A.R. Contractors, Inc. (ALJ decision, June 7, 1993)

Plain-English summary

A.R. Contractors used two liquid-petroleum gas tanks to fuel roofing operations at a Florida commercial construction project. OSHA alleged that the tanks were exposed to possible damage from construction traffic without adequate precautions. The judge rejected the contractor's argument that the standard was unconstitutionally vague, finding that it gave fair notice that employers must protect LP-gas systems from vehicle damage. He nevertheless found no violation because the tanks were in a fenced construction-only area, marked with warnings, positioned near trailer wheels, accompanied by fire extinguishers and pennant flags, and guarded by an employee at all times. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.110(d)(10)
• Outcome: The sole citation was vacated.
• Key point: A broadly worded standard requiring precautions against vehicle damage does not necessarily require fixed barriers when the employer proves that its combined site controls adequately protect the LP-gas system.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW CohdMISSION One Lafayette Centm
1120 20th Street, N.W. - 9th Floor
Washington, DC 200384419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-2277
A. R. CONTRACTORS,INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTlMTIVE LAW JUDGE’S DECISION
.
The Administrative Law Judge’s Re ort in the above referenced case wa;s docketed with the Commission on May 7 1993. The decision of the Judge will become a final order of the Commiskon on June 7, 1993 unless a . Commission member directs review of the decision on or before that date. ANY - PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE - COMMISSIONMUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such tition should be received by the Executive Secre on or before May 27, 1ge93 in order to ermit sufficient time for its review.T ee . Commission Rule 91,29 8 .F.R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health .- Review Commission
1825 K St. N.W., Room 401
Washington., D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE CO

Date: May 7, 1993
DOCKET NO. 91-2277
NOTICE IS GIVEN TO TiIE FOLLOWING:

Daniel J. Mia m
Counsel for Re 'onal Trial Liti ation
Office.of the &citor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Ms. Bobb e D. Spears
Re ‘onal Helicitor
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Ronald M. Gaswirth, Esquire
Lmi M. McNally, Esquire
Gardere & Wynne
3000 Thanks ving Tower
Dallas, TX -w2014761

Paul L. Brady
Administrative Law Jud e
Occupational Safety an B Health
Review Commissron
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00018347526:04
SECRETARY OF LABOR,
Complainant

v. OSHRC Docket No.: 91-227’7

A. R. CONTRACIYORS, INC.,
Respondent.

Appearances:

Leslk John RodriguezEsquire oma of the solicitot u. so Dcp0ttment of Labor
Atlanta,Georgia
For Complainant

Before: Administrative Law Judge Paul L Brady

DECISION AND ORDER

This proceeding is brought pursuant to Section 10 of the Occupational safety and Health Act of 1970 (Act) to contest a citation and proposed penalty issued by the Secretary of Labor (Secretary). Respondent, A R. Contractors, Inc. (AR) is alleged to have violated the standard at 29 C.F.R. Q 1910.1lO(d)(10) during construction of a building in Jacksonville, -Florida.
The basic facts are not in dispute that AR was a roofing contractor in construction of a commercial building in the Avenue Mall in Jacksonville. Also, that two w)-gallon liquid petroleum (LP) gas tanks were located in front of the rear wheels of two tanker trailers as depicted in Exhiiits C-3 and C-4. There were “propane gas” and “no smog” decals on the tanks. The me&ed Violation of 29 C.F.R. 6 1910~110(d~lO~ The standard which pertains to the storage and handling of LP gases states as follows:
When damage to L&Gas systems from vehictilar traffic is a possibility, prcawtions against such damage shall be taken.
29 c.FeR. 5 1910.110(d)(l) provides in pertinent part as follows:
This paragraph applies specifically to systems utilizing Storage containers othertbanthose constructed in accordanccwithDOTspe6ifications 0 00 systms is defined in l9lOolOO(A)(ll) as:
[AIn assembly of equipment consisting essentially of the container or containers, major devices such as vaporizers, safety relief vahw, excess flow valves, regulators, and piping connecting such park The citation allegesthat precautions were not taken to prevent damage-to LP gas systems fkom vehicular traffic: Two 500-gallon LP-gas tanh alongside the roam at%he north end of the building.
Compliance officer John Ruggles conducted the inspection that gave rise to issuance of the citation. He test&d that the L&gas system consisted of the two trailem that beid hot tw and the two U-gas tanks that were heling them. The hot tar was pumped to t& roof of the building for the roofers (Tr. 60). He stated the tanks had a capacity of 25~gallons and not NO-gallons (Tr. 126).
The Secretary concedes the tanks were located in a fenced-off area restricted to . constiwtion trafk, and some colored flags were stmng between the trailers. - Ruggks stated, however, that the L&gas tanks were located on the roadway side of
the trailers without protection from vehicular traffic (Tr. 61,62, 126; Exhs. C-3, C-4). He observed vehicular tra!Sc within 3 to 4 feet of the tanks traveling 5 to 10 miles per hour. * Three to five vehicles passed the banks during the inspection. The roadway was approximate 20 feet side (Tr. 63-65).
Mr. Harold Blanton, the Secretary’s expert, testified that barriers should have been present to prevent vehicle damage to the tanks (Tr. 183,184). He also stated that stringing colored flags in front of the tar&s was not a precaution because of the vehicular traffic that was present (Tr. 193495).

2
 In order to establish a violation of the standard, the Secretary must show by a preponderance of the evidence that (1) the cited standard applied, (2) its term were not met, (3) eapbyees had access to the violative condition, a;nd (4) the employer knew or could bait kww of the violation with the exercise of reasoriable diligence. S&e2 Mb& AU!‘& We Cqp, 15 BNA OSHC 1218,199l CCH OSHD 129,442, p. 39,678 (No. 88- 821,199l)m
AR contends the standard does not apply because of its vagueness thus violating the due process clause of the fifth amendment. It is argued that the standard is void since persons %f commonintelligence must guess at its meaning and differ as to its application.” cbu8eQ v. Gene& cbnstr. coo, 269 us. 385,391(1926).
AR points out that the term “precautions” is not defined by the stx@ard. As a result, the Secretary’s position is based solely on the subjective interpretations of the inspectingoffice~ While the testimony of the compliance officer and expert does indicate that the precaution to be taken are essentially lefk up to an inspector, the -standard is not impermi6sib~vague.
.
The standard does set fortha “Comprehens~We CCNUSC of amduct” that
satisfies due process requirements, ia, that employers are to protect IT-gas systems fkom’

The fact -that Congress might, without difficulty, have chosen “[cjlearer and more precise language equally capable of achieving the end which it . sought does not mean that the statute which it in fact drafkd is unconstitutionally va;uc. UitiM S&m v. Powell, 423 U.S. s% SAX 316 (1975).
Although a definition for precautions is not provided, its general definition would include measures taken in advance to protect against danger.
The standard is not unconstitutionally vague to apply in this case and AR’s motion for summary judgment is denied.
AR also contends that the evidence does not establish the violation. It is first asserted that the tanks in question were not shown to be “other than DOT containers.”

3
 There is considera& evidence and discussion in the rexord regardingsp&& identification of the tar&s shown in Exhl%itsc-3 and c-4. The testimony of two witnesses, however, adequatelyestab@hes they were “other than D.O.T. containers.” Mr.JatpB Hollinth, records custodian for GrifEthGas Company, testifkd his company leased the tanks in question to AR (‘I?. 29-3237). Hollingswortbhas 20 years experience with-the propane gas industry, from home delivery to basic service and installation(Tr. 28). Based on his 20 years experience it was his opinionthat the tanks-were ASME (American Societyof Mechanic& Engineers) tanks and not D.O.T. (Tr. 37,396o).
Harold Blanton, the Secretary’sexpert, identified the tanks a “non-D.O.TP but ASME (Tr. 174,197). There was no evidence offered to refute the foregoingstatements. The tanks, therefore, were “other than DOT containers.” The testimonyof the inspectoris not disputed regardingAR’s LP gas system at the site (Tr. 6041). Tberefore,an LP gas system was present within the contextoftbe standard The centralissue regarding the allegedviolation relates to the extendof the measures ’ required to be taken by an employer under the standard CIearly, the employer has a duty to act where there ida possibilityof damage to the system by vehicuk trafIic, “P-Ii is used in the standard without qualification, wbicb implies even tbe sligbtest chance of damage. The .testimony is undisputed that there was vehicular traffic traveling at speeds of 5 to 10 miles per hour within 3 to 8 feet of tanks. Under these circumstances, damage to the gas system could be deemed a possibility. The standard also does not provide any indication as to fype of precautions necessary to compIy. Consideration, therefore; must be given to measures which are barely suffkient to protect against damage.
Mr. Blanton testified that in this case a barricade or barrier between the tanks and trafk would be required. It is argued that such requirement is reasonable in light of other prwisions of 29 CFR 8 1910.110. These provisions relate to precautions agabt vehicular damage to LP gas tanks at gas setice stations. 29 C.F.R. 0 1910.110@)(6)(ii)@) provides that above groundcontainersmust be “protected by crash rails or guards to prevent physical damage unless they are protected by virtue of their location.”
Under 29 CF.R. 9 1910.110@)(6)(iii)(c), “[i]f the location is subjected to vehicular traffic, containers shall be

4
. protected by a concrete slab or other cover adequate to prevent the weight of a Iadd v&j& imposing comcntrated loads on the container shell.” T~C~~IUGSS~~II has held that broad terms in a standard can acquire meaning when read tagettWa.witbother standards. See Sccrcr~ry v. Gocdm Inc., 7 BNA OSHC 1855, 1861, 1980 CCH OSHD 1 24,205, p. 29,444 (No. 76-2049, 1979). Since barriers and barricades are not listed as precautions under the instant standard and there is no reason to conclude such installationwould be required. Cleariy, if such measures were intendedthe standard would so specify as set forth in the aforementioned standards. The principal consideration, therefore, is what precautions AR did take. .
Mr. Duane Hughey, AR foreman, testified he was in charge of safety at the w&site.
He stated different precautions are taken at each worksite depending_on . the circums~ and conditions. Based upon the conditions at this site, he took the fobwing prccautims (Exhs. C-3, C-4; Tr. 26W63):
(1) The stringing of colored pennant flags between the tanker trail&,
(2) Fencing off the area and restricting it to const~ctim trafik, .
(3) Placingdecals on the tanks which read, “Propane Gas” an@“No Smoking,,”
(4) Positioningthe tanks in fkontof the rear wheels of the tankers, (5) . Fire extinguishes were placed beside each tank, and
(6) Stationing a man to guard the tanks at all times.
While some of the measures may be seen as having minimal effect, when coupled with the presence of an employee to guard the tanks full time, which is not refuted, ’ compliance with the standard cannot be denied. The standard was not violated as alleged.

FINDINGS OF FAa AND CONCLUSIONSOF IAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
 ORDER

Based on the foregoing decision, it is ordered that the citation is vacated.

IsI Paul L Bra&
PAUL L BRADY
Judge

Date: April 29, 1993