My State:
March 11, 2013
Appeals Board decisions: Employer can't disregard agency requirements

United States Cold Storage of California operates a facility in Tracy, from where it stores and distributes frozen foods. After the company reported an accident, Cal/OSHA inspected the facility.

The citation

In a cold storage room, the Cal/OSHA inspector found that an aisle used for two-way traffic by the employer's forklifts was 124 inches wide. The forklifts used there—Raymond standup forklifts—are 52 inches wide.

The inspector cited the employer for violating General Industry Safety Orders (GISO) Section 3272(e), which requires that:

Where industrial vehicles are in customary use, traffic aisles designed for the passage of a single vehicle shall be at least 2 feet wider than the widest vehicle. Two-way traffic aisles shall be at least 3 feet wider than twice the width of the widest vehicle.

With a clearance of only 20 inches for two vehicles to pass each other, the employer violated the standard. The plant manager acknowledged that, for safety reasons, when two forklifts approach one another in the aisle, they come to a stop and "creep" past each other to avoid colliding with one another or with the racks to either side.

The employer, however, contested the citation, arguing that it was in compliance with the California Building Code (Title 24), which has no specific aisle width requirements for cold storage facilities. The Cal/OSHA standard in Section 3272, the employer contended, is a building standard and, because it has not been incorporated into the California Building Code, it is unenforceable.

In addition, the employer offered expert testimony that it was in compliance with the California and Uniform Fire Codes, which specify a minimum aisle width of 96 inches.

Practice tip

Although the presence of multiple sets of regulations that apply to a single issue can be vexing, employers cannot use this as an excuse for not knowing about or complying with a given rule.

Can Cal/OSHA specify a building requirement?

The Cal/OSH Appeals Board rejected the employer's argument, citing GISO Section 3202, which states that:

Regulations herein affecting building standards, apply to any building, or building alteration, or building modification for which construction is commenced after the effective date of the regulations.

Section 3272(e) was last amended in 1977; the employer's Tracy facility was built beginning in 1993. Therefore, the board found, the regulation applies to the employer's facility, and it doesn't matter that it isn't contained in the Building Code.

The employer also asserted that Section 3202 was unenforceable because it qualifies as a building standard under Health and Safety Code Section 18909 but wasn't included in the Building Code.

Section 18909 does define the term but also excludes certain safety regulations from the definition.

The board noted that Section 18909 excludes safety orders from building standards but does not invalidate them. The board also determined that the exclusion permits safety regulations relating to permanent parts of the building itself to be both building standards and safety orders. Therefore, it found, safety orders may not always be enforceable as building standards, but they are enforceable as safety orders.

Essentially, the board determined that the employer could neither argue that Cal/OSHA's standards were unenforceable because they were not found in the Building Code, nor use its compliance with building and fire codes to exempt itself from Cal/OSHA compliance. The citation was upheld.

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