BAROID DIVISION OF NL INDUSTRIES, INC.
OSHRC Docket No. 12450
Occupational Safety and Health Review Commission
April 21, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Reg. Sol., USDOL
Stephen T. Victory, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Jack F. Ostrander, for the complainant
Stephen T. Victory, for the respondent
MARTIN, Judge:
This is a proceeding brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), hereinafter referred to as the Act. Respondent seeks review of a citation for an alleged nonserious violation issued on January 17, 1975, and subsequently amended on February 4, 1975, and also seeks review with reference to the notification of proposed penalty.
The aforementioned citation and notification of proposed penalty were issued as a result of an inspection conducted [*3] on January 9, 1975, at respondent's work place which was located at the site of the J. W. Larson Well No. 1, near Welsh, Louisiana, which said well was being drilled by the Power Rig Drilling Company. Respondent had employees engaged in furnishing certain technical assistance in connection with the drilling operation as well as the furnishing of drilling fluid (mud).
Item 5 of the amended citation alleged that on January 9, 1975, respondent violated the provisions of section 29 CFR 1926.152(c)(3) and the description of the alleged nonserious violation is as follows:
"Failure to provide proper grading, curbing, or diking around the following flammable or combustible liquid storage area to divert or contain possible spills away from buildings or other exposures;
(a) 10,000 gallon diesel storage tank, 100 feet north of the rig floor"
The aforementioned standard provides in part as follows:
"(c) STORAGE OUTSIDE BUILDINGS.
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(3) The storage area shall be graded in a manner to divert possible spills away from buildings or other exposures, or shall be surrounded by a curb or earth dike at least 12 inches high. . . .
Respondent, through its attorney, filed a notice of contest [*4] with the complainant's area director in New Orleans, Louisiana, advising of its desire to contest items 3, 4, and 5 of the amended citation n1 and the notification of proposed penalty. Following the filing of a formal complaint n2 which was answered by respondent's counsel, this matter was scheduled for hearing in New Orleans, Louisiana, on July 16, 1975, at which time complainant was represented by Jack F. Ostrander, Esq., of the regional solicitor's office in Dallas, Texas, and respondent was represented by its counsel, Stephen T. Victory, Esq., Liskow & Lewis, of New Orleans, Louisiana. No additional parties desired to intervene or participate in this proceeding.
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n1 The amended citation contained five alleged violations; however, respondent did not contest the first two items thereof and pursuant to the Commission rules they have become a final order of the Commission.
n2 Items 3 and 4 of the amended citation were withdrawn by complainant's attorney.
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The issues to be determined herein are whether respondent [*5] committed a nonserious violation of section 29 CFR 1926.152(c)(3), and if so, whether the proposed penalty of $35.00 is approppriate.
On the date of the inspection, January 9, 1975, by a compliance officer of the Occupational Safety and Health Administration, Power Rig Drilling Company was engaged in drilling an oil well, known as the J. W. Larson Well No. 1, pursuant to a contract with North American Royalties Co. Respondent was retained by North American to furnish drilling fluid (mud) for use in drilling the well and also respondent was required to provide technical assistance to the owner of the well and the driller. n3 The drilling rig was on a plot of land approximately 145 feet by 153 feet and the entire area was floored with planking or lumber because of the wet and muddy conditions. Some of the boards were partially submerged. Complainant's exhibit C-1 is a sketch showing an overhead view of the drilling site. The drilling rig was already in operation prior to the time respondent's employees appeared on the job. Power Rig's 10,000 gallon tank, containing diesel fuel, was located just north of the drilling platform and near respondent's mud tank. The diesel tank was described [*6] as a portable one which was moved into place on skids. There was not diking or curbing around the tank nor was the area graded. The tank, as well as the drilling platform, sheds, and other installations were all on the boarded area. Fuel from the diesel tank was reportedly used to operate the engines on the drilling platform.
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n3 Power Rig was also issued a citation alleging the same violation. Abatement was achieved when Power Rig moved the portable tank to a new location and a dike was constructed.
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The compliance officer, Mr. Herron, testified that the tank contained diesel fuel and that it was used by Power Rig to operate engines on the platform. He testified that respondent did not use fuel from this tank. He described the fuel as a combustible liquid because according to a Handbook of Dangerous Materials (complainant's exhibit C-2), fuel oil No. 2 has a flash point of 110 to 190 degrees Fahrenheit. n4 The compliance officer stated that the diesel fuel was not a flammable liquid as defined in the regulations. [*7] n5 It was his opinion that in the event of a spill and since the tank might possibly rupture and since the area was not graded, curbed or diked, there would be a possible fire hazard to employees. He rated the probability of any accident in this connection as low. Respondent's mud tanks were near the diesel oil storage tank.
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n4 Section 29 CFR 1926.155(c) defines "'combustible liquids' means any fluid having a flash point at or above 140 degrees F. (60 degrees C.) and below 200 degrees F. (93.4 degrees C.)."
n5 Section 29 CFR 1926.155(h) defines "'Flammable liquids' means any liquid having a flash point below 140 degrees F. and having a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees F."
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On cross-examination Mr. Herron stated that he did not perform any tests on the fuel and he was not sure whether all diesel fuels would fall within the flash point range of 110 to 190 degrees Fahrenheit. Also, he was not certain as to whether the fuel in the tank was in fact No. 2 grade diesel oil. [*8] Mr. Herron gave a negative reply when questioned as to his familiarity with the National Fire Protection Guide on Hazardous Materials (respondent's exhibit R-1). He also stated that he did not know of his own personal knowledge whether there were grades of diesel fuel which have flash points as high as 374 degrees. He was also unfamiliar with the fact that the aforementioned publication showed 2D diesel fuel as a stationary fuel with a flash point of 302 degrees Fahrenheit. Mr. Herron was interrogated as to the various classes of combustible fuels and the transcript shows the following questions and answers:
"Q Are there classes of combustible fuels which do not come within the regulations of OSAHA, such as Class 3B fuels?
"A Yes, sir.
"Q What is a Class 3B type fuel?
"A It is a liquid that has a flash point at or above 200 degrees Fahrenheit.
"Q Other than what you have told us today, and the reference materials you have referred to, you cannot specifically state that the fuel that was in this particular tank on this particular day had a flash point of less than 200 degrees, can you?
"A No, sir, I cannot. I cannot determine its exact flash point, because I took no [*9] sample of it.
"Q If, in fact, it did have a flash point of greater than 200 degrees, would you have agreed with me that it was not the type of fuel which should have received this type of violation?
"A Yes, sir.
"THE COURT:
What's the question?
EXAMINATION BY MR. VICTORY:
"Q My question was: If, in fact, the diesel fuel that was in this particular tank had a flash point which was greater than 200 degrees Fahrenheit, would the witness agree with me that it was not the type of fuel which would come within these regulations, and for which a citation should have been issued. I believe the witness's answer was that would be correct, is that correct?
"A That's right." (Tr. 31,32)
Respondent's district manager, Mr. Marceaux, testified that respondent had no control over the tank or the drilling operation and had no right of supervision over employees utilizing the tank. He stated that the tank was on the site prior to the time respondent's employees began their work. He felt that there was little chance of a rupture of the portable tank and that there was no risk to his employees. He advised that respondent did not have any portable skid tanks and that his company had no control [*10] over the actions of Power Rig employees. Respondent's sales engineer, Mr. Carnahan, generally agreed with Mr. Marceau's testimony. He testified that he had never seen a portable fuel tank with curbing or diking around it.
Basically, it was respondent's position that the evidence in the record did not support a finding that the portable diesel tank contained a flammable or combustible fuel and further it was respondent's belief that the storage area referred to in the regulations applied to the storage of fuel containers and not to portable storage tanks. It was also respondent's contention that it cannot be held for a nonserious violation in this matter because it neither created the hazard nor was it responsible for the item (portable diesel fuel tank).
After carefully considering all the evidence herein it is concluded that complainant had failed to prove that the diesel fuel in question was in fact a flammable or combustible liquid as those terms are defined in section 29 CFR 1926.155(c) and (h). There was evidence in the record to show that there are various grades of diesel oil. However, there was no reliable evidence to show that the fuel in the portable storage tank [*11] had a flash point of less than 200 degrees Fahrenheit.
A review of the standards set out in section 29 CFR 1926.152 under the major heading of "Flammable and Combustible Liquids" and particularly subsections (c)(1) through (c)(7) creates considerable doubt as to whether subsection (c)(3) applies to the storage of containers, or groups of containers, as referred to in the two subsections (c)(1) and (2). It is interesting to both that subsection (c)(4) deals specifically with outdoor portable tank storage (which description fits the Power Rig tank) and relates to such matters as the nearness to buildings, access way, debris, emergency venting, etc. When questioned regarding these matters the compliance officer admitted that this whole section was, to say the least, confusing.
Relative to respondent's contention that respondent should not have been cited here since a different employer created and was responsible for the alleged hazard, it should be noted that several cases before this Commission have held that where a subcontractor exposed his employees to hazardous situations, he subjects himself to the enforcement of the provisions of the Act regardless of who created the hazard [*12] or who may be responsible for its elimination (see Secretary of Labor v. C. Powell Electric, 3 OSAHRC 1056 (1973) (RC Judge). However, a more cogent or convincing interpretation of the law is set forth in the well-reasoned opinion issued in Anning-Johnson & Workinger Electric, Inc. v. United States Occupational Safety and Health Review Commission and Secretary of Labor, 516 F. 2nd 1081 (7 Cir. 1975) where it was held that subcontractors working at a multi-employer construction site could not receive citations and could not be held liable for penalties under the Act for nonserious violations of promulgated standards to which their employees were exposed but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.
In that case the court thoroughly explored the legislative history of the Act and also delved into the various problems associated with union contractual obligations, craft jurisdiction and possible work "shut-downs." As the court pointed out, the Act was not designed to punish but to achieve compliance with the standards and the abatement of safety hazards. The court indicated that it could find no [*13] logic in requiring several different employers to place a guard rail over an opening or along the edge of open sided floors. It was pointed out that placing the responsibility in more than one place might lead to confusion and might prove counterproductive.
The court stated:
"In addition to the confusion that might be caused by the Secretary's interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary's policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to nonserious hazards.
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"Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a contractor to remove his employees from the job, after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize nons rious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution.
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"In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary's authority or in any way frustrate the purposes of the Act. We have balanced the Secretary's interest in enforcing his policy, and the purposes the policy serves, against the inefficient, uneconomical, and inequitable effects it has on certain employers."
The reasoning in Anning-Johnson would appear to apply to the factual situation in the case at hand. As previously indicated respondent did not own or have any control over the portable fuel tank or the use thereof. Also, respondent had no facilities for abating the alleged [*15] violation. The tank was being used by its owner, Power Rig, for engines used to drill the well. In order for respondent to abate the situation by means of grading, curbing or diking it would be necessary to shut down the entire drilling operation and remove the boarding which covered the entire drilling area. It would not be feasible for respondent to comply with the standard since they could not have done so without first obtaining permission from Power Rig and the owner of the well, North American, to shut down the drilling site and also it would have been necessary to hire earth moving equipment and additional employees to entirely work over the drilling site. Accordingly, it is concluded that the issuance of a citation to respondent who was on the drilling site for a very limited purpose was improper and that the same should be vacated.
FINDINGS AND CONCLUSIONS
The entire record herein supports the following findings and conclusions:
1. That respondent, Baroid Division of NL Industries, Inc. at all times relevant hereto, was an employer in a business affecting commerce within the meaning of section 3 of the Act and the Review Commission has jurisdiction over the parties [*16] and subject matter herein.
2. That on January 9, 1975, respondent had a work place at the J. W. Larson Well No. 1, located near Welsh, Louisiana, where it had three employees engaged in furnishing drilling fluid (mud) and giving technical assistance to the driller of the well, Power Rig Drilling Company.
3. That on the aforementioned date a portable fuel storage tank, owned by the Power Rig Drilling Company, was located approximately 15 feet from respondent's mud tanks.
4. That the portable fuel storage tank, mounted on skids, was not curbed or diked nor was the surrounding area graded.
5. That it has not been established by reliable and probative evidence that the diesel fuel in the outdoor portable storage tank was a flammable or combustible liquid within the purview of section 29 CFR 1926.155.
6. Based upon the foregoing findings and conclusions and the record as a whole, respondent did not violate the provisions of section 29 CFR 1926.152(c)(3).
ORDER
It is ORDERED that item 5 of the amended citation and the notification of proposed penalty be and the same are hereby vacated and the complaint is hereby dismissed.
Dated: January 5, 1976
HENRY F. MARTIN, JR., JUDGE