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Jake's Fireworks Inc. v. Acosta

United States Court of Appeals, Tenth Circuit

June 28, 2018


          Petition for Review of an Order from the Occupational Safety and Health Review Commission (OSHRC No. 15-0260)

          Eric W. Clawson, Jake's Fireworks, Inc., Pittsburg, Kansas (Michael A. McCabe, Jake's Fireworks, Inc., Pittsburg, Kansas and Michael Baker, Munck Wilson Mandala, LLP, Dallas, Texas, with him on the briefs), for Petitioner.

          Ronald J. Gottlieb, Senior Trial Attorney (Nicholas C. Geale, Acting Solicitor of Labor, Ann S. Rosenthal, Associate Solicitor for Occupational Safety and Health, and Heather R. Phillips, Counsel for Appellate Litigation, with him on the brief), United States Department of Labor, Washington, D.C., for Respondent.

          Before MATHESON, PHILLIPS, and MCHUGH Circuit Judges.

          MATHESON, Circuit Judge.

         Jake's Fireworks, Inc. ("Jake's"), a fireworks importer and distributor, assigned two employees to clean out its old facility. A fire broke out, injuring one employee and killing the other. After an Occupational Safety and Health Administration ("OSHA") inspection, the Secretary of Labor (the "Secretary") cited Jake's for violating OSHA safety and health standards. Jake's contested the citation before an Occupational Safety and Health Review Commission ("OSHRC") Administrative Law Judge ("ALJ"), who affirmed in full. Jake's sought review from the OSHRC's discretionary review panel (the "Commission"), but it declined, finalizing the ALJ's decision. Jake's then filed a petition in this court, contesting violations of (1) 29 C.F.R. § 1910.109(b)(1), improper storage and handling of explosives; (2) 29 C.F.R. § 1910.178(c)(2)(vii), improper use of a liquid-propane ("LP") forklift around combustible dust; and (3) 29 C.F.R. § 1910.1200(e)(1), lack of a written hazard communication program.

         Exercising jurisdiction under 29 U.S.C. § 660(a), we affirm and deny the petition to review.

         I. BACKGROUND

         A. Factual Background

         Jake's imports fireworks from China, packages them in trays with launch tubes, and sells them as kits to customers.

         1. The Old Facility Fire

         Until November 2012, Jake's stored fireworks at 689 South 69 Highway in Pittsburg, Kansas (the "Old Facility"). The Old Facility had two warehouses and several hundred fireworks storage containers. When Jake's received a shipment from China, it unloaded the fireworks into its storage containers.

         In November 2012, Jake's moved to its current facility at 1500 East 27th Street Terrace (the "New Facility"). Although it moved its operation and most supplies, Jake's left storage containers filled with fireworks, trays, and packaging materials at the Old Facility. During the next 19 months, Jake's intermittently cleaned the Old Facility with the goal of renting it out.

         Finally, in August 2014, Jake's initiated a "major project" to clean out the Old Facility for a new tenant. ROA at 170-71. Scott Moutz, Jake's production supervisor, assigned Jake's employees Howard Harper and Kenny Clark to clean the Old Facility. Mr. Moutz assigned them to unload the shipping containers, which contained items such as fireworks and packaging materials.

         On August 12, 2014, Mr. Harper and Mr. Clark began unloading a bunker filled with Excaliburs, a type of firework that "make[s] a very loud noise and pretty color." Id. at 124, 125. Using a LP forklift, Mr. Clark lifted pallets stacked with boxes of fireworks while Mr. Harper stood beside the pallet to steady the load. Around 2:35 p.m., a flash fire engulfed the storage container that they were cleaning. Mr. Harper later testified that before the fire, "the only thing [he] remember[ed]" was the forklift "going underneath that pallet to pick it up and . . . [seeing] a bright light, a spark." Id. at 137. Both men suffered severe burns. Mr. Clark died.

         2. Investigations and Issuance of the Citation

         a. Fire Investigator Michael Tippie's investigation

         On the day of the fire, Fire Investigator Michael Tippie of the Kansas State Fire Marshal's Office investigated the scene and the surrounding worksite. He took photographs, recorded observations, and conducted interviews. He did not collect dust samples.

         At the accident scene, Fire Investigator Tippie observed the "heavily damaged" storage container. Id. at 51. Fire had consumed most of it. Fireworks-with varying degrees of damage-and debris were strewn around and inside the container where the forklift was located. He examined the LP forklift, which had been lifting a pallet. Underneath and around the forklift, he noticed "many, many, many remnants" of consumer fireworks. Id. at 63-64. The forklift's liquid propane tank had exploded during the fire. Its left fork sat atop a nail protruding from a steel plate in the storage container.

         In the surrounding worksite, Fire Investigator Tippie noticed that other storage containers were similar to the one involved in the accident. He observed that "[t]hey were unswept and just littered with debris." Id. at 66. In one container, he "saw a large pile of damaged unpackaged fireworks just pushed up into one corner." Id. Finally, he noticed that there were consumer fireworks-both damaged and undamaged-scattered around and on the loading dock area.

          b. Compliance Safety and Health Officer Ryan Hodge's investigation and issuance of citation

         The next day, OSHA dispatched Compliance Safety and Health Officer ("CSHO") Ryan Hodge to investigate. Like Fire Investigator Tippie, he took photos, interviewed individuals, and noted his observations. He also did not collect dust samples.

         CSHO Hodge toured the site with Fire Investigator Tippie, consulted with him about the accident, and photographed the scene. He noted the storage container's steel metal plate, fireworks in various states of damage, debris in piles, and broken fireworks on the loading dock. He determined the two men used a LP forklift. He observed vegetation around the storage containers and learned that rodents had chewed through some of the packages of fireworks in the containers.

         He learned from Mr. Moutz that the Old Facility "had essentially been disregarded since the move." Id. at 262. He also discovered from an employee that Jake's did not have a written hazard communication program, an OSHA requirement for employers to document the hazardous materials on the worksite premises.

         CSHO Hodge concluded that "[t]he metal plate may have been contacted by a portion of the forklift at some time, which then would have resulted in a spark, which may have been the source of ignition." Id. at 219.

         After his visit to the site, CSHO Hodge reviewed the evidence, requested additional information, and consulted the relevant safety standards. Based on CSHO Hodge's findings and recommendation, the Secretary issued a Citation and Notification of Penalty to Jake's, charging ten safety and health standard violations.[1] The three violations challenged in this appeal were for violating 29 C.F.R.:

(1)§ 1910.109(b)(1), improper storing and handling of explosives,
(2)§ 1910.178(c)(2)(vii), improper use of a LP forklift around combustible dust, and
(3)§ 1910.1200(e)(1), lack of a written hazard communication program.

         B. Relevant Safety and Health Standards and Proving a Violation

         We provide an overview of the three OSHA safety and health standards that govern this case and the four elements the Secretary must show to prove a violation of a safety and health standard.

         1. The Three Safety and Health Standards

         Congress passed the Occupational Safety and Health Act (the "Act") to ensure "safe and healthful working conditions" for "every working man and woman in the Nation." 29 U.S.C. § 651(b). To that end, the Secretary "may by rule promulgate, modify, or revoke any occupational safety or health standard." Id. § 655(b).[2] a. 29 C.F.R. § 1910.109(b)(1) - storing and handling of explosives Title 29 C.F.R. § 1910.109(b)(1) provides that "[n]o person shall store, handle, or transport explosives or blasting agents when such storage, handling, and transportation of explosives or blasting agents constitutes an undue hazard to life." "Explosives" encompass all materials "which [are] classified as Class A, Class B, and Class C explosives by the U.S. Department of Transportation." 29 C.F.R. § 1910.109(a)(3).[3]These materials "include[], but [are] not limited to . . . black powder." Id. (listing examples of explosive materials). Section 1910.109(b)(1) "applies to the manufacture, keeping, having, storage, sale, transportation, and use of explosives, blasting agents, and pyrotechnics." Id. § 1910.109(k)(1).

         b. 29 C.F.R. § 1910.178(c)(2)(vii) - use of designated trucks around combustible dust

         Title 29 C.F.R. § 1910.178 "contains safety requirements relating to fire protection, design, maintenance, and use" of certain motorized industrial trucks. Id. § 1910.178(a)(1). It lists "eleven different designations of industrial trucks" based on how the trucks are powered-e.g., electric, diesel, or gasoline-and based on their safety features-e.g., fire safeguards. Id. § 1910.178(b).

         The Secretary cited Jake's under § 1910.178(c)(2)(vii), which requires employers to use only three types of trucks-DY, EE, or EX-in the presence of combustible dust.[4]The standard applies when ignitable deposits or accumulations of combustible dust are present. Id. § 1910.178(c)(2)(vii). In working environments where (1) deposits or accumulations of combustible dust (2) may be ignited by arcs or sparks originating in the truck, (3) the employer must use a DY, EE, or EX truck. Id. These are diesel and electric powered trucks that have certain safeguards against fire. See id. § 1910.178(b)(3), (6), and (7).

         c. 29 C.F.R. § 1910.1200(e)(1) - hazard communication program

         Title 29 C.F.R. § 1910.1200 requires employers to have a written program that "ensure[s] that the hazards of all chemicals . . . are classified" and "that information concerning the classified hazards is transmitted to employers and employees." Id. § 1910.1200(a)(1). It "requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import." Id. § 1910.1200(b)(1). Further, employers must have "labels and other forms of warning, safety data sheets, and employee information and training" concerning the hazardous chemicals. Id. § 1910.1200(e)(1).

         Employers handling certain types of materials are exempt from this requirement. As relevant here, 29 C.F.R. § 1910.1200 does not apply to employers who handle "articles." Id. § 1910.1200(b)(6)(v).[5]

         2. Establishing a Safety and Health Standard Violation

         Section 5(a)(2) of the Act requires that "employers shall comply with occupational safety and health standards promulgated under this chapter." 29 U.S.C. § 654(a)(2). Violations are classified as de minimis, id. § 658(a); other-than-serious, id. § 666(c); serious, id. § 666(k); repeat, id. § 666(a); or willful, id. Of the three violations on appeal, the Secretary classified Jake's violations of § 1910.109(b)(1) and § 1910.178(c)(2)(vii) as serious and its violation of § 1910.1200(e)(1) as other-than-serious. Jake's does not dispute these classifications.

         Generally, to establish a safety and health standard violation, the Secretary must demonstrate by a preponderance of the evidence:

(1)the applicability of the standard,
(2)the employer's noncompliance with the terms of the standard,
(3)employee access to the violative condition, and
(4)the employer's actual or constructive knowledge of the violation.

Atlantic Battery Co., 16 BNA OSHC 2131, at *6 (No. 90-1747, 1994); see also Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 735 (5th Cir. 2016).

         C. Procedural History

         After it received the citation, Jake's submitted a notice of contest, triggering the Secretary's duty to file a complaint before the OSHRC. See 29 C.F.R. § 2200.34. The Secretary filed a complaint containing the citation, and Jake's filed an answer.[6] The parties submitted briefs for a trial before an OSHRC ALJ. On the three violations raised in this appeal, Jake's argued that:

(1)§ 1910.109(b)(1) is void for vagueness and the Secretary could not prove a violation;
(2)§ 1910.178(c)(2)(vii) requires testing of combustible dust and because CSHO Hodge failed to test, the Secretary could not and did not prove a violation; and
(3)ยง 1910.1200(e)(1) does not apply because Jake's fireworks were "articles," exempting it from the hazard ...

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