West Texas Warehouse Company (ALJ decision, March 28, 1994)

Plain-English summary

West Texas Warehouse leased part of a Lubbock warehouse to another company that stored hazardous-waste-labeled batteries. After some batteries caught fire, fire and state environmental officials asked West Texas to help move them because the tenant would not act. West Texas employees used gloves and rubber boots, worked in the presence of a fire official, and stopped when damaged batteries began smoking. OSHA cited the company for five hazardous-waste-operations requirements involving a written program, protective equipment, hazard information, training, and decontamination. The judge found that West Texas did not normally handle hazardous waste, did not know the stored batteries were hazardous, and reasonably responded to what it understood as an emergency under public officials' direction. All five serious citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.120(b)(1)(i), 1910.120(c)(5)(i), 1910.120(c)(7), 1910.120(e)(1)(i), and 1910.120(k)(2)(i).
• Outcome: Vacated. All five hazardous-waste-operations items were vacated.
• Key point: The judge found the HAZWOPER citation inappropriate where a warehouse owner that did not handle hazardous waste responded reasonably to an unexpected emergency at public officials' direction.

Full text (OSHRC public release)

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iJNfTED STATES Of AM E R I C A

OCCUPATIONAL SAFElY AND HEALTH REVIEW COMMISSION One CatayettO
Contra lmomthStmd,N.W.-QthFbr
Wauhington,DC 200364419

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SECRETARY OF LABOR
Complainant
v. OSHRC DOCKET
NO. 92.3886
WEST TEXAS WAREHOUSE COMPANY
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on February 25, 1994. The decision of the Judge will become a final order of the Commission on March 28, 1994 unless 8 - Commission member directs review of the decision on or before that ti ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY RBVIEW.
Any such petition should be received b the Executive Secretary on or tie March 17, 1994 in order to rmit sud cient time for its review. See Commisslon Rule 91, 29 C.F .R. 2200.91.
All further pleadings or communications regarding this case shall lx addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200364419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So?Iicitor, U.S. Dc#L
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Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Cowsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: February 25, 1994
Ray H. Darling, Jr.
Executive Secretary
 DOCKET NO. 92-3886
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, w.
Counsel for Re bnal Trial Liti ation
Office of the SoQ ‘CitOr, U.S. A
Room S4lXM
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752Ji

Don Graf, Esq.
. McCleskey, Harriger, Brazil1 & Graf
P.O. Box 6170
Lubbock, TX 79493

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Federal Building, Room 7811
1100 Commerce Street
Dallas, TX 75242 0791

00107406829:06 uwEwwEs~~
OCCUPATIONAL SAFETY AND HEALTH REVIEW COhdhi!l~lON
RooM7911,FEoERAL6UllDlNG
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DALlAS,TD(As75242~791

PHme: FAX:
COM (214) 7074271
COM (214) 787-(X3so
FE (214) 767-l
Rs (214) 707d360

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Complainant,
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WEST TEXAS WAREHOUSE COMPANY,
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Respondent.
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APPEARANCES:

Michael H. Olvera, Esquire
Don GN Esquire
Dallas, T&as
Lubbock, Texas
For the Complainant.
For the Respondent.

Before: Administrative Law Judge Stanley M. Schwartz

DECISION AND ORDER

This is a proceeding brought before the Occupational Safety and Health Review Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. Q 651 ef seq. (“the Act”).
The Occupational Safety and Health Administration (“OSHA”) inspected a warehouse site in Lubbock, Texas on June 11,1992. As a result of the inspection, a serious citation with five items was issued; Respondent contested the citation, and a hearing took place on September 14, 1993.’

Background

‘All five items allege violations of the hazardous waste operations and emergency response standard; specifically, the items allege violations of 29 CF.R 89 1910.120@)(l)(i), 1910.120&)(5)(i), 1910.120(c)(7), 1910.12O(e)(l)(i) and 1910.120(k)(2)(i), respective& 2

   Respondent       owns approximately 852,~            square feet of warehouse space in a

warehouse district in Lubbock, Texas; the company uses about a fourth of the space for its OIJV~ w~ebd’l~ operation and leases the rest. In the early morning of June 9,1992, some batteries stored in a section of one of the leased warehouses ignited; the warehouse consisted of several separate sections, each with its own individual door, and only Lack Transfer & Storage (‘Tack”), the lessee, had a key to the section where the fire occurred. The City Fire Department responded to the fire and gained access to the building after Carlos FJores, a Lack employee, arrived; Raymond Marmolejo, one of Respondent’s supetisors, had arrived earlier. (Tr. 17-21; 38-39; S-59; 88-89; 92.93; 107-09; 112-13).
The warehouse sprinkler system had controlled the fire, and after ventilating the building firemen in protective gear went in. There were a number of pallets with b&teries in cardboard boxes on them, eight to ten of which had been involved in thi fire; these pallets were separate from the rest and had hazardous waste labels on them, 85 did most of the boxes stored in the space. The Fire Department and Flares removed the panets whi& had been involved in the fire and placed them in a dirt lane outside the warehouse; they were removed with a forklift belonging to Respondent with the permission of Rusty Vernon, a manager with the company. Also present by this time were representatives of the Fire Marshal’s office and the Texas Water Commission (“TWC”).2 These representatives as well as Fire Department officials were present throughout the day, and Respondent posted a guard at the warehouse that evening in case a fire recurred.3 (Tr. 21-30; 33-37; 42-50; 73-74; 103-04; c-1-2.
‘I’WC and the Fire Department were concerned that it might rain and that the batteries could reign&e if left outside, and on June 10, since Lack was unwilling to do anything about the situation, representatives of those agencies talked to Vernon about

%WCs concern was the properstorageof the batteriesand the disposal of the runoff water from the sprinkler system. (Tr. Sl-54,59-60).

%he guard remained posted on a twenty-four-hour basis for over a week until the .EnvironmentalProtection Agency took over and began cleaning up the site, and a small fire did, in f&t, recur inside the warehouse on June 15. (Tr. 52-53; 97; 103-05). 3 moving the palkts back into the warehouse. Vernon had Marmolejo and several other employees, m the presence of a Fire Department official, attempt to put the batteries back inside; on the advice of the Fire Department, the employees wore gloves and rubber boots. Two or three intact pallets were replaced with a forklift without incident; however, some of the boxes had come apart, and as the employees were putting those batteries into metal barrels with shovels the batteries began smoking and the Fire Department official told the employees to stop. The’pallets which had been replaced were removed again, and all the affected batteries were left outside covered with plastic purchased by Respondent. Respondent also paid to have the runoff water resulting from the sprinkler system cleaned up; a company named Bergstein Oil performed this work. (Tr. 52-56; 59-87; 90-91; 94-111; 14647).
On June 11, an OSHA compliance officer (“CO”) arrived at the site and conducted an inspection pursuant to a referral from a public employee. The CO spoke to TWC and Fire Department officials who were present, as well as Vernon and the other employees of Respondent who were at the site. The citation issued to Respondent as a result of the inspection, noted above, was based on the Co’s determination that the employees involved in the June 10 cleanup effort had been exposed to hazardous chemicals and that the company did not comply with the requirements of 1910.120;specifkally, the citation alleges that the company did not have a written program to provide for emergency response for hazardous waste operations, that appropriate personal protective equipment was not used, that employees were not informed of the risks involved and did not receive appropriate training, and that no decontamination procedure was developed or implemented.
(Tr. 117.42).

Decision

The company’s position is that the citation should be vacated because it is not in the business of handling hazardous waste and that it was merely responding to the instructions of public officials in an emergency situation. The Secretary, on the other hand, contends that the citation should be affirmed notwithstanding the foregoing because employees were 4 exposed to hazar&us chemicals and there was no compliance with the subject standark This contention is-rejected ‘IBe unrebutted testimony of record shows that Respondent
does not normagf engage in hndous
waste operations and that it had no knowledge the
batteries stored in its warehouse were hazardous, that Lack was unwiUng to take respc&Slity for the situation, and that the company was, in fact, responding to what it considered an emergency at the direction of public officials. (Tr. 51-S& 70-71; 79-m, 84-85; 92-93; 96-111; M-47). Under these circumstances, it is concluded that the company’s actions were reasonable and that the citation was inappropriately issued; accordingly, all five items are vacated.

Conclusions of Law

1. Respondent, West Texas Warehouse Company, is engaged in a business af&cting
commerce and has employees within the meaning of section 3(5) of the Act. ‘I% Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2 On June 10, 1992, Respondent
was not in violation of 29 C&R.
00 1910:120(b)(l)(i), 1910.120(c)(S)(i); 1910.120(c)(7), 1910,12O(e)( l)(i) and 1910.120(k)(2)(i).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Items 1 through 5 of serious citation number 1 are VACATED.

Administr&ve Law Judge w

ate: FE615 1994

%e Secretaryhas not fled a post-trialbrief in this matter; however,his position was stated at the beginning of the hearing. (Tr. 4-7).