The company is a fuel filtration and tank cleaning company. In December 2014, an employee was found unresponsive and later died from gasoline inhalation while cleaning tanks at a construction site in Daytona Beach, Florida. Following the incident, OSHA conducted an inspection and issued an 11- item serious citation for violations of 29 C.F.R. § 1910.23(a)(6) for failure to guard an open manhole; various subparts of § 1910.134 for deficiencies in its respirator program; and various subparts of § 1910.146 for failure to protect its employees from hazards associated with confined spaces. The Secretary proposed a total penalty of $13,600.00 for the Citation. All of the violations are at issue. The only issue before us is whether Administrative Law Judge Heather A. Joys erred in finding that the cited general industry standards in four of these citation items—Item 1 (failure to guard an open manhole) and Items 3a-3c (permit-required confined spaces)—apply to work at the “construction site”. Specifically, the judge rejected the company’s argument that it was engaged in “construction work” and affirmed all but one of these items as violations of the cited general industry standards with a penalty of $6,600. For the following reasons, we reverse the judgment and vacate all four citation items.
NOTE: PLEASE recognize this is a LEGAL DECISION and has NOTHING to do with actual safety. This incident occurred BEFORE OSHA had their Confined Spaces in Construction standards, 1926.1201-.1213, in place and today these standards would be used in a situation like this. A man died inside a PRCS from gasoline vapors – as a safety professional, whether this was a construction site or a general industry worksite does matter whatsoever to me.
BACKGROUND
RaceTrac, a large fuel retailer and convenience store operator, hired the company to clean newly installed underground fuel tanks at a new RaceTrac being built in Daytona Beach, Florida. Under construction at the RaceTrac worksite was a retail store and a gas station. To prepare the fuel tanks for storing and dispensing fuel to customers, the company removes any water, rust, and construction debris remaining inside the tanks as a result of the installation process. This requires a two-person crew to make three separate visits to the work site. In the briefing notice, the Commission also requested that the parties “address whether—if the judge did not err in finding violations of the general industry standards cited in Citation 1, Items 3(b) and (c)—the violations should be grouped for penalty purposes.” Because we vacate both items, this issue is moot.
The judge vacated Item 3a on the basis that the Secretary failed to establish noncompliance with the cited provision. Because we find that the cited general industry standard does not apply, we vacate the item on that basis.
However, we do not disturb the judge’s findings with respect to Items 2a-2g. These items all involve alleged violations of the respiratory protection standard, 29 C.F.R. § 1910.134, which expressly states in its introductory language that it “applies to General Industry . . . and Construction” work. 29 C.F.R. § 1926.103 (“The requirements applicable to construction work under this section are identical to those set forth at 29 CFR 1910.134 of this chapter.”).
The company refers to its work on a gas station under construction as a “construction project.” The company also performs tank cleaning work that it refers to as a “retail project.” Retail projects involve cleaning already operational tanks when they become contaminated by water or other impurities or, less often, when they are mistakenly filled with the wrong type of fuel by a supplier (e.g. a diesel tank is filled with gasoline). Retail projects are typically completed in one visit and involve cleaning only one tank. On the first visit, which occurs the day before the initial fuel delivery, the crew verifies that the tanks have been installed, a concrete tank pad has been poured over them, and any water has been removed. The following day, the fuel supplier partially fills the tanks and the crew then filters the fuel to remove construction debris (such as pea gravel), rust, and hard water stains. The third and final visit occurs during the week prior to opening, after the tanks have been filled with fuel. The crew again filters the fuel to remove any smaller, finer materials remaining in the tanks. In addition, the crew checks that each type of fuel is in the correct tank, and if not, transfers the fuel to the correct tanks.
During the crew’s second visit to the RaceTrac work site, one of the crew members was found unresponsive inside one of the regular fuel tank’s subterranean, or submersible, turbine pump (STP) wells after apparently having fallen in, and he later died from the effects of gasoline inhalation. As a result of the accident, the company did not finish cleaning the tanks, and the fuel in the unfinished tanks failed Florida state standards and could not be sold after the opening of the RaceTrac.
The STP wells were five feet, five inches deep and approximately 26 inches in diameter. Although the crew accessed the tanks through the STP wells and other openings, they conducted all of their work from above on the surface of the tank pad. Based on the record, no one witnessed how exactly the crew member ended up in the well.
DISCUSSION
“It is well established that OSHA’s construction standards, rather than any comparable general industry standards, cover activities that constitute ‘construction work’ under 29 C.F.R. § 1910.12.”
“Construction work,” is defined as “work for construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1910.12(b).
The Commission has consistently held that “construction work” also encompasses “related activities that are an integral and necessary part of construction work.”
Here, the judge concluded that Clean Fuels’ work was neither necessary nor integral to the construction of the RaceTrac because, in her view, it could be completed after construction was finished, as demonstrated by the fact that the RaceTrac opened before the company finished cleaning all of the tanks. Relying on the Commission’s decision in Royal Logging Co., the judge also concluded that the company’s work was not construction work because it was “ancillary to and in aid of a non[-]construction function”—specifically, selling fuel. On review, the Secretary defends these findings, while Clean Fuels maintains that “the entire purpose of constructing the [RaceTrac’s] gas station [was] to sell fuel” and therefore its work was absolutely “an integral or necessary part of the construction” project.
We agree with the company. In determining that their work was not “necessary and integral” to the construction of the RaceTrac, the judge conflated the opening of the RaceTrac “retail store” with completion of the construction project as a whole, which also included the gas station. But construction of the RaceTrac was not complete until the company completed its “part of the total work.” It is clear from the record that the gas station could not “beg[i]n production” until they finished cleaning all the tanks. Indeed, unrebutted testimony from multiple employees, including the Safety Director, establishes that cleaning the tanks to remove rust, water, and construction debris is necessary to prepare them to properly store fuel prior to operation and that until they completed this process, the RaceTrac could not lawfully dispense fuel from all the tanks.
We are also not persuaded by the judge’s reasoning that their work on the tanks was ancillary to the sale of fuel, which she viewed as a “non[-]construction function” akin to the work at issue in Royal Logging. In that case, the Secretary argued that “building trails, roads, and bridges” to effectuate the delivery of cut logs for a logging operation constituted construction work. The Commission disagreed, finding that the logging operation itself was not construction and as such, there was no construction work to which the road-building activity could be integrally related. In contrast, there is no dispute here that construction of the RaceTrac was ongoing at the time the alleged violations occurred. As the judge herself noted, Clean Fuels was performing its work “on an active construction site.”
In short, the company’s’ work did not occur in support of the RaceTrac’s existing fuel operations. Rather, they performed its work so that the RaceTrac could commence fuel operations. Therefore, because their work was “inextricably linked” to the construction of the RaceTrac, it qualifies as “construction work.” Accordingly, we conclude that the cited general industry standards do not apply to the company’s work and therefore vacate all four citation items at issue on review.
SO ORDERED.
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