## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 7 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAFEWAY, INC.,

Petitioner,

v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,

Respondent. No. 03-9546

Petition for Review of a Final Order of the Occupational Safety and Health

Review Commission (OSHRC No. 99-0316)

James J. Gonzales, Holland & Hart, LLP, Denver, Col orado, for Petitioner. Ronald Gottlieb, Attorney, Office of the Solicitor, U.S. Department of Labor (Howard M. Radzely, Acting Solicitor of Labor, Jose ph M. Woodward, Associate Solicitor for Occupational Safety and Health, Ann R osenthal, Counsel for Appellate Litigation, with him on the brief), Washi ngton, D.C., for Respondent.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

MURPHY , Circuit Judge.1 Under 29 U.S.C. § 661(j) the order of the ALJ beco mes the final order of

the Commission unless within 30 days of the order any member of the Commission has directed review. Accordingly, upon the vacatur of the Commission’s grant of discretionary review the ALJ’ s decision became a final appealable order. -2- I. INTRODUCTION After an accident involving a propane grill occurre d at the petitioner’s bread-baking plant, the Secretary of Labor conducte d an inspection and issued a citation for a violation of the general duty clause of the Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C. § 654(a)( 1). The citation was later amended to allege, alternatively, a violation of 29 C.F.R. § 1910.101(b). Petitioner, Safeway, Inc., (“Safeway”) contested th e citation. After a hearing, the Administrative Law Judge (“ALJ”) affirmed the violation of the general duty clause and Safeway filed a petition for discretiona ry review by the Occupational Safety and Health Review Commission (“the Commissio n”). The Commission granted review. When the two sitting Commissioners decided they could not agree on the appropriate resolution of the case, th ey vacated the decision to grant review and the ALJ’s order became the final order o f the Commission. 1 Safeway filed a petition for review in this court. We have jurisdiction under 29 U.S.C. § 660(a) and affirm the ALJ’s decision.-3-

II. BACKGROUND Safeway operates a bread-baking facility in Denver, Colorado. Safeway periodically holds company-sponsored outdoor barbec ues for its employees. Safeway purchased a gas grill equipped with a twenty-pound propane tank for the barbecues. To ensure that the grill had sufficientgas for the barbecues, Safeway purchased a forty-pound tank. These larger tanks h ave a warning label which states they should not be used with a grill ordinar ily equipped with a twentypound tank. Safeway planned to hold an employee barbecue for Ju ly 17, 1998. The plant superintendent, Edward Boone, instructed the plant engineer, Jerry Lewis, to set up the grill for the barbecue. Upon being info rmed the grill was not adequately cooking the meat, the plant manager, Jim R. Kirk, again summoned Lewis. Lewis and the day-shift maintenance foreman , Fred Lake, attempted to improve the flow of gas to the grill by checking th e regulator and repositioning the tank. While Lewis and Lake were working on the grill, fuel escaped and a “ball of fire” erupted. Lewis suffered severe burn s to his hand and Lake’s facial hair was singed. After the accident, the Occupational Health and Saf ety Administration (“OSHA”) investigated the accident and issued a cit ation. The citation alleged that Safeway had violated the general duty clause b y exposing employees to “the release and ensuing fire of propane due to the impr oper use of a gas hose and-4-

regulator assembly in combination with a 40 pound c ylinder.” OSHA later amended the citation to include the alternative all egation that Safeway had violated 29 C.F.R. § 1910.101(b) which requires a c ompressed gas cylinder to be “properly supported to prevent it from being knocke d over.” 29 C.F.R. § 1910.101(b) (incorporating provision of the Compres sed Gas Association Pamphlet P-1-1965). After holding a hearing, the ALJ determined that § 1910.101(b) was not applicable, but affirmed the citation on the basis of the general duty clause.
III. DISCUSSION
A. Standard of Review The parties disagree over the standard of review ap plicable to this case. Ordinarily, we review the Commission’s factual find ings for substantial evidence and affirm its legal conclusions unless they are ar bitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Tierdael Constr. Co. v. Occupational Health & Safety Review Comm’n , 340 F.3d 1110, 1114 (10th Cir. 2003). The Agency asserts that we should apply that standard here as well. Safeway argues that because the Commission vacated its order granting review, the ALJ’s decision is unreviewed and, there fore, the ALJ’s decision is not “precedential or binding on the Commission or Court .” Safeway does not make clear what implications that conclusion would have for our review. Safeway does not assert that we should apply de novo review to t he ALJ’s decision and makes2 See, e.g., Fabi Constr. Co. v. Sec’y of Labor , 370 F.3d 29, 35 n.7 (D.C.

Cir. 2004). Recently, this court noted that an unreviewed ALJ’s decision was not binding on the Commission. Olson v. Federal Mine Safety & Health Review Commission , No. 03-9528, slip op. at 14 (10th Cir. August 24, 2004) (“To support her contention that a reasonable fear of retaliatio n would justify delay in filing a complaint, Complainant cites Allen v. UNC Mining and Milling , 5 FMSHRC 30 (1983). That decision is not entitled to deference , however, because the Commission did not review the ALJ’s decision, and the decision is therefore not binding precedent under the Commission’s rules.” (c itation omitted)). Like the -5- no attempt to articulate what, if any, deference wo uld be due the ALJ’s factual findings or conclusions of law. We decline to adopt a new standard of review simply because we are reviewing an ALJ’s decision as opposed to the decis ion of the Commission. The authorities cited by Safeway in support of its argu ment either note the use of the ordinary standard or state that given a conflict be tween the Commission and the ALJ, we will review the Commission’s decision, not the ALJ’s decision, under the ordinary deferential standard of review. See, e.g., Dep’t of Labor v. Occupational Safety & Health Review Comm’n, 938 F.2d 1116, 1117-18 (10th Cir. 1991) ; CCI, Inc., v. Occupational Safety & Health Review Comm’n , 688 F.2d 88, 89 (10th Cir. 1982). The former proposition does not support Saf eway’s assertion and the latter is irrelevant to this case. While we recognize that in the context of addressin g a conflict between the decision of the Commission and unreviewed ALJ decis ions, other circuits have referred to unreviewed ALJ decisions as “non-bindin g,” 2 that says nothing aboutcases from other circuits mentioned above, this hol ding in Olson is unrelated to

the issue we confront here. It does not bear on th e question of what standard of review should be applied to an ALJ’s decision when that decision is the final order of the Commission under review. -6- what standard should apply when reviewing an ALJ’s decision that has become the final order of the Commission. Instead, the st atute provides the appropriate guidance on the issue. Under 29 U.S.C. § 661(j), t he ALJ’s decision becomes the final order of the Commission, unless a member of t he Commission directs review within thirty days from the issuance of the decisio n. 29 U.S.C. § 660(a) requires that the factual findings of the final order of the Commission be reviewed using the substantial evidence standard. Likewise, the c ase law instructs this court to affirm the legal conclusions of the Commission unle ss those conclusions are arbitrary, capricious, an abuse of discretion, or o therwise not in accordance with the law. Tierdael Constr. Co. , 340 F.3d at 1114. Because the ALJ’s order in thi s case became the final order of the Commission when the Commission vacated its grant of review, the ordinary statutory scheme shou ld apply. Adopting Safeway’s approach would require a plenaryreview in all cases where the Commission has itself declined review and thus would dispense with the deference usually accorded agency decisions. D oing so would be contrary to the plain language of the statute. Accordingly, we reject Safeway’s argument and utilize the standard articulated above.-7-

B. Place of Employment Safeway argues that the Act and its regulations do not apply in this case because the alleged violation did not constitute a condition “with respect to employment performed in a workplace,” as is require d by the Act. 29 U.S.C. § 653(a). Safeway argues that the outdoor barbecue w as a voluntary employee function and not a condition of employment and, the refore, applying the protections of the Act in this case would impermiss ibly expand the scope of the Secretary’s regulatory jurisdiction. Safeway’s arg ument, however, ignores the factual context of this case. Safeway does not dis pute that Lewis was “working” when he was instructed to assure the grill was func tioning properly for the barbecue. Lewis was at Safeway’s facility for workand was instructed by his superior to attend to the grill. Those facts are s ufficient to support the applicability of the Act. Anthony Crane Rental, Inc. v. Reich , 70 F.3d 1298, 1303 (D.C. Cir. 1995) (holding that a place where an emp loyee works is a place of employment for the purposes of the act); Cf. Baroid Div. of NL Indus., Inc., v. Occupational Safety & Health Review Comm’n , 660 F.2d 439, 445-46 (10th Cir. 1981) (affirming a citation where employee was work ing at a third party’s workplace). C. Specific Standards Safeway asserts that the Secretary must demonstrate that th ere are no specific standards applicable to the cited conditio n before it can issue a citation-8-

under either the general duty clause or 29 C.F.R. § 1910.101(b). According to Safeway, the Secretary would be required to survey the regulations and demonstrate the inapplicability of any regulation t hat might be relevant to the cited condition. The regulations, however, suggestthat the specific standards function as an affirmative defense. Cf

. Bristol Steel & Iron Works, Inc. v. Occupational Safety & Health Review Comm’n , 601 F.2d 717, 720-22 (4th Cir. 1979) (discussing the relationship of the general duty cl ause and specific regulations); 29 C.F.R. § 1910.5(f). If an employer demonstrates that a specific standard permits the cited condition and compliance resolves any obvious hazard to employees, there is no general duty clause violation. 29 C.F.R. § 1910.5(f) (“An employer who is in compliance with any standar d in this part shall be deemed to be in compliance with the requirements of [the general duty clause], but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.”).3 29 C.F.R. § 1910.110 covers the storage and handli ng of liquified

petroleum gases. Safeway asserts that it was in co mpliance with § 1910.110(c)(4) which concerns containers of gas “installed outside of buildings or structures.” The Secretary disputes the applicability of the § 1 910.110 arguing that it does not apply to low-pressure systems like the one in use h ere. Safeway also argues that § 1910.101 and § 1910.106 are applicable. Safeway asserts that the Secretary admitted the app licability of these sections. While it is true that the Secretary stated these re gulations address the handling and storage of propane, that does not indicate an a dmission that these regulations should apply to the specific condition cited in thi s case. Safeway does not indicate what specific requirements of these sectio ns would apply to the condition at hand. In addition, it makes no argument to show that it complied with the requirements of these sections. Accordingly, we re ject Safeway’s argument on this point. -9- In this case, Safeway argues that it complied with 29 C.F.R. § 1910.110. 3 Where the employer has knowledge of an obvious haza rdous condition, however, compliance with specific standards failing to addre ss the hazard does not relieve the employer of the responsibility under the genera l duty clause to provide its employees with a place of employment which is free from recognized hazards. UAW v. General Dynamics Land Sys. Div. , 815 F.2d 1570, 1577 (D.C. Cir. 1987). The general duty clause states: Each employer -- (1) shall furnish to each of his e mployees employment and a place of employment which are free from recognized hazards that are causing or are likely t o cause death or serious physical harm to his employees; (2) shall c omply with occupational safety and health standards promulgate d under this chapter. 29 U.S.C. § 654(a). Therefore, the plain language of the statute and its structure indicate that an employer’s duty to provide a safe working environment extends-10-

beyond compliance with specific safety and health s tandards that are included in regulations promulgated under the act. Id . at 1575-76; Bristol Steel & Iron Works , 601 F.2d at 720-22. None of the regulations identified by the parties i n this case addresses one of the obvious hazards identified by the Secretary and the ALJ: the use of a fortypound tank with a grill designed for twenty-pound t anks. Thus, Safeway cannot argue that compliance with any of the regulations w ould have permitted the cited condition and we must examine the ALJ’s conclusion that the cited condition was a violation of the general duty clause. D. The General Duty Clause Violation The ALJ concluded that the use of a forty-pound tan k with an ordinary grill was a violation of the general duty clause. To sho w a violation of the general duty clause, the Secretary must prove (1) that the employer failed to render its workplace free of an obvious and recognized hazard, (2) the hazard was causing or likely to cause death or serious physical harm, and (3) there was a feasible method by which the employer could have abated the hazard. Baroid Division of NL Indus., Inc. , 660 F.2d at 444. As the ALJ noted, the forty-pound tank itself inclu ded warnings against using such a tank with a grill designed for twenty- pound tanks. In addition, the instructions supplied with the grill indicate that the propane tank should be installed underneath the frame of the grill so thatthe “bottom ring [of the tank]4 Safeway asserts that the “use of a portable propa ne cylinder with an

outdoor gas grill for consumer recreational purpose s[] is not a recognized hazard within the bread baking industry,” and, therefore, there was no recognized hazard in this case. That argument is specious. Safeway cannot ignore the presence of an obviously hazardous condition by asserting that its industry is ignorant of such hazards. Cf. Tri-State Roofing & Sheet Metal, Inc. v. Occupa tional Safety & Health Review Comm’n , 685 F.2d 878, 880-81 (4th Cir. 1982) (holding that the Commission can determine an obvious hazard is recog nized without evidence of industry practice). -11- rests in notches in the tank support strap.” A Saf eway supervisor authorized both the purchase of the tank and the purchase of the gr ill. Safeway supervisors were aware that the tank was too large to fit underneath the grill. Moreover, Safeway supervisors were aware that the tank could not be attached to the grill without a special adapter. Accordingly, there was substantia l evidence to support the ALJ’s finding that the use of the forty-pound tank was a recognized hazard and that Safeway was aware of the hazard. 4 Likewise, there is substantial evidence supporting the ALJ’s conclusion that using the forty-pound tank was likely to cause serious injury. The fortypound tank was difficult to connect to the grill. Because of the size of the tank, it had to be tipped against the frame of the grill to facilitate connection to the grill. In addition, a number of relevant safety standards recognize that failing to properly secure a tank creates a danger. Finally, it is clear that Safeway could have eliminated the hazard of using a forty-pound t ank with the grill by simply using a twenty-pound tank. Accordingly, we conclud e that the ALJ’s decision5 Safeway also asserts that the cause of the acciden t in this case was

unforeseeable conduct by an employee, namely Lewis, under the influence of narcotics. Assuming that Safeway has shown suffici ent evidence to support this assertion, the cause of the accident in this case i s does not bear on whether the citation should be affirmed. Dye Constr. Co. v. Occupational Safety & Health Review Comm’n , 698 F.2d 423, 426 (10th Cir. 1983) (“The relevantinquiry is not the proximate cause of this particular accident, bu t the risk of accident or injury as a result of the alleged violations and the serio usness of the potential injuries.”). Unforeseeable employee conduct can be a defense onl y where the unforeseeable conduct creates the condition leading to the allegation of a violation. Cf. Capital Elec. Line Builders of Kan., Inc. v. Marshall , 678 F.2d 128, 129 (10th Cir. 1982); Austin Bldg. Co. v. Occupation Safety & Health Revi ew Comm’n , 647 F.2d 1063, 1067-68 (10th Cir. 1981). Safeway has not alleged that unforeseeable conduct caused the use of the forty-pound tank with the gri ll. -12- was not arbitrary or capricious, an abuse of discre tion, or otherwise not in accordance with the law. 5
IV. Conclusion For the reasons stated above, we affirm the issuance of the citation.