General duty clause citation in truck-yard explosion vacatedPosted On: Mar. 27, 2019 2:43 PM CST
The Occupational Safety and Health Review Commission vacated a general duty clause citation and $7,000 proposed penalty issued after an explosion occurred at a truck yard.
The U.S. Occupational Safety and Health Administration issued Quick Transport of Arkansas LLC a one-item serious citation alleging a violation of the Occupational Safety and Health Act’s general duty clause, claiming that the company exposed its employees to an explosion hazard by allowing them to use a propane torch to thaw frozen valves on vacuum truck trailers used in fracking operations, according to the decision in Secretary of Labor v. Quick Transport of Arkansas LLC, released on Wednesday.
Following a hearing, an administrative law judge vacated the citation on the ground that the Secretary of Labor failed to prove that Quick Transport’s valve-thawing practice presented an explosion hazard. On review, the secretary argued that the law judge erred in requiring the secretary to prove “the actual, definitive existence of flammable vapors or hydrocarbons at Quick Transport’s worksite,” according to the decision.
To prove a violation of the general duty clause, the secretary must establish four elements: that a condition or activity in the workplace presented a hazard, that the employer or its industry recognized the hazard, that the hazard was causing or likely to cause death or serious physical harm and that a feasible and effective means existed to eliminate or materially reduce the hazard.
“Having failed to prove that Quick Transport’s valve-thawing practice posed an explosion hazard and that the company or its industry recognized that the practice posed a hazard, we conclude that the Secretary has not established a violation of the general duty clause,” Commissioners Heather MacDougall and James Sullivan said in vacating the citation.
Commissioner Cynthia Attwood concurred with the decision to vacate the citation because she agreed that the Secretary did not establish that Quick Transport or its industry recognized that the company’s valve-thawing practice posed an explosion hazard.
“I disagree, however, with their finding that the Secretary also failed to establish that Quick Transport’s practice posed an explosion hazard,” she said.
An attorney for the company could not be immediately reached for comment.
The review commission has recently issued rulings in a number of cases involving OSHA’s use of the general duty clause to cite employers, particularly in relation to exposures such as heat stress or workplace violence in the health care and social services sectors where the agency has not issued a specific standard.