Edison Lamp Works (Commission decision, September 26, 1979)

Plain-English summary

Judge Richard De Benedetto affirmed two nonserious items and the Commission vacates both for failure of proof. A third item under 29 C.F.R. § 1910.213(h)(4), affirmed with a $100 penalty, drew no exception and is left alone, which means it is not Commission precedent.

Item 6a charged unguarded lathe chucks in the maintenance area under the general machine guarding standard. The compliance officer offered three theories: the rotating chuck itself, ejected scrap, and a chuck key left in the machine and thrown at the operator when it starts. The judge rejected the first two and affirmed on the chuck key alone. The Commission does not decide whether a chuck key is the kind of hazard this standard reaches, or what to make of the standard's silence and the silence of ANSI B11.6-1975. It vacates on the record instead. Nothing shows the size of the key or the speed at which it might be thrown, and no evidence shows either lathe was ever run with a key left in the chuck.

Item 9 charged the absence of noncombustible surfacing around a liquid oxygen tank. The tank stood on a concrete platform inside a chainlink fence, with crushed rock on three sides and dry vegetation growing through it, and an asphalt parking lot about four feet beyond the fence on the fourth. The judge affirmed because dry grass among scattered stones made the ground surface noncompliant. The Commission holds that the Secretary must do more than speculate that a spill or leak might occur. He has to show that liquid oxygen, if it escaped, could fall on a combustible surface. No showing was made that a leak could reach the asphalt lot, and meager vegetation in crushed rock does not turn the splash pad into a combustible surface. The employer's separate objection that the judge amended the citation to allege a different paragraph is answered simply: the judge considered amending and did not do so.

Commissioner Cottine concurs to reach the discovery ruling the majority leaves moot. The judge held that the compliance officer's notes and memoranda had to be produced only if he used them to refresh his recollection before testifying. That is contrary to Frazee Construction Co., 1 BNA OSHC 1270, which requires an inspector's notes to be revealed when the inspector testifies, and contrary to the federal courts applying Jencks v. United States, 353 U.S. 657 (1957), to administrative proceedings. The error was harmless because the Secretary failed to carry his prima facie burden on both items anyway.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1) (machine guarding) and 29 C.F.R. § 1910.104(b)(2)(iii) (noncombustible surfacing at bulk oxygen systems), both vacated; 29 C.F.R. § 1910.213(h)(4), affirmed below with a $100 penalty and not reviewed.
• Outcome: Vacated. Both items before the Commission are vacated for insufficient evidence.
• Key point: Naming a mechanism of injury is not proof of one. Without evidence of the projectile's size, its speed, or the practice ever occurring, an ejected chuck key will not support a machine guarding violation.
• Key point: Under the bulk oxygen surfacing standard the Secretary must show that escaping liquid oxygen could actually fall on combustible material, not merely that combustible material exists somewhere nearby.
• Key point: A compliance officer's inspection notes must be produced when the officer testifies, whether or not they were used to refresh recollection.

Full text (OSHRC public release)

Docket No. 76-484

EDISON LAMP WORKS

OSHRC Docket No. 76-484

Occupational Safety and Health Review Commission

September 26, 1979

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Stuart I. Saltman, Westinghouse Electric Corp., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On September 20, 1976, Administrative Law Judge Richard De Benedetto issued a decision affirming two citations issued to respondent, Edison Lamp Works.
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Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq., the case was directed for review by former Commissioner Moran, who specified no issues in his direction, and by Commissioner Barnako, who directed review on the issues raised by respondent's petition for review. n1

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n1 The judge affirmed a violation of 29 CFR �
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1910.213(h)(4), and assessed a penalty of $100.
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Since neither party has taken issue with the judge's disposition of that item, it will not be reviewed.
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See Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).
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That portion of a judge's decision not reviewed by the Commission does not constitute precedent binding upon the Commission.
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Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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Before the Commission, respondent excepts to the judge's affirmance of two items of Citation No. 1.
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The Secretary relies on the judge's decision as to the merits of the items in dispute.
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For the reasons set out below we reverse the judge and vacate the two items before us. n2

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n2 At the close of the Secretary's direct examination of the compliance officer, respondent, citing the Commission decision in Frazee Construction Company, 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973-74 CCH OSHD P16,409 (No. 1343, 1973), requested notes and memoranda made by the compliance officer during the course of, subsequent to, or in connection with the inspection. In view of our disposition, the question raised by respondent with regard to the compliance officer's notes is moot.

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Respondent excepts to the judge's affirmance of item 6a of Citation No. 1, which alleged a nonserious violation of 29 CFR �
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1910.212(a)(1) n3 and item 9 of Citation No. 1 which alleged [*3]
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a nonserious violation of 29 CFR �
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1910.104(b)(2)(iii). n4

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1910.212 General Requirements for all machines.

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.
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Examples of guarding methods are -- barrier guards, two handed tripping devices, electronic safety devices, etc.

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1910.104 Oxygen

(b) Bulk oxygen systems.

(2) Location

(iii) Leakage. Where oxygen is stored as a liquid, noncombustible surfacing shall be provided in an area in which any leakage of liquid oxygen might fall during operation of the system and filling of a storage container. For purposes of this paragraph, asphaltic or bituminous paving is considered to be combustible.

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Item 6a of Citation 1 alleged a failure by respondent to guard the chucks of two lathes in
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its maintenance area.
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The compliance officer asserted that the unguarded chucks exposed the lathe operators to the hazard presented by the rotating chuck itself, to the possibility of scrap being ejected from the machine into the face of the operator, and to the possibility of the chuck key inadvertently left in the machine being thrown out at the operator.
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Although he rejected the Secretary's contention regarding the rotating chuck and the possible ejection of scrap, the judge affirmed this item of the citation.
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He found that testimony was unrebutted regarding the potential hazard of a chuck key left in the chuck by the operator.
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If the machine were turned on the key might be ejected and strike the operator.
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Respondent contends that the hazard described by the judge is not the type of hazard anticipated by the standard, which concerns the actual operation of the lathe rather than its preparation for operation.
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Respondent also points to the absence of any mention of the chuck key in the standard or in ANSI B11.6-1975, Safety Requirements for the Construction, Care, and Use of Lathes, a safety publication issued subsequent to the promulgation of 29 CFR �
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1910.212(a)(1).

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regard to the merit of these arguments, the evidence is not sufficient to support a finding that respondent violated the Act by failing to guard the chuck. Although the chuck key could present a hazard if it were ejected from the lathe at a high rate of speed, there is nothing in the record to indicate the size of the chuck key or the speed at which it might be ejected from the machine, nor is there evidence that either lathe was ever operated with the key left in the chuck. In these circumstances, we cannot conclude that the Secretary made out a violation.

Item 9 of Citation No. 1 alleged that respondent failed to provide adequate noncombustible surfacing around a liquid oxygen storage tank in violation of 29 CFR �
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1910.104(b)(2)(iii).

The tank, situated on a concrete platform surrounded by a chainlink fence, was abutted on three sides by a crushed rock surface with dry vegetation growing through the crushed rock. On the remaining side, approximately four feet from the fence, was a parking lot consisting of asphalt pavement. The testimony centered on the distance between the storage tank and the combustible asphalt pavement, the possible location of the delivery truck during [*6]
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refill operations, and the time at which deliveries were made.
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The judge noted that the proximity of tall dry grass to the storage container presented a potential fire or explosion hazard to employees passing between the employee parking lot and the plant.
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He found that "the adjacent ground surface does not meet the standard when dry vegetation is interspersed among the scattered stones (or crushed rock) as demonstrated by the evidence."

On Review, respondent contends that the judge improperly amended the citation to allege noncompliance with 29 CFR �
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1910.104(b)(10), and that the Secretary failed to prove that respondent's employees had access to the tank when it was being loaded or in operation.
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Although the judge considered the appropriateness of amending the citation to allege noncompliance with 29 CFR �
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1910.104(b) (10), n5 he did not amend the citation.

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1910.104 Oxygen

(b) Bulk oxygen systems

(10) Maintenance. The equipment and functioning of each charged bulk oxygen system shall be maintained in a safe operating condition in accordance with the requirements of this section.
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Wood and long dry grass shall be cut back within 15 feet of any bulk oxygen container.

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The standard at 29 CFR �
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1910.104(b)(2)(iii) requires a zone of noncombustible material around an oxygen storage tank whenever it is in use.
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In the present case, however, the Secretary failed to demonstrate that the protection required by the standard was missing.
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Although there was dry grass growing among the crushed rock surrounding the storage container, and asphalt pavement nearby, this evidence alone is insufficient to find respondent in violation of the 29 CFR �
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1910.104(b)(2)(iii).
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It is not enough for the Secretary to speculate on the occurrence of a spill or leak. He must show that in the event of a spill or leak, liquid oxygen could fall onto surfaces that are covered with combustible material.
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Here there was no showing that a leak, if it occurred, could have fallen on the asphalt parking lot. Similarly, the meager amounts of vegetation in the crushed rock surface surrounding the container did not render the splash pad a combustible surface.

Accordingly item 6a and item 9 of Citation No. 1 are vacated.

SO ORDERED.
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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, Concurring:

The Respondent argues on
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review that the judge erred by ruling that notes and memoranda made by the compliance officer during or subsequent to the inspection in this case could be revealed to the Respondent only if the documents were used by the compliance officer to refresh his recollection before testifying at the hearing.
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The judge's ruling is contrary to Commission precedent that requires notes made by an inspector during an inspection to be revealed to a respondent when the inspector appears as a witness.
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Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHC 1270, 1973-74 CCH OSHD P16,409 (No. 1343, 1973); see Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977-78 CCH OSHD P22,284 (No. 76-2552, 1977).
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It is also contrary to decisions of numerous federal courts holding that the principles announced by the Supreme Court in Jencks v. United States, 353 U.S. 657 (1957), are generally applicable to administrative proceedings.
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See, e.g., Harvey Aluminum (Incorporated) v. N.L.R.B., 335 F.2d 749 (9th Cir. 1964); Great Lakes Airlines, Inc. v. C.A.B., 291 F.2d 354 (9th Cir. 1961); Communist Party of U.S. v. Subversive Activities Control Board, [9]
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254 F.2d 314 (D.C. Cir. 1958); United States v. Bostic, 336 F.Supp. 1312 (D.S.C. 1971), aff'd, 473 F.2d 1388 (4th Cir. 1972), cert. denied, 411 U.S. 966 (1973). However, because the Secretary failed to sustain his prima facie burden of establishing noncompliance with the cited standards, the error in this case was harmless.
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See Lewis v. United States, 340 F.2d 678, 684 (8th Cir. 1965); Fed. R. Civ. P. 61.

I otherwise join in the opinion of the Commission.
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