MEI Holdings, Inc. d/b/a Martin Electronics, Inc.

Plain-English summary

MEI manufactured explosives and pyrotechnic devices under a Defense Department contract at its Perry, Florida plant. After a fire in a small wooden production building killed two employees and severely burned another, OSHA cited fire, exit, personal-protective-equipment, training, and process-safety violations. MEI argued that DOD ammunition-safety rules displaced OSHA under section 4(b)(1) of the OSH Act. The Commission rejected that defense because DOD had not created a regulatory system with the force of law covering these general industrial-safety conditions, and DOD itself stated that it did not intend to preempt OSHA. The Commission affirmed seven serious items and the judge's penalties totaling $27,600.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.36(b)(8); 29 C.F.R. § 1910.36(d)(1); 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1910.132(f); 29 C.F.R. § 1910.119(g)(1)(i); 29 C.F.R. § 1910.119(c)(1)
• Outcome: Seven serious items affirmed with penalties totaling $27,600.
• Key point: Another federal agency preempts OSHA only when it actually exercises statutory authority through binding regulations covering the cited working conditions; contract safety manuals and minimum requirements are not enough.

Full text (OSHRC public release)

                                  :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 96-740
:
MEI HOLDINGS, INC., :
d/b/a MARTIN ELECTRONICS, INC., :
:
Respondent. :
_________:

                                     DECISION

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

   MEI Holdings, Inc., d/b/a Martin Electronics, Inc. (“MEI”), manufactures explosives

and pyrotechnic devices at its facility in Perry, Florida, under contract with the United States
Department of Defense (“DOD”). Following a fire that occurred at the facility on November
20, 1995, the Occupational Safety and Health Administration (“OSHA”) investigated and
cited MEI for serious violations concerning general industrial safety, including means of
egress, personal protective equipment, and training. After conducting a hearing on the
charges, Review Commission Administrative Law Judge Ken S. Welsch affirmed most of
the citation items and assessed the penalties proposed by OSHA, totaling $27,600. At issue
on review is whether, as MEI claims, the DOD has regulated the cited conditions so as to
preempt OSHA’s authority under section 4(b)(1) of the Occupational Safety and Health Act
of 1970 (“the Act”), 29 U.S.C. § 653(b)(1), which provides:
Nothing in this Act shall apply to working conditions of employees with
respect to which other Federal agencies . . . exercise statutory authority to
prescribe or enforce standards or regulations affecting occupational safety or
health.
While “OSHA is charged with the responsibility of regulating the health and safety of our
 2

nation’s workforce,” there are other federal agencies with authority “over specific
industries” that have the authority to promulgate employee health and safety standards;
Congress, by enacting section 4(b)(1), sought “to avoid duplication of effort and resources.”
In re Inspection of Norfolk Dredging Co., 783 F.2d 1526, 1530 (11th Cir. 1986), cert.
denied, 479 U.S. 883 (1986). For the following reasons, we conclude that OSHA, not the
DOD, had authority over the cited conditions.1
Preemption Issue
The Commission evaluates an employer’s section 4(b)(1) argument by considering
(1) whether the other federal agency has the statutory authority to regulate the cited working
conditions, and (2) if that agency has that authority, whether the agency has exercised it over
the cited conditions by issuing regulations having the force and effect of law. See, e.g.,
Rockwell International Corp., 17 BNA OSHC 1801, 1803, 1995-97 CCH OSHD ¶ 31,150,
p. 43,531 (No. 93-45, 1996) (consolidated) (National Aeronautics and Space Administration
--agency at issue); Yellow Freight Systems, Inc., 17 BNA OSHC 1699, 1700, 1995-97 CCH

1
The record shows that MEI waited to raise its section 4(b)(1) claim until the beginning of
the hearing, arguing that the issue is jurisdictional and can be raised at any time, citing U.S.
Air, Inc. v. OSHRC, 689 F.2d 1191, 1193 (4th Cir. 1982), and Columbia Gas of
Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 918 (3d Cir. 1980). We note that neither of
those decisions is controlling here because this case can be appealed only to the Eleventh
Circuit by both parties (site of alleged violations and MEI’s principal office) or to the D.C.
Circuit by MEI. See section 11(a) and (b) of the Act, 29 U.S.C. § 660(a) and (b). No
Eleventh or D.C. Circuit support for MEI’s contention has been brought to our attention.

In his decision, the judge observed that the Commission has held that a section 4(b)(1) claim
is an affirmative defense that the employer has the burden of proving, citing cases including
Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1378, 1379 & n.2, 1980 CCH
OSHD ¶ 24,478, p. 29,888 & n.2 (No. 15462, 1980). Noting that the Commission Rule of
Procedure at 29 C.F.R. § 2200.34(b) requires that affirmative defenses be pleaded in the
answer (or as soon as practicable), the judge deemed the argument waived because MEI did
not raise it before the hearing.

As discussed infra, even assuming that MEI timely raised the section 4(b)(1) claim, MEI’s
preemption argument must be rejected.
 3

OSHD ¶ 31,105, pp. 43,415-16 (No. 93-3292, 1996) (Department of Transportation);
American Airlines, Inc., 17 BNA OSHC 1552, 1553-54, 1995-97 CCH OSHD ¶ 30,992, p.
43,192 (No. 93-1817, 1996) (consolidated) (Federal Aviation Administration); Alaska Trawl
Fisheries, Inc., 15 BNA OSHC 1699, 1703-04, 1991-93 CCH OSHD ¶ 29,758, p. 40,449
(No. 89-1017, 1992) (consolidated) (Coast Guard).
MEI contends that the DOD both has the statutory authority to regulate the cited
working conditions and exercised authority over the cited conditions by issuing regulations
having the force and effect of law. Particularly, MEI points us to the DOD Contractors’
Safety Manual for Ammunition and Explosives, DOD 4145.26M (March 1986, as amended
through 1988) (“the Manual”) and the DOD acquisition regulation at 48 C.F.R. § 252.223-
7002 (1994), which requires all contractors to comply with the requirements of the Manual.
Consistent with Commission practice, the Commission invited the DOD to give its position
on the preemption issue. In its response, the DOD2 asserts that, although it believes it has
the authority (under 10 U.S.C. § 172 “Ammunition storage board”) to regulate the cited
conditions, it has not taken action to preempt OSHA’s authority over the activities at issue
here. Specifically, the DOD declares: “None of the violations was directly related to
ammunition production, but rather dealt with failure in areas of simple industrial safety, i.e.,
failure to provide for adequate fire protection when working with flammable materials.”
The DOD also asserts that the “DOD safety requirements for explosive and ammunition
manufacture, as set out in [the Manual], do not meet the test” set forth in such decisions as
Rockwell, 17 BNA OSHC at 1803, 1995-97 CCH OSHD at p. 43,531. The DOD states that
it “has never taken the position that the DOD Explosive Safety Manual preempts OSHA’s
overall jurisdiction in this area.” The DOD adds that the standards in the Manual “are not
broad enough to support a credible argument that they could readily replace OSHA safety
standards, particularly in the area of simple industrial safety.” The DOD concludes: “While
the standards address specific safety problems directly related to ammunition/explosive

2
The responsive letter articulating the DOD’s views was authored by the primary recipient
of the “Briefing Invitation,” the General Counsel of the Department of the Army, who noted
the DOD’s “express concurrence” with the General Counsel’s position.
 4

manufacture, they do not specifically address more general safety problems, the likes of
which are under consideration by the Review Commission.”
The Commission gives considerable weight to the other federal agency’s
representation, but the Commission reviews the statutory and regulatory provisions at issue,
as well as the evidence, to determine whether that agency’s view is reasonably supported by
the record. E.g., Rockwell, 17 BNA OSHC at 1803-04, 1995-97 CCH OSHD at p. 43,532.
Having reviewed the Manual and all of the regulations upon which MEI relies, we agree
with the DOD that DOD regulations were not intended to displace OSHA regulations on the
working conditions cited here.3
Indeed, the two portions of the Manual upon which MEI particularly relies tend to
support finding no preemption. MEI cites the first page of the “Foreword” to the Manual,
which reads: “This revision includes basic principles of A&E [Ammunition and Explosives]
safety, reduces mandatory requirements to the minimum, excludes safety requirements of
other Federal regulatory agencies, and provides sufficient information to enable the
contractor to make appropriate and reliable decisions affecting his or her facilities and
operations. . . .” (MEI’s emphasis) A reasonable reading of this sentence is that the safety
requirements of other federal agencies are not included in the text of the Manual; the
sentence is not, as MEI suggests, an affirmative representation that all other federal safety
rules do not apply.

3
The particular conditions in the citation items affirmed by the judge are: working with
highly flammable materials in a structure built primarily of wood (Citation 1, Item 1,
violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1)); having only one exit from the
building (Citation 1, Item 3, violation of 29 C.F.R. § 1910.36(b)(8)); having an obstruction
in the way of travel from the exit to an open space (Citation 1, Item 4, violation of 29 C.F.R.
§ 1910.36(d)(1)); working with magnesium composition for at least 90 minutes without
wearing fire retardant laboratory coats and coveralls (Citation 1, Item 5, violation of 29
C.F.R. § 1910.132(a)); lack of training in personal protective equipment where its use is
required (Citation 1, Item 6a, violation of 29 C.F.R. § 1910.132(f)); lack of initial training
for each employee involved in the operating process (Citation 1, Item 6b, violation of 29
C.F.R. § 1910.119(g)(1)(i)); and lack of a written process safety management plan that
included the participation of employees (Citation 1, Item 7a, serious violation of 29 C.F.R.
§ 1910.119(c)(1)).
 5

   MEI’s position is also inconsistent with another part of the Manual itself, as well as

contractual and regulatory provisions. MEI points to the “Introduction” to the Manual at
page 1-1, which provides: “This Manual applies to contractors performing work or services
on DoD contracts . . . for ammunition or explosives as defined within the contract. These
safety standards are minimum requirements and shall be accepted as final authority over
applicable A&E contractor operations and their locations, whether inside or outside of the
establishment.” (MEI’s emphasis) A reasonable reading of this passage would be that it
acknowledges that the safety standards in the Manual are minimum requirements and are not
intended to be exclusive in the field of employee safety.
Further support for rejecting MEI’s preemption argument can be found in the contract
between the DOD and MEI. The “Amendment of Solicitation, Modification of Contract”
signed by MEI’s Director of Contracts on August 9, 1994, an exhibit in the case, provides
under section 6.0 “Safety/Environmental” that “[t]he contractor shall comply with all
Federal, State, Local, and Dept of Army safety/environmental requirements of issue on the
date of receipt of this scope of work.” (emphases added) Additional support is offered by
the DOD acquisition regulation at 48 C.F.R. § 222.102-1, referred to by MEI, which
provides: “The Department of Labor is responsible for the administration and enforcement
of the Occupational Safety and Health Act . . . . Contracting officers shall . . . [d]irect all
inquiries from contractors or contractor employees regarding the applicability or
interpretation of the OSHA regulations to the Department of Labor; and . . . [u]pon request,
provide the address of the appropriate [OSHA] field office[;]” and “any application for the
suspension or relaxation of labor requirements” may not be initiated “without prior
coordination with the labor advisor.”
Based on the above, we conclude that the record supports the DOD’s statements that
it did not seek, in its Manual or otherwise, to regulate “simple industrial safety” like the fire
safety and training items at issue, and it considered the Manual and related DOD regulations
to be restricted to “specific safety problems directly related to ammunition/explosive
 6

manufacture.” Consistent with controlling circuit court precedent in this case,4 we conclude
that there is no preemption because the record and the DOD’s statements make clear that the
DOD did not seek to comprehensively treat the general problem of industrial safety such as
the fire protection, means of egress, personal protective equipment, training, and process
safety matters at issue here.
For the reasons above, we conclude that the DOD did not exercise authority over the
working conditions in this case by issuing regulations having the force and effect of law.
We therefore reject MEI’s preemption argument.5
Penalties
Under section 17(j) of the Act, 29 U.S.C. § 666(j), the Commission has the authority
to assess appropriate penalties giving due consideration to the size of the employer, the
gravity of the violation, the good faith of the employer, and the employer’s “history of
previous violations.” The judge assessed the penalties proposed by OSHA for the items that
he affirmed, which totaled $27,600.6 The judge correctly stated that gravity is the principal

4
See Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 391-92 (5th Cir. 1976),
cert. denied, 434 U.S. 874 (1977), quoted in In re Inspection of Norfolk Dredging Co., 783
F.2d at 1531 (“comprehensive treatment [by another agency] of the general problem of . .
. fire protection will displace all OSHA regulations on fire protection, even if the [agency’s]
activity does not encompass every detail of the OSHA fire protection standards”). As
mentioned in note 1 supra, this case may be appealed to the Eleventh Circuit, which stated
in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), that it
adopted then-existing Fifth Circuit precedent. See also Ensign-Bickford Co. v. Occupational
Safety and Health Review Commission, 717 F.2d 1419, 1421 (D.C. Cir. 1983), cert. den.,
466 U.S. 937 (1984) (“[p]reemption is appropriate only if a federal agency implements the
regulatory apparatus necessary to replace those safeguards required by the Act”). As
discussed in note 1 supra, this case may be appealed by MEI to the D.C. Circuit.
5
In light of our determination that the DOD has not regulated the cited working conditions
so as to preempt OSHA, we need not address the question of whether the DOD had the
statutory authority to regulate the conditions. See Rockwell, 17 BNA OSHC at 1803, 1995-
97 CCH OSHD at pp. 43,531-32.

6
The judge assessed the penalties proposed by OSHA for the serious violations alleged in
(continued...)
 7

factor to be considered, and he found that it was “extremely high” in this case. Regarding
MEI’s size, he noted that it employed approximately 250 employees, and he agreed with the
twenty percent reduction in penalty that the Secretary proposed for that size of employer.
He gave MEI no reduction for history of violations, nor for good faith.
MEI contends that the penalties assessed by the judge were excessive because “[n]o
reduction was given for the safety history of MEI or its good faith.”7 Section 17(j) of the
Act provides that the employer’s “history of previous violations” is one of the four factors
to consider in penalty assessment. MEI was cited in 1994 for exit signs that were not
illuminated, an inoperative horn on a forklift, too much pressure on an air hose, and drill
presses that were not bolted to the floor. MEI settled the case with the payment of a penalty.
MEI contends that it should receive a reduction because these violations were “relatively
minor,” noting the testimony of its loss prevention manager. However, we note that MEI
acknowledged these violations in a settlement agreement and paid a penalty, and the prior
violations occurred only a few years before the ones in this case.
MEI suggests that an additional reason for giving it a reduction for “safety history”
is that “[b]efore the accident, MEI had operated 775 days without a lost time accident, and
over 900,000 man hours, a milestone for the industry.” We note that this evidence does not
concern the “history of previous violations” factor; rather, evidence of an employer’s safety
record in general has been considered under the “good faith” factor. See, e.g., Wheeling-
Pittsburgh Steel Corp., 16 BNA OSHC 1780, 1785, 1993-95 CCH OSHD ¶ 30,445,
p.42,041 (No. 91-2524, 1994). However, any basis for giving that good faith effect to
reduce the penalty is diminished by MEI’s failure to adequately prepare and train two

6
(...continued)
Citation 1 that he affirmed: $ 5,600 for Item 1, $5,600 for Item 3, $5,600 for Item 4, $4,000
for Item 5, $4,000 for Item 6a and 6b together, and $2,800 for Item 7a.
7
MEI also contends in its “penalty” argument that the items should be characterized as de
minimis because they had no direct or immediate relationship to safety or health (see section
9(a) of the Act, 29 U.S.C. § 658(a)) and thus warrant no penalty, citing Reich v.
Occupational Safety and Health Review Commission (Erie Coke Corp.), 998 F.2d 134,138-
39 (3d Cir. 1993), aff’g 15 BNA OSHC 1561, 1991-93 CCH OSHD ¶ 29,653 (No. 88-611,
1992). We reject MEI’s argument because the record supports finding that the violations
at issue had a direct and immediate relationship to safety.
 8

inexperienced teenage employees involved in this case, which demonstrates a lack of good
faith. See, e.g., Access Equipment Systems, Inc., 18 BNA OSHC 1718, 1728-29, 1999 CCH
OSHD ¶ 31,821, p. 46,784 (No. 95-1449, 1999) (no reduction for good faith where there
was evidence for and against good faith). The only bases that MEI mentions on review for
giving it a reduction for good faith is that “[a]s articulated above, these violations were not
the sort with the potential or probability of a severe accident. MEI officials believed that
they were in compliance with applicable safety regulations.” However, these assertions do
not address the good faith factor.
Based on the discussion above, we conclude that the penalties assessed by the judge
were appropriate.
Order
For the reasons above, we reject MEI’s argument that the DOD preempted OSHA’s
authority over the cited working conditions. We affirm the following items alleging serious
violations in Citation 1 and assess the following penalties totaling $27,600: Item 1 --
$5,600; Item 3 -- $5,600; Item 4 -- $5,600; Item 5 -- $4,000; Item 6a and 6b -- $4,000; and
Item 7a -- $2,800.8

                                                      /s/
                                                      Thomasina V. Rogers
                                                      Chairman


                                                      /s/
                                                      Gary L. Visscher
                                                      Commissioner


                                                      /s/
                                                      Stuart E. Weisberg
                                                      Commissioner

Date: January 21, 2000

8
Because we have been able to resolve the issues in this case based on the record before us,
we deny MEI’s motion for oral argument.
SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC Docket No. 96-740
:
MEI HOLDINGS, INC., :
d/b/a MARTIN ELECTRONICS, :
Respondent. :
:

Appearances:

      Channah Broyde, Esquire                                           Fred M. Johnson, Esquire
         U. S. Department of Labor                                      Marjorie M. Cain, Esquire
         Office of the Solicitor                                   Fuller, Johnson & Farrell
         Atlanta, Georgia                                                    Tallahassee, Florida
             For Complainant                                                     For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                 DECISION AND ORDER

      MEI Holdings, Inc., d/b/a Martin Electronics, Inc. (MEI), manufactures explosives and

pyrotechnic devices at its plant in Perry, Florida (Tr. 5, 17, 152). On November 20, 1995, a fire
broke out in Building 105 on MEI’s premises. Two employees died as a result of the fire, and a third
employee was severely burned. Occupational Safety and Health Administration (OSHA)
Compliance Officer Edgar Linden McGowan investigated the fire on November 21, 1995. As a
result of McGowan’s investigation, the Secretary issued a citation on May 16, 1996, alleging serious
violations of the Occupational Safety and Health Act of 1970 (Act).
Item 1 of the citation alleges a serious violation of § 5(a)(1) for failing to ensure that Building
105 was built of noncombustible materials. Item 2a alleges a serious violation of §1910.22(a)(1) for
failure to keep Building 105 clean and orderly. Item 2b alleges a serious violation of §1910.176(c)
for failure to keep storage areas free from accumulation of materials that constituted hazards from
fire or explosion. Item 3 alleges a serious violation of §1910.36(b)(8) for failure to provide two
means of egress from Building 105. Item 4 alleges a serious violation of §1910.36(d)(1) for failure
to keep the exit from Building 105 free from obstructions. Item 5 alleges a serious violation of
§1910.132(a) for failure to provide personal protective equipment to employees. Item 6a alleges a
serious violation of §1910.132(f) for failure to provide training to each employee in the use of
personal protective equipment. Item 6b alleges a serious violation of §1910.119(g)(1)(i) for failure
to initially train each employee involved in the operating process in an overview of the process and
in the operating procedures. Item 7a alleges a serious violation of §1910.119(c)(1) for failure to
develop a written plan of action regarding the implementation of the employee participation required
by §1910.119. MEI contests each alleged violation and proposed penalty. In addition, MEI contends
that, pursuant to §4(b)(1) of the Act, the Review Commission has no jurisdiction over this case.
The § 4(b)(1) defense is rejected, and the citation in part is affirmed.

                                        Background

   On November 20, 1995, MEI was under contract with the Department of Defense (DOD) to

manufacture “ATWESS” pellets as part of an ATWESS simulator designed to simulate a missile (Tr.
16-20). The flare case, or pellet, of the ATWESS project was manufactured in Building 105 located
on MEI’s premises. Building 105 was a 10-foot by 12-foot wooden structure with one exit on the
10-foot wide side facing west (Tr. 16, 42, 59, 196-197, 200-202).
In Building 105, the production process consisted of the mold press and the punch-out
press (Tr. 198-205). Three persons worked the production line in Building 105, one operating the
push-out and two operating the mold press. Building 105 also housed a quality control area where
the column height of the pellets were checked to ensure that they complied with specifications
(Exh. R-3; Tr. 215-217, 247, 312).
The operator of the mold press would adjust the mold, insert a flare in the case over the pin,
seat it, pick up the funnel, place the funnel in position, and press a foot pedal which would raise the
door to a shielded area containing a magnesium composition. The shield would rise, and the
operator would scoop out approximately seven grams of composition into the molds. He then would
take the mold and insert it into the press. The operator would press two palm buttons; the shield
would lower; and the press would compress the composition. After a pressing time of three seconds,
the shield would open and the operator would pull the mold out. The operator would then press the
foot pedal again and repeat the cycle. He would then remove the pressed mold and give it to the
push-out operator (Tr. 206-209).
The next step in production is to push out the pellet from the mold. The shield on the
push-out operator’s station would be open. The operator would lay the molded pellet into the press
horizontally and then release it. He has two palm buttons which he would press, causing the shield
to come down, close, make a switch, and cause the cylinder to come in from the side. The cylinder
would go around the core pin, push up the sleeve, and eject the pressed pellet from the mold. The
shield would then open, and the operator would reach in and remove the rejected pellet (Tr. 209).
 The push-out operator would then place the pellet in a velostat tray made of conductive
material. The velostat tray is 9¼ inches long, 7 inches wide, and approximately 2¼ inches deep, and
holds 35 pellets in a single layer. Two layers of pellets are placed in a single velostat tray, making
the maximum capacity for the velostat tray 70 pellets. Once filled, the velostat tray is covered
with a top also made of conductive material, which is specifically designed for MEI’s
industry (Tr. 211-212). If the pellet did not meet specifications, it was rejected and placed in a
velostat container, marked as containing rejected pellets. The quality control person was charged
with removing rejected pellets from the building (Tr. 217).
Building 105 has two shielded areas, located at the mold presses, where magnesium
composition is stored. Each shielded area contains a maximum of two pounds of composition.
Inside the shield the powder is placed in a velostat tray. Once an operator exhausts his supply of
powder, he goes to the back of the production area to a box with a lexan door in which a maximum
of four pounds of powder is stored (Tr. 212-214).
On November 20, 1995, two of the three employees who regularly worked the evening shift
in Building 105 did not show up for work. Barbara Wilkinson, who regularly worked in Building
105, arrived to work the evening shift (Tr. 237-238). Jamie Phillips and Greg Glombowski were
assigned to substitute for the workers instead of performing their regular jobs (Tr. 74, 100-101,
238-240, 271-273).
Jamie Phillips and Greg Glombowski had begun working for MEI on November 14, only
four working days before the fire (Tr. 73, 240). Jamie Phillips was 18 years old at that time (Tr. 73).
Greg Glombowski’s age was not given, but references to Glombowski in the record suggest that he
was approximately Phillips’ age (Tr. 78-79, 240). Neither Phillips nor Glombowski had worked in
Building 105 before that night (Tr. 107-108).
At approximately 10:30 p.m. on November 20, a fire erupted in Building 105 (Tr. 101).
Phillips, Glombowski, and Barbara Wilkinson were the only employees in Building 105 at the time.
Glombowski and Wilkinson died as a result of the injuries they suffered in the fire (Tr. 107).
Phillips was severely burned (Tr. 108).

                                         Discussion

                                         Jurisdiction

   MEI admitted in its answer that the Review Commission has jurisdiction over this matter.

At the hearing, for the first time MEI raised the argument that the citation should be vacated because
OSHA does not have jurisdiction over the cited working conditions. MEI argues that, under §4(b)(1)
of the Act, OSHA’s jurisdiction is precluded because MEI was under contract with the Department
of Defense and, thus, the Department of Defense’s regulations governed the cited working
conditions (Exh. C-1).
Section 4(B)(1) provides:
Nothing in this Act shall apply to working conditions of employees with respect to
which other Federal agencies, and State agencies acting under section 274 of the
Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory
authority to prescribe or enforce standards or regulations affecting occupational
safety or health.

                 (a) Preemption Under §4(b)(1) Is an Affirmative Defense

    The Secretary argues that a preemption claim under §4(b)(1) is an affirmative defense.

Commission Rule 34(b)(2) requires that all affirmative defenses be pled in the answer. At the
hearing, MEI stated that, although the company knew that it would claim OSHA did not have
jurisdiction, it did not raise this claim prior to the hearing because “it wasn’t required” (Tr. 10). MEI
relies on a Fourth Circuit case, U.S. Air v. OSHRC, 689 F. 2d 1191, 1195 (4th Cir. 1982), which
holds that “[p]reemption as mandated by section 4(b)(1) is not an affirmative defense but is a
jurisdictional limitation upon OSHA’s authority to issue a citation.” The Third Circuit also holds
that preemption under §4(b)(1) is not an affirmative defense and can be raised at any time. Columbia
Gas of Pennsylvania, Inc. v. Marshall, 636 F. 2d 913, 918 (3d Cir. 1980).
The Review Commission, however, has consistently held that preemption under § 4(b)(1)
is an affirmative defense that must be raised by the employer before the hearing, or it will be deemed
waived. Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1378, 1379, n. 2 (No. 15462, 1980);
Lombard Brothers, Inc., 5 BNA OSHC 1716, 1717 (No. 13164, 1977) (“It is well-settled that the
nature of section 4(b)(1) is not jurisdictional but exemptory and that the affirmative defense
permitted by the section cannot be raised beyond the hearing stage of the proceedings.”); Chevron
Oil Co., 5 BNA OSHC 1118, 1119, n. 3 (Nos. 10799, 10646, 10786, 1977); Idaho Travertine
Corporation, 3 BNA OSHC 1535, 1536 (No. 1134, 1975) (“It is now well-settled that any lack of
OSHA application under section 4(b)(1) of the Occupational Safety and Health Act is an affirmative
defense.”). The Eleventh Circuit, in which the instant case arises, has not held otherwise. Therefore,
Commission precedent requires that preemption under § 4(b)(1) be treated as an affirmative defense.
MEI admitted jurisdiction in its answer and has not subsequently amended it. MEI failed to
plead § 4(b)(1) preemption as an affirmative defense in its answer. Accordingly, this defense is
deemed waived by MEI.
 (b) MEI Failed to Establish Preemption By the Department of Defense

       Even if MEI had properly pled preemption under § 4(b)(1) as an affirmative defense, it failed

to establish that OSHA’s jurisdiction was preempted by the DOD.

       To prove the affirmative defense that OSHA’s jurisdiction has been preempted under
       section 4(b)(1), the employer must show that (1) the other federal agency has the
       statutory authority to regulate the cited working conditions, and (2) that agency has
       exercised that authority by issuing regulations having the force and effect of law.

Rockwell International Corp., 17 BNA OSHC 1801, 1803 (Nos. 93-45, 93-228, 93-233, 93-234,
1996).
The DOD does not have statutory authority to prescribe or enforce standards regarding
occupational safety and health with respect to MEI’s employees. MEI had a contractual, rather than
a regulatory, relationship to the DOD. MEI relies on safety standards set out in the DOD
Contractors Safety Manual for Ammunition and Explosives (Exh. C-1).
In a similar case, a company that had contracted with the DOD to manufacture explosives
contended that, because its “contract with the Department of Defense requires [the employer] to
comply with the manual prescribing standards for [the employer’s] manufacturing activities, those
activities are beyond the jurisdiction of the Commission.” Ensign-Bickford Co. v. OSHRC, 717
F. 2d 1419, 1421 (D.C. Cir. 1983), cert. denied, 466 U.S. 937 (1984). The D.C. Circuit disagreed,
stating:
The fact that [the employer] bound itself in its contract with the Department of
Defense to comply with the Department’s safety manual on explosives manufacture
does not have that effect [of preempting jurisdiction]. Such a contractual obligation
does not constitute an “exercise [of] statutory authority to prescribe or enforce
standards or regulations” sufficient to justify preemption under 29 U.S.C. section
653(b)(1). To hold otherwise would permit any federal agency to dilute, without
congressional approval, the safety standards and remedies contained in the Act.
Preemption is appropriate only if a federal agency implements the regulatory
apparatus necessary to replace those safeguards required by the Act.

Id.
It is significant that at no time has the DOD asserted preemption over OSHA in this case.
MEI called no DOD representatives as witnesses. The DOD has no means of enforcing the safety
provisions of the DOD manual. The most the DOD could do is terminate the contract with MEI.
MEI has failed to establish that the DOD has the statutory authority to regulate its working
conditions. OSHA’s jurisdiction was not preempted by the DOD.
 The Citation
Item 1: Alleged Serious Violation of §5(a)(1)

    The Secretary alleges that MEI committed a serious violation of §5(a)(1), the general duty

clause. 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.

    The citation states that MEI exposed its employees to the “hazard of death or serious physical

harm from exposure to fire in building 105 which was built of wood and where highly flammable
materials were stored and packaged during the assembly of pellet tubes which are a part of the
ATWESS 22 simulator.” In order to establish a violation of the general duty clause,
the Secretary must show that (1) a workplace condition or activity presented a hazard,
(2) the employer or industry recognized it, (3) it was likely to cause serious physical
harm, and (4) a feasible and useful means of abatement existed by which to
materially reduce or eliminate it.

Kokosing Construction Co., Inc., 17 BNA OSHC 1869, 1872 (No. 92-2596, 1996).

                       (1) A Workplace Condition Presented a Hazard

    The condition which the Secretary cites as hazardous is the use of highly flammable materials

in a wooden structure. The parties stipulated that Building 105 was constructed of wood (Tr. 6).
It is also undisputed that the magnesium composition used in the manufacture of the ATWESS
pellets was highly flammable. The material safety data sheet (MSDS) for magnesium powder states,
“Magnesium power is highly flammable, igniting readily. It is difficult to extinguish once ignited”
(Exh. C-5). In light of the high flammability of the magnesium powder, its use in a wooden building
constitutes an obvious hazard. The photographic exhibits C-8 through C-11 show that the wooden
structure was literally burned to the ground. The only part of the building left standing is a metal
structure. The Secretary has established that the wooden building presented a hazard.

                 (2) The Employer or the Industry Recognized the Hazard

    MEI knew that the use of a wooden building to house the manufacturing process of the

ATWESS pellet was hazardous. Jerry Lee Lowe, loss prevention manager for MEI, conceded that
a hazard analysis conducted before MEI began work on the ATWESS pellet concluded that the use
of the magnesium composition created a fire hazard (Tr. 57-58). The DOD manual, on which MEI
relied for its safety specifications, provides:
 C. STANDARDS FOR BUILDINGS

   1. Building Exteriors. Exterior wall and roof coverings of operating buildings
   should be noncombustible . . . .

(Exh. C-1, p. 12-1).

   In its brief, MEI argues that because elsewhere in the DOD manual it is stated that the words

“should” and “may” are advisory, it was not required to construct Building 105 out of
noncombustible materials. This misses the point. Whether or not the DOD mandated the use of
noncombustible materials, it put its contractors on notice that buildings constructed of combustible
materials presented a fire hazard. The Secretary has established that MEI knew of the hazard.

               (3) The Hazard Was Likely to Cause Serious Physical Harm

   The two deaths and the serious injury to Phillips caused by the fire in Building 105

demonstrate the likelihood of serious physical harm that results from the hazard. The Secretary has
established this element.

                        (4) A Feasible Means of Abatement Existed

   The hazard could have been abated by constructing Building 105 out of noncombustible

materials. MEI conceded that this could be done (Tr. 24, 224-225).
Accordingly, the Secretary has established that MEI committed a serious violation of
§5(a)(1) of the Act.

                   Item 2a: Alleged Serious Violation of §1910.22(a)(1)

   The Secretary alleges that MEI committed a serious violation of §1910.22(a)(1), which

provides: “All places of employment, passageways, storerooms, and service rooms shall be kept
clean and orderly and in a sanitary condition.”
The Secretary contends that the spills of the magnesium composition around the push-out
press were not cleaned up as frequently as necessary so as to prevent a fire. The Secretary has the
burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited
standard, (b) the employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either knew or,
with the exercise of reasonable diligence could have known, of the violative
conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

    The Secretary has failed to prove the second element of her case. Barbara Tate, lead person

on the first shift, testified that when she was in Building 105 periodically on November 20, the work
stations looked clean (Tr. 282). Kathy Mink, the employee in charge of quality control, made the
same observation (Tr. 255).
The Secretary relies on the testimony of Jamie Phillips, who stated that he cleaned the
punch-out press before every break, which was about once every two hours (Tr. 80). However,
Phillips also stated that he did not see any residue of magnesium powder while he was using the
press (Tr. 84). Phillips’ statement that the powder was cleaned up every two hours is insufficient
to support a finding that the press area was not kept clean and sanitary. No evidence was adduced
regarding how much powder would accumulate between cleanings. Item 2a is vacated.

                    Item 2b: Alleged Serious Violation of §1910.176(c)

    The Secretary charges MEI with a serious violation of §1910.176(c), which provides:
    Storage areas shall be kept free from accumulation of materials that constitute
    hazards from tripping, fire, explosion, or pest harborage. Vegetation control will be
    exercised when necessary.

    The Secretary alleges that MEI allowed an excessive number of rejected pellets to

accumulate in the production area of Building 105 on November 20. These rejected pellets
constituted a fire and explosion hazard. MEI argues that §1910.176(c) does not apply to the cited
conditions because the production area of Building 105 was not a “storage area.” This argument is
without merit. The rejected pellets were placed in a black velostat container until the quality control
person removed them at the end of her shift (Tr. 217). An area where material is held in one place
until such time it is disposed is a storage area. The fact that the duration the material is held is less
than one work shift does not alter the fact that it is being stored.
The Secretary contends there were 110 rejected pellets in Building 105 at the time of the fire.
The Secretary bases this figure on a memo from John Peterson, MEI’s director of administration,
sent to Jerry Lowe, MEI’s loss prevention manager (Exh. C-14). The memo was in response to a
request for information from Compliance Officer McGowan regarding the quantity of magnesium
powder in Building 105 at the time of the fire. The memo states in part (Exh. C-14):
The quantities are based on Kathy Mink’s interview in which she reported:
1. 20 units were at the work stations
2. 110 scrap units were on the back table
3. 2 velostat containers were half full
 Peterson testified that he did not personally interview Kathy Mink regarding the quantity of
magnesium in Building 105. He did not know who interviewed Mink (Tr. 345-346). Mink appeared
as a witness for MEI at the hearing. When asked how many rejected pellets were in Building 105
at the time of the fire, she responded, “About 15 or 20” (Tr. 251). She was not cross-examined
regarding the discrepancy between this estimate and the figure that appears in Exhibit C-14. Instead,
on cross-examination she was asked again how many rejected pellets were in the building, and she
answered, “There was 15, 20” (Tr. 264). No attempt was made to impeach her with the contradictory
statement contained in the memo from Lowe.
Mink’s live testimony is credited over her interview statement taken by an unknown person.
It is found that the number of rejected pellets in Building 105 at the time of the fire was fifteen to
twenty. The Secretary has failed to show that twenty (or even 110) pellets constituted an excessive
accumulation of hazardous material. Item 2b is vacated.

                   Item 3: Alleged Serious Violation of §1910.36(b)(8)

   The Secretary alleges that MEI violated §1910.36(b)(8), which provides:
   Every building or structure, section, or area thereof of such size, occupancy, and
   arrangement that the reasonable safety of numbers of occupants may be endangered
   by the blocking of any single means of egress due to fire or smoke, shall have at least
   two means of egress remote from each other, so arranged as to minimize any
   possibility that both may be blocked by any one fire or other emergency conditions.

   Building 105 had only one exit. It was 10 feet by 12 feet, and its door was 6 feet 8 inches

high and 48 inches wide (Tr. 14, 42-43). The usual occupancy of the building was four people, three
on the production line and one quality control person.
Section 1910.36(b)(8) does not require two exits. It requires two exits when the building in
question is “of such size, occupancy, and arrangement” that the occupants could become endangered
if one exit was blocked. Building 105 was small and its usual occupancy was low. Generally, such
conditions would not require two exits. But the occupants of the building were engaged in hazardous
work, handling highly volatile material. The most likely occurrence that would require the occupants
to flee the building would be a flash fire. Phillips’s description of the fire illustrates the
instantaneous nature of such a fire. Phillips was handing a pellet to Glombowski when (Tr. 85-86):
there was like a “pow” and then I seen a little orange ball of fire and it just--within
a split second, it was just orange. . . . It looked like it shot out [from behind a press],
like the fire shot out in a ball. It shot out and it hit the wall and it turned, and it was
just a big ball of fire filled the whole building. . . . It was kind of like a huge flame
blower or something . . . . And, the whole side of our room went up. And then
whenever I got out--it was all was burning, but whenever I got out of the fire, it went
off again because it was like the first side burst, and there was a big fire, and it started
 burning the building down, and then it was like all the other stuff on the other side
of the room got caught on fire, like the stuff in the safe box and then it was like even
a bigger fire.

    The magnesium composition that the employees were required to handle caused Building 105

to be consumed in flames in a matter of seconds. The flames obscured the view of the door. Phillips
described his run for the exit (Tr. 87):

    [T]he orange ball was just coming up in just a split second. And, as I seen it, I was
    just turning like that (demonstrating), and it just--the fire was everywhere, and I was
    turning to get up and run towards the door. I didn’t see nothing but flames; orange
    stuff. . . . I just ran towards the door. And, right before I went to stand up and run,
    I could just barely see the door and I seen like a white coat run out the door and then
    I really couldn’t see the door, but I knew where it was.

    Given the volatile nature of the magnesium composition, Building 105 was required to have

two exits. The flash fire that would be the most likely emergency would almost immediately obscure
the view of the exit. Another exit might reduce the time and distance an employee would have to
cover in order to leave the building, and may have better visibility if the employee was closer to it.
In a flash fire, seconds could make the difference between life and death, or in degrees of injury.
MEI was in serious violation of §1910.36(b)(8).

                    Item 4: Alleged Serious Violation of § 1910.36(d)(1)

    The Secretary charges MEI with a serious violation of § 1910.36(d)(1), which provides:
    Every required exit, way of approach thereto, and way of travel from the exit into the
    street or open space, shall be continuously maintained free of all obstructions or
    impediments to full instant use in the case of fire or other emergency.

    The Secretary contends that a golf cart parked by Kathy Mink outside the door of Building

105 obstructed the exit of the building so as to expose the employees to a fire hazard. Jamie Phillips
testified (Tr. 87):
I busted out of the door and I fell onto a golf cart that was parked right in front of the
door and I fell. It was like parked--like I said, you run out of the door, and it was
parked kind of like sideways to where I ran out. I fell onto the seat, the seat of the
golf cart.

    Kathy Mink testified that she parked the golf cart outside Building 105 more than 4 or 5 feet

from the door. She stated that the golf cart did not obstruct anyone from exiting the building
(Tr. 256-258).
Roy Settergen, MEI’s engineering manager, prepared a scale drawing of Building 105
(Exh. R-3; Tr. 167-168). Using the dimensions of the door and the golf cart, and relying on post-fire
photographs of the scene, Settergen estimated the location of the golf cart in relation to Building 105.
Settergen concluded that the golf cart was approximately 94 inches (7 feet 10 inches) away from
Building 105’s door (Exh. R-5; Tr. 173-187).
Even accepting MEI’s estimate of the distance from the door to the golf cart as 7 feet 10
inches, MEI was in violation of §1910.36(d)(1). The standard does not require only the immediate
area of the door to be free of obstructions. It requires the “way of travel from the exit into the street
or open space” to be clear. When one is rushing from a burning building, 7 feet 10 inches is not far.
Having to go around (or, as Phillips did, falling over) an obstruction can cause delays in fleeing from
the fire or getting to medical assistance. The Secretary has established a serious violation of
§1910.36(d)(1).

                     Item 5: Alleged Serious Violation of §1910.132(a)

    The Secretary alleges MEI violated §1910.132(a), which provides:
    Protective equipment, including personal protective equipment for eyes, face, head,
    and extremities, protective clothing, respiratory devices, and protective shields and
    barriers, shall be provided, used, and maintained in a sanitary and reliable condition
    wherever it is necessary by reason of hazards of processes or environment, chemical
    hazards, radiological hazards, or mechanical irritants encountered in a manner
    capable of causing injury or impairment in the function of any part of the body
    through absorption, inhalation or physical contact.

    In the citation, the Secretary asserts that MEI violated the standard by permitting Phillips and

Glombowski “to work without fire retardant laboratory coats and coveralls between the hours of
4:00 p.m. and 6:00 p.m. on November 20, 1995, exposing employees to an injury from fire.” MEI
does not dispute that §1910.132(a) required Phillips and Glombowski to wear some form of fire
retardant clothing while working in Building 105. MEI contends they were wearing appropriate
protective clothing.
Mink testified that Phillips and Glombowski received protective clothing in MEI’s break
room prior to going to Building 105 (Tr. 240-241). Barbara Tate also testified that Phillips and
Glombowski were wearing protective clothing when they began work in Building 105 (Tr. 278-280).
Dave Chasteen, MEI’s production supervisor, stated that Phillips and Glombowski were wearing
appropriate protective clothing at the beginning of their shift in Building 105 (Tr. 308-309).
Although these three witnesses agreed that the two employees were wearing protective
clothing the entire time they were working in Building 105, they disagreed on certain details
regarding the clothing. Tate testified the lab coats that were first given to Phillips and Glombowski
were too small, and Chasteen later brought both of them coveralls (Tr. 279-280). Chasteen stated
he took Glombowski from Building 105 to another building to fit him with coveralls, and that
Glombowski wore coveralls while Phillips wore a lab coat (Tr. 309). Mink did not recall any details
about difficulty finding clothes that would fit the employees (Tr. 249).
Phillips’ recollection of the events regarding the protective clothing is at odds with those of
the other witnesses. He testified that when he arrived at 3:50 p.m. for the evening shift, Tate told
him he would be working in Building 105, and that he needed to wear leg stats (Tr. 74-75). When
Phillips arrived at Building 105, Tate, Wilkinson, and Mink were there showing Glombowski how
to run one of the presses (Tr. 77). At that time Phillips and Glombowski were wearing “school
clothes,” jeans, and shirts. Neither of them was wearing coveralls or a lab coat (Tr. 78-79). They
began running the presses. Phillips testified that “a little before the 6:00 break, Dave and Bill
brought coveralls and a lab coat and some shoes” (Tr. 79). The protective clothing was too small
(Tr. 79-80):
The first pair of coveralls [Chasteen] brought was too small, and he hadn’t found a
lab coat yet. And the shoes he brought was too small for Greg. So, he had to go look
for bigger ones. And, then, whenever he came back, he had the coveralls fit and the
shoes fit Greg, but the lab coat was too small. So, then when he came back at like
the 6:00 break, he had a lab coat that fit.

    According to Phillips, he was first wearing the coveralls at approximately 5:30 p.m., and

Glombowski began wearing the lab coat during the 6:00 p.m. break (Tr. 96).9
The testimony of Phillip is more credible than the testimony of Tate, Mink, and Chasteen.
Phillips recalls a specific, detailed chronology of events. It is reasonable to assume the details
regarding the protective clothing he was given that night would make more of an impression on
Phillips than it would on his co-workers. Their work at MEI was routine to them, and they would
not be overly concerned with remembering the specifics of when and how two new employees were
outfitted with protective clothing. Phillips, however, had been working at MEI for less than a week.
All of his experiences there were new to him, and this was the first time he was required to wear
protective clothing. The Secretary has established that Phillips and Glombowski were working with

9
Phillips’s testimony is corroborated in a statement made by former MEI employee Kimberly Grantham to
Compliance Officer McGowan (Exh. C-12). Her statement is given no weight, however, because the Secretary failed
to establish that it was made while she was employed with MEI, in accordance with Federal Rule of Evidence §
801(d)(2)(D). Grantham’s personnel records show her last day of work was November 20, the day of the fire, and that
she took personal leave until November 30, when she resigned (Exh. R-19). The typed statement that Grantham gave
McGowan states at the top, “10:35 November 30 1995.” However, each of the four pages of the statement are signed
at the bottom “Kimberly R. Grantham 12-1-95” (Exh. C-12). No reason was given for the discrepancy in the dates, and
McGowan was uncertain as to whether he was present when Grantham signed the statement (Tr. 131-132, 135).
Grantham was not called as a witness. Because the December 1 date accompanies her signature and is presumably in
her handwriting, it is concluded that December 1 is the date of Grantham’s statement. As such, the statement was made
after her employment with MEI had terminated.
the magnesium composition on the production line for at least ninety minutes on November 20
without protective clothing. Chasteen, the production supervisor, knew of this safety violation
because he was the one who brought them the clothing.
The Secretary has established a serious violation of §1910.132(a).

                    Item 6a: Alleged Serious Violation of §1910.132(f)

   The Secretary alleges that MEI violated §1910.132(f), which provides:
   The employer shall provide training to each employee who is required by this section
   to use PPE. Each such employee shall be trained to know at least the following:

            (i) When PPE is necessary;

            (ii) What PPE is necessary;

            (iii) How to properly don, doff, adjust, and wear PPE;

            (iv) The limitations of the PPE; and,

            (v) The proper care, maintenance, useful life and disposal of the PPE.

   The Secretary alleges that MEI did not train Phillips in “how to don, doff, adjust, and wear”

leg stats. Leg stats conduct electricity out of an employee’s body, reducing the chance of an
electrical build-up which could cause a fire (Tr. 110).
When Tate told Phillips to go to Building 105, she told him that he needed to put on leg stats
(Tr. 74). Phillips was given no further instructions regarding the leg stats (Tr. 75-76):
Q.: When [Tate] gave you the leg stats, did she show you how to put them on?
Phillips: No.
Q.: Did anybody else show you how to put them on?
Phillips: No.
Q.: Did they explain it to you?
Phillips: No.
...
Q.: At some point, did you get the leg stats on?
Phillips: Yes.
Q.: You just put them on--did you put them on yourself?
Phillips: Yes, I just put one around my foot and one around my ankle because there was
another guy, Montez, and he had his on. I looked at how he had his on. I asked
Barbara Tate how to put them on, and then she was like in a hurry to get to the
building and she was like, “Put them on and meet us down there,” and she took
 off. I was looking at his feet and then I just put them on like he had them on.

    Q.: After you put them on, did you test them?

    Phillips: No.

    Q.: Did anybody tell you to test them?

    Phillips: No.

    Q.: Do you know what a tester is?

    Phillips: No.

    The testing of leg stats after putting them on is important because, if not adjusted properly,

they can fail to conduct electricity out of an employee’s body (Tr. 322).
None of the other MEI employees who testified stated that he or she had demonstrated to
Phillips how to put on and adjust the leg stats. Tate claimed that Grantham did so, but she testified
she did not observe this (Tr. 274, 277-278).
MEI contends that Phillips was trained in the use of leg stats, and adduced a copy of checklist
entitled “Employee Orientation Training Supervisor’s Checklist” (Exh. R-2). The checklist states,
“The following points were included as items of discussion with the above named employee about
the safety aspects of his/her job.” Item 7 is listed as “Static electricity control: Conductive
boots/shoes, leg and wrist straps, and all-cotton clothing” (Exh. R-2). Item 7 is marked as being
discussed and is dated November 14, 1995. Phillips signed the checklist.
Phillips testified that he filled out the checklist at the time he was hired, along with other
paperwork: “I think we did this at the front with--what is her name--Phyllis . . . . We did a bunch
of paperwork with her. We went over all that, and then we drew maps of who we wanted to contact
if we got hurt and who to call” (Tr. 97). When asked if he understood all the papers that he signed,
Phillips stated, “I think we went over them. We went over a bunch of papers like insurance plans
and all that”(Tr. 98).
The Secretary has established that MEI committed a serious violation of §1910.132(f).
Phillips was told to put on leg stats and then left to his own devices to figure out how to do it. Even
when he asked for help, the supervisor was too busy to assist him. Any minimal instruction
contained in the checklist was lost in the shuffle of paperwork that Phillips was given to complete
on his first day. Item 6a is affirmed.
 Items 6b, 7a, and 7b: Alleged Serious Violations of the Process Safety Management Standard

   The Secretary contends that MEI violated §§1910.119(g)(1)(i), (c)(1), and (e)(1). Section

1910.119 is entitled “Process safety management of highly hazardous chemicals.” As a preliminary
matter, MEI contends that §1910.119 does not apply to the cited conditions.
The application section of the standard, §1910.119(a), provides:
This section applies to the following:
(i) A process which involves a chemical at or above the specified
threshold quantities listed in Appendix A to this section;

            (ii) A process which involves a flammable liquid or gas (as defined
            in 1910.1200(c) of this part) on site in one location, in a quantity of
            10,000 pounds (4535.9 kg) or more . . . .

   It is undisputed that MEI has none of the chemicals specified in Appendix A at its facility,

nor does it have a flammable liquid or gas on site in one location, in a quantity of 10,000 pounds or
more (Tr. 36-39, 139). Therefore, it would appear that §1910.119 does not apply to MEI in the
instant case.
The Secretary counters that §1910.109(k) makes §1910.119 applicable to MEI. Section
1910.109 is entitled “Explosives and blasting agents.” Section 1910.109(k) provides:
Scope. (1) This section applies to the manufacture, keeping, having, storage, sale,
transportation, and use of explosives, blasting agents, and pyrotechnics . . . .

            (2) The manufacture of explosives as defined in paragraph (a)(3) of
            this section shall also meet the requrements contained in §1910.119.

            (3) The manufacture of pyrotechnics as defined in paragraph (a)(10)
            of this section shall also meet the requirements contained in
            §1910.119.

   MEI qualifies as a manufacturer of explosives under §1910.109(a)(3). The citation cites only

§1910.119 in items 6b, 7a, and 7b. Section 1910.109 is not referenced or otherwise mentioned.
MEI argues that §1910.119 is “unconstitutionally vague, ambiguous as applied to
Respondent’s business, and fails to provide fair notice to Respondent that it is governed by that
regulation” (MEI’s Brief, p. 27). These arguments are rejected. Section 1910.109 is headed
“Explosives and blasting agents.” Section 1910.119(a)(3) defines explosives. Section
1910.109(k)(2) provides that manufactures of explosives “shall also meet the requirements contained
in §1910.119.” It is the employer’s responsibility to make itself aware of the requirements of the
Act. A manufacturer of explosives, such as MEI, is on fair notice that it is required to comply with
§1910.119 if it reads §1910.109. Since §1910.109 addresses explosives, it is reasonable to expect
a manufacturer of explosives to acquaint itself with the standard’s requirements. It would have been
preferable to reference §1910.109(k) in the citation and complaint, but the Secretary’s failure to do
so does not compromise the fair notice to MEI. Section 1910.119 applies to MEI.

                 Item 6b: Alleged Serious Violation of §1910.119(g)(1)(i)

    The Secretary charges MEI with a serious violation of §1910.119(g)(1)(i), which provides:
    Each employee presently involved in operating a newly assigned process, shall be
    trained in an overview of the process and in the operating procedures as specified in
    paragraph (f) of this section. The training shall include emphasis on the specific
    safety and health hazards, emergency operations including shutdown, and safe work
    practices applicable to the employee’s job tasks.

    Phillips began working for MEI four working days before the fire. Until the day of the fire,

Phillips had not worked with the magnesium composition. Any general safety training that he was
given was cursory and administered while he was signing insurance forms and other paperwork.
MEI was required to give Phillips and Glombowski more specialized instruction when it
assigned him to Building 105. MEI contends that Phillips and Glombowski were given written work
instructions to read and sign before beginning work in Building 105 (Tr. 244-245). Phillips
described the extent of his exposure to the work instructions (Tr. 77):
Barbara Tate and Kathy and Barbara Wilkinson and Greg was in there. And, they
was showing Greg how to run the machine he was on, and then gave him a paper to
look at.

    I was sitting on the other side behind him, and they gave him a paper to look at and
    then they gave him a clipboard to sign. Then, he signed it and then I signed it and put
    the date on there and that was it.

    Phillips also testified that no one trained him in the operating procedures in Building 105.

When asked if anyone showed him how to operate the presses, Phillips replied, “I seen Kathy
working it. I just watched her over her shoulder because Greg and Barbara were pressing powder
in there, and so she was pressing them out. And, I watched her do that and then she got up and left”
(Tr. 78). Mink did not explain the operation of the press to Phillips while he was watching her
(Tr. 78).
The Secretary has established that MEI committed a serious violation of §1910.119(g)(1)(i).
MEI did not train Phillips in an overview of a newly assigned process.
 Item 7a: Alleged Serious Violation of §1910.119(c)(1)

    Section 1910.119(c)(1) provides:

    Employers shall develop a written plan of the action regarding the implementation
    of the employee participation required by this paragraph.

    Lowe, MEI’s risk manager, admitted that MEI did not have a written process safety

management program (Tr. 24). The Secretary has established a serious violation of this standard.

                   Item 7b: Alleged Serious Violation of §1910.119(e)(1)

    Section 1910.119(e)(1) provides, in pertinent part:

    The employer shall perform an initial process hazard analysis (hazard evaluation) on
    processes covered by this standard. The process hazard analysis shall be appropriate
    to the complexity of the process and shall identify, evaluate, and control the hazards
    involved in the process. Employers shall determine and document the priority order
    for conducting process hazard analyses based on a rationale which includes such
    considerations as extent of the process hazards, number of potentially affected
    employees, age of the process, and operating history of the process.

    The Secretary failed to establish a violation of this standard. MEI had performed a hazard

analysis with respect to the ATWESS project (Exh. R-1; Tr. 57). Sections 1910.119(e)(1)(i)-(v) set
out a schedule by which percentages of the analysis are to be completed. Section 1910.119(e)(1)(iv)
provides, “All initial process hazards shall be completed by May 26, 1997.” The fire occurred on
November 20, 1995. The Secretary failed to show the portion of the hazard analysis that MEI
performed was not in compliance with the schedule set out in §1910.119(e).

                                    Penalty Determination

    The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the

Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
MEI employed approximately 250 employees at the time of the fire (Tr. 152). The Secretary
had cited MEI previously for violations of the Act (Tr. 68-70). No evidence of bad faith was
adduced. The gravity of the violations was extremely high. Employees were working in close
quarters in a wooden structure with a highly flammable material. All of the violated safety standards
were aimed at preventing a fire hazard. The eruption of a fire under the circumstances in which the
employees in Building 105 were working would likely lead to catastrophic results. In the present
case, two employees died and a third was critically burned in the fire.
The penalty for item 1, the violation of §5(a)(1), is $5,600.00. Constructing Building 105 out
of wood, when it housed a process which required the use of magnesium, created a highly hazardous
environment for the employees who worked in the building.
The penalty for item 3, the violation of §1910.36(b)(8) is $5,600.00. Having only one exit
from Building 105 increased the chances of injury to the employees. The door was obstructed by
flames, and visibility of the door was poor during the fire.
The penalty for item 4, in violation of § 1910.36(d)(1), is $5,600.00. Parking the golf cart
within 8 feet of the only door obstructed the emergency exit made by the employees.
The penalty for item 5, in violation of § 1910.132(a), is $4,000.00. Phillips and Glombowski
were required to work with a highly flammable material for ninety minutes to two hours without
protective clothing.
The penalty for items 6a and 6b, the violations of §§ 1910.132(f) and 1910.119(g)(1)(i), is
$4,000.00. MEI failed to show Phillips how to put on a crucial piece of protective equipment, to the
point of ignoring him when he directly asked for help. MEI also failed to train Phillips in the safe
operation of the process to which he was assigned.
The penalty for item 7a, in violation of § 1910.119(c)(1), is $2,800.00. MEI’s failure to have
a written plan of action for employee participation resulted in the haphazard manner in which
Phillips was introduced to the work in Building 105.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is hereby ORDERED that the items cited in the citation

be disposed of as follows:
1. Item 1, in violation of § 5(a)(1), is affirmed and a penalty of $5,600.00 assessed.
2. Item 2a, in violation of § 1910.22(a)(1), is vacated and no penalty assessed.
3. Item 2b, in violation of § 1910.176(c), is vacated and no penalty assessed.
4. Item 3, in violation of § 1910.36(b)(8), is affirmed and a penalty of $5,600.00
assessed.
 5. Item 4, in violation of § 1910.36(d)(1), is affirmed and a penalty of $5,600.00
assessed.
6. Item 5, in violation of § 1910.132(a), is affirmed and a penalty of $4,000.00 assessed.
7. Item 6a, in violation of § 1910.132(f), and item 6b, in violation of
§1910.119(g)(1)(i), are affirmed and a penalty of $4,000.00 assessed.
8. Item 7a, in violation of § 1910.119(c)(1), is affirmed and a penalty of $2,800.00
assessed.
9. Item 7b, in violation of § 1910.119(e)(1), is vacated and no penalty assessed.

                                         KEN S. WELSCH
                                         Judge

Date: September 19, 1997