In the Matter of the Appeal of:

10144 Waterman Road
Elk Grove, CA 95624


����������������������������� Employer



Docket No.




The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by the Division Occupational Safety and Health (the Division), makes the following decision after reconsideration.


On February 11, 1999, a non-injury explosion occurred at a work place maintained by Employer at 10144 Waterman Road, Elk Grove, California (the site). Responding to a media report about the incident, Robert Senchy, Associate Industrial Hygienist, for the Division of Occupational Safety and Health (the Division) began inspecting the site on February 16, 1999.

On August 10, 1999, the Division issued Employer a citation alleging the following general violations of section 3328(g) [improper tank maintenance causing asphalt tank explosion]; and section 5157(c)(4) [confined space work done without confined space program and ventilation] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed a timely appeal as to the existence of the violations only.

A hearing was held before an Administrative Law Judge (ALJ) of the Board in Sacramento, California. Stacey Brunner, Consultant, represented Employer. Christopher P. Grossgart, Attorney, represented the Division.

On October 18, 2000, the ALJ issued a decision holding that the Division did not establish a violation of section 3328(g) but that the Division did establish a violation of section 5157(c)(4), and that the cited condition did not bear “a direct and immediate relationship to an employee’s safety or health, warranting changing the Item to a Notice in lieu of citation.”


Employer is owned by The Henry Company, which owns many asphalt plants throughout the United States. Employer operates a bulk storage facility at Elk Grove, California, where it receives, stores, re-packages, and sells asphalt. At the plant (the site), Employer has several large atmospheric tanks2 to store bulk asphalt.

Senchy visited the site on different occasions to investigate the explosion. On one visit he spotted and photographed the maintenance man (chief millwright Mark Osborne) exiting Tank 3 via its lower opening or "man-way". The worker had entered briefly to do some work on a propeller in the tank.

Senchy asked Osborne what was in the tank, and Osborne said there was asphalt (residue). Senchy observed that the asphalt residue at the bottom of the tank was predominantly hard, and he saw no evidence that the internal temperature was other than at atmospheric levels. Senchy asked Osborne if he had done any monitoring in the tank before entering, and Osborne said he had not. Senchy followed-up by asking if he had checked for explosive gases and the worker said "no." At a later point, Senchy asked Tuttle if he had any documentation showing the tank had been tested before Osborne's entry, and Tuttle answered in the negative.

Senchy concluded the tank was a permit-required confined space. The tank appeared to have only one means for employee entry, the bottom man-way through which Osborne exited. Senchy stuck his head into that entryway, and spotted another opening at the tank roof. That opening appeared to be only about six inches in diameter. Tuttle had earlier told him "that he has mineral spirits mixed in with all the asphalt up to about 25% going throughout the plant." Senchy "took it to mean" that all the tanks contained mineral spirits added to the asphalt. Using a material safety data sheet and another document from a Fed-OSHA database, he concluded that the presence of mineral spirits in the tank's residue had the potential to create a hazardous atmosphere for the entrant, ranging from membrane irritation to narcosis. The limited openings in the tank indicated that forced-air ventilation would be required to render the atmosphere acceptable for occupancy. He saw no evidence of forced-air ventilation.

Senchy asked Osborne if he knew whether the company had a confined space program, and Osborne replied no. Senchy later asked Tuttle if Employer had a confined space program, to which Tuttle replied: "It's not in writing." Senchy therefore cited Employer for allowing Osborne to enter without first having a written confined space program. That Osborne had not tested the atmosphere before entering corroborated the program's absence.

Senchy conceded later that if Employer's position was correct that the tank only contained straight asphalt, and if Employer had indeed followed a procedure to air out and cool the tank before entering, he may not have cited Employer for violating the same safety order. In any event, the condition to which Osborne was exposed, he admitted, had no direct and immediate relationship to his safety. He cautioned, however, that even straight asphalt, when heated, emits hydrogen sulfide (H2S) fumes, which could pose a threat to the safety of an employee in that atmosphere.

Tuttle testified for Employer that Tank 3 stored only straight asphalt, without mineral spirits, which was emptied for the work in question. Some tanks employ mineral spirits to enable asphalt to stay liquefied enough to move. Tank 3, however, used heating coils to liquefy asphalt, and did not employ mineral spirits for that purpose. No employees are allowed to enter tanks that have mineral spirits mixed with the asphalt. Tuttle denied telling Senchy that Tank 3 contained mineral spirits.

In addition, the tank has two hinged "man-ways" that are 24-32 inches in diameter. The tanks are 28 feet tall. To someone peeking from the inside, the man-way at the top would appear smaller, but it is the same size as the bottom opening through which Osborne exited.

Employer had a program, which was not in writing because Employer did not believe the tanks it allowed workers to enter constituted permit-required confined spaces. Asphalt in Tank 3 liquefies at about 180º F. But the temperature is kept at about 300º F when full. When the tanks are cleaned out, with the heat coils turned off, a pump is used, which removes all but residue below the sump pump at the tank's base. Both hatches are opened, and the tanks are aired out for a four-day minimum, although in winter it only takes 2 days to air out and cool the inside to ambient temperature. The asphalt residue then turns hard, such as one would see on an asphalt roof. There is a temperature gauge on the tanks that gives the internal temperature. During the 4-day cooling period, the tanks are supposed to be tested for explosive gases and oxygen levels. The chief millwright is supposed to do the testing. Employer did not document such testing because it believed it was not necessary.3 Employer follows this procedure not because it admits the tanks are permit-required confined spaces, but to make sure it is safe for workers to enter.

Tuttle thought Osborne had tested the tank on the day in question because the millwright had come to Tuttle's office where the testing equipment is kept, taken it with him, and came back to report to him (Tuttle) that "everything looks good." Tuttle himself did not test the tank, and he did not see Osborne test it. Tuttle did not recall hearing a conversation where Osborne denied testing it, and if Senchy asked Tuttle if the tank had been tested, he would have said yes.

John K. Kinast, Environmental Engineer for The Henry Company, was called to testify for Employer. He corroborated Tuttle's testimony about the absence of a need for mineral spirits when the storage tank uses heating to liquefy the asphalt. He opined also that the asphalt's presence, once the temperature is cooled to an acceptable level, poses no hazard to a worker entering the space. Since Senchy's inspection, the corporation has instituted a written confined space program applicable to all tanks, for uniformity and to eliminate human error and guess work. However, Kinast maintained that entering the tanks under the circumstances present in Osborne's entry entails no atmospheric hazard. Therefore, he believed the entry did not trigger the requirement for a written permit-required confined space program.


Was the violation properly reclassified as a Notice in Lieu of Citation?


The Division filed a petition for reconsideration requesting that the Appeals Board vacate that portion of the ALJ decision in which the ALJ reclassified the violation of section 5157(c)(4) [confined work space, work done without confined space program and ventilation] to a Notice in Lieu of citation.

The Division contends that the ALJ decision is “flawed” because it is: (1) not supported by prior Board decisions after reconsiderations; (2) the ALJ completely ignored Division evidence regarding the health risks posed by the heating coils in tank 3; and (3) the ALJ ignored the mandates of Carmona v. Division of Industrial Safety, (1975) 13 Cal.3d 303 which require a liberal interpretation of Labor Code section 6317 to achieve a safe working environment.

Labor Code section 6317 authorizes the Division to issue a Notice in Lieu of Citation for violations that: (1) do not have a direct relationship upon the health or safety of an employee; or (2) do not have an immediate relationship to the health or safety of an employee, and are of a general or regulatory nature.

In its decision, the ALJ cited the Huffman Logging, Co., Cal/OSHA App. 93-382, Decision After Reconsideration (Nov. 21, 1996) case to support his position that not only the Division, but also the Appeals Board, has the discretion to classify a violation as a notice rather than a citation. Though the Huffman rule was correctly stated, significant factual differences exist between the Huffman case and the case at hand.

In Huffman Logging, Co., an employee was seriously injured when he struck a cable cutter with an axe, causing a piece of metal to fly off of the axe and strike him in the eye. (Huffman Logging, Co., supra, at p.1.) The employer failed to report the accident to the Division as required. Accordingly, when it independently learned of the accident, the Division issued a regulatory citation to the employer under section 342(a). (Id.)

The ALJ in Huffman acknowledged that, by failing to report the serious-injury accident, the employer had violated section 342(a). Based upon a number of factors, however, the ALJ and the Board set aside the regulatory citation, finding that a Notice in Lieu of Citation (Notice) was a more appropriate result. First, the ALJ and Board found that employer’s violation neither caused the employee’s accident nor affected treatment of his injuries. Accordingly, the violation had no direct or immediate effect on the health or safety of an employee.

The ALJ and the Board then found that the Division had not properly exercised its discretion in issuing a regulatory citation as distinguished from a Notice in Lieu of Citation. That determination was reached after the Division, expressly asked why a Notice had not been issued, responded that it did not know a Notice was an option. Since the Division did not appreciate that it had discretion to exercise, the ALJ reasoned he could not find it was properly exercised. Accordingly, given all the facts presented, the Board agreed that the ALJ did not abuse his discretion in ordering the issuance of a Notice.

Against that backdrop, the question presented here is did the Division fail to exercise or abuse its discretion in issuing a citation rather than a Notice. The question is not whether the Division would have the discretion to issue a Notice in Lieu of a Citation rather than a citation. The Division clearly has that discretion.

The ALJ’s decision to substitute his judgment for that of the Division was based upon a number of factors. The ALJ found, and we do not disturb his determination, that the cited condition did not present a direct or an immediate threat to the health or safety of an employee. Indeed, as the summary of evidence states, the compliance officer admitted that in his testimony. Moreover, the compliance officer testified that if Employer’s factual assertions were correct, he might not have issued a citation. The ALJ credited Employer’s assertions and the ALJ discounted the reasons the Division gave for classifying the tank as a permit-required confined space. Having issued a citation based upon erroneous facts and theories, the ALJ concluded that the Division had not properly exercised its discretion when it issued a citation rather than a Notice.

The ALJ found a violation based upon his review of the evidence and determination that there were reasons other than those set forth by the Division for finding the tank a permit-required confined space and further finding that Employer did not have the requisite program. Substituting a Notice for a general violation does not disturb the finding of a violation, although no civil penalty attaches to a Notice. In addition, if Employer at the same establishment is found to have violated the same safety order within three years, the newer citation can be issued as a repeat. In other words, a Notice is a sanction.

Recognizing the factors considered by the ALJ and the fact that a Notice still constitutes a finding of a violation, the Board concludes that this is not a case where the judgment of the Appeals Board should substitute for that of the Division.

Section 334(b) sets forth a definition of general violation as follows:

General Violation – is a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees.

There is nothing in the record before us that would support a conclusion that the Division did not have the prerogative to issue a citation for a general violation. The potential for injury when an employer does not have a confined space program is substantial.


The Board reverses the ALJ’s decision reducing Citation 1, Item 2 to a Notice in Lieu of Citation and further assesses a civil penalty of $300 based upon an established general violation of section 5157(c)(4).


FILED ON: July 1, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Section 6755(a) defines "Atmospheric Tank" as "a storage tank which has been designed to operate at pressures from atmospheric through 0.5 psig (3.5 KPa)." This is to be distinguished from fired pressure vessels and boilers, both designed to generate steam pressure, the former at pressures exceeding 15 psi. See section 753 definitions.
3 Employer offered an entry permit for another tank at Henry Company's Kimberton Pennsylvania plant dated February 2, 1998, but not for Osborne's entry to the one in question (Exhibits I and J).