10th Circuit upholds OSHA citation based on fireworks fire that killed worker, severely burned another

By Brandi O. Brown, J.D. — After an explosion at an out-of-use fireworks facility warehouse killed one worker and severely burned another who had been instructed by their employer to clean it out, OSHA issued citations for safety and health standard violations to the employer. An ALJ affirmed the citation, followed by the Commission, and now the Tenth Circuit affirmed the decision as well. The appeals court rejected the employer’s arguments that a regulation on storing and handling explosives was unconstitutionally vague and was not violated because the employer lacked knowledge of the hazardous conditions; that the Secretary did not prove a violation of a regulation requiring certain trucks be used around accumulations of combustible dust; and that it was exempt from a regulation requiring a hazard communication program. The petition for review was denied (Jake’s Fireworks Inc. v. R. Alexander Acosta, June 28, 2018, Matheson, S., Jr.).

Employees injured while cleaning. In late 2012, the employer, a fireworks importer and distributor, moved its storage of fireworks to a new facility. However, it left storage containers still filled with fireworks and other materials at the old facility. In 2014, after some intermittent cleaning, the employer decided to initiate a major clean-up so that a renter could move in. Two employees were assigned to unload the shipping containers. Sadly, while doing so, a fire broke out and both employees were severely burned. One died. The other testified that, before the fire, he saw a “bright light, a spark” when the forklift went in to pick up a pallet.

OSHA citations. Various investigators came to the scene in the days that followed, including a fire investigator and an OSHA investigator, and found that fireworks and debris were strewn inside not only the exploded container area, but also the other storage containers. The OSHA investigator also found fireworks and debris on the loading dock, vegetation around the containers, and signs that rodents had chewed through the packaging in the containers. Based on the evidence, the Secretary issued a Citation and Notification of Penalty to the employer, charging it with ten health and safety violations. Three were challenged.

Storing and handling of explosives. The first citation was for the employer’s violation of 29 C.F.R. § 1910.109(b)(1), based on improper storing and handling of explosives. The employer argued that this regulation was unconstitutionally vague and, therefore, void. And even if it was not, the employer argued, it did not violate the standard, which provides that no person should store, handle, or transport explosives “when” those activities constitute an “undue hazard to life.”

The ALJ had concluded that the employer’s actions—storing damaged fireworks, leaving explosive powder on the floor of the containers, allowing grass and brush near the containers, and keeping the fireworks in cracked containers—contributed to the fire and explosion hazard, which in turn presented an undue hazard to life. To the court, a facial analysis of the regulation indicated the standard was clear and capable of common understanding, particularly in light of the conduct to which it was applied. “A reasonable person responsible for employee safety would have understood the storage and handling of explosives in the Old Facility created an undue hazard,” the court explained.

Moreover, the Secretary proved a violation, demonstrating that the employer violated the standard or had either constructive or actual knowledge of the violation. Investigators testified that the conditions of the facility “contributed to a fire and explosion hazard which presented an undue hazard to life.” The resulting accident, the ALJ had explained, supported that finding. The court affirmed that determination for “substantially the same reasons.” The descriptions provided by the investigators explained how the conditions created an undue hazard and the fire that resulted was probative of the conclusion that it was in fact a hazard. And the employer had actual or constructive knowledge. The production supervisor who assigned the job to the two employees testified that he had an opportunity to observe the contents of the container before they began working in it. Moreover, he testified that the old facility was “out-of-sight, out-of-mind” and that no housekeeping measures were applied after the switch to the new facility. He stated that prior to that time, the old facility was “never like that” and, rather, that it “was clean.”

Trucks and combustible dust. The second citation was for improper use of a liquid-propane forklift around accumulations of combustible dust. Under 29 C.F.R. § 1910.178(c)(2)(vii), only three types of trucks are allowed in the presence of combustible dust, a list that did not encompass liquid-propane forklifts. With regards to the citation under this regulation, the employer faulted OSHA for not testing the dust that was deemed combustible. However, the court (as had the ALJ) rejected the assertion that the agency had to test the dust in order to establish a violation. The directive relied upon by the employer for this argument, the court explained, was a policy statement that serves as a guideline, but it “does not prescribe requirements for the agency to find a safety standard violation.” Policy statements a re not binding on the agency in that way, the court explained. Furthermore, applying the substantial evidence standard of review, the court concluded that the Secretary proved a violation of the section.

Hazard communication. The third citation, under 29 C.F.R. § 1910.1200(e)(1), was based on lack of a written hazard communication program. The employer argued that the materials in question were exempt because they were “articles,” but the court agreed with OSHA that this was not the case. Under Sec. 1910.1200(c), the court explained, an “article” is defined to exclude items that “under normal conditions of use” do not release more than a trace quantity of hazardous chemical and do not “pose a physical hazard or health risk to employees.” A “physical hazard” is a chemical that is classified as posing one of several hazardous effects, including being explosive or flammable. However, the fireworks in question “are both ‘explosive’ and ‘flammable.’” There was ample evidence of such effects in the record before the ALJ.

The court affirmed the issuance of the citation and denied the petition to review.

Source: http://www.employmentlawdaily.com/index.php/news/10th-circuit-upholds-osha-citation-based-on-fireworks-fire-that-killed-worker-severely-burned-another/