Docket No. 4263

GEARHART-OWEN INDUSTRIES, INC.

OSHRC Docket No. 4263

Occupational Safety and Health Review Commission

November 22, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

H. Dean Owen, Jr., for the employer

James Ammerman, for the employees

Oil, Chemical & Atomic Workers International Union, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, COMMISSIONER:

A decision of Administrative Law Judge Henry F. Martin is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Martin vacated two citations alleging violations of section 5(a)(1) of the Act n1 which were issued by the Secretary of Labor ("the Secretary") to Gearhart-Owen Industries, Inc., Respondent. n2 The Secretary petitioned for review of the judge's decision and I directed review on all the issues raised by the Secretary's petition, including the following:

Whether the evidence establishes that Respondent violated 29 U.S.C. § 654(a)(1) by failing to provide operational shields and failing to comply with required intraline distances in storing explosives.

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n1 Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n2 Judge Martin affirmed a third citation, which is not before the Commission on review.

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The Commission affirms that part of the judge's decision vacating the citation involving the alleged failure to provide operational shields. The Commission reverses that part of the judge's decision vacating the citation involving the alleged failure to comply with required intraline distances in storing explosives.

This case arises out of an explosion at Respondent's facility in Cleburne, Texas, where Respondent was engaged in the production of the M-213 hand grenade fuze under a contract with the U.S. Army Munitions Command. The M-213 hand grenade fuze contains a small quantity of explosive which, when detonated, in turn detonates the main powder charge in a completed hand grenade. In Respondent's production process, employees first assemble the fuze body, which consists of a striker, lever, hinge pin, spring, clip and pull ring. After the fuze body is assembled, it passes along a horizontal conveyor belt to the crimping area, where there are four crimping stations on each side of the belt, 32 to 36 inches apart. A crimping machine is located at each station. The machine consists of a castiron [*3] "shoe", approximately 10 to 12 inches wide and 26 to 32 inches high, which rises from the floor to just above the level of the table where the conveyor belt passes. A steel crimping head approximately one and one-half inches in diameter and 6 to 8 inches long screws into the top of the shoe. The crimping head has a 1/4-inch diameter, vertical hole in it. Each crimping machine operator is supplied with a tray of as many as 110 detonators, the parts containing the explosive material. At the crimping stage, the operator removes a fuze body from the conveyor belt, inserts the base of the fuze body into the open end of a cylindrical C-70 detonator, and then inserts the entire unit -- detonator, first -- into the vertical hole in the crimping head. When the operator depresses a foot pedal, a plunger rises in the crimping head and causes a rubber washer to squeeze the open mouth of the detonator at the base of the fuze body, crimping the detonator to the fuze body like a pencil to an eraser. This completed unit, approximately 3 to 4 inches long, is then replaced on the conveyor belt and passes on successively to x-ray inspection, sealing at the crimp with glue, and packing in special [*4] trays for shipment. The trays, in turn, are placed in boxes which are then loaded onto a semi-trailer truck parked at the loading dock just outside of the work bay.

The record indicates that, after numerous repetitions of this crimping operation, the rubber washer in the crimping machine would deteriorate, either causing improper crimping or cutting the detonator and leaving part of it jammed in the crimping head. Sometimes, when part of the detonator was severed and remained lodged in the crimping head, the operator would try to remove it using a thin piece of wood like a Q-tip or toothpick. If this failed, the operator would call upon Glenn Junge, the Assembly Department Foreman, to clear the machine. Junge would unscrew the crimping head from the shoe, remove a pin which traversed the crimping head and held an inner piston in place, and remove the piston. Then, he would take out the jammed detonator, replace the rubber washer and reassemble the crimping head. One morning, Junge began to clear a jammed machine; only two were still functioning on the production line at the time. He unscrewed the crimping head, laid it across the top of the shoe, and began to tap the pin out. [*5] Suddenly, there was a green flash, followed by an explosion and a fire which engulfed the work bay. When the fire spread to the semi-trailer parked at the loading dock, perhaps three-quarters full of finished M-213 fuze units, the truck, too, exploded. Forty-nine persons were injured in the incident, four fatally.

In the first citation before us, we must consider whether the evidence establishes that Respondent violated section 5(a)(1) by failing to provide operational shields. n3 The Department of Defense Contractors' Safety Manual for Ammunition, Explosives and Related Dangerous Material, DOD 4145.26M, ("DOD Safety Manual") defines "operational shield" as "[a] barrier that will protect personnel, material, or equipment from the effects of fire, fragments, or blast occurring at a particular operation."

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n3 The citation at issue charged that Respondent:

. . . did not furnish each of his employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees working in building no. 1, bay no. 4, the M-213 hand grenade fuze assembly line. Operational shields were not provided to reduce the exposure of employees to the effects of fire, fragments, or blasts occurring at a particular operation and to control the propagation of explosives between operations at the following locations: between employees' stations on crimping machines and between crimping operations and nearby 'unlike' operations such as x-ray inspection, packing, and crating operations.

[*6]

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Testimony at the hearing before Judge Martin established that Respondent initially submitted its contract bid to produce the M-213 hand grenade fuze through the Defense Contract Administration Services Region ("DCASR"). n4 A DCASR safety specialist, Rodney Prows, conducted a pre-award survey of Respondent's Cleburne facility and reviewed documents submitted by Respondent in order to determine whether Respondent understood the safety requirements of the contract bid solicitation and the DOD Safety Manual. The DOD Safety Manual, which was incorporated by reference in the contract bid specifications, prescribed the use of "operational shields." n5 Prows' superior at DCASR, Lawrence Del Regno, later testified that, in his view, the DOD Safety Manual requires that each operation be shielded from each other and that the crimping operators be shielded from the material that they are handling. He added that such shielding can be made of any material: "It can be paper. It can be rocks. It can be -- as long as the material tests out to 125 percent of the anticipated handled load -- it can be of any material [*7] that will confine and restrict the blast." Prows reviewed Respondent's safety manual, its standard operating procedures manual, a plot plan of Respondent's facility and some building drawings, including one drawing titled "Proposed M-213 Hand Grenade Fuze Production Line." The drawing depicted and identified "shields (typ)" between the individual crimping stations. It also included the notation that "Crimper that crimps detonator to fuze body is properly grounded. Crimping of detonator to fuze body is shielded to protect operator and prevent propagation to other detonators."

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n4 DCASR investigates companies bidding on defense contracts to assess their capability of producing in accordance with the terms of the procuring defense agency (e.g. Army, Navy, etc.). DCASR makes a recommendation to the procuring agency, but it does not enter into contracts itself.

n5 The DOD Safety Manual, at paragraph 603(f)(1) and (2), provides:

603. Specialized Safety

* * *

f. Operational Shields.

(1) Certain operations are hazardous and operational shields must be used for the protection of employees. The requirements for shielding cannot be clearly defined because of the great variety of circumstances that surround a given operation. The safety of operations will depend on the careful scrutiny of the work planned and the farsightedness of those responsible for safety in the establishment. Dependent upon amounts of explosives, operations being performed and other factors, shields may be constructed of concrete, steel, wood, plexiglass, or other construction materials.

(2) Operational shields for the protection of personnel shall be designed taking into account thickness, size, fastening, and location in such a manner as to protect against the effects of not less than a 25 percent overload above the expected maximum charge. In the absence of reliable data proving the adequacy of these shields, the proposed design shall be tested with at least 25 percent overload before its use is permitted in operations. Operational shields for which adequate test data is available need not be retested for each specific exposure of the same magnitude.

[*8]

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Following the award of the contract to Respondent, Prows returned to the Cleburne plant to conduct a safety survey. He walked the length of the assembly line (which was not yet in production), including the crimping area. Prows testified that he recalled speaking with Dave Levey, Respondent's plant manager, regarding the crimping machines, the use of the crimping head as an operational shield, and the absence of barricades between the crimping stations. When he was assured by Levey that the crimping heads had been tested by detonating a 25% overload explosive charge inside the crimping head, Prows assumed that the crimping heads had withstood the test and that they constituted adequate operational shields. Approximately three months later, Prows conducted another safety survey at the plant; the line was then in production. Among other things, Prows' subsequent report on the inspection noted the presence of a trailer at the loading dock being used in lieu of a service magazine and specifically recommended that the trailer be moved to another location which complied with intraline distance requirements. [*9] The report, though, made no further mention of operational shields.

The record indicates that, in addition to Prows' periodic surveys, DCASR had two to four quality assurance inspectors (QAIs) who were present almost fulltime in the plant. The primary responsibility of a QAI is to monitor the quality of the product on the assembly line. The QAI is supposed to be familiar with the DOD Safety Manual. QAIs are also given a safety procedure evaluation checklist, keyed to the contractor's own safety program, to make sure that the contractor follows through on its safety program.

In his decision, Judge Martin noted that Prows never cited Respondent for inadequate shielding in the crimping area during either of his safety surveys, even though he was well aware that there were no physical barricades between crimping stations. Moreover, Prows apparently agreed, based on Levey's statement that the crimping heads had been successfully tested, that the steel crimping heads did constitute operational shields. The judge also referred to the testimony of Prows' superior, Del Regno, who expressed confidence in Prows' judgment and acquiescence in Prows' acceptance of Respondent's interpretation [*10] of "operational shield." The judge also pointed to the fact that Respondent had purchased its equipment from and modelled its layout upon a second munitions manufacturer and that its operations and procedures were similar to those employed at another, both of which produced the M-213 fuze under contracts similar to Respondent's. Finally, the judge noted that the DCASR inspectors who were present full-time at Respondent's worksite never complained about the lack of operational shields. Accordingly, Judge Martin concluded that the Secretary did not prove Respondent's failure to provide operational shields and he vacated the citation.

In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); St. Joe Mineralcorp. v. [*11] OSHRC, 647 F.2d 840 (9th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Whirlpool Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (No. 9224, 1979), rev'd on other grounds, 645 F.2d 1096 (D.C. Cir. 1981); see United States Steel Corp., 82 OSAHRC 35/A2, 10 BNA OSHC 1752, 1982 CCH OSHD P26,123 (No. 77-1796, 1982). "A violation of the general duty clause cannot be sustained unless the Secretary is able (1) to establish the type of employer conduct necessary to avoid citation under similar circumstances and (b) to demonstrate the feasibility and likely utility of such conduct." Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1666, 1976-77 CCH OSHD P21,071 at 25,361 (No. 4533, 1976). The Commission has held that "[i]t is sufficient if [a] method [of abatement] materially reduces, even though it may not eliminate, the hazard." Whirlpool Corp., supra, 7 BNA OSHC at 1360, 1979 CCH OSHD at p. 28,535.

The Secretary argues that the citation and complaint refer to the lack of operational shields both between the employee work stations and also between the crimping stage [*12] and other assembly stages along the production line; such "operational shields" clearly imply physical barriers, not the crimping heads themselves. Thus, the Secretary rejects Judge Martin's implicit finding that the crimping head constituted an operational shield. The Secretary urges that the crimping heads did not abate the hazard here, that sparks and explosions were shown to spread from and to detonators which were located outside of the crimping head, and that an explosion among the supply of detonators could spread to nearby production areas unrelated to crimping.

The Secretary also urges that he established the feasibility of barriers as an abatement method based upon: the provisions in the DOD Safety Manual; n6 the building drawing submitted by Respondent in connection with its contract bid depicting shields between individual crimping stations; Respondent's installation, prior to the explosion, of a 3/4-inch plywood shield, 4 feet high by 8 feet wide, between the fuze assembly area and the crimping area; and Respondent's report to the U.S. Army Munitions Command, subsequent to the explosion, that the rebuilt crimping stations were each "separated by one and one-half inch [*13] plywood."

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n6 See note 5 supra.

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On review, Respondent insists that it did provide operational shields in compliance with the safety requirements of the contract and the DOD Safety Manual. In Respondent's view, the record clearly shows: that the crimping took place inside the steel barrier of the crimping head; that the crimping head had satisfied the 25%-overload-of-explosives test prescribed by the DOD Safety Manual, containing the detonation and preventing fragmentation; and that the crimping head shielded the operator and prevented propagation to other detonators. Respondent charges that the Secretary did not make any showing regarding the size, height, weight or construction materials that would be necessary for effective shielding and that therefore the Secretary failed to establish the feasibility and likely utility of additional operational shields as a means of reducing the hazard of the propagation of an explosion. Chairman Rowland and I agree with this contention. n7

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n7 Chairman Rowland would also vacate the citation for the additional reasons stated in his separate opinion.

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The Secretary introduced no evidence concerning the nature or design of the shielding required other than the broad generalizations contained in the DOD Safety Manual. The only evidence directly related to the feasibility of the proposed operational shields is that they "may be constructed of concrete, steel, wood, plexiglass, or other construction materials . . . [and] shall be designed taking into account thickness, size, fastening, and location in such a manner as to protect against the effects of not less than 25 percent overload above the expected maximum charge." Indeed, the Secretary fails to state whether the shields must be able to withstand 25% overload above the explosive charge in one detonator (the operators crimp one detonator at a time) or 25% overload above the explosive charge in 110 detonators (the operators are each supplied with a tray containing 110 detonators). He notes that Respondent did erect a single plywood shield [*15] between the fuze assembly area and the crimping area prior to the explosion and installed plywood between crimping stations after the explosion, but a post-explosion photograph tells little about the efficacy of this shield in the event of explosion. Even if we were to agree with the Secretary that he has established that plywood partitions are technically feasible, there is no basis in this record from which we can reasonably conclude that such partitions would actually work in the event of an accident. We conclude, the, that the Secretary has failed to meet his burden of proof on the feasibility issue. Accordingly, we affirm that part of the judge's decision vacating this citation.

III

In the second citation before us we must consider whether the evidence establishes that Respondent violated section 5(a)(1) by maintaining insufficient distance between the fuze assembly line and the trailer being loaded with completed fuzes, thereby failing to eliminate or substantially reduce the hazard of propagation of explosions between the two sites. The parties agree that the DOD Safety Manual is an appropriate source of separation criteria and other precautions for deployment of explosives, [*16] but Respondent denies that the cited operation was inconsistent with the precautions described in the manual. n8

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n8 The DOD Safety Manual, at paragraph 705(e), states:

705. Degree of Safety Provided by and Use of Quantity-Distance Tables

* * *

(e) Intraline Distances are the minimum permitted between any two operating buildings and/or sites within an operating line, at least one of which contains or is designed to contain explosives, except that the distance from service magazine for the line to the nearest operating building shall not be less than the intraline separation required for the quantity of explosives contained in the service magazine.

The DOD Safety Manual also defines:

Operating Building - any structure, except a magazine, in which operations pertaining to manufacturing, processing, handling, loading, or assembling ammunition and explosives are performed.

and

Service Magazine - An auxiliary building of an operating line used for the intermediate storage of explosives materials. The amount of explosives is normally limited to a minimum consistent with safe, efficient production.

[*17]

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At the time of the explosion on the production line, a semi-trailer truck was parked at the loading dock adjoining the work bay. Referring to a photograph in evidence, Harrold Owen, Respondent's president, testified that the distance between the end of the loading dock and the work bay was 48 feet. n9 Other witnesses estimated the distance as 10 feet and 20 feet. It is undisputed that Respondent's practice was to load boxes of completed fuzes onto the semi-trailer sporadically over the course of several days until it was fully loaded for shipment. Respondent's Assembly Department Foreman, Junge, recalled that, prior to the explosion, the semi-trailer had been parked at the loading dock for three or four days. He estimated that the semi-trailer was three-quarters loaded with fuzes. Owen stated that he did not know how long the semi-trailer had remained at the dock or how often it hauled fuzes from the plant.

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n9 Owen first testified that this distance was 50 to 60 feet. However, upon examining an exhibit depicting the area in question, he stated that distance was 48 feet.

[*18]

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In his decision, Judge Martin noted that the DOD Safety Manual, in Table 7-D, prescribes appropriate separation distances in relation to the net weight of the explosives involved. n10 He concluded that in order to prove the Secretary's allegation it is necessary to know both the quantity of explosives on the semi-trailer and the distance between the semi-trailer and the production line. Judge Martin, though, could not ascertain whether the distances specified in the DOD Safety Manual were exceeded since neither the exact distance involved nor the amount of explosives on the semi-trailer could be determined with accuracy. Accordingly, the judge vacated the citation.

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n10 Table 7-D provides as follows:

Net Pounds of Explosives	Distance in Feet

Over	Not Over	Barricaded	Unbarricaded
(1)	(2)	(3)	(4)
	50	30	60
50	100	40	80
100	200	50	100
200	300	60	120
300	400	65	130
400	500	70	140
*	*	*	*

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On review Respondent endorses the judge's disposition of this item but argues in addition that regardless of the actual quantity of explosives involved the trailer was not too close to the assembly line because the minimum safe distance in this case was 30 feet and the record establishes that the trailer was at least 48 feet from the assembly line. Alternatively, Respondent argues that separation distances are not relevant in this case because by their nature they do not apply to loading operations. In support of this argument Respondent cites to paragraph 308(g) of the Manual, which exempts automotive equipment being loaded with explosives from the intraline distance requirements as long as the combined weight of explosives at the automotive equipment and in the building does not exceed the maximum allowed in the building. n11 Respondent points out that at the time of the explosion Respondent's quantity-distance limit on the line was 400 pounds and there is no probative evidence that the total weight of the explosives on the semi-trailer and in the work bay exceeded 400 pounds.

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n11 Paragraph 308(g) of the DOD Safety Manual provides:

308. Siting of Ammunition and Explosives Facilities

* * *

g. Spotting Rail Cars and Automotive Equipment at Buildings. Rail cars and automotive equipment containing ammunition or explosives, which are nearer than intraline distances to an explosives operation or operating building shall be included in computations as part of the explosive limits of the operation or operating building. This is not intended to permit cars or trucke containing explosives and ammunition to be used as service magazines and to be placed at less than intraline distances from the explosive operation or operational building. The total quantity within the cars and building shall not exceed the maximum permitted in the building or rail cars by the quantity-distance requirements.

Quantity-distance requirements would here establish, in relation to the amount of explosives on the operating line, the necessary separation between the operating building and other inhabited buildings, passenger railroads, and public highways inside and outside of plant boundaries.

[*20]

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We find, based on the testimony of Respondent's president, that the trailer was a maximum of 48 feet from the production building. We further find, based on Table 7-D of the Manual, that a minimum safe distance between the trailer and the building would have been 60 feet. As the judge noted, the record does not establish the quantity of explosives in the trailer or the building and therefore calculations which depend on these figures cannot be made. However, uncontradicted evidence in the form of the Manual shows that regardless of the quantity of explosives at either location, the minimum safe distance between explosive stores not separated by a barricade was 60 feet. n12

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n12 See Table 7-D, note 10 supra.

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We reject's Respondent's argument that the wall of the production building constitutes a barricade and therefore the 30-foot minimum separation of barricaded sites would be the appropriate standard. The Manual defines "barricade" [*21] as an "intervening approved barrier." n13 "Intervening" implies something that lies between two entities, not something that is a constituent of one of them. Therefore, barricaded separation standards are not relevant to this case. Accordingly, we conclude that the distance separating Respondent's trailer and production building was not sufficient to eliminate or substantially reduce the hazard of explosion propagation.

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n13 The DOD Safety Manual defines "barricade" as follows:

An intervening approved barrier (natural or artificial), of such type, size and construction as to limit in a prescribed manner, the effect of an explosion on nearby buildings or exposures.

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Respondent argues in the alternative that no particular separation of trailer and building was necessary in this case because the trailer was being laded, and lading operations, by their nature, require proximity. Respondent points to provisions in the Manual which specifically exempt lading operations from separation requirements. It may be true that [*22] lading operations must sometimes be exempted from separation requirements. However, the cited trailer was being used for temporary storage, not for loading. The record establishes that this trailer remained at the dock even while not being filled and that it was Respondent's practice to leave trailers at the dock for several days during lading. At the time of the explosions the trailer had been at the dock for three of four days and nights. A plot plan of Respondent's plant indicates the trailer could have been removed to either a "Service Magazine Area for Motor Trucks" or a "Storage Magazine Area," yet Respondent offers no reason why the semi-trailer was not removed to one of these locations while not actually being loaded. We agree with the DCASR safety specialists that an intermittent loading operation which extends over several days and nights constitutes temporary storage. n14

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n14 On review, Respondent also contends that both citations at issue must be vacated pursuant to section 4(b)(1) of the Act. Section 4(b)(1) provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

The Commission rejected this argument in an earlier decision in this case. Gearhart-Owen Industries, Inc., 2 BNA OSHC 1568, 1974-75 CCH OSHD P19,329 (No. 4263, 1975), pet. dism., No. 75-1392 (D.C. Cir. Sept. 29, 1975). That ruling became the "law of the case." The rule of the law of the case is a rule of practice based on sound policy that when an issue is once litigated and decided, that should be the end of the matter. Barret v. Baylor, 457 F.2d 119 (7th Cir. 1972). Accordingly, the Commission need not address this already-decided issue and Commissioner Cottine and I decline to do so.

[*23]

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The Secretary originally characterized this violation as willful, but in his petition for discretionary review sought to have the violation classified as serious. We note that all the elements of a serious violation under section 17(k) of the Act, 29 U.S.C. § 666(j), are included in the elements of a section 5(a)(1) violation. Thus, although the citation did not explicitly allege that the violation was serious as well as willful, an allegation of seriousness was implicit in the section 5(a)(1) charge. Our finding that the violation was likely to cause death or serious harm is equivalent to a finding under section 17(k) that the violation gives rise to a substantial probability of death or serious harm. Accordingly, we shall affirm the citation as a serious violation. n15

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n15 In cases arising under section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), where a violation is alleged to be willful but is not proven to be so, the pleadings may be amended to allege a serious violation if the parties have expressly or impliedly consented to try whether the violation was serious. E.g., Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975). In this case, however, because an allegation of seriousness was implicit in the citation, it is not necessary to amend the pleadings to find the violation to be serious.

[*24]

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We have considered the factors enumerated in section 17(j) of the Act, 29 U.S.C. § 666(i) on the issue of penalty assessment. Although it is not clear how large an employer Respondent is, at least 50 people were employed on the M-213 fuze contract. The contract itself was for $1.3 million. Respondent had no previous record of violation. As to gravity, the following elements must be considered: (1) the number of employees subjected to the hazard, (2) the duration of exposure, (3) the precautions taken against injury, and (4) the degree of probability that an injury would occur. Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 761 F.2d 82 (7th Cir. 1977). In this instance, (1) some 50 employees were exposed., (2) the duration was a few days; (3) no precautions were taken; and (4) the probability of injury was relatively high. Respondent exhibited good faith in its cooperation during the investigation.

Accordingly, the judge's decision is reversed in part and the Secretary's citation alleging a failure to comply [*25] with intraline distance requirements in storing explosives is affirmed as a serious violation. A penalty of $700 is assessed.

SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part); COTTINE (In Part)

DISSENT:

ROWLAND, Chairman, concurring in part and dissenting in part:

I concur with Commissioner Cleary in affirming the judge's decision vacating the citation alleging a failure to provide operational shielding. The Secretary presented general evidence that barriers could prevent the propagation of explosions, but he did not specify the type of barriers he alleges Respondent should have used. A section 5(a)(1) violation cannot be found unless the Secretary specifies the steps the employer could have taken to avoid citation and demonstrates the feasibility and likely utility of those steps. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). I would also vacate that citation for for the additional reasons stated infra. I dissent from the majority's decision to reverse the judge and affirm the Secretary's citation alleging a failure to comply with intraline distance requirements in "storing" explosives.

Respondent argues that both citations at issue must be vacated [*26] pursuant to section 4(b)(1) of the Act n1 because the Department of Defense ("DOD") has regulated the cited working conditions. I agree. n2 Section 4(b)(1) precludes the application of the Act to working conditions that are the subject of regulation by another agency. Dillingham Tug and Barge Corp., 10 BNA OSHC 1859, 1982 CCH OSHD P23,493 (No. 77-4143, 1979), appeal filed, No. 82-7552 (9th Cir. August 31, 1982). As the lead opinion so graphically demonstrates, the Secretary's entire case was predicated on allegations that Respondent failed to comply with certain provisions of the DOD Safety Manual. But Respondent was required by DOD regulation to comply with that very manual. Gearhart-Owen Industries, 2 BNA OSHC 1568, 1569 & n.1, 1974-75 CCH OSHD P19,329 at p. 23,113 & n.1, (No. 4263, 1975). Moreover, DOD representatives constantly inspected Respondent's operation to assure that the company was in compliance with the requirements of the manual. Thus, I conclude that section 4(b)(1) deprived the Secretary of jurisdiction to issue the citations.

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n1 Section 4(b)(1), 29 U.S.C. § 653(b)(1), provides in pertinent part:

Nothing in this Chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

n2 Since § 4(b)(1) is a jurisdictional requirement rather than an affirmative defense, it may be raised and considered at any stage of proceedings. U.S. Air, Inc. v. OSHRC, No. 81-1528 (4th Cir. July 2, 1982); Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 918 (3rd Cir. 1980). Since I believe that the Commission may, in the exercise of proper discretion, correct a prior erroneous ruling on a jurisdictional issue, I do not join the majority's "law of the case" discussion in footnote 15. I will consider Respondent's arguments on § 4(b)(1). See Messenger v. Anderson, 225 U.S. 436 (1912); Potomac Passengers Association v. Chesapeake & Ohio Railway Co., 520 F.2d 91, 95 n. 22 (D.C. 1975).

[*27]

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Moreover, the intraline distance citation should be vacated for the additional reason that the record does not support the determination of exact intraline quantity-distance requirements allegedly violated. I would further find that the Table 7-D intraline distances are not applicable in any event, because paragraph 308(g) permits spotting of trailers near operating buildings for shipping purposes so long as the maximum amount of explosives in the spotted trailer and on the production line did not exceed what would be permitted pursuant to the quantity-distance requirements -- in this case, 400 pounds.

The majority reverses the judge's finding that no accurate intraline distances could be determined and resolves the unknown weight of the explosives on the semi-trailer and the production line, allegedly exceeding permissible intraline distances, by making findings which are unsupported by the record. First, the majority holds that the applicable distance requirements to protect against "the hazard of explosion propagation" are governed by the "unbarricaded distance" requirements of Table 7-D. However, [*28] it is the Secretary's burden to prove that the applicable distances were not met because there was no intervening barricade within the meaning of Table 7-D. Lacking proof in the record as to what is the applicable criteria for determining whether a barricade exists, the majority dismisses Respondent's arguments that the wall of the production building is an "intervening approved barricade" within the meaning of the DOD Safety Manual which permitted the trailer to be spotted as close as 30 feet to the building. The majority's justification for such a finding is simply its assertion that "'intervening' implies something that lies between two entities, not something which is a constituent part of one of them."

By concluding that the appropriate minimum distances are guided by the "unbarricaded" distance specifications, the majority adroitly skirts the problem addressed by the judge -- the lack of probative evidence that intraline distances for "barricaded" situations were violated. Indeed, if the 48-foot distance found by the majority to be the length of the dock from the building is accepted as the distance of the trailer from the operating building, there is no proof that the [*29] minimum "barricaded" distance of Table 7-D was violated.

I further note that the presence of the "wall" between the operational area and the loading area apparently well-served the purposes of a "barricade" since there was no mass detonation of explosives in the trailer simultaneously with the explosion in Bay #4. In fact, the trailer exploded some 20 minutes after the initial explosion and only when a fire finally reached it.

Turning now to the alternative ground on which I would vacate -- the applicability of paragraph 308(g) -- the majority dismisses Respondent's argument on this point by concluding that the trailer was used for "temporary storage, not for loading," apparently, because in the opinion of the DCASR safety specialists, intermittent loading which extends over several days "constitutes temporary storage." n3

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n3 While I agree that paragraph 308(g) does not permit motor vehicles and railcars to be used in lieu of service magazines, I further note that it was Respondent's undisputed practice that if fuses accumulated and could not proceed to shipment, then they were stored in a magazine.

[*30]

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I do not find the testimony of Prows and Del Regno summarily referred to by the majority to be compelling. First, neither Prows nor Del Regno testified that the cited trailer under the conditions existing at the time of citation was a service magazine. They offered only general opinion testimony to the effect that a trailer loaded with explosives and not moved for "several days" or until "ultimately loaded" would be a "service magazine". While neither Prows nor Del Regno gave further substantiation or qualification to the term "several days," I note that Prows made the contradictory statement that even "one day would be too long." Finally, Prows did not make a specific objection that the trailer was indeed in violation of the quantity-distance requirements during his prior inspection. Rather, Prows only observed that "a loaded trailer would exceed" the limits. Given the lack of evidence regarding the amount of explosives on the trailer, the length of time the trailer remained at the dock is not relevant, even under the majority's test. In sum, there is no evidence that the trailer remained [*31] at the dock without fuses being loaded onto it and without proceeding to shipment. Therefore, I conclude that the trailer was spotted at the building for loading and shipping purposes rather than for the intermediate storage of explosives.

Finally, I question the majority's unstated acceptance that the Secretary has shown how moving the trailer back and forth to a service magazine during loading would enhance worker safety and be a useful means of abatement. Had the explosives not been in the trailer during the process of loading, they could have been in the plant or loading area and Respondent would have had to comply with the explosive limits not shown to have been exceeded, 400 pounds. Paragraph 308(g) clearly contemplates that it is permissible to have a completely loaded trailer at the dock provided that the total quantity limits for the building are not exceeded. Obviously, the very hazards feared by the majority could nevertheless occur with the accumulation of fuses in the production building or at the final loading of the trailer at the dock in the manner permitted by paragraph 308(g).

COTTINE, Commissioner, dissenting in part:

The Secretary has established the feasibility [*32] and likely utility of providing operational shields in the form of solid partitions to separate employees engaged in assembling hand grenade fuzes from each other and other employees working nearby. Accordingly, I dissent from the majority's decision vacating the citation relating to operational shields.

The judge observed, "it is apparent that the shielding should have been some type of a plywood shield or barrier between each operator." Nevertheless, Commissioner Cleary's lead opinion concludes that, even assuming the Secretary established the technical feasibility of plywood partitions, "there is no basis in this record from which we can reasonably conclude that such partitions would actually work in the event of an accident." As to technical feasibility the evidence is overwhelming. The Secretary relied on partitions actually depicted by the Respondent in its proposed drawings of October 13, 1972 (Exhibit C-3) and on plywood partitions actually installed after the explosion as examples of the type of protection required. The Secretary also relied on the testimony of DCASR safety specialist Prows that plexiglass partitions would be feasible. Prows stated that plexiglass partitions [*33] were already in use in a similar Defense Department facility in Kansas.

The evidence also establishes that partitions would "actually work," i.e., they would materially reduce the cited hazards. In addition, Chairman Rowland acknowledges that "[t]he Secretary presented general evidence that barriers could prevent the propagation of explosions." n1 Nonetheless, the majority finds no reasonable basis to conclude that partitions between the crimping stations would be likely to significantly reduce the potential death and injury toll in the event of an explosion. However, common sense when applied to this factual record indicates the value of partitions in reducing the spread of an explosion in a munitions factory. Indeed, the Defense Department's safety manual incorporated into the Respondent's contract required that "too many consecutive operations not be permitted in the same room or building without adequate dividing walls, fire walls or operational shields . . . ." n2 Furthermore, the Secretary presented evidence of the utility of partitions. DCASR safety specialist Prows testified without contradiction that either plexiglass or plywood of sufficient strength would be effective [*34] to stop the spread of sparks and explosions. Prows' superior, DCASR safety manager Del Regno, testified that in his opinion the absence of shields between the individual workers in the Respondent's operation is a recognized hazard and that he never would have approved the contract award to the Respondent unless shielding had been shown on its drawings.

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n1 The magnitude of the explosion hazard involved in this case is evident from the four deaths and 45 other injuries that occurred following the July 10, 1973 explosion.

n2 U.S. Dep't of Defense, DOD 4145.26M, Contractors Safety Manual for Ammunition, Explosives and Related Dangerous Material § 603(b)(1) (Oct. 1968) (Joint Exhibit 1-H).

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The fact that operational shields were a requirement of the Defense Department's safety manual, which the Respondent agreed to follow, also supports the conclusion that shields would contribute to employee safety. In fact, the Respondent did not claim that partitions would be ineffective; it merely questioned the adequacy of the [*35] Secretary's proof. Its basic argument was that the crimping heads had adequately contained an explosion during testing and were sufficient operational shields under Defense Department requirements. That defense is without merit and has not been accepted by any of the Commissioners. n3 Thus, the Respondent did not rebut the Secretary's evidence of the utility of partitions. n4

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n3 In support of that defense the Respondent's special products manager testified that the Respondent had tested a crimping head with an explosive charge 40% greater than the maximum expected charge and found that the head did not fragment, although it did crack. In his opinion, the crimping head controlled the explosion. However, that test was conducted with the parts assembled as they would be during normal operations. Specifically, the detonator was in position for crimping. By contrast, the catastrophe that precipitated this inspection occurred during repairs while supervisor Junge was attempting to remove a detonator from a crimping head. The Respondent's test explosion did not establish that the crimping head would contain the explosion of a detonator being removed during repairs. It also was established that sparks could be generated and cause an explosion of detonators outside the crimping heads, e.g., in the trays containing up to 110 detonators at the employees' stations awaiting crimping. Clearly, the crimping heads were not the type of operational shields that were required. The Respondent failed to rebut the Secretary's showing that solid partitions separating each operator from nearby employees were feasible and would have substantially reduced the hazards.

n4 The majority notes that the photographic evidence does not indicate that the single plywood shield in place before the explosion effectively reduced the extent of the explosion. (That shield had been between the fuze assembly area and the crimping area.) However, it cannot be concluded from this evidence that partitions separating the operators from each other and from the rest of the plant would have been ineffective. Obviously, partitions capable of arresting the initial spread of the detonation would be effective means of reducing the hazard.

[*36]

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