General Electric Company Aircraft Engine Group (ALJ decision, January 26, 1994)

Plain-English summary

General Electric manufactured aircraft engines at its Evendale, Ohio, facility. OSHA cited an electrical enclosure on a building column under the rule for damp or wet locations. The area was dry during the inspection and normally stayed dry, although earlier rainwater had leaked through the roof and left stains on the column. The Secretary argued that the column's concrete foundation and the temporary roof leaks made the location wet and required a weatherproof enclosure. The judge held that the regulation expressly allows a normally dry location to be temporarily damp or wet and found the Secretary's broader interpretation inconsistent with the rule's plain language. He vacated the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.305(e)(1).
• Outcome: Vacated. The judge found that the cited enclosure was not in a damp or wet location covered by the standard.
• Key point: Temporary moisture from a repairable roof leak does not convert a normally dry indoor location into a wet location under the cited electrical rule.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMiSSldN One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

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FAX:
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SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2881
GENERAL ELECTRIC COMPANY AIRCRAFT Respondent.

NOTICE OF DOCKETING -
OF ADMINISTlL4TIVE U4W JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on December 27, 1993. The decision of the Judge will become a final order of the Commission on January 26, 1994 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 COMMISSION MUST FILE A PEXI’ION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before January 1fr, 1994 in order to ermit sdi cient time for its review. See Commission Rule 91, 29 C.F.L. 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:

Daniel J. &lick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
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 having questions about review rights may contact the Commission’s Executive Secretary or call (202) 6063400.

FOR THE COMMISSION

Date: December 27, 1993
DOCKET NO. 92-2881
NOTICE IS GLVEN TO TEE FCLLOWING:

Daniel J. MU, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So$ ‘citor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tg: e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

William V. Killoran, Jr.
Counsel - Environmental Affairs
GE Aircraft Engines
General Electric Co.
One Neumann Wa , MD T165A
Cincinnati, OH 45 l 15

Benjamin R. Lo e
Administrative fa w Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f!0204 3582

00103376547:05
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PHONE: FAX:
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SECRETARY OF LABOR,
Complainant,

v. OSHRC Docket No. 92-2881

GENERALELECI’RICCOMPANY
AIRCRAFT ENGINE GROUP,
Respondent.
I

APPEARANCES:
Elhbctb R Ashky, Bq., Office of the Solicitor, U.S. Departmentof Lsbor, aevltlond,
0th wlliamV. Killotan,
Jt.,Esq.,OE Airaaft Engiaes, ChWatZ 0th

Before: Benjamin R. Lcye, Esq.

This pmceedhg arises under the Occupational Safety and Health Act af 1970 (29 U.S.C section 651 a m.; hereafter called the “Act”).
Respondent, General Elextric Company, Aircraft Engine Group (GEM),
at ail
times relevant to this action maintained a place of business at 1 Nueman Way, Evendale, Ohio, where it was engaged in the manufacture of aircraft engines. Respondent admits it is an employer engaged in a business affecting commerce and is subject to the require- ments of the Act (Tr. 12). On June 2%23,1992 the Occupational safety and Health . Administration (m) aducwd an inspection of GEAE’s Evendak worksite pr. 17). As a result of the inspection, GEAE was issued citations alleging violations of the Act together with pf01 posed penalties. By filing a timely notice of contest GEAE brought this proceed& before the Occupational Safety and Health Review Commission (Commission).
Prior to hesring d items were set&d, with the exception Of “Serious” citation I., item 2, alleging violation of ~1910.3o~(e)(l). on September 14, 1993, a hearing was held in Cincinnati Ohio, on the remaining issue. The parties have submitted brie& on the issues and this matter is ready for disposition.
Issues
The sole issue to be determined here is the applicability of ~1910.305(ex1). T’he cited section provides:
Et&suns for damp ur wet bcatihm. (1) Cabinets, cutout baom, &tings, boxes, and panelboard enclosures in damp or wet locations shall be installed s0 as to prevent moisture or water tirn entering 8nd accumulating within the enclosures. In wet locations the enclosures &ill be weatherproof. \
The Secretary maintains GEAE’s Column D-25, Buikiing B is a %et location” both because the cohmn is sunk into a concrete foundatbn which is in contact with the earth, and because the column was unprotected kom the weather due to roof leaks at thetimeoftheirwpectian.

ThcrekvantfWsinthiscascarenotindisputc.
Thcpartiesstipulatethat:
hriq OsEIA &q&mcc 01E6icer(a)) John cobras June B,lm inspdcm ob GEA,Es Building B, he examined the area around Column I%25 in the Jet Pacarea. The column held a telephone, a switch for overhead lights, and an elect&al receptacle with two three prcmged outlets. An electric water cooler was plugged into one of the outlets. The area is normaI& dry. At the time of the inspection, conditions on and around the column were dry; however, there was evidence of water stains runningdown the column. Prior to the inspection, rainwater had leaked through the roof and run

2 dm the cohmn during storms Fro 7-9; General Electric'r Response to scheduling Order). a June 2, 1992, and at times prior thereto, work orders were issued to repair roof hks at &UIUI D-25 (Exh. R-l, R-22, R-26, R-27). The roof was eventually replaced, and no kaks have been reported since September 1992 (Tr. 18,189,19748).

Section 1910.305(e) dictates the type of electrical enclosures to be instakd in damp or wet locations, dependent on the amount of moisture expected to be encoun- tered in those locations. Locations are defined in 31920.399:
(i) Dump bcation. Partially protected locations under canopies, marquees, roofed open porches, and like locations, and interior locations subject to moderate degrees of moisture, such as some basements, some barns, and some cold4orage warehouses.
(ii) By location. A location not normally subject to dampness or webxss.
A location classified as dry may be temporarily subject to dampness ar wetness, as in the case of a buildingunder construction.
(iii) Wet tocation. Installations underground or in concrete SUN or masonry in direct contact with the earth, and locations subject to saturatioa~ with water or other liquids, such a~ vehicle-washing areas, and locations exposed to weather and unprotected.

Building B in the GEAE facility is a roofed structure, located abovegrwnd Its interior is not normally subject to moisture fbm exposure to the weather, direct contact with the earth, or wet operations. Build& B is cleariy a “dzy area” which was tempo- rarily subject to dampness due to roof feab. complainant argues that its interpretationof the standard is entitled to deference. a 0
However, the Supreme Court has bcld that a reviewing court, i.e. the Comrmsslon, “should defer to the Secretary only if the secretary’s interpretation is wxmabk? Mbrzin v. OSHRC (CFdilStccl Corp.), 111 S.Ct. 1171,118O (1991) (emphasis in the original).
Complainant’s interpretation is unreasonable, in that it is inconsistentwith the plain language of the regulation itself. The definition of a “dry location” expressly pro- vides for temporary exposures to dampness or wetness in covered buildins normally

3 proteited eomtheweather.
Thesecretary%interpretationlmlld include aq bb temporarilycxpoed to weatherconditions(8~ wdl as aUbuiklinp with concrete fom- tions) witbinthe dc6nitionprcnddcdfor Uwetlocations? Adoptingcomplainant’,hm- pretation would extend the reach of ~1910.305beyond the standard’s plain meaning (LD~ deprive the empbyer of fair warning of the pro&iii conduct. It is well settled that the Secretary may not so extend a standard’smeaning. Sb e.g., BWkhem SWt v. OSHRC, 573 F.2d 157 (3rd Ciro 1978); DPIM Corporationv, OSHRC, 613 F.2d 1227, (3rd C!k 1980).
The Secretary has failed to demonstrate the appkability of the cited standard The citation will, therebre, be dismjsscd.

ridinns of Fact and Conclusionsof Laftr
All 6ndin~ of f&t md concMons of law relevant and v to a &ted tion of the contested issues have been found specially and appear in the decision ati h Ruk 52(a) of the Federal Rules of Civil Procedure.

1l Serious citafion 1, item 5 alleg@ violation of ~19lO3OS(e)(l) is VACATEID.

Dated: Demmber 17, 1993