Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket No. 15-0260 

 

Appearances:

Justin H. Whitten, Esq. & Megan J. McGinnis, Esq., Department of Labor, Office of Solicitor, 

Kansas City, Missouri

 For Complainant

Michael E. Baker, Esq. & Eric Clawson, Esq., Jake’s Fireworks, Inc., Pittsburg, Kansas

 For Respondent 

Before: Administrative Law Judge Peggy S. Ball

DECISION AND ORDER

I. Procedural History

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 659(c) (“the Act”). On August 12, 2014, two of Respondent’s employees were 

unloading old fireworks from storage containers located at 689 South 69 Highway, Pittsburg, 

Kansas, which was Respondent’s former base of operations. The site was being cleaned up in 

order to prepare for a new tenant. (Tr. 166–67). While the employees were unloading the last 

storage container, a fire broke out inside the container. (Tr. 124). Both employees were badly 

burned, and, unfortunately, one of them passed away as a result of his injuries. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

JAKE’S FIREWORKS, INC.,

 

 Respondent.
2

Complainant received notice of the incident and dispatched Compliance Safety and 

Health Officer (“CSHO”) Ryan Hodge the next day to conduct an inspection of Respondent. (Tr. 

196–97). When he arrived at Respondent’s current base of operations, CSHO Hodge learned 

that the Bureau of Alcohol, Tobacco, and Firearms and the Kansas State Fire Marshall’s office 

had already been to the site of the accident and were concluding a meeting with Respondent’s 

management. (Tr. 200–201). After that meeting, CSHO Hodge opened an inspection of 

Respondent, which included traveling to the location of the fire and conducting interviews. (Tr. 

201–204). Based on CSHO Hodge’s findings, Complainant issued a Citation and Notification of 

Penalty (“Citation”) to Respondent, alleging nine serious violations and one other-than-serious 

violation of the Act, with a total proposed penalty of $55,000.00. Respondent timely contested 

the Citation. 

On February 9, 2016, Complainant filed a Motion to Amend Complaint, which sought to 

amend Citation 1, Items 1 through 5 to a single violation of 29 C.F.R. § 1910.109(b)(1). The 

following changes were also sought: (1) the renumbering of Citation 1, Items 6, 8, and 9; (2) the 

withdrawal of Citation 1, Item 7; (3) amendment of the violation description in Citation 1, Item 8 

(to be renamed as Citation 1, Item 3); and (4) adjustment of the total proposed penalty to 

$24,000.00. Respondent did not object to the filing, nor did it file a response to the Motion to 

Amend. Accordingly, the Court granted the Motion. Subsequently, Respondent filed an Answer 

to the Second Amended Complaint on March 5, 2016. 

 The trial took place on May 3–4, 2016, in Kansas City, Kansas. The following witnesses 

testified: (1) Kansas State Fire Marshall Michael Tippie; (2) CSHO Ryan Hodge; (3) [redacted], 

an employee of Respondent; and (4) Scott Moutz, Respondent’s Production Manager. Both 

parties timely submitted post-trial briefs. 
3

II. Jurisdiction

The parties submitted a Joint Stipulation Statement, which was read into the record. (Tr. 

17–20). The stipulations state that Respondent is an employer engaged in a business affecting 

commerce within the meaning of section 3(5) of the Act and that the Occupational Safety and 

Health Review Commission has jurisdiction of this proceeding pursuant to Section 10(c) of the 

Act. (Tr. 17–19; Ex. J-1). 

III. Factual Background

Respondent imports bulk consumer fireworks from China to its storage facility located at 

1500 East 27th Terrace, Pittsburg, Kansas, which Respondent also refers to as the Superior 

Building. (Tr. 155–56). According to its production supervisor, Jason Moutz, after receiving the 

bulk fireworks, Respondent stores them in its warehouse facility. (Tr. 156). The fireworks 

packages are ultimately broken down and re-packaged into kits by Respondent’s production unit. 

(Tr. 156). For example, Moutz discussed how a specified number of artillery shells (a type of 

firework) are combined with launch tubes in individual packages, which are further packaged

into cardboard shippers and sent to Respondent’s customers. (Tr. 154–55). 

Before Respondent moved to its current location at the Superior Building, Respondent 

owned and operated out of a facility located at 689 South 69 Highway, also in Pittsburg, Kansas. 

(Tr. 158). The old facility is located approximately two miles from the Superior Building, and it 

takes about 10 minutes to travel in between each location. (Tr. 158). The Highway 69 facility is

comprised of two warehouse buildings and several hundred storage containers. (Tr. 159–60; Ex. 

C-20 at 3). When the Highway 69 facility was in operation, the warehouse was stocked with 

fireworks brought in from the storage containers, and customer orders for fireworks would be 

pulled from the warehouse. (Tr. 159–60). However, since Fall 2012, the Highway 69 facility had 
4

been vacant, except for the storage containers, which were used for storing old cardboard boxes 

and fireworks that were no longer sold. (Tr. 156–57). According to Moutz, “It basically was 

kind of an out-of-sight, out-of-mind thing. We was cleaning it, you know, but we hadn’t been 

there in 15 months. Stuff had got left there.” (Tr. 163).

Approximately 12 to 15 months after Respondent moved to the Superior Building, a new 

tenant was slated to take over at the Highway 69 facility, which required a clean-up. (Tr. 166–

67). Respondent selected Scott Moutz to supervise the clean-up, who, in turn, selected 

[redacted] and [redacted] to empty the storage containers, which contained cardboard, debris, 

and damaged and/or old fireworks. (Tr. 122–23, 166). Moutz referred to [redacted] as his righthand man and further relayed that [redacted] and [redacted] did not require significant 

supervision. (Tr. 154). Moutz said he looked inside the bunker at issue before [redacted] and 

[redacted] began work, and claims only to have seen a partial pallet of fireworks and some 

cardboard; though he admits that he would not characterize what he did as an “inspection”. (Tr. 

167–68). 

[redacted] and [redacted] clocked in at the Superior Building around 8:00 a.m. on August 

12, 2014. (Tr. 119). [redacted] testified that he and [redacted] were directed by Moutz to unload 

“bunkers”1 at the Highway 69 facility, just as they had done during the previous two or three 

days. (Tr. 121–22). [redacted] drove to the Highway 69 facility in a forklift accompanied by 

[redacted] in a company vehicle. (Tr. 123–24). [redacted] was wearing a tank top, shorts, and 

tennis shoes, while [redacted] was wearing a t-shirt, jeans, and steel-toed boots.

2 (Tr. 127). After 

they arrived around 9:00 a.m., [redacted] and [redacted] began to unload bunkers using the 

 

1. The term “bunker” refers to the storage containers located at the Highway 69 facility. 

2. Their supervisor, Moutz, also testified that he has been wearing T-shirts and shorts to unload fireworks for years. 

(Tr. 186). 
5

forklift. (Tr. 126). According to [redacted], he and [redacted] would take turns operating the 

forklift, lifting pallets of cardboard, shippers, and fireworks, while the other would steady the 

load from the side. (Tr. 127–28, 132). This process continued until their lunchbreak, and 

resumed until approximately 2:35 p.m., when a fire broke out as they were emptying the last 

bunker. (Tr. 125, 167). 

According to [redacted], he was steadying a load of Excalibur 6-inch artillery shells while 

[redacted] was attempting to pick up the load with the forklift. (Tr. 128). [redacted] recalled the 

inside of this particular bunker contained five pallets of Excalibur shells, with each pallet 

containing 24–32 packages of 10-shell packages, and an additional pallet of either Treasures

(another firework) or shippers, though he could not remember which. (Tr. 128–129). [redacted]

testified that the bunker had exposed metal plates and nails. (Tr. 131; Ex. C-3). The fireworks

inside were also in poor condition—[redacted] said many of the Excalibur shells were “rotting 

out and gun-powdered away, mildew” and that he observed “quite a bit” of gunpowder spilled on 

the floor. (Tr. 139, 149). 

As [redacted] and [redacted] were in the process of picking up a pallet, [redacted] noticed 

a spark underneath the forklift; after that he could not recall any details. (Tr. 132). Moutz, who 

was stationed at the back dock, testified that he heard the report of a Saturn missile, which is an 

aerial, exploding firework. (Tr. 178). At that point, he took off running towards the bunker, 

which was roughly 100 yards away. (Tr. 178). When he arrived, [redacted] came running out of 

the bunker on fire, followed shortly thereafter by [redacted]. (Tr. 179). Two other employees 

who were on site ran to get help. (Id.). [redacted] suffered severe burns as a result of the fire, and 

[redacted] died as a result of his injuries. 
6

Fire Investigator Michael Tippie of the Kansas State Fire Marshall’s office was called to 

the scene by the Crawford County Sherriff’s Office on the day of the fire. (Tr. 44). When he 

arrived, Crawford County law enforcement and the fire department were on scene. (Tr. 45). As 

he walked the scene of the incident, Fire Investigator Tippie saw the forklift at the south end of 

the bunker. (Tr. 45). Just outside the bunker, Fire Investigator Tippie saw cardboard scattered 

around the area, some of which was burned, some of which was not, and some of which 

indicated that the contents were, in fact, 1.4G Consumer Fireworks.

3 (Tr. 46; Ex. 19 at 10–11). 

He also observed fireworks on the ground in various states of damage: some were undamaged 

and some were consumed but for the launch tube and binder clay. (Tr. 46; Ex. 19 at14–15; Ex. 

21). A lot of fireworks had become impacted in the space between the fork and the mast of the 

forklift and more were found underneath the forklift when it was removed from the bunker, 

which had melted down almost completely to the steel ribs. (Tr. 46, 50; Ex. 19 at 15). Prior to 

the forklift being removed, Fire Investigator Tippie observed that the left fork of the truck was 

positioned directly over the previously mentioned steel plate and exposed nail. (Tr. 70). 

In addition to reviewing the location of the actual fire, Fire Investigator Tippie also 

reviewed the state of other bunkers on the property, as well as the loading dock area. (Tr. 61). 

Many of the bunkers were unswept and littered with debris, some had fireworks randomly on the 

ground, and one bunker in particular had a large pile of undamaged fireworks pushed up into the 

corner. (Tr. 61–62; Ex. C-19 at 17, 18). The loading dock also had fireworks “here and there” on 

the ground, some of which were heavily damaged from being driven over by a vehicle. (Tr. 61). 

Although Fire Investigator Tippie did not do a chemical analysis of the powder that he found on 

the floor of the exemplar containers and on the ground, he concluded the material was 

 

3. He later testified that at least some of the material had been pulled from the container by the fire department. (Tr. 

50). 
7

pyrotechnic based on the MSDS sheet generated by Respondent, which did not provide specific 

chemical composition. (Tr. 94, 100, Ex. C-10). In response to cross-examination about the 

contents of the subject container prior to the accident, Fire Investigator Tippie pointed to the 

1.4G product that he found underneath the right front tire of the forklift, which was exposed 

when the forklift was removed from the container after the fire occurred. (Tr. 95). 

The Bureau of Alcohol, Tobacco, and Firearms also came to the worksite. (Tr. 200). As 

noted above, the ATF agents performed a close-out meeting with Respondent and even issued a 

report. (Ex. C-23). After providing CSHO Hodge with their business cards, however, ATF did 

not again participate in any inspection or subsequent regulatory action. (Tr. 201). 

The day after the fire, CSHO Hodge performed an inspection and conducted interviews. 

As a result of his inspection, CSHO Hodge recommended that citations be issued to Respondent 

for multiple violations of the Act. On January 20, 2015, OSHA issued a Citation and Notification 

of Penalty, which was subsequently amended as described above. The Court shall address each 

violation and the parties’ respective positions below. 

IV. Discussion

A. Applicable Law

To establish a violation of an OSHA standard pursuant to Section 5(a)(2) of the Act, 

Complainant must prove: (1) the standard applies to the facts; (2) the employer failed to comply 

with the terms of the standard; (3) employees were exposed to the hazard covered by the 

standard, and (4) the employer had actual or constructive knowledge of the violation (i.e., the 

employer knew or, with the exercise of reasonable diligence, could have known of the violative 

condition). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). 
8

Complainant has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). 

“Preponderance of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free 

the mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014) (emphasis added). 

B. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1910.109(b)(1): Explosives or blasting agents were stored, handled, 

and/or transported when such storage, handling, or transporting of such explosives 

or blasting agents constituted an undue hazard to life: 

On or about 8/12/2014, at the workplace located at 689 S. Highway 69, Pittsburg, 

KS: Employees engaged in material handling activities in and near container 155 

were exposed to fire and struck-by hazards in that the storage and handling of 

these explosives constituted an undue hazard to life.

See Second Amended Complaint at 3. 

The cited standard provides: 

No 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.

29 C.F.R. § 1910.109(b)(1). 

1. The Standard Applies

The scope and application paragraph of section 1910.109 states: 

This section applies to the manufacture, keeping, having, storage, sale, 

transportation, and use of explosives, blasting agents, and pyrotechnics. The 

section does not apply to the sale and use (public display) of pyrotechnics, 

commonly known as fireworks, nor the use of explosives in the form prescribed 

by the official U.S. Pharmacopeia. 
9

29 C.F.R. § 1910.109(k). An “explosive” is defined as “any chemical compound, mixture, or 

device, the primary or common purpose of which is to function by explosion, i.e., with 

substantially instantaneous release of gas and heat . . . . The term “explosives” shall include all 

material which is classified as Class A, Class B, and Class C explosives by the U.S. Department 

of Transportation.” Id. § 1910.109(a)(3). The U.S. Department of Transportation no longer uses 

the A, B, and C classification systems; instead it uses a system of classification codes and 

compatibility groups. See 49 C.F.R. §§ 173.50(b), 173.52 (defining Class 1 explosives and 

further categorizing the classification codes and compatibility groups). The regulations found at 

49 C.F.R. Chapter I are incorporated by reference into the Act’s definition of “explosive”. See 29 

C.F.R. § 1910.109(a)(3) (citing 49 CFR chapter I). As such, revisions to the DOT standard are 

applicable to such definitions under the Act. 

Under the DOT’s previous classification system, Respondent’s fireworks would be 

characterized as Class C explosives. (Tr. 20). The current DOT regulations now classify the 

same consumer fireworks as 1.4G explosives and are further identified by the subcategory 

UN0336. See 49 C.F.R. § 173.53; (R-7 at 4). Respondent admits that it imports, stores, and 

distributes 1.4G, UN0336 consumer fireworks, but that it does not manufacture the fireworks 

themselves or mix the chemicals contained therein. See Respondent’s Proposed Findings of Fact 

and Conclusions of Law (citing Tr. 20, 171).

As stipulated by the parties, and as shown through the evidence introduced at trial, 

Respondent keeps and stores explosives as stated in the scope and application paragraph of 29 

C.F.R. § 1910.109. (Tr. 20). This applies with equal force to both the Superior and Highway 69 

locations. Although the Highway 69 location was no longer Respondent’s active headquarters, 

Respondent nonetheless owned the site and directed its employees to perform clean-up of old 
10

fireworks stored there.4 (Tr. 120). Thus, Complainant made out a prima facie case that the 

standard applies. 

Respondent, however, argues the standard does not apply because it is unconstitutionally 

vague. Respondent premises its argument on three bases. First, Respondent cites to an 

unreviewed ALJ decision in Culberson Well Service, Inc., 12 BNA OSHC 1535 (Docket No. 85-

0139, 1985), for the proposition that the term “when” as used in 1910.109(b)(1) is 

unconstitutionally vague. Second, Respondent claims the standard, as a whole, is vague because 

it is not clear what facts Complainant must prove to establish a violation of the standard. Third, 

Respondent argues, insofar as the cited standard is a performance standard, Complainant failed 

to cite to or reference any particular industry safety standard, such as NFPA 1124, and is 

therefore vague as applied. The Court rejects Respondent’s arguments for the following reasons. 

 “A statute which is so vague that men of common intelligence must necessarily guess at 

its meaning and differ as to its application violates due process.” Brennan v. Occupational Safety 

and Health Review Comm’n, 505 F.2d 869, 872 (10th Cir., 1974) (citing Connally v. General 

Construction Co., 269 U.S. 385, 391 (1926)). There is a difference, however, between the due 

process concerns in the context of a criminal statute and those in a case such as this, which 

involves “a regulation promulgated pursuant to remedial civil legislation.” Id. Accordingly, the 

determination as to whether a particular standard is unconstitutionally vague must be done in 

light of the conduct to which it is applied. See U.S. v. National Dairy Products Corp., 372 U.S. 

29 (1962). “The test for determining the vagueness of a standard is ‘the external and objective 

test’ of whether ‘a reasonable person responsible for the safety of employees, after considering 

 

4. Irrespective of whether the Highway 69 site was part of Respondent’s day-to-day operations, the determining 

factor for application of the cited standard is whether Respondent kept, had, or stored fireworks at the location. That 

factor is clearly satisfied. 
11

the standard . . . and the factual situation, would be able to apply the language of the standard to 

the situation in order to identify the hazard and eliminate it.’” Brown & Root, Inc., 9 BNA OSHC 

1833 (No. 76-190, 1981) (citing Pratt & Whitney Aircraft, 2 BNA OSHC 1713, 1715 (No. 510, 

1975)). 

There are three problems with Respondent’s reliance on Culberson. First, Culberson is 

an unreviewed ALJ decision, which means that it only carries the precedential value of 

persuasion. See Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976). Thus, whether 

that decision has stood for 30-plus years is of no consequence. Second, the ALJ in Culberson did 

not defer to the Secretary’s reasonable interpretation of the standard. The ALJ’s basis for doing 

so was two-fold: (1) the interpretation of the standard was a matter of first impression, and (2) 

the standard was not drafted by OSHA, but by the National Fire Protection Association (NFPA).5

Irrespective of whether OSHA drafted the standard or whether its interpretation was a matter of 

first impression, the ALJ did not properly assess whether the Secretary’s interpretation was 

reasonable in the first instance, instead concluding that the standard was susceptible to 

competing interpretations and therefore unconstitutionally vague. The Supreme Court held that 

an agency’s interpretation of its own standards is entitled to deference so long as it is reasonable. 

Martin v. OSHRC (CF&I Steel), 499 U.S. 144 (1991). In the face of competing, reasonable 

interpretations, that which is proposed by the Secretary takes precedence. Id. at 158 (“[A]

reviewing court may not prefer the reasonable interpretations of the Commission to the 

reasonable interpretations of the Secretary . . . .”). The ALJ in Culberson basically stopped the 

analysis once he found an ambiguity but failed to ascertain whether the Secretary’s interpretation 

of that ambiguity warranted deference. 

 

5. The ALJ noted that the standard was “derived from” the NFPA standard and questions whether deference is due 

the Secretary or the NFPA, but never resolves the question. Culberson Well Service, Inc., 12 BNA OSHC 1535. 
12

More importantly, this Court is not convinced that the term “when”, as used in the 

standard, is ambiguous. See 29 C.F.R. § 1910.109(b)(1) (“No 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.”) (emphasis added). In 

Culberson, the Secretary proposed that the term “when” meant “in such a manner that”, which, 

coincidentally, is the same interpretation proposed herein. See Arcadian Corp., 17 BNA OSHC 

1345, 1350 (No. 93-3270, 1995) (holding that consistency of interpretation is one factor bearing 

on reasonableness of Secretary’s interpretation). The ALJ, however, perceived the ambiguity to 

be insurmountable, which, as discussed above, was likely attributable to the fact that it was an 

issue of first impression. While such may have had an impact on the adequacy of notice to the 

employer, this Court does not perceive the same interpretive issue. See CF&I Steel, 499 U.S. 

158. The standard, as written, uses the term “when” to indicate the conditions under which 

certain activities shall not take place; namely, if the listed activities present an undue hazard to 

life. Thus, the context of the standard indicates the term “when” is being used in a conditional, 

not temporal, sense. In other words, the standard could just as easily be written in the following 

terms: “No person shall store, handle, or transport explosives or blasting agents [if] such storage, 

handling, and transportation of explosives or blasting agents constitutes an undue hazard to life.” 

Read in this way, the Court finds that the term “when” is not ambiguous. Further, such a plain 

reading implies the interpretation that the Secretary proffered in Culberson and continues to 

advocate for in the case at bar: if, based on conditions or on method, storage, handling, or 

transportation is unduly hazardous to human life, then it shall not be done. Based on the 

foregoing, the Court rejects the rationale of the Culberson court. 
13

In addition to its reliance on Culberson, Respondent claims the standard, as a whole, is 

vague because it is not clear what facts Complainant must prove to establish a violation of the 

standard. The Court disagrees.

“It is a basic proposition that ‘statutes and regulations which purport to govern conduct 

must give an adequate warning of what they command or forbid.’” J.A. Jones Construction Co., 

15 BNA OSHC 2201 (No. 87-2059, 1993) (quoting Diebold, Inc. v. Marshall, 585 F.2d 1327, 

1335 (6th Cir. 1978)). Absolute precision of language, however, is not required; “[r]ather, such a 

standard will be upheld if it is ‘drafted with as much exactitude as possible in light of the myriad 

conceivable situations which could arise and which could be capable of causing injury.’” Id.

(quoting Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974)). Thus, as noted 

above, a broad, performance-based standard “must be interpreted in light of the conduct to which 

it is being applied, and external, objective criteria, including the knowledge and perceptions of a 

reasonable person, may be used to give meaning to such a regulation in a particular situation.” 

Id. Accordingly, “the level of understanding in the affected industry bears on whether a broadlyworded standard gives fair notice of its requirements.” Id.; see R & R Builders, Inc., 15 BNA 

OSHC 1383, 1387 (No. 88-282, 1991) (“[G]eneralized standards . . . are not vague and 

unenforceable if ‘a reasonable person,’ examining the generalized standard in light of a particular 

set of circumstances, can determine what is required, or if the particular employer was actually 

aware of the existence of a hazard and of a means by which to abate it. An employer can 

reasonably be expected to conform a safety program to any known duties.”). 

A prime example of a similar, broadly worded standard is the personal protective 

equipment (PPE) standard found at 29 C.F.R. § 1910.132(a), which provides: “Protective 

equipment, including personal protective equipment . . . shall be provided, used, and maintained 
14

. . . whenever it is necessary by reason of hazards of processes or environment, chemical hazards, 

radiological hazards, or mechanical irritants encountered in a manner capable of causing injury 

or impairment . . . .” 29 C.F.R. § 1910.132(a). (emphasis added). Much like the cited standard, 

the PPE standard is phrased as a conditional requirement: if certain hazards are present, adequate 

protective equipment shall be worn. There is no indication of what conditions should prompt the 

wearing of PPE, nor is there an indication of what PPE is proper in a given situation; rather, 

compliance with the standard is premised on context and standard practice within the industry. 

See Cape & Vineyard Div. of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148, 

1152 (1st Cir. 1975). In fact, the scope of the PPE standard is much broader in that it is 

applicable across all industries and applies to the prevention of any injury or impairment to “any 

part of the body”. 29 C.F.R. § 1910.132(a). The cited standard, on the other hand, is limited to 

the storage, handling, and transport of explosives insofar as such activity is unduly hazardous to 

human life, thus curtailing the potential scope of its application. 

Respondent contends the cited standard does not state what Complainant must prove in 

order to show that the standard was violated and further argues that the specific allegations 

levied at trial and discussed throughout discovery are not sufficient to overcome the prejudice 

Respondent claims to have suffered by virtue of an insufficiently pleaded violation. The Court 

rejects these arguments for the reasons discussed below.

 As regards the pleading requirements, it should be noted that “administrative pleadings, 

especially citations, should be construed liberally and amended easily.” Gold Kist, Inc., 7 BNA 

OSHC 1855 (No. 76-2049, 1979) (citing Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 

1257 (D.C. Cir. 1973)). In that respect, the determination of whether fair notice has been given 

to the cited employer can be discerned by considering “the pleading, hearing, and decisional 
15

stages of the case since the purpose of the particularity requirement may then be fulfilled.” Id.

(citations omitted). In Gold Kist, the Commission overruled the ALJ’s decision to vacate a 

citation on fair notice grounds. Id. In particular, the Commission found the ALJ failed to 

consider factors external to the citation. See id. (citing Gannett Corp., 4 BNA OSHC 1383 (No. 

6352, 1976)). Those factors included an examination of the pleadings, motions, and discovery 

inquiries. Id. That examination revealed a key admission by the respondent, as well as an 

indication from the Secretary that its citation was premised on an industry safety code. Id.

Ultimately, the Commission determined that the respondent was not prejudiced in its ability to 

choose whether to contest or in its efforts to defend itself. 

Throughout this litigation, Complainant has identified NFPA 1124 as the reference point 

for Respondent’s duties under 29 C.F.R. § 109(b)(1).

6 During his deposition, CSHO Hodge 

stated that he referred to the NFPA 1124 standards in assessing the violation. (Ex. R-4 at 12–14). 

During that same deposition, the parties also discussed OSHA Directive 02-01-053, entitled 

“Compliance Policy for Manufacture, Storage, Sale, Handling, Use, and Display of 

Pyrotechnics”. (Ex. C-12). That directive, amongst other things, indicates that NFPA 1124 is 

one amongst many sources that a CSHO may consult when determining industry practice and 

addressing potential hazards. (Id.). Furthermore, in his response to Respondent’s requests for 

production, Complainant also noted that NFPA 1124 can serve as a source for “documenting the 

industry practice and addressing the hazards associated with storage of consumer fireworks.” 

(Ex. R-5 at 4). 

 

6. At trial and during CSHO Hodge’s deposition, there appeared to be some confusion regarding the import of 

NFPA 1124 and its applicability to 29 C.F.R. § 1910.109(b)(1). Respondent contends that Complainant repeatedly 

denied that NFPA 1124 was the governing standard under the Act; however, Complainant merely reiterated that the 

governing standard is 29 C.F.R. § 1910.109(b)(1) and that NFPA 1124 merely serves as one source for industry 

practice and hazard identification. (Ex. R-5 at 4, 10). This dispute appears to be, in significant part, semantic.
16

Although the Citation is not a model of clarity, it nonetheless apprised Respondent that 

its employees were exposed to hazards related to explosions (fire and struck-by hazards) and that 

this was related to the manner in which they stored, handled, and transported consumer 

fireworks. Further, during discovery, and CSHO Hodge’s deposition in particular, the nature of 

those hazards was discussed extensively. Specifically, he noted:

[T]he container was not under the control and authority of a person who was 

competent to have knowledge of what the contents of the container was and the 

condition of the contents. Also, that there was no housekeeping, regular 

housekeeping in the container to insure [sic] that such things such as rodents and 

raccoons did not get into the container and damage the contents of the container. 

There was no labeling on the container to identify that it contained fireworks or to 

keep fire away. That there was debris within 25 feet of the container and when I 

say debris, I mean like old tires and un-manicured grass, dried grass, things like 

that, that if a fire occurred the fire could then spread. 

(Ex. R-4 at 15). CSHO Hodge also discussed the state of the fireworks found in various 

containers, including crushed fireworks with the inner contents exposed, firework debris and 

other combustible materials swept into a corner, and the use of a forklift capable of producing 

sparks. (Ex. R-4 at 21–22). Each of the identified hazards has its referent in NFPA 1124.7 (Ex. 

C-11). 

As noted above, a standard will not be held to be vague and unenforceable if a reasonable 

person, familiar with the industry, can determine what is required or if the employer was actually 

aware of both the existence of a hazard and of a means by which to abate it. See R & R Builders, 

Inc., 15 BNA OSHC at 1387. At its core, the cited standard requires the proper storage, 

handling, and transportation of explosive materials. 29 C.F.R. § 1910.109(b)(1). According to 

Fire Investigator Tippie and CSHO Hodge, NFPA 1124 provides industry standards and 

 

7. For example, the most directly applicable provision in NFPA 1124 is section 6.12, which addresses 

housekeeping. (Ex. C-11 at 29). This provision prohibits the presence of loose black powder and exposed 

pyrotechnic composition; requires that storage containers be kept clean, dry, and free of rubbish; prohibits the use of 

tools with spark-producing metal parts; and requires that brush, dried vegetation, and other combustibles be kept at 

least 25 feet away from the perimeter. (Id.). 
17

practices for identifying and abating hazardous conditions. (Tr. 87, 290; Ex. C-11). In its answers 

to Complainant’s requests for production, Respondent admitted that it relies on, amongst other 

things, NFPA 1124. (Ex. C-17 at 004). In fact, Respondent’s self-generated MSDS for 1.4G 

fireworks discusses precautions and hazards that are directly related to, and likely stem from, the 

NFPA 1124 housekeeping standards, including: keeping shipping cartons cool and dry, carefully 

picking up and placing spilled items in cardboard cartons, and sweeping up exposed chemical 

composition with a natural fiber (read: non-sparking) brush. (Ex. C-10). Further, Moutz also 

testified about Respondent’s extensive housekeeping program at the Superior facility, which had 

apparently fallen by the wayside at the Highway 69 facility. (Tr. 165). Accordingly, the Court 

finds not only that a reasonably prudent employer in Respondent’s position would understand 

that the condition of the storage containers and their contents, in addition to the manner in which 

cleaning operations were carried out, were hazardous, but that Respondent itself was actually 

aware of what was required in order to prevent hazards from coming to fruition. See J.A. Jones, 

15 BNA OSHC 2201 (finding employer had actual notice of standard’s requirements to the 

extent it already had a program for correcting hazards of the same type as that alleged by 

Secretary); see also Trinity Indus., Inc., 15 BNA OSHC 1481, 1485 n.8 (No. 88-2691, 1992) 

(holding an employer’s voluntary safety efforts may be considered in conjunction with other 

evidence to demonstrate that the employer had notice of its obligations under a broadly worded 

standard). Thus, the Court finds the standard applies. 

2. The Terms of the Standard Were Violated

At bottom, this is a housekeeping violation. Respondent’s “out of sight, out of mind” 

attitude towards the Highway 69 facility goes a long way towards explaining the conditions that 

existed there. (Tr. 163). Amongst other things, Respondent stored damaged, 1.4G consumer 
18

fireworks; the contents of those fireworks were exposed and spilled on the floor of multiple 

containers;8 fireworks were found wet and mildewed; grass and brush had grown in close 

proximity to the storage containers; combustible trash was found both inside and outside of the 

containers; and the containers themselves had cracks and holes, which permitted animals and 

moisture to enter. (Tr. 106, 139, 254–55; Ex. C-19, C-20, C-21). [redacted], who was intimately 

familiar with the conditions at the Highway 69 site, testified that he saw “quite a bit” of loose 

firework powder on the floor. (Tr. 148–49). Fire Investigator Tippie observed poor 

housekeeping conditions throughout the complex, including fireworks that appeared to have been 

driven over and crushed fireworks underneath and compacted within the fork and mast of the 

forklift. (Tr. 56). According to CSHO Hodge and Fire Investigator Tippie, all of these 

conditions contributed to a fire and explosion hazard which presented an undue hazard to life.9

(Tr. 79–80, 105–07). The Court agrees. Accordingly, the Court finds that Respondent violated 

the standard. 

3. Respondent’s Employees Were Exposed to the Hazard

[redacted] and [redacted] worked in and around the aforementioned storage containers on 

the day of the accident and for several days before. The photographs of Fire Investigator Tippie 

 

8. Respondent attempted to discredit Fire Investigator Tippie’s conclusions regarding the presence of spilled black 

powder and/or pyrotechnic material on the floor of the storage containers by asking whether he or any of the other 

witnesses actually performed testing of the powder to determine its chemical content. Although no testing was 

performed, the Court finds Fire Investigator Tippie’s conclusion to be supported by the evidence: (1) [redacted], 

who is familiar with fireworks, testified that he observed powder on the floor of the subject trailer prior to entering; 

(2) there were fireworks that were broken open near the powder; and (3) according to Respondent’s self-generated 

MSDS, the 1.4G Consumer Fireworks “Contains pyrotechnic composition—a solid mixture of oxidizer and fuel that 

will burn if ignited.” (Ex. C-10). See Okland Constr. Co., 3 BNA OSHC 2023 (No. 3395, 1976) (holding judge 

properly upheld violation based on inferences drawn from circumstantial evidence). 

9. The fact that an accident actually occurred lends further credence to this conclusion. Though Respondent 

correctly argues that the fact of the accident is not sufficient proof of a violation, it nonetheless is a factor to 

consider. Ralston Purina Co., 7 BNA OSHC 1302 (No. 76-2551, 1979) (“Although evidence concerning the 

occurrence of and circumstances surrounding an accident is not necessary for the Secretary to establish a prima facie 

case, and certainly such evidence is not necessarily conclusive in finding a violation, the occurrence of and 

circumstances surrounding an accident may be probative evidence of a violation.”). 
19

illustrate hazardous conditions, such as those described above, existed throughout the Highway 

69 worksite. (Ex. C-19, C-20, C-21). Irrespective of the specific cause of the accident in this 

case, the Court finds violative conditions existed throughout the Highway 69 worksite due to 

Respondent’s hands-off, “out-of-sight, out-of-mind” approach to it. See American Wrecking 

Corp., 19 BNA OSHC 1703, 1707 n.4 (No. 96-1330, 2001) (consolidated) (“Determining 

whether the standard was violated is not dependent on the cause of the accident.”), aff'd in part, 

rev'd in part, 351 F.3d 1254 (D.C. Cir. 2003) (reversing willful characterization). As a result, 

[redacted], [redacted], and Moutz were exposed to fire and explosion hazards posed by the poor 

housekeeping conditions at the Highway 69 worksite. 

4. Respondent Had Knowledge of the Conditions

“To establish knowledge, the Secretary must prove that the employer knew or, with the 

exercise of reasonable diligence, should have known of the conditions constituting the violation.” 

Central Florida Equip. Rentals, Inc., 25 BNA OSHC 2147 (No. 08-1656, 2016). To satisfy this 

burden, Complainant must show “knowledge of the conditions that form the basis of the alleged 

violation; not whether the employer had knowledge that the conditions constituted a hazard.” Id. 

“When a corporate employer entrusts to a supervisory employee its duty to assure employee 

compliance with safety standards, it is reasonable to charge the employer with the supervisor’s 

knowledge[,] actual or constructive[,] of noncomplying conduct of a subordinate.” Mountain 

States Tel. & Tel. Co. v. Occupational Safety & Health Review Comm'n, 623 F.2d 155, 158 (10th 

Cir. 1980). 

Respondent’s production supervisor, Moutz, was present at the Highway 69 worksite on 

the day of the accident. (Tr. 163–64). He testified that they had not been to the Highway 69 

facility in at least 15 months since they moved to the Superior facility. (Tr. 163). He also 
20

testified that he specifically observed the conditions described above—including the condition of 

the bunker at issue—and as represented in the photographs found in Exhibit C-19. (Tr. 163; Ex. 

C-19 at 6). Moutz noted that the Highway 69 facility “was never like that” when they were 

operating at that location. (Tr. 163). Thus, not only were violative conditions present at the 

facility, but Respondent’s production supervisor was aware that the conditions existed. 

Accordingly, the Court finds that Respondent had actual knowledge of the conditions through the 

knowledge of Moutz. 

Further, the Court also finds that Respondent had constructive knowledge of the 

conditions at the Highway 69 worksite. Notwithstanding the move to the Superior facility, 

Respondent nonetheless continued to store old fireworks at the Highway 69 worksite. As 

compared to the extensive program of clean-up at the Superior facility, Moutz noted that such a 

program no longer existed at the Highway 69 facility because “there was no one there”, at least 

not on a regular basis. (Tr. 165). In light of Respondent’s knowledge of the contents of the 

containers, their location, and the length of time it had been since any housekeeping had 

occurred at the Highway 69 worksite, the Court finds that a reasonable employer, in 

Respondent’s position, should have been aware of these conditions and taken steps to abate 

them. 

5. The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 
21

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

The Court has already found that Respondent’s employees were exposed to fire and 

explosion hazards at the Highway 69 worksite. See Section IV.B.3, supra. Likely injuries 

resulting from exposure to fire and/or explosion include burns of various degrees, struck-by 

injuries, and the possibility of death. (Tr. 249, 256–57). In addition, the standard itself is 

couched in terms of conditions that are “unduly hazardous to human life”. 29 C.F.R. § 

1910.109(b)(1). Accordingly, the Court finds that the violation was serious. Thus, Citation 1, 

Item 1 is AFFIRMED as alleged by Complainant.

C. Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows: 

29 CFR 1910.132(d)(1): The employer did not assess the workplace to determine 

if hazards are present or are likely to be present, which necessitate the use of 

personal protective equipment (PPE): 

On or about 8/12/2014, at the workplace at 689 S. Highway 69, Pittsburg KS: 

Employees engaged in material handling activities in container 155 were exposed 

to fire and struck-by hazards in that a job hazard analysis had not been performed 

in order to determine what PPE was needed while loading and unloading 

fireworks. 

See Citation and Notification of Penalty at 11; see also Second Amended Complaint at 3. 

The cited standard provides: 

The employer shall assess the workplace to determine if hazards are present, or 

are likely to be present, which necessitate the use of personal protective 

equipment (PPE). 

29 C.F.R. § 1910.132(d)(1). 
22

1. The Standard Applies

The terms of the standard indicate that “the employer shall assess the workplace” to make 

determinations regarding the appropriate use of PPE. 29 C.F.R. § 1910.132(d)(1). It is not 

conditional; it applies generally to all employers whose employees are potentially exposed to 

hazards. Thus, the standard applies. 

2. The Terms of the Standard Were Violated

The Court also finds the terms of the standard were violated. The standard requires five 

things: (1) the performance of an assessment; (2) selection of appropriate PPE; (3) requiring its 

use; (4) communication of selection decision; (5) ensuring proper fit of PPE. Id. Respondent 

contends that it performed the foregoing assessment and that Complainant “offered no proof that 

a hazard that presented and [sic] undue risk to life was not properly assessed.” Resp’t Br. at 16. 

The Court disagrees. 

First, Complainant is not required to prove that a hazard presented an “undue risk to life” 

in making a PPE assessment; rather, it is only required to determine if hazards are present that 

necessitate PPE. In that respect, Complainant identified a number of hazards to which 

Respondent’s employees were exposed, including fire and explosion hazards and struck-by 

hazards resulting from material handling. (Tr. 208). Second, there is absolutely no evidence to 

corroborate Respondent’s claim that it performed a hazard assessment. Complainant’s own 

supervisor, Moutz, testified he “didn’t even think of” performing a worksite assessment to 

determine whether PPE was required. (Tr. 186). Similarly, CSHO Hodge testified that he spoke 

to Respondent’s Human Resource Director, Jim Ramsey, who told him that Respondent had not 
23

performed a hazard assessment. (Tr. 237–38). In addition, Respondent did not have any 

documentation indicating that an assessment had been performed.10

Based on the foregoing, the Court finds that the terms of the cited standard were violated. 

3. Respondent’s Employees Were Exposed to the Hazard

For the same reasons expressed above in Section IV.B.3, supra, the Court finds that 

Respondent’s employees were exposed to a hazard necessitating the use of PPE. 

4. Respondent Had Knowledge of the Conditions

The obligation to perform a hazard assessment belongs to Respondent’s management 

team. See 29 C.F.R. § 1910.132(d)(1) (“[T]he employer shall . . . .”). According to two different 

members of Respondent’s management team, Moutz and Ramsey, Respondent had not 

performed a PPE assessment. Thus, the Court finds that Respondent had knowledge of the 

violation. 

5. The Violation Was Serious

CSHO Hodge identified multiple hazards at the Highway 69 worksite, including fire, 

explosion, and struck-by hazards, none of which were identified or assessed through a workplace 

hazard assessment, nor were they addressed through the selection and use of PPE. CSHO Hodge 

testified that exposure to any of these hazards could result in serious injuries, including crushing 

injuries, burns, and even death. (Tr. 206–208). Accordingly, the Court finds that the violation 

was serious. Thus, Citation 1, Item 2 is AFFIRMED as alleged by Complainant. 

D. Citation 1, Item 3

Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows:

 

10. Contrary to the arguments of Respondent, though 1910.132(d)(1) does not require documentation of the 

assessment, 1910.132(d)(2) does. See 29 C.F.R. § 1910.132(d)(2) (requiring verification of hazard assessment 

through written certification). The lack of such certification is not sufficient evidence in and of itself to prove a 

violation; however, it is strong evidence that such an evaluation did not occur. 
24

29 CFR 1910.157(g)(1): An educational program was not provided for all 

employees to familiarize them with the general principles of fire extinguisher use 

and the hazards involved with incipient stage fire fighting: 

On or about 8/12/2014, at the workplace at 689 S. Highway 69, Pittsburg KS: 

Employees engaged in fire extinguishing activities were exposed to fire hazards in 

that an educational program to familiarize employees with the general principles 

of the use of fire extinguishers had not been developed and implemented. 

See Citation and Notification of Penalty at 13; see also Second Amended Complaint at 3.

The cited standard provides: 

Where the employer has provided portable fire extinguishers for employee use in 

the workplace, the employer shall also provide an educational program to 

familiarize employees with the general principles of fire extinguisher use and the 

hazards involved with incipient stage fire fighting.

29 C.F.R. § 1910.157(g)(1). 

1. The Standard Applies

According to the Scope and application paragraph of 29 C.F.R. § 1910.157: 

The requirements of this section apply to the placement, use, maintenance, and 

testing of portable fire extinguishers provided for the use of employees. . . . 

Where extinguishers are provided but are not intended for employee use and the 

employer has an emergency action plan and a fire prevention plan that meet the 

requirements of 29 CFR 1910.38 and 29 CFR 1910.39 respectively, then only the 

requirements of paragraphs (e) and (f) of this section apply. 

29 C.F.R. § 1910.157(a) (emphasis added). There is no dispute Respondent provided portable 

fire extinguishers at the Highway 69 worksite. (Tr. 181, 184–85). Respondent claims, however, 

that its employees were instructed not to fight fires and to evacuate the premises in the event of 

one. That, however, only covers one part of the exception described above. In addition to the 

fire extinguishers not being intended for employee use, Respondent must also have an 

emergency action plan and a fire protection plan that comply with §§ 1910.38 and 1910.39. 

Respondent failed to establish those elements. See C.J. Hughes Constr. Inc., 17 BNA OSHC 

1753, 1756 (No. 93-3177, 1996) (“A party seeking the benefit of an exception to a legal 
25

requirement has the burden of proof to show that it qualifies for the exception.”). Therefore the 

Court finds the standard applies. 

2. The Terms of the Standard Were Violated

The Court also finds the terms of the standard were violated. In its brief and at trial, 

Respondent admitted that it does not have a formal fire extinguisher program in place. This was 

illustrated by Moutz’s testimony. He testified first that Respondent did not have a program that 

he knew of, but that “we all use them, but there’s no official training, but you pull the pin and pul 

[sic] the trigger. I mean, that’s about all there is to a fire extinguisher.” (Tr. 186). Ramsey also 

admitted to CSHO Hodge that Respondent did not provide the required educational training. (Tr. 

242–43). The Court finds that the terms of the standard were violated. 

3. Respondent’s Employees Were Exposed to the Hazard

According to Moutz, employees have used fire extinguishers in the past at fireworks 

shoots. (Tr. 186). In addition, Ramsey told CSHO Hodge that he believed one of the fire 

extinguishers at the Highway 69 site was used on the day of the incident because it was not fully 

charged. (Tr. 241). As noted above, Respondent’s employees were exposed to fire and explosion 

hazards due to the conditions at the Highway 69 worksite. The Court accepts CSHO Hodge’s 

testimony that attempting to put out a fire with an employer-provided extinguisher without 

having proper training exposes employees to potential fire hazards. In that respect, the Court 

finds Respondent’s employees were exposed to the hazard. 

4. Respondent Had Knowledge of the Conditions

Both Moutz and Ramsey, members of Respondent’s management team, were aware of 

the lack of any fire extinguisher education training. As members of management, Moutz’s and 
26

Ramsey’s knowledge is imputable to Respondent. See Section IV.B.4, supra. Accordingly, 

Respondent had actual knowledge of the violation. Respondent does not dispute this fact. 

5. The Violation Was Serious

CSHO Hodge testified that, counter to the assertions of Moutz, operation of a fire 

extinguisher is not just a pull-and-shoot operation. (Tr. 241–42). He stated the primary hazard 

stemming from this type of violation is the possibility of an untrained employee failing to 

extinguish an incipient fire, only to be overcome by the flames and/or smoke inhalation. (Tr. 

242). As previously noted, exposure to either of these hazards could cause serious injury, up to 

and including death. Accordingly, the Court finds the violation is serious. Thus, Citation 1, Item 

3 is AFFIRMED as alleged by Complainant. 

E. Citation 1, Item 4

Complainant alleged a serious violation of the Act in Citation 1, Item 4 as follows:

29 CFR 1910.178(c)(2)(vii): Power-operated industrial trucks designated as DY, 

EE, or EX were not used in atmospheres in which combustible dust is not 

normally in suspension in the air by normal operation of equipment or apparatus 

but where deposits or accumulations of such dust could be ignited by arcs or 

sparks originating in the truck. 

On or about 8/12/2014, at the workplace at 689 S. Highway 69, Pittsburg KS: 

Employees engaged in material handling activities using a LP forklift inside 

container 155 were exposed to fire hazards in that the forklift was not designated 

as safe for operations when combustible dust may be present.

See Citation and Notification of Penalty at 14; see also Second Amended Complaint at 3.

The cited standard provides: 

Only approved power-operated industrial trucks designated as DY, EE, or EX 

shall be used in atmospheres in which combustible dust will not normally be in 

suspension in the air or will not be likely to be thrown into suspension by the 

normal operation of equipment or apparatus in quantities sufficient to produce 

explosive or ignitable mixtures but where deposits or accumulations of such dust 

may be ignited by arcs or sparks originating in the truck. 

29 C.F.R. § 1910.178(c)(2)(vii). 
27

1. The Standard Applies

According to 1910.178(a)(1), “This section contains safety requirements relating to fire 

protection, design, maintenance, and use of fork trucks . . . and other specialized industrial trucks 

powered by electric motors or internal combustion engines.” 29 C.F.R. § 1910.178(a)(1). Thus, 

at the most general level, the standards found under section 1910.178 apply. With respect to the 

cited subsection, 1910.178(c)(2)(vii), its requirements are only applicable if certain conditions 

are met: (1) deposits or accumulations of combustible dust; and (2) such accumulations or 

deposits may be ignited by arcs or sparks originating in the truck. See id. 

Respondent’s primary contention is that neither CSHO Hodge nor Fire Investigator 

Tippie collected a sample of the purported combustible dust to determine the contents through 

laboratory testing. In particular, Respondent claims CSHO Hodge did not follow any of the 

requirements of the directive governing combustible dust inspection procedures. (Ex. C-13). The 

Court finds such testing was unnecessary. 

Complainant correctly notes that the Act does not define “combustible dust” and, 

therefore, relies on the definition provided in OSHA’s Compliance Directive, CPL 03-00-008, 

Combustible Dust National Emphasis Program: “A combustible particulate solid that presents a 

fire or deflagration hazard when suspended in air or some other oxidizing medium over a range

of concentrations, regardless of particle size or shape.” (Ex. C-13 at 10).11 A “combustible 

particulate solid” is further defined as “any combustible solid material composed of distinct 

particles or pieces, regardless of size, shape, or chemical composition.” The directive also 

indicates testing requirements for combustible dust.12 (Ex. C-13). 

 

11. These definitions track the NFPA standard for combustible dust as well. (Ex. R-2, NFPA 654).

12. It should be noted that an addendum to CPL 03-00-008 indicates that “this directive is not intended for 

inspections of explosives and pyrotechnics manufacturing facilities covered by the Process Safety management 
28

Complainant does not dispute that it did not take samples of the spilled firework material 

from inside of the trailers; however, he claims such testing was not necessary because fireworks 

are a commonly known combustible substance. Compl’t Br. at 23. While the Court does not 

entirely agree with that argument, there is nonetheless sufficient evidence to establish the 

combustibility of the spilled contents of the fireworks in the container at issue, as well as other 

storage containers at the Highway 69 worksite. As noted above, Respondent’s own MSDS sheet, 

which is generally applicable to all 1.4G fireworks at its facility, indicates the contents of the 

1.4G consumer fireworks are “a solid mixture of oxidizer and fuel that will burn if ignited.” (Ex. 

C-10). In other words, this is not a question or whether the spilled contents of the broken 

fireworks will combust under the proper conditions as in the case of the other dusts identified in 

CPL 03-00-008; rather, the fuel contained within the fireworks is already combined with an 

oxidizing medium to cause an explosion upon ignition. (Ex. C-10; see Ex. C-19 at 18–19 

(showing fireworks packages indicating “WARNING – SHOOTS FLAMING BALLS – 

CAREFULLY READ OTHER WARNING ON BACK PANEL”). The distinction is 

important—the sources for the types of dust in the Combustible Dust CPL are not, in and of 

themselves, volatile. (Ex. C-13 at 1). However, the source of the dust identified in the storage 

containers is unquestionably so—the fireworks identified by [redacted] and Moutz were intended 

to ignite, achieve flight, flash, and explode, all through the process of combustion. (Ex. C-19 at 

9–11). 

In addition to the foregoing, [redacted], who had observed the condition of the bunker at 

issue prior to the fire and had years of experience working around fireworks, testified he saw 

 

(PSM) standard . . . . (Ex. C-13 at 4). Although Respondent does not engage in pyrotechnic manufacturing, such an 

exception clarifies that pyrotechnic and/or explosive materials are not characterized in the same way as other 

combustible dusts, e.g., cotton, wood, metal, or carbonaceous materials. 
29

broken-open fireworks with their contents spilled onto the floor of the bunker. (Tr. 143–44). Fire 

Investigator Tippie, who has years of experience working with explosives and has specific 

experience related to pyrotechnics, also testified that he observed broken-open fireworks with 

their contents spilled onto the floor. (Tr. 62). Given the contents of the fireworks, combined with 

the observations of [redacted] and Fire Investigator Tippie, the Court finds that it is reasonable to 

infer that combustible dust was present at Respondent’s worksite.13 Thus, the standard applies. 

2. The Terms of the Standard Were Violated

The Court also finds the terms of the standard were violated. First, as discussed above, 

the storage container at issue, as well as other storage containers at the Highway 69 worksite, 

contained deposits or accumulations of combustible dust. See Section IV.B.2, supra. Second, 

though Respondent argues that the testimony regarding the actual ignition source of the fire in 

this case was not explicitly identified as “originating in the truck”; the specific cause of this 

accident is irrelevant to the question of whether the standard was violated. The cited standard 

states, “Only approved power-operated trucks designated as DY, EE, or EX shall be used . . . 

where deposits or accumulations of [combustible] dust may be ignited by arcs or sparks 

originating in the truck.” 29 C.F.R. § 1910.178(c)(2)(vii). In other words, if there are deposits 

or accumulations of combustible dust that may be ignited by arcs or sparks originating in the 

truck, only DY, EE, or EX trucks can be used. The presumption regarding trucks not certified as 

DY, EE, or EX is already built into the standard—they produce sparks that could ignite 

combustible dust. See id. § 1910.178(b) (DY units “do not have any electrical equipment”; in EE 

units “the electric motors and all other electrical equipment are completely enclosed”; and EX 

units have “electrical fittings and equipment . . . designed, constructed and assembled [to be] 

 

13. NFPA 1124 also defines “consumer fireworks” as “small fireworks devices containing restricted amounts of 

pyrotechnic composition designed primarily to produce visible or audible effects by combustion.” (Ex. C-11 at 12).
30

used in certain atmospheres containing flammable vapors or dusts”). Respondent’s employees 

were using a liquid propane (LP) designated forklift. (Tr. 174, 246). According to CSHO Hodge, 

an LP forklift is not intrinsically safe or rated for the conditions found at the Highway 69 

worksite because it can “produce a spark or excessive heat, which would then be the source of 

ignition . . . .” (Tr 249). This comports with 1910.178, which characterizes an LP unit as 

“similar to the G unit except that liquefied petroleum gas is used for fuel instead of gasoline.” 29 

C.F.R. § 1910.178(b)(10). G units are “gasoline powered units having minimum acceptable 

safeguards against inherent fire hazards.” Id. § 1910.178(b)(8) (emphasis added). Because the 

forklift Respondent was using was not appropriate for the conditions, the Court finds the terms of 

the standard were violated.14

3. Respondent’s Employees Were Exposed to the Hazard

[redacted] and [redacted] were utilizing a liquid propane forklift in storage containers that 

contained accumulations of combustible, pyrotechnic material. As noted previously in this 

opinion, this exposed them to fire, explosion, and struck-by hazards. See Section IV.B.3, supra. 

Thus, the Court finds that Respondent’s employees were exposed to the hazard. 

4. Respondent Had Knowledge of the Conditions

[redacted] testified and Moutz confirmed that Respondent’s employees used LP forklifts. 

(Tr. 133, 174, 249–250). Moutz told CSHO Hodge that Respondent had not considered using a 

different type of forklift, and the evidence shows that no serious hazard evaluation was 

performed. (Tr. 250). Moutz also testified he observed [redacted] and [redacted] using the LP 

forklift to unload fireworks and material from the storage containers on the day of the accident. 

(Tr. 167–68). Further, as discussed repeatedly above, the Court has already found Respondent 

 

14. This may not be the case under normal operations at the Superior facility, but the state of the fireworks and the 

containers at the Highway 69 facility were such that additional precautions were warranted. 
31

was at least constructively aware of the conditions at the Highway 69 worksite. See Section 

IV.B.4, supra. 

5. The Violation Was Serious

For the same reasons expressed above with respect to Citation 1, Item 1, the Court finds 

the violation was serious. See Section IV.B.5. The Court hereby incorporates those findings 

herein. Accordingly, Citation 1, Item 4 is AFFIRMED as a serious violation of the Act. 

F. Citation 2, Item 1

Complainant alleged an other-than-serious violation of the Act in Citation 2, Item 1 as 

follows: 

29 CFR 1910.1200(e)(1): The employer did not develop, implement, and/or 

maintain at the workplace a written hazard communication program which 

describes how the criteria specified in 29 CFR 1910.1200(f), (g), and (h) will be

met: 

The employer has not developed a written hazard communication program.

See Citation and Notification of Penalty at 15; see also Second Amended Complaint at 3. 

The cited standard provides: 

Employers shall develop, implement, and maintain at each workplace, a written 

hazard communication program which at least describes how the criteria specified 

in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, 

safety data sheets, and employee information and training will be met . . . . 

29 C.F.R. § 1910.1200(e)(1). 

1. The Standard Applies

This section “requires chemical manufacturers or importers to classify the hazards of 

chemicals which they produce or import . . . .” 29 C.F.R. § 1910.1200(b)(1). As such, “This 

section applies to any chemical which is known to be present in the workplace in such a manner 

that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 
32

Id. § 1910.1200(b)(2). A “foreseeable emergency” is defined as “any potential occurrence such 

as, but not limited to, equipment failure, rupture of containers, or failure of control equipment 

which could result in an uncontrolled release of a hazardous chemical into the workplace.” Id. § 

1910.1200(c). 

Respondent contends the fireworks it imports and distributes are “articles”, which are 

excepted from the requirements of 29 C.F.R. § 1910.1200. See id. §§ 1910.1200(b)(6)(v). 

Articles are defined as: 

[A] manufactured item other than a fluid or particle: (i) which is formed to a 

specific shape or design during manufacture; (ii) which has end use function(s) 

dependent in whole or in part upon its shape or design during end use; and (iii) 

which under normal conditions of use does not release more than very small 

quantities, e.g., minute or trace amounts of a hazardous chemical (as determined 

under paragraph (d) of this section), and does not pose a physical hazard or health 

risk to employees.

Id. § 1910.1200(c). The Court finds Respondent cannot establish that it is entitled to the benefit 

of this exception. 

The first two elements of the definition of an article are easily established—fireworks are 

formed to a particular shape during manufacture, which facilitates the end use. The third 

element contains two parts: (1) under normal conditions of use, the article does not release more 

than very small quantities of hazardous chemicals; and (2) the article does not pose a physical 

hazard or health risk. According to this section, a “physical hazard” is defined as “a chemical 

that is classified as posing one of the following hazardous effects: explosive; flammable (gases, 

aerosols, liquids, or solids); oxidizer (liquid, solid, or gas); self-reactive; pyrophoric (liquid or 

solid); self-heating; organic peroxide; corrosive to metal; gas under pressure; or in contact with 

water emits flammable gas.” Id. The same definition directs readers to review Appendix B to the 

standard, which is entitled “Physical Hazard Criteria”. Id.; see also Appendix B to § 1910.1200 

(defining and classifying explosives). 
33

Respondent’s principal problem in attempting to prove the exception is that the purported 

articles pose a physical hazard. First, the parties agree the fireworks at the Highway 69 worksite 

are considered 1.4G explosives by the DOT. (Tr. 20). Second, § 1910.1200(c) defines an 

explosive chemical as a physical hazard. According to mandatory Appendix B, an explosive 

chemical is “a solid or liquid chemical which is in itself capable by chemical reaction of 

producing gas at such a temperature and pressure at such a speed as to cause damage to the 

surroundings. Pyrotechnic chemicals are included even when they do not evolve gases.” Id. at 

Appendix B, Sec. B.1.1.1. (also describing items which contain explosive chemicals). In view of 

that definition, the appendix indicates that the class of explosives comprises: 

(a) explosive chemicals; (b) explosive items, except devices containing explosive 

chemicals in such quantity or of such a character that their inadvertent or 

accidental ignition or initiation shall not cause any effect external to the device 

either by projection, fire, smoke, heat, or loud noise; and (c) chemicals and items 

not included under (a) and (b) above which are manufactured with the view to 

producing a practical explosive or pyrotechnic effect.

Id. at Appendix B, Sec. B.1.1.2. The only exceptions to this class are items that, although they 

contain explosive chemicals, will not cause any effect external to the item when ignited. Id. This 

is consistent with the definition of an article provided at 29 C.F.R. § 1910.1200(c), which 

includes manufactured items that do not release more than very small quantities of hazardous 

chemical under normal conditions of use. Id. § 1910.1200(c). The fireworks in the bunkers 

identified as “artillery shells” or were otherwise characterized as capable of flight, flashes, or 

explosions, do not fall within that limited exception. Accordingly, the Court finds the fireworks 

identified in Respondent’s bunkers as capable of such effects are not “articles” under the terms 

of the Hazard Communication Standard. 

Without the benefit of the exception, the Court finds that the standard applies to 

Respondent’s workplace. According to the scope and application paragraph, this section applies 
34

to “any chemical which is known to be present in the workplace in such a manner that employees 

may be exposed under normal conditions of use or in a foreseeable emergency.” Id. § 

1910.1200(b)(2). At the very least, the facts of this case illustrate that Respondent’s employees 

were exposed to a “foreseeable emergency” in that there was potential for “equipment failure, 

rupture of containers, or failure of control equipment which could result in an uncontrolled 

release of a hazardous chemical into the workplace.” Id. § 1910.1200(c). Further, Respondent’s 

MSDS described procedures for the clean-up of spilled items or exposed chemical composition, 

which illustrates exposure under normal conditions of use. (Ex. C-10). The state of the containers 

described by [redacted] and Fire Investigator Tippie do not suggest “minute or trace amounts” of 

a hazardous chemical such that the effects of its inadvertent or accidental ignition would be 

confined to the item/device/article. See 29 C.F.R. § 1910.1200(c), Appendix B, Sec. B.1.1.2. 

2. The Terms of the Standard Were Violated

CSHO Hodge asked Respondent’s HR Manager, Ramsey, if Respondent had a hazard 

communication program and whether he could have a copy. (Tr. 260). Ramsey said that they did 

not have a hazard communication program. (Tr. 260). Subsequent requests for any sort of 

documentation were also unavailing. (Tr. 262). Because Respondent did not have a hazard 

communication program, the terms of the standard were violated. 

3. Respondent’s Employees Were Exposed to the Hazard

For the same reasons expressed in Section IV.B.3, supra, the Court finds Respondent’s 

employees were exposed to the hazard. 

4. Respondent Had Knowledge of the Conditions

As previously noted, Respondent’s HR Manager told CSHO Hodge that they did not 

have a hazard communication program, and subsequent requests for documents illustrating such 
35

a program went unfulfilled. Indeed, Respondent’s entire defense to this citation is that it relied on 

the standard’s definition of “article” as the reason for not implementing such a plan. See Ex. R-8 

at 2 (indicating Respondent’s belief that its consumer fireworks are articles). Thus, Respondent 

had knowledge of the conditions requiring the implementation of a hazard communication plan. 

It is the employer’s responsibility in the first instance to have compliant plans and procedures in 

place. The failure to have a plan at all—as opposed to having the opportunity to observe noncompliant behavior—can only be known by the employer. Accordingly, the Court finds 

Respondent had knowledge of the conditions requiring a hazard communication plan and that it 

did not possess a plan to address those conditions. 

V. Penalty

Under the Act, an employer who commits a “serious” violation may be assessed a civil 

penalty of up to $7,000 for each such violation. See 29 U.S.C. § 666(b). In determining the 

appropriate penalty for affirmed violations, section 17(j) of the Act requires the Commission to 

give due consideration to four criteria: (1) the size of the employer’s business, (2) the gravity of 

the violation, (3) the good faith of the employer, and (4) the employer’s prior history of 

violations. 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the 

number of employees exposed, the duration of the exposure, the precautions taken against injury, 

and the likelihood of an actual injury. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 

87-2059, 1993). It is well established that the Commission and its judges conduct de novo 

penalty determinations and have full discretion to assess penalties based on the facts of each case 

and the applicable statutory criteria. E.g., Allied Structural Steel Co., 2 BNA OSHC 1457, 1458 

(No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995), aff’d, 73 F.3d 

1466 (8th Cir. 1995).
36

OSHA recommended a total penalty amount of $24,000. Complainant did not recommend a 

penalty adjustment for size of employer because Respondent employed more than 250 

employees. (Tr. 266). The Secretary did not consider Respondent’s levels of attempted good 

faith compliance or precautions to prevent injury sufficient to warrant significant penalty 

reduction. 

The Court gives deference to the Secretary’s penalty assessments. In so doing the Court notes 

the presence of a significant amount of highly explosive material at the worksite, which was 

designated by Respondent for the storage of such materials. Explosion or conflagration were all 

too likely to result from any misstep, and the probable injuries resulting from such an event 

carried a high likelihood of severity or death. Therefore the gravity assessment is high. The 

Court reduces the penalties assessed slightly, as noted below, based upon a somewhat larger 

assessment of Respondent’s good faith efforts to prevent injury than was assigned by OSHA. 

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of $7,000.00 is ASSESSED. 

2. Citation 1, Item 2 is AFFIRMED as serious, and a penalty of $6,000.00 is ASSESSED.

3. Citation 1, Item 3 is AFFIRMED as serious, and a penalty of $3,000.00 is ASSESSED.

4. Citation 1, Item 4 is AFFIRMED as serious, and a penalty of $4,000.00 is ASSESSED.

5. Citation 2, Item 1 is AFFIRMED as other-than-serious, and no penalty is ASSESSED. 

SO ORDERED

 /s/ 

Judge Peggy S. Ball
37

Occupational Safety and Health Review Commission 

Date: April 24, 2017

Denver, Colorado