## Facts

- Safeway, Inc. operated a bread-baking facility in Denver, Colorado and periodically held employer-sponsored outdoor barbecues for employees.
- Safeway used a grill designed to accept a 20-pound propane tank stored beneath the grill.
- To avoid running out of fuel, Safeway purchased a 40-pound propane tank that carried a warning label stating it should not be used with a grill ordinarily equipped with a 20-pound tank.
- Because the 40-pound tank could not fit beneath the grill, Safeway personnel connected it using an adapter and leaned the tank against the grill’s frame; supervisors were aware of this setup.
- During a July 17, 1998 barbecue, employees attempted to improve grill performance by checking the regulator and repositioning the propane tank; propane escaped and a fireball erupted, causing severe burns to one employee and minor injury to another.
- OSHA cited Safeway under the general duty clause, 29 U.S.C. § 654(a)(1), and later alleged in the alternative a violation of 29 C.F.R. § 1910.101(b) (compressed gases).
- After a hearing, an ALJ found a violation of the general duty clause; Commission review was granted but then vacated due to a split, making the ALJ’s decision the Commission’s final order.

## Issues

1. Whether substantial evidence supported finding that Safeway exposed employees to a hazard in violation of OSHA’s general duty clause, 29 U.S.C. § 654(a)(1).
2. Whether the hazard was “recognized,” and whether Safeway knew or, with reasonable diligence, could have known of the hazardous condition.
3. Whether reliance on the general duty clause was improper because a specific standard (29 C.F.R. § 1910.101(b)) existed, and whether Safeway lacked fair notice.

## Decision

- The Tenth Circuit denied Safeway’s petition for review and affirmed the Commission’s final order.
- Substantial evidence supported each element of a general duty clause violation: existence of a hazard, recognition, likelihood of death or serious harm, feasible abatement, and employer knowledge.
- The hazard was recognized through the tank’s warning label and the obvious mismatch between the grill’s design and the 40-pound tank configuration.
- Supervisory awareness of the setup supported imputing knowledge to Safeway.
- Proceeding under the general duty clause was not barred by the compressed-gas standard; Safeway had adequate notice that the conduct was unsafe given the warning label and circumstances.

## Legal Principles

- To prove a general duty clause violation under 29 U.S.C. § 654(a)(1), the Secretary must show: (1) a hazard in the workplace, (2) the hazard was recognized, (3) the hazard caused or was likely to cause death or serious physical harm, and (4) feasible and effective means existed to eliminate or materially reduce the hazard.
- Employer knowledge is established if the employer knew or, with reasonable diligence, could have known of the hazardous condition; supervisory knowledge is generally imputed to the employer.
- Manufacturer warnings and obvious incompatibility between equipment design and actual use can support finding that a hazard is “recognized.”
- The general duty clause may be used where a specific standard does not adequately address the hazard on the facts presented; fair notice may be satisfied by explicit warnings and the evident danger of the condition.
- On review of Commission orders, appellate courts uphold factual findings supported by substantial evidence and do not reweigh credibility determinations.

## Conclusion

The court upheld OSHA liability under the general duty clause where Safeway’s supervisors allowed employees to use a 40-pound propane tank with a grill designed for a 20-pound tank, contrary to explicit warnings, resulting in a fire and serious injury, and where straightforward abatement measures were available.


Safeway, Inc. v. Occupational Safety & Health Review Comm’n, 382 F.3d 1189 (10th Cir. 2004)