OSHA Citations Vacated Due to Consumer Products Exception
In a recent decision, the Occupational Safety and Health Review Commission (OSHRC) vacated two citations against a construction company relating to portable fire extinguishers kept at a jobsite. The first citation was for failing to include the extinguishers in its hazard communication program. The second was for failing to provide material safety data sheets for the chemicals contained in the extinguishers. The fire extinguishers at issue were ABC rated and weighed10 pounds each. Between 8 and 10 extinguishers were kept at the jobsite. It was not disputed that the extinguishers contained at least one active hazardous chemical. Although the construction company was headquartered in Minnesota, the citations were issued at a jobsite in Kentucky where the company was the general contractor.
At a hearing regarding the citations, the main issue was whether the subject fire extinguishers fell within the “consumer products exception” to the Hazardous Communications Standard. Under this exception, the company had the burden of proving that (1) the extinguishers fell within the definition of either a consumer product under the Consumer Product Safety Act or a hazardous substance under the Federal Hazardous Substance Act; (2) they were used in the same manner as a “normal consumer”; and (3) employee exposure is of the same duration and frequency as a normal consumer.
OSHA argued that the 10 pound extinguishers at issue did not fall within the exception first because they were larger than those typically found in the residential setting. Second, the jobsite contained more extinguishers than normally found in a residential setting. Finally, OSHA argued that, due to the work being performed, the risk for fire at the jobsite was greater than in a home.
The company argued that the extinguishers were not included within its hazard communications program because its employee policy was to evacuate the jobsite in the event of a fire. The extinguishers were present to aid in evacuation rather than to fight the fire. Therefore, in the event of a fire, their employees would act similarly to that of a homeowner in a residential fire. The company also took precautions to prevent worksite fires, including the implementation of a program where “hot work” permits were issued. Finally, although the extinguishers weighed 10 pounds each, they were widely available for public purchase and contained the same chemicals as home fire extinguishers.
The Administrative Law Judge ultimately held that the company sustained its burden in establishing that the fire extinguishers met the consumer products exception. There was no dispute that the extinguishers were both a “consumer product” and contained a hazardous substance. Because the extinguishers were only used to put out fires and for no other purpose, they were being used in the same manner as a normal consumer. Finally, due to the company’s policy of evacuation instead of firefighting, and other fire prevention programs, employee exposure to the extinguishers was similar in duration and frequency to that of a normal consumer.