item 15 of citation number 1 relating to training for hazardous chemicals under $
iv ) is
1910.12OO(h)(3)(’ ’ affnmed, as amended, and a penalty of $1,225 is assessed. It is further
ORDERED that item 1 of citation number 2 relating to occupational injury log under 5 1904.2(a)
is affirmed, and no monetary penalty is assessed. It is further
ORDERED that item 2 of citation number 2, having been withdrawn by the Secretary, is vacated.
It is further
ORDERED that item 3 of citation number 2 relating to fire extinguisher maintenance under $
1910.157(e)(3) is affirmed, and no monetary penalty is assessed. It is further
ORDERED that item 4 of citation number 2 relating to anchoring machinery under $ 19 10.2 12(b)
is affirmed, and a penalty of $350 is assessed.
RICHARD DeBENEDETTO
Judge, OSHRC
Dated*. August 6, 1996
Boston, MA
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