Alden Leeds, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Alden Leeds runs a wholesale pool-chemical business in South Kearny, New Jersey, where it stores large, constantly changing quantities of oxidizing chemicals that can feed a fire. OSHA cited the company under the general duty clause in 1990 and again in 1993 (after a large warehouse fire) for the fire hazard created by improper storage of these oxidizers, and both citations were settled with the company agreeing to abate. When OSHA reinspected in December 1994, it found 33 instances of improper storage and issued a failure-to-abate notification carrying a $107,100 penalty. The company argued it had abated because the exact 13 storage conditions listed in the 1993 citation no longer existed. The administrative law judge and then the Commission rejected that argument, holding that the hazard the company had to fix was its improper storage practice as a whole, not just the specific piles OSHA happened to photograph, and that the record showed the company never brought its storage into compliance with the applicable fire-code guidelines. The Commission affirmed the failure-to-abate finding and the full $107,100 penalty. Commissioner Visscher dissented, arguing the specific cited conditions were gone and the majority wrongly shifted the burden to the employer; Commissioner Weisberg concurred on additional grounds. The appended decision of Administrative Law Judge John H. Frye, III, which the Commission affirmed, is included in full.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) (general duty clause), for the fire hazard from improper storage of highly reactive oxidizing agents
• Outcome: Failure-to-abate notification affirmed; $107,100 penalty assessed. Majority (Rogers, Weisberg concurring); Visscher dissenting.
• Key point: In an operation where inventory constantly changes, an employer does not abate a general-duty fire hazard just by clearing the specific piles OSHA cited; it must bring its overall storage practices into compliance, and a failure-to-abate notification can stand where it never did.

Full text (OSHRC public release)

```text
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 95-1143
ALDEN LEEDS, INC.,
Respondent.

                                     DECISION

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.
BY THE COMMISSION:
Alden Leeds, Inc. (“Alden Leeds”), operates a wholesale pool chemical business in
a number of locations, including South Kearny, New Jersey. Before the Commission on
review is a failure to abate notification alleging that Alden Leeds failed to abate a previously-
cited violation of 29 U.S.C. § 654, section 5(a)(1) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678 (“the Act”) for failure to store its chemicals properly. The
issues here are (1) whether the earlier citation gave Alden Leeds adequate notice of the
hazard it was required to abate, and (2) whether the administrative law judge’s finding that
Alden Leeds had failed to abate the violation is supported by the evidence. For the reasons
below, we answer both questions in the affirmative, affirm the administrative law judge’s
decision and assess a penalty of $107,100.

                                                                     2000 OSHRC No. 17

2

                                    Background
   Alden Leeds purchases its chemicals in bulk from chemical manufacturers then resells

them. Because of the nature of its business, Alden Leeds’ inventory is constantly changing,
with materials being shipped out and new chemicals coming in. Many of the chemicals are
class 2 and class 3 oxidizers, which readily react to promote combustion and moderately or
severely increase the burning rate of combustible materials. Three of the manufacturers of
these chemicals, Monsanto, Olin, and PPG, have jointly compiled a publication called the
“Blue Book,” which sets out guidelines for safe handling and storage of oxidizing pool
chemicals. The Blue Book is based on NFPA 43A, Code for the Storage of Liquid and Solid
Oxidizers (1990) published by the National Fire Protection Association (“NFPA”), the code
on which the Secretary relies to establish that the conditions in Alden Leeds’ warehouses
were hazardous. Among the requirements in the NFPA code are that incompatible materials
shall be stored at minimum distances from each other or shall have some kind of barrier
between them. An incompatible material is one that “when in contact with an oxidizer, can
cause hazardous reactions or can promote or initiate decomposition of the oxidizer.” The
NFPA code also establishes maximum quantities of certain classes of chemicals that may be
stored in one location and requires piles of different classes of oxidizers to be no more than
certain heights or widths. The lack of storage space in Alden Leeds’ worksite makes it
inherently difficult to follow the guidelines set out by the NFPA.
In January and February of 1990, a compliance officer (“CO”) of the Occupational
Safety and Health Administration (“OSHA”) inspected Alden Leeds’ South Kearny worksite.
As a result of that inspection, OSHA issued a citation alleging that Alden Leeds had violated
section 5(a)(1) of the Act1 “in that employees were exposed to the hazard of fire from the
improper storage of highly reactive oxidizing agents[.]” The 1990 citation set out seven
categories of violative conditions found in various locations and listed a number of possible

1
Section 5(a)(1)provides, “Each employer shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.”
 3

measures that could be taken to abate the violation. Alden Leeds contested that citation and
the matter was resolved by a settlement agreement signed by the parties on August 24, 1990,
in which Alden Leeds agreed to abate the cited conditions. In June of 1991, Alden Leeds’
president wrote to OSHA that “Storage of oxidizers is in conformance with
N. F. P. A. guideline, part 43A.”
In 1993, a large fire destroyed a substantial portion of Alden Leeds’ warehouse. After
that fire, OSHA again inspected. On October 8, 1993, it issued the citation that forms the
basis for the action before us here. That citation also alleged a violation of section 5(a)(1):
Employer did not furnish employment and a place of employment that were
free from recognized hazards that were causing or likely to cause death or
serious physical harm to the employee in that: employees were exposed to the
hazard of fire from the improper storage of highly reactive oxidizing agents:
. . .
The citation set out thirteen instances where improper storage of various pool chemicals had
been found. The hazardous conditions included the storage of incompatible chemicals too
close to each other, oxidizers piled too high, and an excess quantity of an oxidizer in one
location. Alden Leeds contested that citation, and that case was also the subject of a
settlement agreement in which Alden Leeds agreed to abate the conditions by October 15,
1994.
On December 6, 1994, the CO who had performed the first two inspections conducted
a follow-up inspection and found thirty-three instances of improper storage. Consequently,
the Secretary of Labor issued a notification of failure to abate under section 10(b) of the Act,
29 U.S.C. § 659(b), and proposed a penalty of $107,100. Alden Leeds contested that
notification, and a hearing was held.
At that hearing, Alden Leeds’ president testified that, after he received the October
1993 citation, he had met with the manager and the assistant manager of the warehouse, had
given each of them a copy of the Blue Book, and had discussed with them how to correct
each of the violations cited. He also testified that he had inspected the warehouse to make
sure that each of the cited instances had been corrected, and that he was certain that they had
been. The Secretary stipulated that none of the specific instances of violative conditions
 4

found during the reinspection corresponded to the conditions listed in the 1993 citation. The
CO testified, however, that he had interviewed the plant manager, the forklift operator, the
president, and other employees, and that he had concluded that Alden Leeds had never
abated the hazard because its storage practices never changed. For example, the company
continued to store certain chemicals three pallets high and others two pallets high, even
though this resulted in piles that exceeded the NFPA height maximums.
The judge found that, because the conditions specified in the 1993 citation could not
be identified during the 1994 follow-up inspection, the Secretary could not establish a failure
to abate violation as contemplated by Braswell Motor Freight Lines, 5 BNA OSHC 1469,
1977-78 CCH OSHD ¶ 21,881 (No. 9480, 1977). Braswell involved a notification of failure
to abate a previously-cited violation of the standard governing flammable and combustible
liquids because the company failed to store oily rags in a covered metal container. The judge
nonetheless affirmed the notification of failure to abate and assessed a penalty in the amount
proposed by the Secretary. He found that the 1993 citation had informed Alden Leeds that
its storage practices were the hazard that the Secretary sought to have remedied. The judge
noted that, although Alden Leeds argued that it had never agreed to comply with the
provisions of NFPA 43A, that fact did not preclude the Secretary from relying on that code
to establish the existence of a recognized hazard. He found the testimony that Alden Leeds
had corrected each of the thirteen violative instances listed in the citation insufficient to
contradict the testimony of the CO that it had never brought its warehouse into compliance
with the requirements set out in NFPA 43A. The judge found that Alden Leeds’ storage
practices had remained unchanged over the relevant period. Alden Leeds petitioned for
review of the judge’s decision, and the decision has been directed for review pursuant to
section 12(j) of the Act, 29 U.S.C. § 661(j).
Discussion
We conclude that Alden Leeds had adequate notice of the hazard to be abated. The
Secretary argued, and the judge found, that Alden Leeds’ storage practices constituted the
hazard that the Secretary sought to have remedied. On review, Alden Leeds renews the
 5

argument it made before the judge that it was the thirteen specific instances listed in the 1993
citation that had to be abated. The citation required Alden Leeds to free its workplace of
“the hazard of fire from the improper storage of highly reactive oxidizing agents.” This
articulation of the hazard is consistent with the Commission’s precedent disfavoring broad,
generic definitions of the hazard cited under section 5(a)(1) and satisfies the requirement that
the citation apprise the employer of its obligations and identify the conditions or practices
which the employer can reasonably be expected to control. Davey Tree Expert Co., 11 BNA
OSHC 1898, 1899, 1983-84 CCH OSHD ¶ 26,852, p. 34,399 (No. 77-2350, 1984). The
citation made it abundantly clear to Alden Leeds both that it was required to free its
workplace of the fire hazard caused by its storage practices and that it could abate the hazard
by instituting proper storage procedures or by adopting any other method that would
eliminate or materially reduce the hazard. See United States Steel Corp., 12 BNA OSHC
1692, 1697-98, 1986-87 CCH OSHD ¶ 27,517, p. 35,669 (No. 79-1998, 1986). The 1993
citation clearly stated what hazard was to be abated, and Alden Leeds has never contended
that it did not know how to comply with the safety requirements of the NFPA. Indeed, as
noted above, in June 1991, Alden Leeds’ president wrote to OSHA that the company’s
storage of oxidizers was in conformance with the NFPA requirements. This letter shows that
Alden Leeds was well aware, even in the context of the 1990 citation, that its storage
practices were at issue and that Alden Leeds knew how to abate the violation. As the judge
found:
To limit the citation to specific conditions enumerated in it would be to blink
[at] the reality of the hazard. In the context of a storage and processing
operation in which inventory is constantly changing, it does little good to
correct specific hazardous piles of oxidizers identified by the Secretary if the
procedures which permitted those hazardous piles to be created are not
corrected. New hazardous piles will be created, and the employees’ risk of
death or serious injury will be unabated. Consequently, interpreting the
language of the citation to apply only to specific hazards would thwart the
remedial purpose of the Act “. . . to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions . . . .”
 6

Therefore, we conclude that Alden Leeds had adequate notice of the hazard it was required
to abate.
The next question is whether Alden Leeds had failed to remove that fire hazard from
its workplace as the Secretary has alleged. Our examination of the Secretary’s burden of
proof in failure-to-abate cases and the employer’s burden to rebut the Secretary’s prima facie
case establishes that the Secretary has met her burden by a preponderance of the evidence.
Under Commission precedent:
[T]he Secretary’s prima facie case of failure to abate is made upon showing
that: (1) the original citation has become a final order of the Commission, and
(2) the condition or hazard found upon re-inspection is the identical one for
which respondent was originally cited. . . .
This prima facie case may be rebutted by a showing of actual abatement
of the hazardous condition by prevention of employee exposure or correction
of the physical condition.
York Metal Finishing Co., 1 BNA OSHC at 1656, 1973-74 CCH OSHD at p. 22,048. Alden
Leeds does not really dispute that its workplace contained the hazard, that it recognized the
hazard, that the hazard was likely to cause serious harm, or that a feasible means exists to
abate that hazard. Instead, it argues that, by eliminating the thirteen specific examples listed
in the citation, it had abated. We disagree.
We find that the record fully supports the compliance officer’s testimony that the
hazard was the same one cited originally. We also find that, despite the testimony by Alden
Leeds’ president that he had instructed the warehouse employees to follow the Blue Book,
Alden Leeds had never changed its chemical storage practices so as to eliminate the hazard.
For example, the 1993 citation listed eight instances in which incompatible chemicals were
not properly separated. The 1995 failure-to-abate notification listed 25 such instances. In
1993, the Secretary cited two piles of class 3 oxidizer that exceeded the height limit for a
pile; there were nineteen of them in 1995. Both the citation and the failure-to-abate
notification listed four piles of class 2 oxidizer that exceeded the maximum tonnage for that
 7

class. Four piles of class 2 oxidizer exceeded the maximum permissible pile height in 1993;
twenty did in 1995. Where one pile of class 2 oxidizer exceeded the permissible width for
a pile in 1993, the 1995 notification listed two such situations. Because of the nature of the
business, chemicals were constantly moved in and out and shuffled around, so employees
constantly had to find someplace to put the inventory. The compliance officer’s
conversations with Alden Leeds’ employees led him to conclude that, because the
combination of limited space and large inventory made it extremely difficult to store its
chemicals within the NFPA guidelines, Alden Leeds had never been able to bring itself into
full compliance. We find the CO’s conclusion to be a reasonable one, based on the record.
We therefore conclude that the Secretary has established a prima facie showing of a failure
to abate.
The burden is therefore on Alden Leeds to establish that it had, in fact, abated the fire
hazard resulting from its improper storage of oxidizers. Alden Leeds’ president testified that
he had personally assured that the thirteen specific instances listed in the 1993 citation had
been corrected. Nowhere, however, did he state that the company had ever -- however
briefly -- eliminated the hazard by coming into compliance with the NFPA code or with any
other storage guideline. His testimony suggests that Alden Leeds’ abatement efforts
concentrated on correcting the specific instances in the citation rather than eliminating the
cited hazard.
Furthermore, the record raises questions about the president’s credibility. As noted
above, he represented in a 1991 abatement letter to OSHA that Alden Leeds was in
compliance with NFPA 43A, yet he subsequently testified at the hearing that he had not
“actually” seen NFPA 43A. In addition, in a conversation with the CO, the warehouse
manager effectively contradicted the president, stating that Alden Leeds continued to engage
in improper storage practices.2 On the evidence before us, we find that Alden Leeds has not

2
The CO’s testimony regarding his conversation with the warehouse manager is described
in detail in Commissioner Weisberg’s concurring opinion.
 8

rebutted the Secretary’s prima facie case. Our review of the record leads us to conclude that
Alden Leeds has not established that it had ever abated the hazard of fire from the storage
of highly reactive oxidizing agents.3 Consequently, we affirm the judge’s disposition.
Penalty
The Secretary proposed a penalty of $107,100 for this failure to abate. The judge
assessed that amount. On review, Alden Leeds does not argue that the amount of the penalty
is inappropriate; its argument is limited to an assertion that no penalty should be assessed

3
Past Commission decisions such as Braswell Motor Freight do not affect our holding. Since
the Act was passed, only a few cases involving failure-to-abate notifications have come
before the Commission for adjudication, and most of them arose in the early years of the Act.
Those cases presented simple, straightforward problems. For example, in Braswell Motor
Freight, cited by the judge, the standard required that oily rags be stored in a covered metal
container. Although the cover was not on the container during the reinspection, the
Commission found that there had not been a failure to abate because it was clear from the
record that the cover had been in place after the citation became a final order and had
subsequently been removed. Those facts are in sharp contrast to those before us, where it
is clear that, even though the different piles of chemicals had changed, the overall conditions
that constituted the hazard had not changed because of the constantly-changing nature of the
inventory. Therefore, the preponderance of the evidence indicates that Alden Leeds had
never met the storage guidelines established by the NFPA.

The other cases that came before the Commission presented simple factual questions similar
to those in Braswell. E.g., Franklin Lumber Co., 2 BNA OSHC 1077, 1973-74 CCH OSHD
¶ 18,206 (No. 900, 1974) (standard governing the outside discharge of sawdust); Arvin
Millwork Co., 2 BNA OSHC 1056, 1973-74 CCH OSHD ¶ 18,159 (No. 587, 1974) (standard
requiring guardrails on platforms); York Metal Finishing Co., 1 BNA OSHC 1655, 1973-74
CCH OSHD ¶ 17,633 (No. 245, 1974) (various standards).

In a more recent failure-to-abate case, the language of the citation and the standard cited
required the use of protective equipment to protect employees against “hazards capable of
causing injury and impairment.” United Parcel Serv., 12 BNA OSHC 2161, 2163, 1986-87
CCH OSHD ¶ 27,723, p. 36,246 (No. 82-815, 1986) (standard requiring protective
equipment). There, the hazard was foot injury resulting from heavy packages falling on
employees’ feet. The suggested abatement was the use of steel-toed shoes. Whether
abatement had occurred did not turn on whether a cover had been placed on a container or
a guardrail installed but, as here, on whether a specific underlying hazard had been
eliminated.
 9

because it had not failed to abate. Because we have rejected Alden Leeds’ underlying
argument and the company had not otherwise addressed the amount of the penalty, we see
no reason to disturb the judge’s assessment. Accordingly, we conclude that a penalty of
$107,100 is appropriate and assess that amount.
Conclusion
For the reasons set out above, we find that Alden Leeds has failed to rebut the
Secretary’s prima facie showing that it had failed to abate the violation for which it had been
previously cited. We assess a penalty of $107,100 for this failure.

                                               /s/
                                               Thomasina V. Rogers

Dated: July 25, 2000 Chairman
VISSCHER, Commissioner, dissenting:
In my view, the lead and concurring opinions have misconstrued the 1993 citation
against Alden Leeds, and have ignored Commission precedent by shifting the burden of
persuasion to the employer on this notice of failure to abate. In addition, the concurrence
urges a new and highly questionable rule regarding abatement of citations: that, even if the
violation itself no longer exists, abatement has not occurred unless the action correcting the
violation was taken as direct response to OSHA rather than in the course of routine
operations. I strongly disagree with both of these opinions, which together work an
unwarranted expansion of the failure to abate provisions of the Act.
Alden Leeds operates a wholesale pool chemical business. In 1993, as a result of an
inspection that followed a fire, the company received a citation for an alleged violation of
section 5(a)(1), the general duty clause of the OSH Act. The wording of that citation is
important here:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970:
The employer did not furnish employment and a place of employment which were
free from recognized hazards that were causing or likely to cause death or serious
physical harm to the employee in that: employees were exposed to the hazard of fire
from the improper storage of highly reactive oxidizing agents:
a) 55 Jacobus Avenue - Warehouse 2 and 3B:
Class two oxidizers were not stored in accordance with the National Fire
Protection Association (NFPA) document A-1990, Table A-2 (Storage of Class
2 Oxidizers) in that the maximum tonnage requirements were exceeded
approximately 120 tons were stored in warehouse 2 and 160 tons were stored
in warehouse B. The maximum tonnage allowed for sprinkle red segregated
storage is 100 tons of class two oxidizers. Violation observed on or about
8/25/93.
The citation went on to allege twelve additional violative instances on the premises (which
were explicitly referred to as “violations” in the citation) regarding storage of chemicals.
Alden Leeds contested this citation, and it was eventually settled. The Stipulated Settlement
 2

states that “[a]ll violations alleged in the citations and complaint will be abated by October
15, 1994.” There is no question that the thirteen conditions identified in the 1993 citation no
longer existed when OSHA conducted a follow up inspection in December, 1994. That fact
alone should require that the Secretary’s failure to abate notice be vacated. Savina Home
Industries, Inc., 4 BNA OSHC 1956, 1976-77 CCH OSHD ¶ 21,469 (No. 12298, 1977) (no
failure to abate if employees no longer exposed to cited conditions).
The concurring opinion argues that even though the thirteen conditions identified in
the 1993 citation no longer existed at the time of 1994 inspection, they had not been abated.
My colleague would have the Commission disallow abatements that have occurred through
“changing conditions” within the workplace, and establish a requirement that abatement can
only be shown by an employer’s “corrective action.” I see no basis for the distinction he now
urges. Such a rule leads to the plainly illogical conclusion that, even if a violative condition
has ceased to exist, the Commission could still find that violation itself remains unabated.
In any event, as I describe below, the evidence of record in this case establishes that the
company did take corrective action to abate the thirteen specific violations identified in the
1993 citation.
My colleagues avoid vacating this failure to abate notice by reading the 1993 citation
as addressing something more than the thirteen conditions specified on the face of the
citation itself. According to their expanded reading of the citation, Alden Leeds was actually
cited for the general practice of “improper storage of highly reactive oxidizing agents.” As
this theory of the case goes, Alden Leeds could only have established abatement here by
proving that all of its chemical storage practices were brought into full compliance with
national consensus standards published by the National Fire Protection Association (NFPA).
In my view, the only fair reading of the 1993 citation and settlement agreement is that
Alden Leeds was charged with, and therefore required to abate, thirteen conditions
specifically identified in the citation. Even if it were possible to read the citation as broadly
as my colleagues have, the citation may only be construed against Alden Leeds to the extent
 3

that Alden Leeds was clearly informed of what it must do to correct the violations alleged.
When she issues a citation, the Secretary must clearly state in the citation what violation is
being charged. Section 9(a) of the Occupational Safety and Health Act requires that:
Each citation shall be in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the chapter, standard, rule,
regulation, or order alleged to have been violated.
Construing that provision, the U.S. Court of Appeals for the Fifth Circuit, in Marshall v.
B.W. Harrison Lumber Co., 569 F.2d 1303, 1308 (5th Cir. 1978), said “[t]he statute does not
require that the description of the violation be elaborate or technical or drafted in a particular
form. It does require that the description fairly characterize the violative condition so that the
citation is adequate both to inform the employer of what must be changed and to allow the
Commission, in a subsequent failure-to-correct action, to determine whether the condition
was changed.” The 1993 citation did not explicitly inform Alden Leeds that it was being
cited for its overall chemical storage practices on an on-going basis, and therefore it cannot
be enforced against the company in that manner.4
But even assuming arguendo that the 1993 citations can be properly read as requiring
abatement of Alden Leeds’ overall storage practices, the failure to abate notice must fail
under the Commission’s long-standing rule that “[o]nly when a cited condition has continued
uncorrected is a failure to abate established. Abatement of a violation is accomplished once
the corrective action required by the citation has been taken.” Braswell Motor Freight Lines,
Inc., 5 BNA OSHC 1469, 1471, 1977-79 CCH OSHD ¶ 21,881, p. 26,391 (No. 9480, 1977).
The Secretary has not shown that the “cited condition has continued uncorrected.” Alden
Leeds’ president, the only witness with direct knowledge of the facts, testified that

4
The majority’s construction of the citation is especially vague regarding actual abatement
requirements. Does abatement mean permanent compliance with every NFPA provision, or
with some subset of provisions appropriate to their operations? The majority’s reasoning
appears to mean that Alden Leeds could be noticed for failure to abate upon any subsequent
allegation that it was not following an undefined set of storage practice requirements.
 4

subsequent to the 1993 citations he instructed the warehouse manager to correct each of the
violations specified in the citation. He also testified that he and the manager went over the
items one-by-one and determined how to correct them, and that he personally verified that
the corrections had been made. Furthermore, he testified that he and the warehouse manager
together reviewed the Blue Book, an industry guide that incorporates the NFPA, and that
they attempted to store the chemicals in the warehouse in conformity to it. In addition, the
local fire marshall had inspected the warehouse and did not identify any hazardous
conditions during that inspection. Thus, even if abatement of the 1993 citation required that
chemical storage at Alden Leeds be in full compliance with the NFPA, the only record
evidence shows that at Alden Leeds was in compliance when it abated the thirteen violative
conditions identified in the 1993 citation.
In any event, the ultimate burden may not be shifted to the employer to prove that a
failure to abate did not occur. Once the Secretary has established a prima facie case by
showing a final order for which identical conditions existed on reinspection, the Commission
may require an employer to come forward with evidence to rebut the allegations of a failure
to abate notice. See York Metal Finishing Co.,1 BNA OSHC 1655, 1973-74 CCH OSHD
¶ 17,633 (No. 245, 1974). In my opinion, the above-summarized testimony of Alden Leeds’
president fully rebutted the Secretary’s prima facie case. To find that Alden Leeds’ rebuttal
was insufficient, the lead opinion relies upon the fact that company’s president never
specifically asserted that his entire warehouse operation was in full compliance with all
NFPA standards. I would observe that it is highly unlikely that any witness would make such
a broad statement while under oath. Second, as the judge noted, Alden Leeds understandably
tried this case on the theory that the 1993 citation only required abatement of the thirteen
instances that the Secretary specified. Full compliance with NFPA standards was therefore
not relevant to its case.
Furthermore, the conclusions of the concurrence notwithstanding, the president’s
abatement testimony was neither contradicted nor impeached by the out-of-court statements
 5

the compliance officer attributed to Alden Leeds’ warehouse manager. At most, these
statements show that the storage of chemicals at Alden Leeds was not in continuous
compliance with the NFPA, not that chemical storage at the company was never in
compliance with the NFPA. Thus, even if abatement of the 1993 citation had required that
the entire warehouse be brought into full compliance with NFPA, the Secretary did not prove
that Alden Leeds was continuously in noncompliance after the 1993 citation. She has
therefore failed to carry her burden of proof for a finding of failure to abate.
What the Secretary instead relies upon is the fact that when Alden Leeds was
inspected in December, 1994, there were instances of storage conditions similar to those
cited in 1993. Such recurrent violations may be grounds for a “repeat” or even a “willful”
citation. But by affirming a failure to abate in this case, the majority has ignored Commission
precedent and greatly expanded the circumstances under which a failure to abate notice,
which carries the most severe civil penalty process allowed under the OSH Act, may be used.

                                               /s/
                                               Gary L. Visscher
                                               Commissioner

Date: July 26, 2000
WEISBERG, Commissioner concurring:
While I concur in the decision to affirm Administrative Law Judge John Frye’s
finding that Alden Leeds had failed to abate the hazards identified in the 1993 citation,5 I do
so for additional reasons.
It is clear under both Commission precedent and OSHA policy guidelines that a
failure to abate exists when the condition previously cited has never been brought into
compliance. In Braswell Motor Freight Lines, 5 BNA OSHC 1469, 1471, 1977-78 CCH
OSHD ¶ 21,881, p. 26,391 (No. 9480, 1977), the Commission stated: “Only when a cited
condition has continued uncorrected is a failure to abate established. Abatement of a
violation is accomplished once the corrective action required by the citation has been taken.
This was clearly done when a covered container was placed in service for the rags. While
the failure to effectively enforce instructions to keep it covered could constitute a new,
repeated violation of the same standard, it does not constitute a failure to abate.” The
Commission’s case law is followed in the Secretary’s Field Inspection Reference Manual
(FIRM, III-19, section C.2.f.(6)) which states:
Repeated vs. Failure to Abate. A failure to abate situation exists when an
item of equipment or condition previously cited has never been brought into
compliance and is noted at a later inspection. If, however, the violation was
not continuous (i.e., if it had been corrected and then reoccurred), the
subsequent occurrence is a repeated violation.

   In 1990, the employer, Alden Leeds, which operates a wholesale pool chemical

business, was issued a citation by OSHA at its Kearny, New Jersey warehouse alleging a
violation of Section 5(a)(1), the general duty clause, “in that employees were exposed to the
hazard of fire from the improper storage of highly reactive oxidizing agents.” The citation
alleged numerous instances of improper storage in that incompatible chemicals were stored
too close to each other, piles containing an oxidizing agent were too high, and the
warehouses contained too high a total tonnage of oxidizers. The 1990 citation was contested

5
Noting that the company does not contest the amount of the penalty, I would assess the
$107,100 proposed by the Secretary and recommended by the judge for the failure to abate.
 2

and settled and an abatement letter was sent in which the company’s president, Mark
Epstein, represented that “[s]torage of oxidizers in conformance with N.F.P.A. [National Fire
Protection Association] guideline, part 43A.”
In 1993, there was a large fire in the warehouse, which led OSHA to conduct another
inspection. OSHA issued a citation alleging a Section 5(a)(1) violation, with the identical
wording used in the 1990 citation, “in that employees were exposed to the hazard of fire
from the improper storage of highly reactive oxidizing agents.” The citation set out 13
instances in which the company failed to follow the provisions of NFPA 43A. The citation
was contested and a settlement was agreed to, requiring the company to abate the violations
by October 15, 1994.
On December 6, 1994, Robert Garvey, the OSHA compliance officer who had
conducted both the 1990 and 1993 inspections, reinspected the warehouse to determine
whether abatement had been accomplished. The CO found some 25 instances in which
incompatible chemicals were not properly separated, as well as piles of oxidizing agents
stored too high and exceeding total weight limits. While these instances were not identical
to any of the specific instances cited in 1993, i.e., the exact same pile at the exact same
height could not be matched, they were of the same type, involved the same chemicals, and
in some cases occurred in nearly the same location. OSHA concluded that the company had
not abated the 1993 violations and issued a Notification of Failure to Abate violations.
It is undisputed that the 13 specific instances identified in the 1993 citation no longer
existed when OSHA conducted its follow-up inspection in December 1994. As my
dissenting colleague points out, in most cases that fact alone would warrant vacating the
Secretary’s failure to abate notice. However, that does not necessarily hold true in the
context of a storage and processing operation in which inventory and individual piles are
constantly changing. As Commissioner Visscher notes, “[a]batement of a violation is
accomplished once the corrective action required by the citation has been taken,” citing
Braswell Motor Freight Lines, Inc. In my view, the record evidence does not establish that
the company took the corrective action required by the citation with respect to the 13 specific
 3

instances, either by correcting the physical conditions or by preventing employee exposure,
or that the company ever came in full compliance. The record strongly suggests that the
reason the 13 items identified in the 1993 citation did not exist in December 1994 at the time
of the OSHA reinspection was because of the nature of the company’s business with
inventory constantly changing, chemicals constantly moving in and out and individual piles
similarly changing, rather than by any conscious effort by the company to take corrective
action to bring about abatement. While the heights of the piles changed and the materials
were replenished, the evidence does not show that the company ever came in compliance,
even for a fleeting moment. At best this appears to be the functional equivalent of
rearranging the deck chairs on the Titanic. As the company president testified: “You have
to understand that the warehouse changes on a daily basis and anything that he [the CO]
would have measured on one specific date by the time the citation was received, most of
those piles are of different dimensions, different sizes and only the general locations remain
the same.”6

6
Accordingly, it appears that the 13 specific instances observed by the CO during the 1993
inspection did not continue to exist at any time -- either the next day, at the time the 1993
citation issued, when the settlement agreement was entered into, on the October 15, 1994
abatement date agreed to by Alden Leeds in the settlement, or in December 1994 when
OSHA conducted its follow-up inspection. The question then becomes what “corrective
action” was required by the 1993 citation, and consented to in the subsequent settlement
agreement that contained an October 15, 1994 abatement date? My dissenting colleague does
not directly address this point. He concludes that the only fair reading of the 1993 citation
and settlement agreement is that the company was required to abate the 13 conditions
specifically identified in the citation. The fact that these 13 specific instances apparently did
not exist either at the time the citation issued or when the settlement agreement was entered
into and that this was due solely to the nature of the company’s business is apparently of no
import to my colleague. Thus, my dissenting colleague’s apparent answer to the question
of what “corrective action” was required by the 1993 citation and consented to in the
subsequent settlement agreement that contained an October 15, 1994 abatement date would
be “none.”

My dissenting colleague’s misstatement of my position notwithstanding, it is not my view
that in every case where a violative condition has ceased to exist due to changing conditions
(continued...)
 4

   The CO testified about a conversation he had during the 1994 inspection with the

warehouse manager, John Cresho, concerning what changes had been made as a result of the
1993 citation. According to the CO’s testimony, Cresho told him that: “He had never seen
the citations. He didn’t know what the citation said and he was never given any other
specifics.” Thus, Cresho, the warehouse manager, the person who according to the company
president was responsible for correcting each of the 13 specific items in the 1993 citation,
had never seen the citation and was unaware of the specifics of those items.
Even assuming arguendo that the company is given credit for these 13 “self-abating”
items,7 I would still uphold the failure to abate violation found by Judge Frye on the ground
that the company never abated its storage practices for oxidizers which constituted the fire
hazard that the Secretary sought to have remedied. In my view, the 1993 citation charging
the company with specific conditions which exposed “employees to the hazard of fire from

6
(...continued)
there can be no abatement unless corrective action has been taken by the company. It should
be noted that this is not a case where the violative conditions no longer existed because the
work had been completed prior to the time set for abatement. Nor is this a case where
corrective action by the company was foreclosed by “changing conditions” in the workplace.
The constant shift in inventory is the very essence of Alden Leeds business. Abatement of
a violation is usually accomplished once corrective action has been taken. Alden Leeds took
no affirmative corrective action, so the very same violative conditions continued to exist
throughout its workplace. In these particular circumstances, I would not credit the company
with an abatement based on the serendipitous non-existence of the 13 specific instances of
improper chemical storage to use as a shield against an FTA notice.
7
My dissenting colleague cites Savina Home Industries, Inc., 4 BNA OSHC 1956, 1976-77
CCH OSHD ¶ 21,469 (No. 12298, 1977) for the holding that there is “no failure to abate if
employees [are] no longer exposed to cited conditions.” In Savina the Commission vacated
the notification for failure to abate because the employer had, in fact, been in compliance
with the cited standards either at the time of the original inspection or at the time of the
reinspection. Savina was not a case of a violative condition having been corrected, but rather
the Commission simply finding that the cited condition was not violative of the Act.

Commissioner Visscher does not cite to any case where the Commission has dealt with the
question of a failure to abate notice in the context of violative conditions that are self-
correcting in nature, e.g., as a result of a constantly changing inventory, and where the
employer has failed to take any corrective action.
 5

the improper storage of highly reactive oxidizing agents” more than adequately informed the
company that OSHA was concerned with its overall warehouse storage practices for
oxidizing agents and that this was the hazard that the Secretary sought to have remedied. As
the judge found:
To limit the citation to specific conditions enumerated in it would be to blink
[at] the reality of the hazard. In the context of a storage and processing
operation in which inventory is constantly changing, it does little good to
correct specific hazardous piles of oxidizers identified by the Secretary if the
procedures which permitted those hazardous piles to be created are not
corrected. New hazardous piles will be created, and the employees’ risk of
death or serious injury will be unabated. Consequently, interpreting the
language of the citation to apply only to specific hazards would thwart the
remedial purpose of the Act. . . .

Furthermore, the argument that the company was not “clearly informed” of what must be
changed in order to correct the violation is less tenable where, as here, the evidence indicates
that the company failed to take corrective action even with respect to the 13 items listed in
the 1993 citation.
Under Commission precedent, to establish a prima facie case of failure to abate, the
Secretary must show that: (1) the original citation has become a final order of the
Commission, and (2) the condition or hazard found upon reinspection is the identical one for
which respondent was originally cited. An employer may rebut this prima facie case by
showing that the condition has in fact been corrected or, if not corrected, that the employer
has prevented the exposure of his employees to the violative condition. York Metal Finishing
Co., 1 BNA OSHC 1655, 1656, 1973-74 CCH OSHD ¶ 17,633, p. 22,048 (No. 245, 1974).
The CO testified, based on personal observations as well as interviews with the plant
manager, the forklift operator, and other employees during the December 1994 reinspection,
that the employees continued to be exposed to the recognized hazard of fire from the
improper storage of oxidizing pool chemicals and that the company’s practices of improperly
storing incompatibles had remained unchanged since the 1993 citation. The company
continued to operate as it did at the time of the 1993 citation by storing chemicals anywhere
 6

it could find space for them, apparently without regard for chemical incompatibility. This
evidence establishes a prima facie failure to abate.
My dissenting colleague argues that the company rebutted the Secretary’s prima facie
case based solely on the testimony of the company’s president, Mark Epstein. Epstein
testified that subsequent to the 1993 citations he instructed the warehouse manager to correct
each of the violations specified in the citation. He also testified that he and the manager
went over the items one-by-one and determined how to correct them, and that he personally
verified that the corrections had been made.8
The warehouse manager, John Cresho, did not testify at the hearing. However, the
CO testified about a conversation that he had with Cresho during the December 1994
reinspection concerning what changes had been made as a result of the 1993 citation.
According to the CO’s testimony, Cresho told him that “[t]he only thing he tried to do was
to separate the materials. He had never seen the citations. He didn’t know what the citation
said and he was never given any other specifics.” According to the CO, Cresho also
indicated that incompatibles were stored within inches of each other because there was not
enough space to separate them adequately, even in December, when inventory was low. The
fire had reduced the company’s warehouse space by some 65,000 square feet and the
company continued to operate with reduced storage space. Cresho told the CO that the
company continued to store chemicals together by brand names rather than by chemical
names in order to fill orders more easily and more quickly. With respect to pile heights,
Cresho told the CO that he had always stored the finished product two pallets high. The CO
measured with a tape measure and found that two pallets high for a class 2 oxidizer ranged

8
The dissenting opinion refers to Epstein as “the only witness with direct knowledge of the
facts.” It should be noted that following the 1990 citation and settlement, Epstein sent OSHA
an abatement letter in which he represented that “[s]torage of oxidizers in conformance with
N.F.P.A. Guideline, part 43A.” However, at the hearing in the instant case, Epstein testified
that he had not actually seen N.F.P.A. 43A.
 7

from approximately 9 feet to 11¾ feet, well above the maximum height restrictions of NFPA
43A.9
Thus, even if one views Epstein’s conclusory testimony as sufficient to rebut the
Secretary’s prima facie case, the Secretary presented sufficient evidence to overcome that
testimony and satisfied her ultimate burden of establishing by a preponderance of the
evidence that the company’s storage practices remained unchanged and that a failure to abate
did occur. Accordingly, I concur with the decision to affirm Judge Frye’s finding that Alden
Leeds failed to abate the hazards identified in the 1993 citation.

                                                             /s/
                                                             Stuart E. Weisberg
                                                             Commissioner

Dated: July 26, 2000

9
My dissenting colleague dismisses the personal observations of the CO and chooses to
disregard the statements the CO attributed to the warehouse manager Cresho as “out-of-court
statements.” Such statements, however, are not hearsay and are admissible. See FED. R.
EVID. 801(d)(2) (admission by party-opponent not hearsay). My colleague also contends
that these statements made by Cresho to the CO “neither contradict nor impeach” Epstein’s
abatement testimony. Epstein testified that he instructed the warehouse manager to correct
each of the 13 violations specified in the citation, and that he and the manager went over the
items one-by-one and determined how to correct them. Yet, according to the CO, during the
1994 inspection the warehouse manager told him that he had never seen the 1993 citation
and was unaware of the specifics of those items. In my view, Cresho’s statement plainly
contradicts and impeaches that of Epstein.
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR

   Complainant
                                     Docket Nrs. 95-1143 FTA
                                                  95-1143
           v.

ALDEN LEEDS, INC.,

   Respondent                       Appearances
                                          For Complainant                      For Respondent
                                           J. Davitt McAteer, Esq.      Eric Aronson, Esq.
                                           Acting Solicitor of Labor            David Roth,

Esq.
Whitman, Breed,
Patricia M. Rodenhausen, Esq. Abbott & Morgan
Regional Solicitor Newark, N.J.

    Barnett Silverstein, Esq.
    Attorney
    U.S. Department of Labor
    New York, New York

Before: JOHN H FRYE, III, Judge, OSHRC

                                    DECISION AND ORDER

I INTRODUCTION

   This is a proceeding under section 10(c) of the Occupational

Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq.

(the "Act"). Respondent, Alden Leeds, Inc. (“Alden”), contests a

Notification of Failure to Abate violations
10
(the “FTA”). The violations which the Secretary alleges were not abated were observed by OSHA in

1993 at Alden’s warehouse located at 55 Jacobus Avenue, Kearny, New Jersey, and became the subject

of a citation issued on October 8, 1993. Alden contested this citation and a settlement was reached on

July 12, 1994. The terms of the settlement required Alden to abate all alleged violations by October 15,

1994. Beginning in December 1994, the Secretary reinspected Alden’s warehouse. The Secretary

concluded that Alden had not abated the 1993 violations and issued the FTA which is here at issue. The

Secretary proposes an additional penalty of $107,100. Following an unsuccessful attempt to settle this

controversy, trial took place on February 19 and 20, 1997, in New York, New York.

II BACKGROUND

        Alden is a New Jersey corporation engaged in processing,

storing, packaging, reformulating, distributing, and selling

swimming pool chemicals, significant quantities of which are

oxidizers.11 Oxidizers present a fire hazard in that they increase the burning rate of and may cause

spontaneous ignition of combustible materials.12 The National Fire Protection Association (“NFPA”)

groups oxidizers into four classes depending on the degree of hazard, Class 1 being least hazardous and

Class 4 most hazardous. Alden stores and processes no Class 4 oxidizers, a small amount of Class 3,

  10
        The Secretary also issued (Inspection # 107658486) serious

Citation No. 1 and an other Citation No. 2 which were timely
contested by Respondent. At the beginning of the trial, Respondent

withdrew its contest to these two citations (Tr. 5, 38). Thus,

Citation No. 1 and Citation No. 2 of Inspection # 107658486 will be
affirmed as issued and the penalties proposed by the Secretary will

be levied.
11
Tr. 30, 67, 169, 316.
12
Ex ALJ 7, NFPA 43A (1990), & 1-2, p.43A-5.
9
and a substantial amount of Class 2. The vast majority of its inventory is made up of Class 1.13 Class 1

oxidizers slightly increase the burning rate of combustible materials, but do not cause spontaneous

ignition.14 Class 2 oxidizers cause a moderate increase in burning rate and may cause spontaneous

ignition of combustible materials.15 Class 3 oxidizers cause a severe increase in burning rate of

combustible materials or will undergo vigorous self-sustaining decomposition if contaminated or

exposed to heat.16

    Both the 1993 citation and the FTA employed the same language in charging Alden:

    The employer did not furnish employment and a place of employment which were free from
    recognized hazards that were causing or likely to cause death or serious physical harm to the
    employee in that employees were exposed to the hazard of fire from the improper storage of
    highly reactive oxidizing agents.17

Both the FTA and the 1993 citation base this charge on specific instances in which Alden allegedly

failed to follow the provisions of NFPA 43A (1990).18 These alleged violations are set out below.

13
Tr.317.
14
Ex ALJ 7, NFPA 43A (1990), & 1-6.1, p.43A-6.
15
Id. & 1-6.2, p.43A-6.
16
Id. & 1-6.3, p.43A-6.
17
Ex ALJ 3 and 5.
18
Alden argues that it never agreed in the settlement of the

1993 citation to apply the provisions of NFPA 43A (1990). That

may be so. However, that fact does not prevent the Secretary from

relying on NFPA 43A (1990) in order to demonstrate that a

recognized hazard existed in Alden’s warehouse. The existence of

national consensus standards, such as those established by the

NFPA, may be used as evidence of recognition of a hazard.
(continued...)
10
 1. Piles of Class 2 Oxidizers

            a.     FTA - Alleged Violations of Table 4-2(a) Governing          Nonsprinklered,19
            Segregated Storage

Limitation Alleged Violations

Max Weight = 10 Tons 4: 37.8, 25, 23.8, and 23.1 Tons (Item 1b)

Max Height = 6 Feet 20 ranging from 8.8 to 11.75 Feet (Item 1c)

Max Width = 8 Feet 2: 20x29 and 19x27 Feet (Item 1d)

Min Distance to Next Pile = Pile 3 (Item 1e)
Height

            b.     1993 Citation - Violations of Table 4-2(b) Governing        Sprinklered,
            Segregated Storage

Limitation Violations

Max Weight per Building = 100 2: 120 and 160 Tons (Item 1a)
Tons

Max Weight = 20 Tons 2: 75 and 54 Tons (Item 1b)

Max Height = 8 Feet 4 ranging from 9 to 13.5 Feet (Item 1c)

Max Width = 16 Feet 1: 75 Feet (Item 1d)

(...continued)
Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871, (3rd Cir. 1979);
Madison Foods, Inc., 630 F.2d 628 (8th Cir. 1980).
19
In the time between the 1993 citations and the FTA, the

Secretary changed his classification of Alden’s warehouse from

“sprinklered” to “nonsprinklered.” (Tr. 354.) However, all of the

specific deviations of the piles from NFPA 43A (1990) identified

by the Secretary exceed the less onerous guidelines for

sprinklered storage.
11
Min Distance to Next Pile = Pile 2 (Items 1e, 1eee)
Height

Min Distance from Wall = 2 Feet ? (Items 1f, 1fff)

                                               12

2. Piles of Class 3 Oxidizers

             a.     FTA - Alleged Violations of Table 5-2(a) Governing          Nonsprinklered,20
             Segregated Storage

Limitation Alleged Violations

Max Height = 6 Feet 19 Ranging from 7.2 to 10.25 Feet (Item 1cc)

Min Distance to Next Pile = Pile 3 (Item 1ee)
Height

             b.     1993 Citation - Violations of Table 5-2(b) Governing        Sprinklered,
             Segregated Storage

Limitation Violations

Max Weight = 10 Tons 2: 11 and 26 Tons (Item 1bb)

Max Height = 5 Feet 2: 10 and 7.3 Feet (Item 1cc)

Min Distance to Next Pile = Pile 1 (Items 1ee)
Height

Min Distance from Wall = 2 Feet 4: 4.5, 20, 10, and 18 Inches (Item 1ff)

     In addition, the FTA lists 25 alleged instances in which Class 2 or 3 oxidizers were stored too

close to incompatible materials, while the 1994 Citation lists one such violation. (Item 1g in both

citations.)

     It is evident from a review of the above that none of the FTA alleged violations correspond with

any of the 1993 violations. Counsel for the Secretary so stipulated.21 The Secretary maintains that what

was cited in 1993 and again in the FTA were Respondent's storage practices, not specific conditions

which violated NFPA 43A (1990). Indeed, the testimony put forward by the Secretary falls far short of

20
Id.
21
Tr. 170-71.
13
establishing that specific hazardous conditions continued from the abatement date set in the stipulation

of settlement of the 1993 citation until December, 1994.22 However, the Secretary did establish that

Alden’s storage practices remained unchanged over the relevant period.23 From the outset, Alden’s

22
See testimony of Compliance Officer Robert Garvey, Tr. 27 et
seq. The testimony indicates that the nature of Alden’s business
is such that the inventory is constantly changing and,

consequently, individual piles are similarly changing. Thus a

pile that exceeded an NFPA 43A (1990) limitation at one moment

might well be within that limitations at another. Thus the

Secretary cannot establish a failure to abate violations as

contemplated by Secretary v. Braswell Motor Freight Lines, Inc.,
5 OSHC 1469, 1471 (Rev. Com. 1977).
23
The Secretary established that there were two major problems

with Respondent's storage practices. As illustrated above,

Respondent stored chemicals together by brand names rather than

by chemical names in order to facilitate the filling of orders

(Tr. 61-62, 77, 210). As a result, incompatible chemicals were

stored together, increasing the hazard of fire, contrary to NFPA
43A (1990), & 2-4.2 (Tr. 62-64, 71-72, 210). Alden maintains that it did
not store incompatibles together, citing the testimony of Mr. Epstein (Tr.

291, 298, 308) and Mr. Garvey (Tr. 71-72, 87-88), but this testimony is
insufficient to contradict the statements of Mr. Garvey to the contrary. Alden
also relies on a letter from Mr. Jacobsen which states that in March, 1995,

he did not find incompatibles stored together. Mr. Jacobsen did not testify.
His letter, although admitted, is hearsay and consequently it is also
insufficient to contradict Mr. Garvey’s testimony. Moreover, it speaks to a
(continued...)
14
defense focused on the fact that the specific conditions in its warehouses did change and that

consequently the Secretary did not establish a failure to abate the hazards identified in the 1993 citation.

Alden did not address the issue of its storage practices.

III DISCUSSION

     It is evident from the above that the parties tried two separate cases and each established what it

sought to establish. Thus, although no party addressed it, it is important to determine whether the 1993

citation adequately informed Alden that the Secretary regarded its storage practices to be hazardous.

Alden, having refused to consent to the trial of those practices24 by joining issue with the Secretary's

case, may not fairly be charged with a failure to abate unless the 1993 citation placed it on notice that

the Secretary was seeking to correct those practices.25

(...continued)
different time period.

     Second, as noted above, Respondent did not come into compliance with the

dimensional restrictions of NFPA 43A (1990) by changing its storage practices

(Tr. 51, 64, 67, 69-70, 73, 75, 77-80, 86, 111, 118, 169, 209-210, 224; ALJ
17-20). These practices were not changed from the 1993 citation to the FTA.
24
Alden maintains that ' 5(a)(1) may only be used to cite hazardous
conditions and may not be used to cite allegedly hazardous practices. (Brief,
p.7.) Such is not the case. Secretary v. General Dynamics Land Systems Div.,

Inc., 15 OSHC 1275, 1280 (Rev. Com. 1991); Secretary v. Pelron Corporation,

12 OSHC 1833, 1835 (Rev. Com. 1986) defining a ' 5(a)(1) hazard as “...

practices, procedures or conditions....”

25
Alden does object that the 1993 Citation was defective in that

it failed to identify the corrective measures necessary to abate
(continued...)
15
 The 1993 citation charges Alden with exposing “... employees ... to the hazard of fire from the

improper storage of highly reactive oxidizing agents.” The citation does not specifically refer to storage

practices, and the violations of listed in item 1 clearly refer to specific conditions, not practices. The

1993 citation is similar to a citation issued to General Dynamics under ' 5(a)(1). The latter

citation charged that:

    ... employees ... were required to spray or pour varying
    quantities of [freon] into the turret and driver’s compartment
    of M-1 tanks and immediately enter these compartments ...
    thereby exposing themselves to the hazard of asphyxiation
    and/or chemical poisoning.26

The trial of the citation revealed and the judge found that employees were not required to enter the tanks

immediately. Consequently, General Dynamics argued before the Commission that the citation properly

had been vacated by the judge. The Commission rejected this argument, noting that, although not

required to do so, employees often entered the tanks immediately after pouring freon in them. The

(...continued)
the hazard, relying on Marshall v. B.W. Harrison Lumber Co., 4

OSHC 1091, 1092, aff’d 569 F.2d 1303, 1307, 6 OSHC 1446, 1449-50

(5th Cir. 1978). Brief p.11. In support of this argument Alden

cites Mr. Garvey’s testimony in which he seemed to concede that

the rigid application of NFPA 43A (1990) dimensional guidelines

would not necessarily abate the hazard. Alden’s argument fails

for two reasons. First, because there is more to NFPA 43A (1990)

than simply conforming with dimensional guidelines, Alden reads

too much into this testimony. Second, Harrison is distinguishable
in that the citation there was found to be defective because it

failed to adequately describe the ways in which the employer

failed to comply with a specific standard.
26
General Dynamics, supra, note 15at 1279.
16
Commission found that the citation sufficiently described the hazard in that it “... clearly informed

General Dynamics that its procedures for the use of freon in tanks and for restricting employee entry

into the tanks after the introduction of freon were deemed hazardous by the Secretary.”27

     Is it fair to say that charging Alden with specific conditions which exposed “... employees ... to

the hazard of fire from the improper storage of highly reactive oxidizing agents” “... clearly informed

[Alden] that its procedures for the [storage of oxidizing agents] were deemed hazardous by the

Secretary.” While the question is a close one, I believe an affirmative answer is appropriate. To limit

the citation to specific conditions enumerated in it would be to blink the reality of the hazard. In the

context of a storage and processing operation in which inventory is constantly changing, it does little

good to correct specific hazardous piles of oxidizers identified by the Secretary if the procedures which

permitted those hazardous piles to be created are not corrected. New hazardous piles will be created,

and the employees’ risk of death or serious injury will be unabated. Consequently, interpreting the

language of the citation to apply only to specific hazards would thwart the remedial purpose of the Act

“... to assure so far as possible every working man and woman in the Nation safe and healthful working

conditions ....”28

     It is for this reason that citations are to be liberally construed to achieve the purposes of the

Act.

     It is well settled that administrative pleadings are to be liberally construed and easily amended.
     Brock v. Dow Chemical U.S.A., 801 F.2d 926, 12 OSHC 2135 (7th Cir. 1986); Simplex Time
     Recorder v. Secretary, 766 F.2d 575, 585, 12 OSHC 1401 (D.C. Cir. 1985); National Realty
     and Construction Co. v. OSHRC, 489 F.2d 1257, 1 OSHC 1401 (D.C. Cir. 1973). This has
     been particularly true for citations issued under the Act, which are drafted by non-legal
     personnel who are required to act with dispatch. To inflexibly hold the Secretary to a narrow
     construction of the language of a citation would unduly cripple enforcement of the Act. Dow

27
General Dynamics, supra, note 15at 1280.
28
Act, ' 2(b).
17
 Chemical, 801 F.2d at 930; Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 11 OSHC
2241 (D.C. Cir. 1984).29

I find that the 1993 citation informed Alden that its storage practices were the hazard that the Secretary

sought to have remedied. Consequently, the Secretary acted within her authority in charging Alden with

a failure to abate a violation.

      The Secretary has addressed the other elements of a ' 5(a)(1) violation in her

brief and has carried her burden with respect to them. Because

Alden has not contested them, they are not further addressed in
this decision.

IV PENALTY

      The Secretary originally assessed a $7,000 penalty for this

item in 1993.30 She considered this to be a high severity violation, because employees were

exposed to fire hazards that could kill them,31 and that there was a greater probability that an accident

would occur.32 Under ' 17(d) of the Act, the Commission is authorized to

assess up to $7,000 per day for each day that the violation remains
unabated.
In making her penalty recommendation, the Secretary took the
following into account. Although there are more than fifty days

between the final abatement date (October 15, 1994) set by the

Review Commission's final order for the 1993 citation33 and the reinspection

conducted in mid-December, 1994, the Secretary assessed a daily penalty for only thirty days.34 She

29
General Dynamics, supra note 15, at 1279.
30
ALJ 3.
31
Tr. 96.
32
Tr. 97-98.
33
Tr. 70; ALJ 4.
34
Tr. 89.

                                                18

multiplied thirty days times $7,000, which yields $210,000.35 Because Alden had abated some of the

specific conditions found in 1993, she accorded it a 15% credit, reducing the figure to $178,500.36

Next, she considered Alden’s size, good faith, and history. She further reduced the penalty by 40% for

size because Alden had only twenty-eight employees.37 She gave no reduction for history because of

Respondent's prior history of willful, multiple serious, and multiple other violations,38 and no reduction

for good faith because Alden’s storage practices had not changed. The Secretary's final additional

proposed penalty totaled $107,100 for the contested FTA.39

      Alden has not contested the Secretary's penalty recommendation. I have reviewed it and find it

to be reasonable. Accordingly, I assess a penalty of $107,100 for the FTA.

IV CONCLUSIONS OF LAW

      1.      Alden Leeds, Inc., a New Jersey corporation with facilities in New Jersey, is engaged in

storing, processing, reformulating, packaging, distributing and selling swimming pool chemicals, a

business affecting commerce within the meaning of the Act.

      2.      The Occupational Safety and Health Review Commission has jurisdiction over the

subject matter and the parties pursuant to section 10(c) of the Act.

      3.      The Secretary has sustained her burden of proving that Alden Leeds, Inc., violated Section

5(a)(1) of the Act as alleged in the FTA as amended in the complaint.

 35
      Tr. 90.
 36
      Tr. 90. The OSHA inspector made a mathematical error when he testified

at the hearing that this reduction brought the figure down to $187,100. Once
the actual math is performed, the actual reduction in fact brings the figure

down to $178,500.
37
Tr. 91.
38
Tr. 95-96; ALJ 1-4.
39
ALJ 5.

                                                 19

4. This violation is a serious violation within the meaning of section l7(k) of the Act in

that there was a substantial probability that death or serious physical harm could result from the storage

practices of Alden Leeds, Inc.

    5.      Alden Leeds, Inc., did not abate this violation between the prior citation's effective final

order date of October 15, 1994, and the mid-December, 1994, reinspection of the premises.

V ORDER

    1.      Alden Leeds, Inc. having withdrawn its notice of contest to serious Citation No. 1 and

an other Citation No. 2 (Inspection # 107658486), these Citations are affirmed. A penalty of $3,000 is

appropriate.

    2.      The Notification of Failure to Abate (FTA) is affirmed. An additional penalty of

$107,100 is appropriate.

    3.      Total civil penalties of $110,100 are assessed.




                                                                        /s/
                                                                JOHN H FRYE, III
                                                                Judge, OSHRC

Dated: JUN 19 1997
Washington, D.C.

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