Petition for Review of an Order from the Occupational Safety
and Health Review Commission (OSHRC No. 15-0260)
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.
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
MATHESON, PHILLIPS, and MCHUGH Circuit Judges.
MATHESON, Circuit Judge.
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.
jurisdiction under 29 U.S.C. § 660(a), we affirm and
deny the petition to review.
imports fireworks from China, packages them in trays with
launch tubes, and sells them as kits to customers.
The Old Facility Fire
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
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.
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.
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.
Investigations and Issuance of the Citation
Fire Investigator Michael Tippie's investigation
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
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.
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
Compliance Safety and Health Officer Ryan Hodge's
investigation and issuance of citation
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.
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.
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.
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.
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. The three violations challenged
in this appeal were for violating 29 C.F.R.:
(1)§ 1910.109(b)(1), improper storing and handling of
(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
Relevant Safety and Health Standards and Proving a
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
The Three Safety and Health Standards
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). 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).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. §
29 C.F.R. § 1910.178(c)(2)(vii) - use of designated
trucks around combustible dust
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).
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.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).
29 C.F.R. § 1910.1200(e)(1) - hazard communication
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).
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).
Establishing a Safety and Health Standard
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.
to establish a safety and health standard violation, the
Secretary must demonstrate by a preponderance of the
(1)the applicability of the standard,
(2)the employer's noncompliance with the terms of the
(3)employee access to the violative condition, and
(4)the employer's actual or constructive knowledge of the
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).
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. The parties
submitted briefs for a trial before an OSHRC ALJ. On the
three violations raised in this appeal, Jake's argued
(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)§ 1910.1200(e)(1) does not apply because Jake's
fireworks were "articles," exempting it from the