BF Goodrich Hilton Davis, Inc.

Plain-English summary

BF Goodrich Hilton Davis makes color pigments and dyes at a Cincinnati plant, where large dryers are periodically cleaned with a hot, corrosive soap-and-water "boilout." A third-shift operator was burned over 47 percent of his body when boilout contents at about 116 degrees Celsius splashed on him under pressure as he drained a dryer. OSHA cited the company for several serious violations covering personal protective equipment, hazard assessment, eye and face protection, lockout of hazardous energy, and hazard-communication training. The judge affirmed only the first item, finding that safety glasses and rubber gloves were not enough protection when draining boiling contents, so face shields and aprons were needed, and assessed a $2,000 penalty. The judge vacated the hazard-assessment, eye-protection, and lockout items, finding the company's written procedures adequately addressed those hazards, and vacated the training item after concluding the diluted boilout mixture fell below the threshold to count as a hazardous chemical. Two lockout items had been withdrawn by the Secretary.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(a), 1910.132(d)(1), 1910.133(a)(1), 1910.147(c)(4)(ii), 1910.147(d)(3), 1910.147(d)(4)(i), 1910.1200(h)(3)(iii)
• Outcome: Item 1 (PPE) affirmed as serious ($2,000); items 2, 3, 4, and 7 vacated; items 5 and 6 withdrawn by the Secretary.
• Key point: Draining boiling, corrosive liquid required more than the MSDS-recommended glasses and gloves, but the Secretary did not prove the other alleged hazards where the employer's written procedures already addressed them.

Full text (OSHRC public release)

BF Goodrich Hilton Davis, Inc.
00-1401

APPEARANCES

     Michelle M. DeBaltzo, Esq.          Kenneth B. Stark, Esq.              Robert W. Lowrey, Esq.
     Office of the Solicitor             Duvin, Cahn & Hutton                UFCW Assistant General Counsel
     U. S. Department of Labor           Cleveland , Ohio                    ICWUC Local 342C
     Cleveland, OH                               For Respondent              Akron, O hio
              For Complainant                                                        For Employees

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER
     BF Goodrich Hilton Davis, Inc. (BFG), manufactures pigments and dies at a plant in

Cincinnati, Ohio. As part of the manufacturing process, large dryers are used to dry wet
chemical compounds to a powder. When changing the chemical compounds or performing
preventive maintenance, the dryers are cleaned inside in a “boilout process” by repeatedly
heating a solution of corrosive soap and water. On June 12, 2000, an employee was burned over
47% of his body when he emptied the boilout from Conaform Dryer #731D. After an inspection
by the Occupational Safety and Health Administration (OSHA), BFG received a serious citation
on June 28, 2000. BFG timely contested the citation.
The serious citation alleges, among other violations,1 that BFG violated 29 C.F.R.
§ 1910.132(a) (item 1) by failing to provide employees with personal protective equipment (PPE)
to prevent thermal and chemical burns when emptying Conaform Dryer #731D during the boilout
process or when dispensing soap #5143 into a bucket and emptying it into the dryer; 29 C.F.R.
§ 1910.132(d)(1) (item 2) by failing to make an adequate hazard assessment of the boilout
process; 29 C.F.R. § 1910.133(a)(1) (item 3) by failing to ensure that employees used appropriate
eye and face protection when dispensing soap #5143 into a bucket and emptying it into the dryer;
29 C.F.R. § 1910.147(c)(4)(ii) (item 4) by failing to identify on dryer #731D the pneumatic
energy sources and the potential for high pressure release in its energy control procedures; and 29
C.F.R. § 1910.1200(h)(3)(iii) (item 7) by failing to ensure that employees’ training included safe

     1
      At the hearing, the Secretary withdrew item 5, alleged violation of 29 C.F.R. § 1910.147(d)(3), and item 6,

alleged viola tion of 29 C .F.R. § 19 10.147 (d)(4)(i) (T r. 7-8).
work practices and PPE when performing a boilout on dryer #731D. The proposed total penalty
for the items at issue is $17,225.
The hearing in this case was held February 5 - 6 and March 8 - 9, 2001, in Cincinnati,
Ohio. The International Chemical Workers Union Council, United Food and Commercial
Workers, Local 342C, was designated party status. The parties stipulated jurisdiction and
coverage (Exh. J-1; Tr. 6). The parties filed post-hearing briefs.
BFG denies the violations and asserts compliance with the standards. BFG asserts that
operators of dryer #731D wear appropriate PPE as required by the Material Safety Data Sheet
(MSDS) for soap #5143. BFG disputes that the mixture of soap and water constitutes a
hazardous chemical. Also, BFG alleges that the accident on June 12, 2000, was unforseen.
For the reasons discussed, the alleged violation identified in item 1 is affirmed. The
remaining alleged violations are vacated or withdrawn by the Secretary.

                                              The Accident
     BFG, a large corporation, operates a chemical processing plant in Cincinnati, Ohio, which

manufactures color pigments and dies. The plant facilities consist of several buildings. The
plant operates three shifts (Complaint and Answer; Tr. 219, 222).
In Building #41, large dryers, including dryer #731D,2 are used to dry product into a
powder (Tr. 316, 418). One employee operates the dryers per shift (Tr. 222). The #731D dryer
has a capacity of 100 cubic feet (748 gallons). The dryer is heart-shaped and is loaded from the
second floor of the building. After the dryer is filled with wet product and sealed, the dryer
rotates on an axle. Steam heat is used to heat the jacket around the dryer, which in turn heats the
product. When the drying cycle is complete, the dryer’s contents are emptied through an 18-inch
butterfly valve into drums on the first floor (Exhs. C-1, R-3, R-7; Tr. 221, 410, 417-419).
The area on the first floor where the dryer’s contents are emptied is surrounded by a fence
or cage to prevent employees from entering the area while the dryer rotates (Tr. 652-653). To

     2
      In addition to the #731D dryer, operators are responsible for the #718 dryer and #720 dryer (Tr. 239, 406,

454). All d ryers perform the same func tion, i.e., drying prod uct by remo ving methan ol (Tr. 41 3, 655).
empty the contents of the #731D dryer,3 the operator enters the cage to air activate an 18-inch
butterfly valve on the bottom of the dryer. The operator connects an air line to the butterfly
valve. The air line valve is mounted on a wall approximately 5 to 10 feet from the butterfly
valve. When air is applied, the butterfly valve opens and the dryer’s contents are discharged.
When discharging the contents of #731D dryer, the employee stands inside the cage, 3 to 10 feet
from the butterfly valve (Exh. C-1; Tr. 259-260, 315, 420-421, 517-518, 587).
When performing preventive maintenance or changing product, the dryers are first
cleaned inside through a “boilout process.” The boilout decontaminates the inside of the dryer
(Tr. 48-49, 276). To initiate a boilout, the dryer is rotated so that the 18-inch butterfly valve
faces up toward the second floor. The operator removes the “solids bowl” and opens the vent
line. He then takes a 5-gallon bucket to the soap #5143 storage tank on the first floor and fills
the bucket (Tr. 181, 243, 245, 365, 413-414, 455, 463, 487-488, 545).
The MSDS for soap #5143 identifies the soap as corrosive with a pH of 14 (Exh. C-2).
The MSDS specifies the use of safety glasses and neoprene gloves. There is no dispute that
operators wore safety glasses and neoprene gloves while handling soap #5143 (Exh. J-1; Tr.
165).
After filling the bucket with soap #5143, the operator takes the bucket to the second floor
and empties the soap through the open butterfly valve into the dryer. The dryer is also filled with
approximately 250 gallons of water. The butterfly valve is then closed, steam heat is applied to
the dryer’s jacket and the dryer is rotated for 45 minutes to an hour. The temperature inside the
dryer reaches as high as 116 degrees Celsius(C)4 (Exh. R-4; Tr. 45, 72-73, 243, 464).
After completing the heat cycle, the dryer is rotated so that the butterfly valve is pointed
down towards the first floor. The air line is attached to the butterfly valve and the soap and water
mixture is emptied into the drains in the floor (Tr. 134, 259, 374, 656). The boilout process is
repeated four times. The fourth boilout is generally only water (Tr. 378, 381).

     3
       Unlike the #731D dryer, the other dryers (# 718 and #720) are “more automated and they’re controlled

from a panel board opening the butterfly valve” (Tr. 406). The operator does not need to physically contact the
butterfly valve. The operator stands at a panel board outside the cage, approximately 25 feet from the discharge area
(Tr. 257-258, 406, 517-518 , 656).

     4
     BFG keeps a temperature graph at the dryer (Exh. R-4). Water boils at 100 degrees C (212 degrees

Fahrenheit) (Exh. J-1). The boiling point of soap #5143 is greater than 100 degrees C (Exh. C-2; Exh. J-1).
On June 12, 2000, employees performed four boilouts on the #731D dryer as part of
preventive maintenance. The first boilout started at the end of the first shift by operator Fredrick
Marshall at approximately 2:30 p.m. This was Marshall’s first boilout on the #731D dryer,
although he had performed boilouts on other dryers. When he completed his shift at 3:00 p.m.,
Marshall had not emptied the contents from the first boilout (Exh. J-1; Tr. 242, 253-254, 256,
819).
The second shift operator Tom Theademan emptied the first boilout, completed the
second and third boilouts, and filled the dryer for the fourth boilout when his shift ended at 11:00
p.m. When the boilouts were emptied, the temperature of the contents was 96 degrees C for the
first boilout, 85 degrees C for the second boilout, and 80 degrees C for the third boilout (Exh. J-
1; Tr. 368, 374, 376, 378, 425-426).
When third shift operator Roy Morgan started his shift, the temperature of the fourth
boilout was approximately 105 degrees C. At 11:30 p.m., Morgan emptied the fourth boilout.
The temperature of the contents was approximately 116 degrees C (240.8 degrees Fahrenheit).
After connecting the air line to the butterfly valve and stepping onto a stool inside the cage,
Morgan remembers only screaming for help. He received burns on 47% of his body when the
boilout’s contents splashed on him under high pressure. Morgan was unconscious for eight days.
Although still employed by BFG, Morgan has not returned to work (Exhs. J-1, R-4, U-4; Tr. 454,
456, 478).
On June 16, 2000, OSHA industrial hygienist (IH) Deborah Wallace and supervisor Dick
Gilgrist initiated a formal complaint inspection of BFG’s boilout process on the #731D dryer
(Tr. 35). Wallace interviewed employees and supervisors. She personally did not observe the
boilout process. Also, there was no analysis of the soap and water solution inside the dryer
during a boilout (Tr. 223-224). Based on OSHA’s inspection, a serious citation was issued to
BFG.

                                         Discussion
    The Secretary has the burden of proving a violation.
           In order to establish a violation of an occupational safety or health
           standard, the Secretary has the burden of proving: (a) the
           applicability of the cited standard, (b) the employer’s
           noncompliance with the standard’s terms, (c) employee access to
           the violative conditions, and (d) the employer’s actual or
           constructive knowledge of the violation (i.e., the employer either
           knew or, with the exercise of reasonable diligence could have
           known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
BFG does not dispute the application of the standards for PPE, lockout and hazard
communication to its boilout process on the #731D dryer. BFG asserts that it complied with the
cited standards. Also, BFG does not deny that it knew of the boilout process and that its
operators were exposed employees. BFG does not assert employee misconduct as a defense.

                       Item 1 - Alleged violation of § 1910.132(a)
   The citation alleges that BFG failed to ensure PPE was used to protect operators from

thermal and chemical burns when transporting the 5-gallon bucket of soap #5143 to the #731D
dryer or when emptying the contents of the dryer after the boilout. Section 1910.132(a) provides:
Protective equipment including personal protective equipment for
eyes, face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition wherever
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 in the function
of any part of the body through absorption, inhalation or physical
contact.

   Section 1910.132(a) requires PPE when an employer has actual knowledge of a hazard

requiring the use of PPE or a reasonable person familiar with the situation, including any facts
unique to the particular industry, would recognize a hazard warranting the use of such PPE.
Armour Food Co., 14 BNA OSHC 1817, 1820 (No 86-247, 1990). The standard’s focus is on
the recognition of a hazard, not the need for particular PPE. Lukens Steel Co., 10 BNA OSHC
1115, 1123 (No. 76-1053, 1981).
The Secretary argues that the PPE (rubber gloves, safety glasses) worn by employees was
inadequate for dispensing soap #5143 into the dryer and when emptying the dryer’s contents after
the boilout. The alleged hazard involves thermal (boiling water) and chemical (corrosive soap)
burns caused by possible splashing. On June 12, 2000, third shift operator Roy Morgan suffered
second and third degree burns when the contents splashed on him while emptying the boilout (Tr.
478). His burns were on his back, arms, buttocks and legs (Tr. 478). The Secretary cites Gulf
Oil Co.-U.S., 10 BNA OSHC 1025, 1026 (No. 76-6736B, 1981) (affirming a § 1910.132(a)
violation by requiring face shields and slicker suits to protect employees from splashing while
transferring sulfuric acid from a supply tank to a storage tank. The Commission rejected the
employer’s argument that the activities did not require more protective equipment than goggles
and gloves).

Dispensing Soap #5143
To initiate the boilout, employees dispensed soap #5143 from a large plastic holding tank
on the first floor into a 5-gallon bucket, carried the bucket to the second floor, and emptied the
soap into the dryer (Tr. 245). First shift operator Marshall stated that after obtaining the soap, he
carried the bucket approximately 50 yards from the tank to the dryer (Tr. 247-248). Second shift
operator Theademan testified that he put a lid on the bucket, put the bucket on an elevator, and
then carried the bucket approximately 50 feet to the dryer (Tr. 370). Third shift operator Morgan
testified that he carried the bucket of soap approximately 40 feet to an elevator and another 40
feet from the elevator to the dryer (Tr. 463-464).
Soap #5143, used in the boilout, is a “thin liquid” with a pH level of 14. The MSDS
describes the soap as corrosive to the eyes and skin (Exh. C-2). The MSDS identifies safety
glasses and neoprene gloves as appropriate PPE. The recommended first aid measures for
physical contact with the soap include dilution or flushing with water.
BFG agrees that soap #5143 is classified as a hazardous chemical (Tr. 22, 848). BFG’s
safety and health manager Bryan Haywood describes the soap as a caustic and recognizes that it
could cause chemical burns (Tr. 849-850). Second shift operator Theademan knew that the soap
was “highly caustic” (Tr. 382). Chemical operator Carl Hager testified to an incident after June
12, 2000, when an employee while cleaning the floor received blisters on his feet when soap

5143 splashed into his boots (Tr. 538).

   The Secretary acknowledges that BFG required employees to wear safety glasses and

rubber gloves when dispensing the soap to the dryer (Exh. J-1). The Secretary argues that the
employees should have additionally worn face shields and rubber aprons when dispensing the
bucket of soap #5143 to dryer #731D (Secretary’s Brief, p.12). CO Wallace testified that the
MSDS for soap #5143 is contradictory because, in her opinion, compliance with the MSDS does
not fully protect an employee. The soap could still get on the employee’s skin or eyes despite the
glasses and gloves (Tr. 110-111, 120-122).
The record in this case fails to demonstrate that dispensing and carrying the soap in a
bucket requires PPE beyond the safety glasses and rubber gloves recommended by the MSDS.
There is no showing of a splash hazard in dispensing the soap from the tank, carrying the soap to
the dryer, or emptying the soap into the dryer. A splash hazard may not be assumed. No
employees testified to any incidents of splashing. One employee (Theademan) testified that a lid
was placed on the bucket (Tr. 370). It is not shown that employees were exposed to reasonable
probability of injury that could be prevented by wearing the additional PPE. Atlantic Battery
Co., 16 BNA OSHC at 2154. The Secretary must show more than a possibility of a hazard, she
must prove a significant risk of harm due to splashing, requiring PPE. Anoplate Corp., 12 BNA
OSHC 1678, 1681-1682 (No. 80-4109, 1986).
The MSDS recommends only safety glasses and neoprene gloves for eye and skin
protection (Exh. C-2). The employees wore the MSDS recommended PPE. The Secretary did
not show that the operators’ handling of the soap was beyond or contrary to the handling
contemplated by the MSDS. The potential splash hazard described by the Secretary is the type of
splash hazard contemplated by the soap manufacturer’s MSDS in recommending safety glasses
and rubber gloves. IH Wallace’s testimony regarding the MSDS is not given weight. She did
not contact the soap manufacturer. She never observed employees dispensing the soap to the
dryer. The rubber gloves and safety glasses as required by the MSDS were not shown to be
inadequate.
There is no evidence that employees had previously been injured while dispensing or
carrying the soap to the dryer. The absence of injuries over the approximate 9 years of
performing boilouts is some evidence that the additional PPE recommended by the Secretary is
not required. ConAgra Flour Milling Co., 16 BNA OSHC 1137, 1142 (No. 88-1250, 1993). The
burn injuries received by Morgan on June 12, 2000, were not from carrying the soap. The other
incident after Morgan’s accident involved the soap splashing into an employee’s shoes while he
was cleaning the floor.

Emptying the Boilout
After completing the boilout, an employee stood within 10 feet of the 18-inch butterfly
valve when the contents of the dryer (approximately 5 gallons of soap #5143 and 250 gallons of
water) were emptied onto the floor (Tr. 46, 260, 518-519). The employee was inside the cage
around dryer #731D. BFG’s Department Operating Procedure (DOP) for dryer “Cleanout
Procedures” dated 1993, prepared by Hilton Davis Chemical prior to its merger with BFG,
instructed employees to cool the boilout contents to 50 degrees C. It also states “[S]lowly and
carefully drain the dryer to the sewer. Keep clear of the draining water and its path to prevent
from being splashed by the hot boilout” (Exh. C-6).
Despite the DOP, employees’ testimony and the BFG temperature graph maintained on
the dryer shows that the contents were emptied at temperatures higher than 50 degrees C. On
June 12, 2000, the contents of the four boilouts were emptied at temperatures between 80 and
116 degrees C (Exh. R-4; Tr. 374, 376, 378, 381, 391, 466).
When emptying the boilout, the parties stipulated that employees at a minimum wore
cotton uniforms, safety glasses, safety shoes and hard hats (Exh. J-1). Additionally, employees
testified that they wore rubber gloves. The Secretary argues that the employees should have also
worn face shields and rubber aprons when emptying the boilout from dryer #731D (Secretary’s
Brief, p.12).
The record establishes the need for additional PPE when emptying the boilout contents.
Morgan testified that he previously had emptied the dryer at temperatures in excess of 100
degrees C, which is above the boiling point. Morgan’s testimony was not contradicted.
Emptying boiling water is a hazard. BFG should have known of the hazard. Temperature graphs
from the boilouts were available, and a supervisor was present. Section 1910.132(a) requires
appropriate PPE for the hazard. Safety glasses and rubber gloves would not protect exposed
skin from boiling water, particularly from unexpected pressurization5 (BFG Brief, p. 10).

   5
       BFG believes that the vent which prevents pressurization became clogged (Tr. 324-325 ).
       A serious violation of § 1910.132(a) is established. In determining whether a violation is

serious, the issue is not whether an accident is likely to occur; it is rather, whether the result
would likely be death or serious harm if an accident should occur. Whiting-Turner Contracting
Co., 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989). The burn injuries to Morgan show the
serious nature of the condition.

                         Item 2 - Alleged Violation of § 1910.132(d)(1)
       The citation alleges that the hazard assessment was not adequate to protect employees

from burns during the boilout procedure on the #731D dryer. Section 1910.132(d)(1) provides,
in part:
The employer shall assess the workplace to determine if hazards
are present, or likely to be present, which necessitate the use of
personal protective equipment (PPE).

       As stated, the PPE requirement of § 1910.132(a) applies whenever it is necessary by the

hazards of processes encountered in the workplace capable of causing injury. Section
1910.132(d)(1) requires an employer to assess the workplace to determine if such hazards are
present which necessitate the use of PPE. Topco, Inc., 18 BNA OSHC 1746, 1750 (No. 97-0299,
1999) (ALJ). The hazard assessment identifies the specific job task hazards which require
appropriate PPE.
There is no dispute that BFG had made an assessment of the boilout process (Tr. 165).
BFG’s Department Operating Procedure (DOP) for dryer “Cleanout Procedures” is a hazard
assessment (Exh. C-6).
The issue is whether this assessment was adequate. IH Wallace testified that the BFG
hazard assessment was inadequate because it only required employees to wear hard hats, safety
glasses, and steel toed shoes during boilout (Exh. J-1). Employees testified that they wear rubber
gloves. The MSDS for soap #5143 recommends rubber gloves and safety glasses as appropriate
PPE. The Secretary argues that employees should have additionally worn face shields and rubber
aprons.
BFG’s written boilout procedure (DOP) specifically applies to the #731D dryer. It is a
hazard assessment. The procedure advises operators to position the butterfly valve away from
them and to cool the dryer contents to below 50 degrees C. The DOP also recognizes that the
dryer could become pressurized during a boilout if the vent was not open or the vent line was
plugged. If done in accordance with the DOP, there is no showing of a hazard requiring PPE in
addition to the safety glasses and rubber gloves required by the soap manufacturer.
The Secretary argues that employees were not trained and did not follow the DOP.
However, the lack of safety training or the failure by operators to follow the written procedure
does not establish the lack of a hazard assessment or that the assessment was inadequate. The
Secretary concedes that a hazard assessment was made.
The Secretary’s complaint involves the adequacy of the PPE, not the lack of a hazard
assessment. The citation was issued because employees were not wearing the PPE that the
Secretary believed should be worn. The Secretary’s disagreement with the result of an
employer’s hazard assessment is not a basis for a finding that no assessment was conducted.
Drexel Chemical Company, 17 BNA OSHC 1908, 1910 (No. 94-1460, 1997) (deficiencies in
written confined space program do not establish failure to conduct initial evaluation). According
to the DOP, employees were instructed to cool the boilout to 50 degrees C and direct the contents
away from their position. If followed, there is no evidence of a hazard requiring additional PPE.
A violation of § 1910.132(d) is not established.

                           Item 3 - Alleged Violation of § 1910.133(a)(1)
     The citation alleges that BFG failed to ensure that employees used appropriate eye or face

protection when dispensing the soap #5143 into a bucket and emptying the bucket into the #731D
dryer.6 Section 1910.133(a)(1) provides:
The employer shall ensure that each affected employee uses
appropriate eye or face protection when exposed to eye or face
hazards from flying particles, molten metal, liquid chemicals, acids
or caustic liquids, chemical gases or vapors, or potentially injurious
light radiation.

     The standard requires PPE for the eyes and face when there is a reasonable probability of

injury that could be prevented. BFG agrees that the soap #5143 is a hazardous chemical (Tr. 22,

     6
       This citation item does not allege a hazard when emptying the contents of the dryer. If it did, the record

fails to show that the dryer conte nts of 250 g allons of water and 5 gallo ns of soap c onstituted “ac ids or caustic
liquids” as required by § 1 910.133(a )(1). No analysis was mad e of the boilout contents.
848). The MSDS shows that the soap is corrosive and has a pH of 14 (Exh. C-2). Safety
manager Haywood agrees that the soap can cause chemical burns (Tr. 849-850).
The record, however, fails to establish a violation. Although soap #5143 is caustic,
employees wore safety glasses and rubber gloves as required by the soap’s MSDS. There is no
showing that an operator was ever splashed with soap #5143 when dispensing it to the dryer.
After the bucket is filled, a lid is placed on the bucket. During this dispensing of the soap,
splashing on the face or eyes is not reasonably anticipated. The record fails to show that there
was a reasonable probability of injury to eyes or face when only safety glasses are used. BFG’s
compliance with the MSDS’s PPE recommendations complies with the PPE requirements of §
1910.133(a)(1). The record does not disclose previous injuries or near misses of injury to eyes or
face from handling soap #5143. The Secretary’s burden includes showing a significant risk of
harm or reasonable probability of injury to eyes and face. Atlantic Battery Co., supra, at 2153.
Also, the cited standard duplicates the violation of § 1910.132(a) (item 1).
A violation of § 1910.133(a)(1) is not established.

                    Item 4 - Alleged Violation of § 1910.147(c)(4)(ii)
   The citation alleges that BFG’s energy control procedures did not identify pneumatic

energy sources and the potential for high pressure release from dryer #731D. Section
1910.147(c)(4)(ii) provides, in part:
The [energy control] procedures shall clearly and specifically
outline the scope, purpose, authorization, rules, and techniques to
be utilized for the control of hazardous energy, and the means to
enforce compliance, including, but not limited to, the following:

           (A) A specific statement of the intended use of the procedure;
           (B) Specific procedural steps for shutting down, isolating, blocking
           and securing machines or equipment to control hazardous energy;
           (C) Specific procedural steps for the placement, removal and
           transfer of lockout devices or tagout devices and the responsibility
           for them; and
           (D) Specific requirements for testing a machine or equipment to
           determine and verify the effectiveness of lockout devices, tagout
           devices, and other energy control measures.
   The energy control procedures required under § 1910.147(c)(4) as part of OSHA’s

lockout/tagout standards are to be developed and utilized by employers for the control of
“potentially hazardous energy when employees are engaged” in servicing and maintenance
activities. The purpose of an energy control procedure is:
to ensure that before any employee performs any servicing or
maintenance on a machine or equipment where the unexpected
energizing, start up or release of stored energy could occur and
cause injury, the machine or equipment shall be isolated from the
energy source, and rendered inoperative. See § 1910.147(c).

   The lockout/tagout standards establish “minimum performance requirements for the

control of such hazardous energy.” See § 1910.147(a). Since the lockout procedure is to guide
an employee through the lockout process, general, non-machine specific procedures are
unacceptable. Drexel Chemical Co., supra, at 1913.
There is no dispute that the dryer operator is within 10 feet of the butterfly valve on the

731D dryer when the contents of the boilout are discharged onto the floor. Morgan was badly

burned from the splashing contents when he opened the valve. The Secretary asserts that BFG’s
lockout program fails to identify the pneumatic energy source (air to activate the dryer’s butterfly
valve) or the stored energy source (pressurization inside the dryer) as sources of unexpected
energy (Tr. 702-703, 706, 727). The Secretary’s expert witness James Washam identified three
sources of energy during a boilout in the dryer: electrical, pneumatic, and stored (Tr. 714, 797).
BFG argues that the § 1910.147 lockout standards do not apply to the #731D dryer’s
boilout process (Exh. R-6). BFG initiates lockout procedures only after the boilout is completed
and employees enter the dryer to perform maintenance work inside the dryer. Safety manager
Haywood characterized the boilout as “preparatory work, getting ready to get the equipment to
zero energy, decontaminating the equipment of any stored or contamination type energy” (Tr.
815). He considered the boilout analogous to “flushing” or “purging and recovery” of the dryer
prior to performing a maintenance operation (Tr. 815). According to BFG, the maintenance on
dryer #731D was performed on June 13 after the boilout was completed (Tr. 862-863).
BFG’s written lockout procedure uses a permit lockout system (Exhs. C-10, R-2).
Employees lock out the electrical energy source to the #731D dryer prior to emptying the dryer to
prevent the dryer from engaging while the operator is inside the cage (Tr. 330-332, 662-663,
704). The purpose of the boilout is to clean the inside of the dryer. “Cleaning” is a
specific activity within the definition of “servicing and/or maintenance.” See § 1910.147(b).
Also, the standard applies when service and maintenance requires an employee to place any part
of his body “where an associated danger zone exists during a machine operating cycle.” See §
1910.147(a)(2)(ii)(B). The dryer operator is inside the protective cage in order to engage the
butterfly valve. Morgan was inside the cage standing on a stool adjacent to the dryer when the
accident occurred (Tr. 505-506). He was less than 10 feet from the discharge (Tr. 518-519). The
lockout standards at § 1910.147 apply to BFG’s boilout process on the #731D dryer.
An energy source can be “any source of electrical, mechanical, hydraulic, pneumatic,
chemical, thermal or other energy.” See § 1910.147(b).7 The issue is whether BFG’s lockout
process involves pneumatic or stored energy sources that need to be locked out (Tr. 793).

Pneumatic Energy
An air line triggers the butterfly valve to open. The Secretary argues that the air line to
the butterfly valve was a source of hazardous pneumatic energy. However, the Secretary’s expert
Washam agreed that “the pneumatic source isn’t the hazard you’re trying to deal with” (Tr. 801).
Rather, the air to the valve controls whatever energy may be within the dryer (Tr. 800).
The air line used to activate the butterfly valve is not the source of hazardous energy. The
air is merely the means by which the contents of the dryer are emptied. The use of the air line
involves intentional actions, not unexpected energy. There is no opportunity shown for
unexpected release of pneumatic energy. General Motors Corp., Delco Chassis Div., 17 BNA
OSHC 1217, 1219 (Nos. 91-2973, 91-3116, 91-3117, 1995), aff’d. 17 BNA OSHC 1673
(6th Cir. 1996)(standard inapplicable when there is sufficient notice of energization). The
activation of air was not an unexpected release of energy which required locking out. The
lockout standard does not apply to all energy sources, only hazardous energy. The butterfly valve
has to be opened to allow the discharge (Tr. 281, 586). Air was not the source of hazardous
energy.

      7
      BFG does not assert entitlement to the exceptions to the lockout requirements at § 1910.147, nor do they

apply. Drexel Chemical Co., supra, at 1913-1914 (the exception in § 1910.147 did not apply where inter alia there
was a pote ntial for stored energy and not all equipm ent had a sing le energy sou rce).
Stored Energy
The accident on June 12, 2000, may have resulted from a high pressure release of the
contents of the boilout. BFG speculates that Morgan’s injuries resulted from the unexpected
pressurization when the vent which prevents pressurization became clogged (BFG Brief, p. 10;
Tr. 324-325). The boilout contents at the time of Morgan’s activation of the butterfly valve was
116 degrees C. He was inside the cage standing on a stool adjacent to the dryer (Tr. 505-506).
The record fails to show previous incidents of dryer pressurization during a boilout8 (Tr. 821-
822).
BFG’s DOP Cleanout Procedure instructs employees to open the vent on the dryer to
avoid pressurization, and cool the dryer to 50 degrees C (Exh. C-6, §§1.15, 1.17, 1.23). The
procedure recognizes the potential for pressurization during a boilout and outlines the rules and
techniques to use to control stored energy. Safety manager Haywood testified that there was no
potential for pressurization if the DOP procedures for clearing the vent and cooling the boilout to
50 degrees C before emptying are followed (Tr. 822). His testimony was uncontradicted.
BFG was cited for not addressing the potential for stored energy. It was not cited for lack
of employee training or not complying with its procedures. The potential for stored energy is
addressed in BFG’s energy control procedures.
A violation of § 1910.147(c)(4)(ii) is not established.

                      Item 7 - Alleged Violation of § 1910.1200(h)(3)(iii)
    The citation alleges that BFG failed to ensure that employees’ training include the safe

work practices and PPE to be used when performing a boilout on dryer #731D. Section
1910.1200(h)(3)(iii) provides that employee training include:
(iii) The measures employees can take to protect themselves from
these hazards, including specific procedures the employer has
implemented to protect employees from exposure to hazardous
chemicals, such as appropriate work practices, emergency
procedures, and personal protective equipment to be used.

    8
     Maintenance mechanic Towner testified that pressure build-ups have occurred in the #731D dryer during

production and at least one time prior to the June 12 accident during a boilout (Tr. 978-979).
The purpose of the hazard communication standard is to ensure that information
concerning chemical hazards is transmitted to employees through a comprehensive program. See
§ 1910.1200(a). The standard “applies to any chemical which is known to be present in the
workplace in such matter that employees may be exposed under normal conditions of use or in a
foreseeable emergency.” See § 1910.1200(b)(2). An employer’s training must include the
measures an employee takes to protect himself from the physical and health exposure to
hazardous chemicals in the workplace. ARA Living Centers of Texas, Inc., 15 BNA OSHC 1417,
1418 (No. 89-1894, 1991).
The boilout process on dryer #731D involves a mixture of water and soap #5143 (Exh. J-
1). A “chemical” is “any element, chemical compound or mixture of elements and/or
compounds.” See § 1910.1200(c). Both water and soap are chemicals. A hazardous chemical,
however, is “any chemical which is a physical or a health hazard.” It is undisputed that the soap

5143 is a hazardous chemical (Tr. 22, 848).

   The issue is whether the mixture of soap and water in the boilout constitutes a hazardous

chemical. BFG argues that the contents of a boilout do not constitute a hazardous chemical
because the soap is diluted by 250 gallons of water.
Unlike the hazard determinations required by OSHA of chemical manufacturers and
importers under § 1910.1200(d)(1), employers are not required to make such determinations
unless they decide not to rely on the evaluation performed by the chemical manufacturer or
importer. See § 1910.1200(d)(1). Neither the Secretary nor BFG have tested or analyzed the
boilout contents (Tr. 143).
OSHA defines a mixture as “any combination of two or more chemicals if the
combination is not, in whole or in part, the result of a chemical reaction.” See § 1910.1200(c).
When a mixture is involved, and an employer has not tested it to determine if it is a hazard, the
“mixture shall be assumed to present the same health hazards as do the components which
comprise one percent (by weight or volume) or greater of the mixture. . . .” See §
1910.1200(d)(5)(ii).
Soap #5143 is a mixture, according to the MSDS, containing potassium hydroxide,
proprietary surfactant blend, sodium hydroxide and water (Exh. C-2). Because potassium
hydroxide and sodium hydroxide constitute as much as 5% of the soap, soap #5143 is admittedly
a hazardous chemical (BFG Brief, p. 19; Tr. 22, 848). It has a pH level of 14 and is corrosive to
the skin and eyes (Exh. C-2). It admittedly can cause chemical burns (Tr. 849-850).
During a normal boilout, the dryer contains approximately 250 gallons of water and 5
gallons of soap #5143 (Exh. J-1;Tr. 365, 369, 375). The Secretary argues that the boilout
mixture was comprised of 2% (5/255) of soap and thus, a hazardous chemical requiring
employee training under § 1910.1200(h)(3)(iii) (Tr. 72, 143).
The record, however, fails to establish that the hazardous components of a boilout
comprised 1% or more of the boilout mixture. The potassium hydroxide and sodium hydroxide,
the hazardous components within the soap, are at most only 5% of the soap. More than 90% of
the soap is water. The boilout contained not more than 5 gallons of soap to which approximately
250 gallons of water was added. The boilout mixture contained at most 0.1% sodium hydroxide
and 0.1% potassium hydroxide (Tr. 151). Therefore, the boilout mixture does not constitute a
hazardous chemical.
The Secretary’s interpretation is unreasonable. There is no dispute that a mixture
containing 0.5% sodium hydroxide and 99.5% water is not a hazardous chemical (Tr. 155). IH
Wallace agreed that there is only 0.1% of potassium hydroxide and sodium hydroxide in 5
gallons of soap #5143 and 250 gallons of water (Tr. 150-151). In drafting an MSDS for soap

5143 and water mixture, the MSDS would not list “soap #5143” as the hazardous ingredient.

An MSDS identifies only the chemical and common names of all ingredients which comprise 1%
or greater of the composition. See § 1910.1200(g)(2)(i)(C)(1). The MSDS would not need to list
any chemicals if they comprise less than 1% of the mixture. Under the Secretary’s interpretation,
two identical mixtures would be treated differently if one was created by adding floor soap while
the other was created by adding sodium hydroxide and potassium hydroxide to water.
The record also fails to show that employees were not trained in appropriate PPE for
handling corrosives (Tr. 184-185). The hazard communication standard requires an employer to
advise employees of the precautions to prevent exposure to hazardous chemicals. The MSDS for
soap requires safety glasses and rubber gloves. Employees wore safety glasses and rubber
gloves.
A violation of § 1910.1200(h)(3)(iii) is not established.
Penalty Consideration
The Commission is the final arbiter of penalties in contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity, which is the principal factor considered, depends upon the number of employees
exposed, the duration of the exposure, the precautions taken against injury and the likelihood that
an injury would result. J. A. Jones Construction Co., 15 BNA OSHC 2201, 2214 (No. 87-2059,
1993).
BFG is a large employer and not entitled to credit for size. Also, BFG is not given credit
for history because it received serious citations in the preceding three years (Exh. C-7; Tr. 98).
BFG is given credit for good faith based on having good safety programs.
A penalty of $2,000 is reasonable for violation of § 1910.132(a) (item 1). Appropriate
PPE was not addressed by BFG when dispensing the boiling contents of a boilout. The
uncontradicted testimony of Morgan shows that he regularly emptied the boilout at temperatures
above 100 degrees C. He stood within 10 feet of the boiling contents emptying onto the floor.
Other employees also did not comply with the DOP.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

     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.

                                          ORDER
     Based upon the foregoing decision, it is ORDERED that:
     1.     Item 1, alleged violation of § 1910.132(a), is affirmed as serious and a penalty of

$2,000 is assessed.
2. Item 2, alleged violation of § 1910.132(d)(1), is vacated.
3. Item 3, alleged violation of § 1910.133(a)(1), is vacated.
4. Item 4, alleged violation of § 1910.147(c)(4)(ii), is vacated.
5. Item 5, alleged violation of § 1910.147(d)(3), is withdrawn by the Secretary.
6. Item 6, alleged violation of § 1910.147(d)(4)(i), is withdrawn by the Secretary.
7. Item 7, alleged violation of § 1910.1200(h)(3)(iii), is vacated.

                                              /S/
                                        KEN S. WELSCH
                                        Judge

Date: November 26, 2001