Idaho Trout Processors, Co.

Plain-English summary

Idaho Trout Processors operated a trout hatchery and a nearby fish-processing plant in Buhl, Idaho. OSHA cited unguarded catwalks over fish runs, but the judge found the hatchery was a separate agricultural establishment and that the general-industry walking-surface standard did not apply. He also vacated a machine-guarding item involving a raised interlock on a fish-processing machine because OSHA showed only a speculative possibility that an operator might fall and put a hand into the conveyor nip points. The Secretary withdrew two other lockout items, and the company withdrew its contest to an amended lockout-device item. That item was affirmed with an agreed $1,250 penalty. All other items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.22(c), 29 C.F.R. § 1910.147(c)(5)(i), 29 C.F.R. § 1910.147(c)(6)(i)(A), 29 C.F.R. § 1910.147(c)(7)(i), 29 C.F.R. § 1910.212(a)(1)
• Outcome: Mixed. One amended lockout item was affirmed with a $1,250 penalty; four other items were vacated.
• Key point: A general-industry standard does not apply to a separate agricultural establishment unless Part 1928 adopts it, and machine-guarding exposure cannot rest on a merely speculative accident scenario.

Full text (OSHRC public release)

                                             United States of America
                  OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                           1244 Speer Boulevard, Room 250
                                            Denver, Colorado 80204-3582

Secretary of Labor,
Complainant,

            v.                                                      OSHRC Docket No. 00-1408

Idaho Trout Processors, Co.
Respondent

APPEARANCES:

      For the Complainant:
               William W. Kates, Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Respondent:
               James G. Reid, Esq., Charles L. Honsinger, Esq., Chartered Lawyers, Boise, Idaho

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Idaho Trout Processors, Co. (Idaho), at all times relevant to this action maintained
a place of business in Buhl, Idaho, where it was engaged in trout farming and processing. Respondent
admits it is an employer engaged in a business affecting commerce and is subject to the requirements of
the Act.
On June 26, 2000 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Idaho’s Buhl work site. As a result of that inspection, Idaho was issued citations alleging
violations of the Act together with proposed penalties. By filing a timely notice of contest, Idaho
brought this proceeding before the Occupational Safety and Health Review Commission (Commission).
On October 24, 2000, an E-Z Trial hearing was held in Boise, Idaho. During the hearing the
Secretary withdrew a citation alleging violation of §1910.132(a), which was pleaded, in the alternative,
at citation 1, item 1 (Tr. 156, 159). The Secretary further withdrew items 3 and 4 of citation 1 in their
entirety (Tr. 256-58). Item 2 was amended to limit its allegations to machine operators (Tr. 256-58).
Respondent withdrew its contest to item 2, as amended, and agreed to a penalty of $1,250.00 (Tr. 256).
Items 1 and 5 remain at issue. No briefs are required in E-Z proceedings; this matter is, therefore, ready
for disposition.
Alleged Violation of §1910.22(c)
Serious citation 1, item 1, as amended, alleges:
29 CFR 1910.22(c): Guardrail(s) were not provided to protect personnel from the hazards of falling
into open fish runs.

    (A)        Guardrails were not provided at walkways over fish runs to prevent workers from falling
               into the runs.

Facts
OSHA’s Compliance Officer (CO), Stephen Gossman, testified that while he was investigating a
complaint about Idaho’s processing equipment, he also observed Idaho’s fish farming operation at Clear
Lake Fish Hatchery (Tr. 39, 81). Gossman noted that the catwalks spanning the hatchery’s fish runs
were unguarded (Tr. 39). Gossman testified that the walkways were approximately 18 inches wide and
ran approximately 300 feet across the runs, or “long ponds” (Tr. 40). Gossman believed that the water
in the long ponds was approximately three feet deep, and that the catwalks were about two and a half to
three feet above the water (Tr. 41). However, photographs of the long ponds, which Gossman agreed
accurately depicted the ponds, show the catwalks just above an employee’s waist level (Tr. 52; Exh. R-
1). Gossman testified that he saw one employee on the catwalk, and one employee in chest waders
working in one of the long ponds (Tr. 40). Gossman stated that an employee could fall from the
catwalks, suffering broken bones or drowning (Tr. 42). Gossman admitted that the probability of an
employee falling was remote (Tr. 44, 56).
Leo Ray, owner of four fish farms (Tr. 80-81), testified that he is familiar with approximately
150 licensed farms in Idaho, and that all of them have raceways similar to those at Idaho’s Clear Lake
facility (Tr. 82). Ray stated that in the 32 years he has been in the business, he has never seen guardrails
on the walkways spanning the raceways (Tr. 82). Ray testified that guardrails would interfere with the
movement of 150 pound, four foot square fish pumps (Tr. 83, 96), and with the use of dip nets, which
may weigh up to 30 pounds when full, and screen-cleaning brushes (Tr. 84, 92-93). Leo Ray testified
that there is no danger in falling from a catwalk into the raceway water less than a foot below (Tr. 99).
However, his company was concerned about an employee falling, hitting his head on the concrete,
knocking himself out and drowning (Tr. 87, 89, 99). Ray experimented with, though he eventually
discarded, the idea of using flotation devices such as life jackets to eliminate the hazard (Tr. 86-87).
Ray had never heard of any drowning accidents in the fish farming industry (Tr. 100).

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Thorleif Rangen, a consultant with Rangen Incorporated testified that he has observed
hatcheries all over the hemisphere (Tr. 138-40). Rangen Inc., operates a research hatchery similar to
the facility at Clear Lake (Tr. 138-40). Rangen testified that he has never seen guard rails used on
raceway catwalks at Rangen, or in any of the hatcheries he has observed (Tr. 141). Rangen agreed that
guardrails would interfere with the feeding and harvesting of fish (Tr. 142-44). Based on his 37 years
experience with fish hatcheries, Rangen opined that there was not a significant risk of falling into the
raceways and drowning (Tr. 147). No fall protection is provided at his facility (Tr. 164).
Harold Johnson, Idaho’s general manager (206), testified that in the 25 years he has been in the
business, he has never seen a guardrail on a walkway across a raceway (Tr. 211). Johnson admitted that
people occasionally fall off the walkways and end up in the ponds, however; he has never seen anyone
fall into a raceway and strike his head (Tr. 212, 228). Johnson testified that he did not believe the
unguarded walkways pose a significant hazard (Tr. 213).
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with
the cited standard, (3) employees had access to the violative condition and (4) the cited employer either
knew or could have known of the condition with the exercise of reasonable diligence. See, e.g., Walker
Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359,
1991).
The cited standard provides:
(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel
from the hazards of open pits, tanks, vats, ditches, etc.

     Applicability. This judge finds that the Secretary has failed to meet her burden of proof in

regard to the first element.
Part 1928 specifically governs agricultural operations. Section1928.110. Field sanitation
defines Agricultural establishment as a business operation that uses paid employees in the production of
food, fiber, or other materials such as seedlings, plants, or parts of plants. Clear Lake Fish Hatchery is
engaged solely in raising trout for food, and is, therefore, an agricultural establishment.
The purpose and scope section of Part 1928, §1928.21, specifically adopts a limited number of
standards from the general industry standards at 29 CFR part 1910, making them applicable to
agricultural operations. Section 1910.22 is not specifically enumerated. In a September 23, 1999

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interpretive compliance letter concerning the applicability to §1910.178 to agricultural operations,
OSHA suggests that the enumeration at §1928.21 is intended to be exhaustive:
OSHA’s agricultural standards are found in Part 1928. According to §1928.1, the standards in
Part 1928 apply to "agricultural operations." Section 1928.21(a) expressly designates seven
general industry standards (Part 1910) as applicable to "agricultural operations." It was not
OSHA’s intention to have §1910.178 apply to agricultural operations, and therefore, the final
rule of §1910.178 did not amend §1928.21(a) to add §1910.178 to this list of applicable
general industry standards. Thus, for those employments, which are "agricultural operations"
under Part 1928, §1910.178 does not apply.

OSHA itself has clearly concluded that §1928.21 is intended to comprise an exclusive list of OSHA
standards applicable to agricultural establishments.
Finally, agricultural operations are specifically exempted under §1910.22 General
Requirements, which states: This section applies to all permanent places of employment, except where
domestic, mining or agricultural work only is performed.
Clear Lake Hatchery is owned by Idaho and provides the raw material for Idaho’s processing
operation; the two work sites are located in close physical proximity. However, the Secretary failed to
show that the two establishment’s operations are so interrelated that Clear Lake did not function as a
separate establishment. The Secretary introduced no evidence of any overlap in personnel, or in
operations. This judge does not conclude, based on the evidence in the record, that the mere physical
proximity of Idaho’s processing plant to its Clear Lake hatchery is sufficient to transform the hatchery
from an agricultural establishment into a business engaged in general industry, subject to the full gamut
of regulations at §1910 et seq.
Citation 1, item 1 is, therefore, vacated.
Alleged Violation of §1910.212(a)(1)
Serious citation 1, item 5 alleges:
29 CFR 1910.212(a)(1): Machine guarding was not provided to protect operator(s) and other
employees from hazard(s) created by moving parts and belts.

   (A)     The guard was raised on the Baader 234 when the machine was operating.

   The cited standard provides:

   One or more methods of machine guarding shall be provided to protect the operator and other
   employees in the machine area from the hazards such as those created by point of operation,
   ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods
   are–barrier guards, two-hand tripping devices, electronic safety devices, etc.



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Facts
The Baader 234 is a fish processing machine that eviscerates, beheads and fillets trout (Tr. 15-
16, 25, 173). CO Gossman testified that when he inspected Idaho’s plant, the interlock guard on the
Baader 234's in-feed had been disconnected and was in the raised position (Tr. 16, 27). John Barth, the
plant manager, told Gossman that the guard was left up deliberately, to allow the operator to see when
fish heads jammed up the machinery (Tr. 17-18, 168, 177).
Gossman testified that the operator is exposed to the nip point hazard posed by the conveyor
belts that move the fish into the Baader 234's point of operation (Tr. 18, 29, 36). According to
Gossman an operator could be pulled into the machine’s idlers or pulleys if he places his hand inside the
disabled interlock cover where the conveyor belts are located (Tr. 37). Gossman testified that should an
employee catch his hand in the moving belts, he could suffer broken bones in his hands and/or fingers
(Tr. 36-37).
On cross examination Gossman was asked under what circumstances the operator of the Baader
234 would have occasion to place his hand under the interlock cover. Gossman hypothesized that if the
operator were to lose his balance and stick his hand out to catch himself, his hand could go into the
belts (Tr. 121).
Discussion
It is well established that in order for the Secretary to prove a violation of §1910.212(a)(1), she
must do more than show that it may be physically possible for an employee to come into contact with
unguarded machinery. Jefferson Smurfit Corp., (Smurfit) 15 BNA OSHC 1419, 1991 CCH OSHD
¶29,551(89-0553, 1991). The mere fact that it is not impossible for an employee to insert his hands into
the machinery does not itself prove that the employee is exposed to injury. The existence of a hazard
must be determined based on the manner in which the machine functions and how it is operated by the
employees. Id. at 1421, citing, Rockwell International Corp., 9 BNA OSHC 1092, 1980 CCH OSHD
¶24,979 (No. 12470, 1980).
In this case there is no evidence that the operation of the Baader 234 requires the operator to
work near the nip points of the incoming conveyor belts. The only evidence in the record is that the
operator might, in falling, accidentally place his hand into the zone of danger. In Smurfit, supra.
the Commission specifically rejected a nearly identical scenario. In that case the CO believed that
employees walking by the nip points of the employer’s gluer “might trip or accidentally fall into the nip
points.” Id., at 1421. The Commission rejected the CO’s speculative testimony, and found that the

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Secretary failed to establish employee exposure to a hazard where there was no reason for the operator
to put his hands into the zone of danger while performing his normal work duties.
Based on Commission precedent, this judge must find that the Secretary failed to establish
employee exposure to the nip point hazard created by the in-feed conveyors on the Baader 234. The
citation is vacated.
ORDER

1. Citation 1, item 1, alleging violation of §1910.22(c) is VACATED.
2. Citation 1, item 2, alleging violation of §1910.147(c)(5)(i), is AFFIRMED, as amended, and a
   penalty of $1,250.00 is ASSESSED.
3. Citation 1, item 3, alleging violation of §1910.147(c)(6)(i)(A) is VACATED.
4. Citation 1, item 4, alleging violation of §1910.147(c)(7)(i) is VACATED.
5. Citation 1, item 5, alleging violation of §1910.212(a)(1) is VACATED.

                                                         /s/
                                                  Stanley M. Schwartz
                                                  Judge, OSHRC
   

Dated: December 8, 2000

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