Monarch Water Systems, Inc.

Plain-English summary

Monarch employees sprayed flammable paint inside a tank while a blower and hand lamp were positioned within 50 feet. The judge vacated the flammable-liquid item based partly on ventilation and the employees' failure to follow company instructions. The Commission held that the cited standard prohibits flammable liquids near ignition sources and does not turn on whether ventilation prevents vapor accumulation. It remanded for credibility findings on the equipment locations, whether the blower or lamp was an ignition source, the company's knowledge, and the adequacy of its precautions. A separate item for lacking written respirator procedures became a final order because Monarch had not contested it within the statutory period, so the judge lacked authority to vacate it.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.152(f)(3) and 1910.134(b)(1)
• Outcome: Respirator-procedure item declared a final order; flammable-liquid item remanded for factual findings.
• Key point: Ventilation did not answer whether flammable liquid was used within 50 feet of an ignition source, and an omitted citation item could not be revived by later briefing.

Full text (OSHRC public release)

Docket No. 83-0943

SECRETARY OF LABOR,

Complainant,

v.

MONARCH WATER SYSTEMS, INC.,

Respondent.

OSHRC Docket No. 83-0943

DECISION

BEFORE:  BUCKLEY, Chairman; RADER and WALL,
Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration.  It was established to resolve
disputes arising out of enforcement actions brought by the Secretary of Labor under the
Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C.
� 659(c).

At issue is whether Administrative Law Judge Paul L.
Brady erred in vacating two citation items.

Citation 1, Item 4:  29 C.F.R. � 1926.152(f)(3), Flammable Liquids Near
Ignition Sources.

In Item 4 of citation 1, the Secretary alleged that
Monarch violated 29 C.F.R. � 1926.152(f)(3), which provides:

� 1926.152  Flammable and combustible liquids .

(f) Handling liquids at point of final use .

(3) Flammable liquids may be used only where there are no open flames or other sources of
ignition within 50 feet of the operation, unless conditions warrant greater clearance.

It was undisputed that on August 2, 1983, two of
Monarch's employees, Eugene Wright and James Pinney, were involved in spraying flammable
paint onto the inside walls of a tank in a shed.  While applying the paint inside the
tank, Wright became affected by the paint fumes.  Pinney, who was outside the tank,
then began to ventilate the tank using a suction pump referred to as a "blower."
  Both the blower and an ordinary hand lamp used for illumination were positioned
inside the shed within 50 feet of the spraying operation.  The Secretary asserts that
the hand lamp and blower were "sources of ignition" within the meaning of
section 1926.152(f)(3) and that, because they were within 50 feet of the flammable paint
being sprayed, Monarch violated the standard.

Jack Glaser, Monarch's president, had instructed
Wright and Pinney, as well as their foreman Bobby Estes, to use, instead of the ordinary
hand lamp, a "Vapotech" lamp.  Glaser thought at the time that the
"Vapotech" lamp was not a source of ignition.  Glaser had also told Wright
and Pinney to use a blower for ventilation and place it outside the shed on a small
scaffold which he estimated to be 70 feet from the tank opening.  Monarch's work
rules also required that the ventilation blower be put into use before employees enter a
tank.  Moreover, employees were not permitted to turn the blower off while they were
in a tank.

In his decision, Judge Brady noted that under Astra
Pharmaceutical Products, Inc ., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD
� 25,578, p. 31,900 (No. 78-6247, 1981), aff'd in pertinent part ,
681 F.2d 69 (1st Cir. 1982), the Secretary must establish that Monarch knew or could have
known of the violative condition with the exercise of reasonable diligence.  The
judge stated that "the ventilation equipment was specifically provided to eliminate
the accumulation of flammable liquid spray vapors," and "there would have been
no source of ignition for flammable liquids if the safety rules [on use of that
ventilation equipment] had been followed."  The judge additionally noted that
Wright and Pinney failed to follow Glaser's instructions to use the Vapotech lamp and
place the blower outside the shed.  Concluding that the evidence did not prove the
alleged violation, Judge Brady vacated the item.

We conclude that the judge's ruling on this item
should be set aside and the item remanded.  The judge incorrectly viewed the
condition addressed by the standard to be the accumulation of flammable vapors, which he
found could have been eliminated by using the ventilation equipment provided by Monarch.
  Section 1926.152(f)(3) does not mention "accumulations" of
"vapors." Rather, it prohibits the use of flammable "liquids" within
50 feet of an ignition source.  It is therefore irrelevant to this item whether the
ventilation equipment could have reduced the amount of flammable vapors had it been used
continuously during the spraying operation.

As the judge noted, to establish a violation of a
standard, the Secretary must prove that Monarch knew or with the exercise of reasonable
diligence could have known of the violative conditions.  In rebutting the Secretary's
evidence on knowledge, the employer may, among other things, show that it took reasonable
precautions to prevent the violative conduct of its employees.  See Automatic
Sprinkler Corporation of America , 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1387-88, 1980 CCH
OSHD � 24,495, pp. 29,926-27 (No. 76-5089, 1980).

Because it was not relevant to Judge Brady's
rationale, the judge made no finding regarding Monarch's actual or constructive knowledge
that the blower was being used within 50 feet of the paint, nor did he determine whether
Monarch knew or reasonably could have known that the hand lamp was in use.  We have
examined the record to determine if it compels certain findings on the knowledge issue.
  We conclude, however, that Judge Brady should, based on the present record, make
the necessary findings because they turn in part on the credibility of witnesses.

There is little direct evidence that on August 2,
1983--the day the violation is alleged to have occurred--Monarch had actual or
constructive knowledge that the blower was located near the tank opening and that the hand
lamp was being used instead of the Vapotech lamp.  None of Monarch's supervisors were
at the worksite that day, and Glaser had told Wright and Pinney to place the blower
outside the shed on a scaffold 70 feet from the tank opening and to use the Vapotech lamp.
  However, foreman Estes was at the worksite on August 1, 1983, the day before the
violation allegedly occurred, when Wright and Pinney were performing the same
spray-painting operation in the same tank.  According to the compliance officer,
Pinney told him that on that day the blower was outside of the shed.  However, Pinney
gave conflicting testimony on direct examination that on that day the blower was inside
the shed near the tank opening.  Pinney stated that on August 2 the blower was within
a few inches of the tank opening, and was in the same place on the preceding day, August
1, when Estes was at the worksite.  Pinney also stated that the hand lamp was used on
both August 1 and August 2.  The judge could therefore find that on August 1, Estes
knew, or with the exercise of reasonable diligence could have known, of the placement of
the blower and the use of the ordinary hand lamp; from that, the judge might also find
that Monarch could have known, with the exercise of reasonable diligence, of the
conditions that prevailed on August 2.

The judge should therefore make a finding of fact
whether on August 1, 1983, the day before the alleged violation, the blower was located
more than 50 feet from the paint being sprayed in the tank.  To do that, it will be
necessary to resolve the conflict between Pinney's testimony that the blower was eight
inches from the tank opening,[[1]] and the compliance officer's testimony that Pinney told
him that the blower was placed outside.[[2]]  If the judge finds that the blower was
within 50 feet of the paint on August 1, he should make an additional finding regarding
whether foreman Estes knew or reasonably could have known of that fact, in light of the
testimony that Estes was "in that vicinity inside the building."[[3]]  
Similarly, the judge should make a finding as to whether this evidence is sufficient to
establish that Estes was aware or reasonably could have been aware that the hand lamp was
being used.

If the judge finds that the blower was placed within
50 feet of the spray-painting operation on August 1 and that Estes knew or reasonably
could have known of that fact or of the fact that the hand lamp was in use, the judge
should make a finding as to whether Monarch rebutted that evidence of knowledge by
establishing that it took reasonable measures to prevent the proscribed conduct by
implementing an adequate safety program.

The judge should also make findings on whether the
blower or the hand lamp was proven to be a "source of ignition" within the
meaning of section 1926.152(f)(3).  The judge stated in his decision at page 10 only
that the blower and hand lamp were "not approved for use in explosive
atmospheres."  If the judge finds that a source of ignition existed, he should
make further findings on whether Monarch knew or with the exercise of reasonable diligence
could have known that.[[4]]

Citation 2, Item 1:  29 C.F.R. �
1910.134(b)(1), Respirator Procedures.

The question here is whether Monarch contested item 1 of citation 2.  The item
alleges that Monarch had violated 29 C.F.R. � 1910.134(b)(1), which provides that
"[w]ritten standard operating procedures governing the selection and use of
respirators shall be established."  In its notice of contest, Monarch
specifically contested every item in the citations issued to it except for item 1 of
citation 2.  Yet, in its post-hearing brief Monarch argued that, although it had
technically violated section 1910.134(b)(1) because it had no written respirator
procedures, no violation should be found because of the safety training provided by
Monarch to its employees.  In his decision, Judge Brady vacated the item because he
found it to lack merit.  He did not make a specific finding that the item had been
contested.

Section 10(a) of the Act, 29 U.S.C. � 659(a),
provides in part:

If, within fifteen working days from the receipt of
the notice issued by the Secretary the employer fails to notify the Secretary that he
intends to contest the citation or proposed assessment of penalty, . . . the citation and
the assessment, as proposed, shall be deemed a final order of the Commission and not
subject to review by any court or agency.

The Commission has construed notices of contest
liberally in order to determine the intent of the contesting party.  E.g ., Gil
Haugan , 77 OSAHRC 182/G3, 5 BNA OSHC 1956, 1957, 1977-78 CCH OSHD � 22,248, p.
26,779 (No. 14675, 1977), aff'd , 586 F.2d 1263 (8th Cir. 1978).  For example,
the Commission has construed a notice of contest facially limited to the penalty as also
contesting the underlying citation when the employer subsequently pleaded that such was
its intent during the contest period. Turnbull Millwork Co ., 75 OSAHRC 16/A13, 3
BNA OSHC 1781, 1782-83, 1975-76 CCH OSHD � 20,221, pp. 24,085-86 (No. 7413, 1975).  
However, the intent to contest may not be an afterthought.  Gil Haugan , 586
F.2d at 1266.

In this case Monarch admits in its brief on review
that it did not challenge this item in its notice of contest but may have
"inadvertently" contested it in its post-hearing brief.  However, nothing
in its pleadings or in the record suggests that Monarch had an intent to challenge item 1
of citation 2 during the contest period.  Under section 10(a) of the Act, that item
then became a final order of the Commission at the close of the contest period and is not
subject to review.  We therefore conclude that the judge lacked jurisdiction over
this item, and we reverse his decision to vacate it.

Accordingly, we set aside the judge's decision
regarding the alleged violations of sections 1910.134(b)(1) and 1926.152(f)(3).  Item
1 of citation 2 is declared to be a final order of the Commission under section 10(a) of
the Act.  Item 4 of citation 1 is remanded to the judge for a decision including
specific findings of fact based on the present record regarding the alleged violation of
section 1926.152(f)(3).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  July 7, 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] See Tr. 109, 112.

[[2]] See Tr. 254, 257-58.

[[3]] See Tr. 110.

[[4]] It could be argued that a finding that Monarch knew or could have known that the
hand lamp was a source of ignition would be unnecessary if Glaser knew or reasonably would
have known that the lamp he had instructed the employees to use--the Vapotech lamp--was a
source of ignition.  The record does not support such a finding as to the Vapotech
lamp, however.  Glaser reasonably thought at the time that the Vapotech lamp was not
an ignition source.  Glaser testified that the name of the Vapotech lamp gave him the
impression that it was not an ignition source.  He also testified that it was only
when compliance officer Medlock pointed out during the closing conference that the
Vapotech lamp was not approved for use near flammable vapors and that the literature for
the lamp was misleading, that he realized his error.