DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

OSHRC Docket No. 77-1518

Occupational Safety and Health Review Commission

October 20, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

John Herdzina, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Paul E. Dixon is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Dixon affirmed a citation issued to Respondent, Durant Elevator ("Durant"), following an inspection of its Stromsburg, Nebraska facility by a compliance officer of the Occupational Safety and Health Administration ("OSHA").   The citation alleged that Durant violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard at 29 C.F.R. §   1910.111(f)(7)(iii) n1 in that Durant's nurse tank trailers were not equipped with self-energizing brakes. Durant concedes that its nurse tank trailers were not equipped with brakes. However, it argues that the nurse tank trailers are "farm vehicles" and therefore exempt from the requirements of section 1910.111(f).   We agree with Durant's argument and therefore [*2]   reverse the judge's decision and vacate the citation.

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n1 §   1910.111 Storage and handling of anhydrous ammonia.

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(f) Tank motor vehicles for the transportation of ammonia.

(1) This paragraph applies to containers and pertinent equipment mounted on tank motor vehicles including semitrailers and full trailers used for the transportation of ammonia. This paragraph does not apply to farm vehicles.   For requirements covering farm vehicles, refer to paragraphs (g) and (h) of this section.

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(7) Full trailers and semitrailers.

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(iii) Every full trailer shall be equipped with selfenergizing brakes.

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I

Durant is engaged in the business of selling anhydrous ammonia ("ammonia") to farmers for use as fertilizer. n2 The ammonia is delivered to Durant's worksite from its suppliers in large 10-12,000 gallon semitrailer trucks.   At Durant's facility, the ammonia is kept in a 12,000 gallon storage tank. Local farmers, living within a 10-mile radius, regularly purchase the ammonia. When a sale is   [*3]   made, the ammonia is transferred from the large storage tank into a 1,000 gallon nurse tank which is mounted on a 4-wheel trailer. After loading, the nurse tank trailer is towed to the farm, either by the purchasing farmer or by one of Durant's workers.   When Durant makes the delivery, Durant uses either a pickup truck or a tractor as the towing vehicle.   Upon reaching the farm, the nurse tank trailer is unhitched and is attached to the farmer's tractor with a hose leading from the tank to an applicator on the tractor. The farmer then drives his tractor with the nurse tank trailer into the fields where the ammonia is sprayed onto the soil.

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n2 Anhydrous ammonia is a compound formed by a combination of two gaseous elements, nitrogen and hydrogen.   It may be in either gaseous or liquid form.   The ammonia sold by Durant is in the liquid state.

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On the day of the inspection, the OSHA compliance officer, Bruno, saw one of Durant's employees hitch a nurse tank trailer onto a pickup truck and drive off to a local farm. While [*4]   the pickup truck had brakes, the nurse tank trailer had none.   In Bruno's opinion, the absence of self-energizing brakes n3 on Durant's nurse tank trailers would create a hazard should the pickup truck have to stop suddenly.   Specifically, Bruno though that the pickup truck, weighing approximately 6,000 pounds, would have severe difficulty stopping with a nurse tank trailer, weighing 8,000 pounds, pushing from the rear.   Bruno testified that the brakes on the truck would be overtaxed under such circumstances, and the vehicles either would not stop or would "whip" around.   Therefore, a citation was issued alleging that Durant had violated 29 C.F.R. §   1910.111(f)(7)(iii) by operating full trailers without self-energizing brakes to transport anhydrous ammonia.

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n3 Bruno testified that such brakes would sense when the towing vehicle started to slow down and apply automatically on the nurse tank trailer, rather than being activated by the driver.

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II

Resolution of this case turns on the question of whether the requirements [*5]   of section 1910.111(f) are applicable to the nurse tank trailers. The scope of section 1910.111(f) is set forth in section 1910.111(f)(1), note 1 supra, which states that the paragraph applies to "tank motor vehicles including . . full trailers used for the transportation of ammonia." However, the section also provides for an exception: "[t]his paragraph does not apply to farm vehicles." The Secretary argues that the nurse tank trailers are "full trailers" and therefore section 1910.111(f) applies.   Durant contends that they are "farm vehicles" and consequently exempt from the standard, relying on the following definition at section 1910.111(a)(2)(vii): n4

"Farm vehicle" (implement of husbandry) A vehicle for use on a farm on which is mounted a container of not over 1,200 gallons water capacity.

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n4 Durant raises other arguments to support its contention that paragraph 1910.111(f) is not applicable to the nurse tank trailers. However, in light of our disposition, we need not reach those arguments.

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There is no [*6]   definition of "full trailer" in section 1910.111.   However, Bruno testified, and the judge found, that a full trailer is a four-wheel trailer with the load equally distributed over the four wheels.   Because the nurse tank trailers were four-wheel trailers with equal weight distribution of the load and were used by Durant to transport ammonia, the judge concluded that Durant's vehicles were "full trailers" to which section 1910.111(f) could properly be applied.   The judge did not, however, consider whether the nurse tank trailers met the definition of "farm vehicle" in section 1910.111(a)(2)(vii) and were, therefore, exempt from the requirements of section 1910.111(f). n5

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n5 Durant did not explicitly argue before the judge that its nurse tank trailers fell within the definition of "farm vehicle" at §   1910.111(a)(2)(vii).   However, in granting Durant's petition for review of the judge's decision, Commissioner Barnako directed the attention of the parties to that definition.

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III

The Commission has consistently held   [*7]   that when a standard contains an exception to its general requirements, the burden of proving that the exception applies to the cited condition lies with the party claiming the benefit of the exception.   Finnegan Construction Co., 78 OSAHRC 31/E3, 6 BNA OSHC 1496, 1978 CCH OSHD P22,675 (No. 14536, 1978), and cases cited therein.   We conclude that Durant has carried this burden by showing that its nurse tank trailers come within the "farm vehicle" exception of section 1910.111(f).   As Durant correctly points out, its nurse tank trailers satisfy the criteria set forth in section 1910.111(a)(2)(vii): they are vehicles, used on a farm, and carry a container of less than 1,200 gallons capacity.   Thus, the nurse tank trailers fit within the literal definition of "farm vehicle."

The Secretary argues that the "farm vehicle" exception cannot be applied because it is the farmers, not Durant, who use the nurse tank trailers "on a farm." We disagree.   The "farm vehicle" exception applies to the vehicle, and is determined by the physical characteristics of the vehicle and the use to which it is put.   So long as the nurse tank trailers are operated as vehicles on a farm, it is immaterial whether [*8]   it is Durant or a farmer who actually used them on the farm. Nor is there any indication in the wording of the "farm vehicle" definition that the exception for such vehicles is limited to those instances when the vehicle is actually on the farm.

In concluding that the nurse tank trailers are "farm vehicles," we do not take issue with the judge's finding that the trailers were "full trailers." However, nothing in the standards precludes the conclusion that a vehicle which is a "full trailer" can also qualify as a "farm vehicle." There is no reason to believe that the terms are mutually exclusive.   To the contrary, section 1910.111(g), which addresses safety requirements for "farm vehicles" carrying ammonia, refers to four-wheel trailers with equally distributed loads. See 29 C.F.R. §   1910.111(g)(3)(iii).   Thus, the standards in 29 C.F.R. §   1910.111, read as a whole, indicate that a full trailer can also be a farm vehicle if it otherwise meets the definition of farm vehicle at section 1910.111(a)(2)(vii).   For the reasons stated above, we conclude that Durant's nurse tank trailers do meet that definition.

We conclude that Durant's nurse tank trailers were "farm vehicles" and [*9]   exempt from the requirements of section 1910.111(f)(7)(iii).   Accordingly, the citation is vacated.   SO ORDERED.