Hart Metals, Inc.

Plain-English summary

Hart processed magnesium ingots and particulate in two chipper areas at its Pennsylvania plant. OSHA alleged that a propane forklift needed an explosion-rated designation in the open chipper area and that ordinary electrical equipment was improper in the enclosed chipper area. The judge vacated the forklift item because Hart's enforced shutdown, cleanup, and access procedures prevented the truck from entering while dust could be released, so employee exposure was not proven. The electrical item was affirmed because conductive magnesium dust could be present in the enclosed area and the lights, switches, and receptacles were not approved for the hazardous location. A $875 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(c)(2)(vi)(a); 29 C.F.R. § 1910.307(b)
• Outcome: Forklift item vacated, hazardous-location electrical item affirmed as serious, and $875 assessed.
• Key point: Enforced operating procedures eliminated forklift exposure, but ordinary electrical equipment remained noncompliant where conductive magnesium dust could be present.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
Complainant, :
: DOCKET No. 01-1038
v. :
:
HART METALS, INC., :
Respondent. :
____________:

APPEARANCES:

Donald K. Neely, Esquire J. Michael Klutch, Esquire
Brian J. Mohin, Esquire Cipriani & Werner
U.S. Department of Labor Pittsburgh, PA
Philadelphia, PA For the Respondent
For the Complainant

BEFORE: G. MARVIN BOBER
Administrative Law Judge

                                DECISION AND ORDER

Procedural History and Jurisdiction
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). At all times relevant to this proceeding, Respondent Hart Metals,
Inc. (“Hart”) operated a plant which processed magnesium ingots and powders and other commercial
products in Tamaqua, Pennsylvania. At the time of the OSHA inspection, Hart employed 40 workers
at this plant. Hart admits in its Answer that it uses tools, equipment and materials which originate
from locations outside the state of Pennsylvania. I therefore find that Hart is an employer engaged
in a business affecting interstate commerce and that the Commission has jurisdiction over the subject
matter and the parties within the meaning of section 3(5) of the Act.

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This case arose as a result of an explosion which occurred in the maintenance shop of Hart’s
Tamaqua facility on January 20, 2000. Following the inspection, OSHA issued to Hart a nine-item
serious citation and 14 item willful citation. The case was assigned Dockett No. 00-1177. Prior to
the trial, all but two items were resolved through a written settlement agreement dated February 21,
200.1 The remaining contested items are Citation 1, Item 5a, which alleges a serious violation of 29
C.F.R.§ 1910.178(c)(2)(vi)(a), and Citation 1, Item 9, which alleges a serious violation of 29 C.F.R.§
1910.307(b). These items were severed from the settled citation items, and were assigned the current
dockett number. The administrative trial in this matter was conducted on May 21 and 22, 2001. Both
parties have submitted post-hearing briefs.
Background
The remaining citation items relate to alleged hazardous conditions in two areas at the Hart
facility.1 A “chipper” in each area uses rotating drums and blades to break magnesium ingots into
smaller chips. The chipper in the “C” area (“chipper C”) also uses hammer mills. The chippers can
produce several different sizes of particulate, depending on the size of the product required.
According to Rick Miller, Hart’s assistant plant manager, the smallest size of magnesium particulate
produced is “70 mesh,” which is approximately 200 microns. (Tr. 37-38, 55, 166-168).
The “A” area is on the fourth floor of a masonry structure at the facility, and is completely
enclosed. The chipper located there (“chipper A”) is attached to a containing system which conveys
the magnesium product from the chipper, through a pneumatic tube, across the floor and out the
window. The “C” area is a covered “lean to” that is open to the elements on three sides. The
magnesium products produced by chipper C are conveyed to a “super sack,” (a 55 gallon drum)
through a tube. The super sacks seal around the tube, and the tubing is clamped onto the drum. (Tr.
23, 49-50, 55, 108, 138, 142 166-168).
Hart instituted and enforced certain safety procedures in the “C” area. The particulate from
the hammer mills is kept at 26 ounces per square foot in order to keep it under the explosive range
of magnesium. Once the super sacks are filled, the screening operation is shut down, and the area
is checked for any spills or leaks. The area is then cleaned of any material that was inadvertently

   1
       Neither area was in any way involved in the explosion which generated the inspection.

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dropped on the ground. After a designated period of time, which is determined by the size of
particulate being produced, the chipper screening operator then uses a forklift to remove the filled
drums from the chipping area. The forklift is not permitted to enter the area to either furnish fresh
ingots or to remove loaded drums until after these safety measures have been observed. Further, the
evidence demonstrates that Hart kept supervisors present in the “C” area “around the clock” to
ensure compliance with these rules. (Tr. 23, 138, 142-147, 163, 167-170, 174, Exh. R-3).
The OSHA Inspection
OSHA Assistant Area Director (“AAD”) Donald Newell, who conducted the OSHA
inspection, testified that he observed metallic powder in the equipment and in the loading area next
to a storage drum in the “C” area. (Tr. 65, 95). He also testified that the “A” area contained ordinary
electrical equipment, such as incandescent lights with exposed bulbs, wall receptacles and snap
switches. AAD Newell opined that these were dangerous because dust could accumulate in the
sockets, snap switch boxes or wall receptacles. He also said that the dust particles in the “A” and
“C” areas were roughly the same size. (Tr. 100-102, 105-106).
AAD Newell did not conduct any air sampling studies to determine how much ambient
magnesium dust was present and did not take any wipe samples in either area. During his five day
inspection, he did not observe any conditions which caused magnesium dust to be airborne in either
area. (Tr. 105-108).
The Expert Testimony
John Cholin
John Cholin, a fire protection engineer associated with J.M. Cholin Consultants, testified on
behalf of the Secretary. He inspected the premises and examined the magnesium particulate
produced in both areas. He observed an ordinary propane-powered, non-Ex-rated forklift outside the
“C” area.2 He also observedordinary, non-airtightelectrical receptacles and ordinary, unsafe electric
lights in the “A” area. (Tr. 40-43, 51-52).
Cholin stated that the samples of particulate produced in both areas fell below the national
consensus standard. At least ten to fifteen percent of the particulate he examined was consistent with

   2
       The “EX” designation is defined at 29 C.F.R. §1910.178(b)(7).

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the National Fire Protection Act (“NFPA”) designation of 200 mesh, or 74 micron size, and would
be classified underthat Act as ignitible dust. (Tr. 39-40, 48-49, 55, 60-61, 65-68). Cholin also stated
that the NFPA identifies a concentration of 30 grams per cubic meter as the minimum ignitable
concentration for 200 micron magnesium particulate. To the naked eye, a concentration of this
amount would appear to be an opaque light cloud, and Cholin did not see anything approximating
this condition while at the Hart plant. (Tr. 60-61)
Cholin further testified both areas would be classified as Class 2, Division 1, Group E under
designations established by the National Electric Code (“NEC”) because magnesium particulate was
present and the areas had potential for dust dispersion. (Tr. 40-41, 49-51). He explained that
magnesium is particularly hazardous because it releases more energy per unit of mass than other
types of small particulate, and that it introduces an electrical ignition mechanism not present in
cellulose dusts. (Tr. 41-42).
Cholin opined that it was possible for a chipper or fan to throw a blade in the “C” area, and
cause the release of combustible dust into the atmosphere. He also testified that the forklift operator
could drop a super sack or accidentally drive the truck into a support column, which could also result
in the release of Magnesium dust into the atmosphere. Cholin further opined that with time, dust
particles will accumulate in the electrical receptacles in the A area, and will cause arcing, resulting
in an explosive fire. (Tr. 44, 52).
Jeffrey Olcott
Jeffrey Olcott, a certified industrial hygienist, testified on behalf of Hart. (Tr. 178-180).3
Olcott visited the Hart plant on January 22, 2001, and performed a time-weighted air sample study
to determine the concentration of airborne particulate in both “A” and “C” areas. (Tr. 193-197). He
used five air monitoring pumps, two for each chipper and one for a background study. He operated
the pumps over an eight-hour period, submitted the results to a laboratory for analysis, and
incorporated the results in his report. These results indicated that the filters nearest chippers A and

   3
    Olcott is employed by an occupational environmental health and safety company and has

a Masters degree in occupational safety and health as well as extensive experience in the analysis
of explosive dust particles. The Secretary’s argument, that Olcott was unqualified to render an
opinion relating to fire hazard recognition, is accordingly rejected. See Daubert v Merrell Dow
Pharmaceutical, Inc. 509 U.S. 579 (1993).

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C reported, respectively, a production of .03 and .193 milligrams of magnesium particulate per
cubic meter. According to Olcott, both amounts were well below the concentration required to
produce an explosion. Olcott stated that the magnesium particles were too large to remain airborne
and he opined that a build up of magnesium particulate that could cause an explosive concentration
was not possible. He pointed out that the most magnesium particulate chipper C can produce at any
one time is 15 pounds and that, even if all 15 pounds were released instantaneously, an explosive
atmosphere would still not result because of the low level of concentration and the size of the
particulate. (Tr. 178-180, 193-197, 205-210).
George Boyd
George Boyd, a private consultant and a safety director for a construction company, also
testified on Hart’s behalf.4 Boyd stated that Olcott’s data suggested that the amount of airborne
magnesium particulate in the “A” area was practically undetectable and much lower than the
concentration necessary to create an explosive atmosphere. Boyd further stated that Olcott’s study
indicated that there were no airborne particles in the “C” area during the eight-hour sampling period.
(Tr. 278-307, 313-315).
Boyd also visited areas “A” and “C” at the facility. With respect to area “A,” Boyd testified
that he did not detect ambient magnesium dust at the plant or inside the control panels to the
electrical equipment. With respect to Area “C,” Boyd testified that when the chipper is running and
the hammer mill and screen are in operation, the area should be classified as explosive. When the
chipper is not in operation, however, there is no potential for an explosive atmosphere because Hart
uses and enforces safety procedures which prevent the potential for the release of dust in the
atmosphere. The chute is disconnected from the super sack and any spillage is cleaned up before the
forklift is allowed to enter the area. Further, the forklift is operated by the same employee who
operates the chipper, and there is thus no danger that the it will be driven into the area prematurely.
Boyd noted that, in any event, the product produced by chipper C is too large to cause an explosive
atmosphere. (Tr. 307-308, 312, 316-318, 331-337).

   4
     Boyd worked as an OSHA compliance officer for nine years and has an extensive

background in industrial safety. (Tr. 278-305).

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Findings of Fact and Conclusions of Law
Evidentiary Issue raised During Trial
At the trial, the Secretary objected to the admission of the report, as noted above, of Jeffrey
Olcott, and the issue of the report’s admissibility was reserved. The record shows that Hart retained
RT Environmental Services, Inc. (“RT”) and that RT, in turn, retained Olcott to perform the
necessary study of Hart’s facility and to produce a written report. Although Olcott did so, Exhibit
R-5, the final report, is on RT’s letterhead and gives no indication that Olcott wrote it. In addition,
Olcott’s initial report to RT did not address the potential for an explosive atmosphere in the tested
areas, while R-5 does. The changes to the initial report came about after George Boyd reviewed it
and suggested to Gary Brown at RT that inquiries be made as to whether Olcott’s data could be used
to determine if an explosive atmosphere was present in the chipper areas. Following conversations
with Brown, Olcott revised his report to address this issue. (Tr. 240-241, 248, 306-307, ALJ Exhs.
6-7)
It is clear from the record that Olcott adopted the statements in the revised report as his own
before the final report was issued. I find, therefore, that the report was appropriately authenticated
as containing his own conclusions and opinions and that the report was thus properly admissible at
trial. See Fed. R. Evid. 901. RT’s interference with the preparation of the report, however, calls into
question the strength of the conclusions in the report and the veracity of Hart’s expert witnesses. In
this regard, I note that despite Brown’s testimony that he contacted Olcott because RT did not have
available an expert to perform the requisite study, (Tr. 240-241), RT apparently believed it had
sufficient expertise to suggest changes to the report. I note also that while Olcott purportedly revised
the report based on his own opinion, he testified at the trial that after he delivered the revised report,
he contacted RT to make sure that the new interpretation was “correct.” (Tr. 371). Thus, while the
report had been admitted into the record, under the circumstances, it will be accorded little weight.
The Secretary’s Prima Facie Case
To prove a violation of an OSHA standard, the Secretary has the burden of establishing that
“(1) the standard applies, (2) the employer violated the terms of the standard, (3) Respondent’s
employees had access to the violative condition, and (4) the employer had actual or constructive

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knowledge of the violative condition.” Gary Concrete Prod., Inc., 15 BNA OSHC 1051, 1052 (No.
86-1087, 1991).
Citation 1, Item 5a
Citation 1, Item 5a alleges that the “C” area at Hart’s facility was not in compliance with 29
C.F.R. § 1910.178(c)(2)(vi)(a). The cited standard provides that:
Only approved power operated industrial trucks designated as EX
shall be used in atmospheres in which combustible dust is or may be
in suspension continuously, intermittently, or periodically under
normal operating conditions, in quantities sufficient to produce
explosive or ignitable mixtures, or where mechanical failure or
abnormal operation of machinery or equipment might cause such
mixtures to be produced.

   The Secretary does not contend that combustible dust is or may be in suspension

continuously, intermittently, or periodically under normal operating conditions in area “C” at the
facility. Rather, the Secretary contends that, as a result of a potential mechanical failure or abnormal
operation of machinery or equipment, an explosive or ignitable mixture may be produced. As set out
above, Cholin gave examples of some incidents which could result in the production of an ignitible
mixture. (Tr. 44). In addition, Cholin’s examination of a sample of magnesium particulate taken
from the “C” area establishes that the mixtures produced there may be combustible. Cholin’s
testimony thus demonstrates the possibility of an abnormal occurrence which could cause the
production of a combustible mixture. The Secretary has shown that the standard applies, and,
because it is undisputed that the forklift in question was not EX-rated, the Secretary has also shown
that the terms of the standard were violated.5
As to employee exposure, however, the evidence overwhelmingly demonstrates that Hart
maintained and enforced safety measures which ensure that there is no possibility that the forklift

   5
     Olcott testified that the particulate his sampling retrieved was not combustible. As indicated

above, however, Olcott’s conclusions have been given little weight because of the questionable
manner in which his report was prepared. Moreover, there was no evidence relating to what size
mesh chipper C was set at on the day of Olcott’s study. Further, it is admitted that no abnormal event
occurred during Olcott’s sampling. (Tr. 152, 213-214). Accordingly, Hart’s contention that the terms
of the standard were not violated is rejected.

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is operated in the “C” area at any time when dust can be released into the atmosphere, even in the
event of mechanical failure or abnormal operation of machinery. 6 I therefore find that the Secretary
has not demonstrated that, in this particular location, Hart employees were be exposed to the cited
hazard. The Secretary has thus failed to establish her prima facie case, and this citation item is
vacated. 7
Citation 1, Item 9
Citation 1, Item 9 alleges that the “A” area was not in compliance with 29 C.F.R. §
1910.307(b). The cited standard requires as follows:
Equipment, wiring methods, and installations of equipment in
hazardous (classified) locations shall be intrinsically safe, approved
for the hazardous (classified) location, or safe ... for the hazardous
(classified) location.

    There is no dispute that the lights, wall receptacle and snap switch in the “A” area were not

approved for a hazardous location. Rather, Hart disputes that the Secretary established the necessity
for providing approved equipment. The cited standard, however, is prescriptive; if an area falls
within a hazardous classification, it is incumbent on the employer to ensure that the electrical
equipment is safe and approved for the location. In this regard, the Secretary presented evidence that
the “A” area is a Class II, Division 1 hazardous area. This classification is defined at 29 C.F.R.
§1910.399(a)(i) as:

   6
      Contrary to the Secretary’s contention, there is no evidence that any of the super sacks have

ever been or can be broken from falling off the forklift, or that, by running into a support column,
the forklift would loosen sufficient magnesium dust to cause an explosion. These “possibilities” are
completelyunsupported by any proof. Other possibilities suggested by the Secretary would not occur
because chipper C stops operating before the forklift enters the area. Cholin’s statements to the
contrary (Tr. 63, 357) are similarly unsupported by any proof.
7
The Secretary urges that Reich v. Con Agra Flour Milling Co. 25 F.3d 653 (8th Cir. 1994)
supports her position. I disagree. The forklift in Con Agra removed both closed and broken 50 to 100
pound bags of flour and was operated in conditions where flour dust was suspended in the
atmosphere. In reversing the Commission’s decision, which had vacated the citation, the Eighth
Circuit found relevant the fact that Con Agra’s evidence did not prove that its procedures to avoid
the problem of bags falling and breaking were in place before the inspection. Id. at 656-657. This
is contrary this case, where the procedures avoided exposing any employees to a potential hazard.

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[A] location, (a) In which combustible dust is or may be in suspension
in the air under normal operating conditions, in quantities sufficient
to produce explosive or ignitable mixtures; ... or (c) in which
combustible dusts of an electricallyconductive nature may be present.

   The Secretary showed that magnesium dust is electrically conductive, and Hart failed to offer

any rebuttal proof. (Tr. 31-32, Exh. C-3). The Secretary further showed that magnesium dust was
present in the “A” area; Cholin testified that a product sample taken from chipper A revealed the
presence of magnesium dust. The “A” area was thus appropriately identified as a classified
hazardous location and the cited standard therefore applies. Non-compliance with the standard’s
terms has been demonstrated in that the electrical equipment was not approved for the classified
location.
Relying on Olcott’s findings, as well as magnesium product that was offered into evidence,
Hart argues that no magnesium dust was present in the “A” area because the particles produced there
are too large to be considered dust. (Exh. R-2A). As set out above, however, Olcott’s report has been
accorded little weight. Further, I observed the respective demeanor of both Olcott and Cholin and
I found Cholin to be the more credible witness. Cholin testified that a sample from the “A” area
contained magnesium dust, and Hart has simply not rebutted the evidence that magnesium dust may
be present regardless of the size of the product. (Tr. 152).
Alternatively, Hart argues that the Secretary failed to establish that dust was ambient, in the
air, or present in the electrical equipment or wires. Under subpart (c ) of the standard, however, there
is no requirement that the Secretary show that the dust is suspended in the air or within the workings
of the electrical equipment. Noncompliance with the standard is shown merely byproof that the dust
“may be present at the location” (Emphasis supplied).
There is no dispute that employees use chipper A. Hart employees are thus exposed to the
condition. Moreover, Hart had or should have had knowledge of the violation. Hart was clearly
aware of the dangers of magnesium dust; the safety program instituted in area “C” is proof of this
awareness. Further, because a cloud of magnesium dust had previously detonated in Hart’s
atomization area, I find that Hart was also aware of the hazard of magnesium dust being present in
an enclosed space. (Tr. 23). Hart should therefore have inspected the electrical equipment to

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determine whether it was intrinsically safe or approved for the location. The Secretary has
demonstrated the alleged violation.
This citation item has been classified as serious, and I find this classification appropriate;
AAD Newell testified that the hazard creates the potential for severe burns, contusions, or death if
an explosion were to occur. (Tr. 104). The Secretary has proposed a penalty of $875.00. The
violation was given a high severity, based on the serious nature of the potential injuries, but with a
low likelihood of occurrence. Adjustments were made based on size and good faith, resulting in the
proposed amount. I find the proposed penalty appropriate, and accordingly, a penalty of $875.00 is
assessed.
ORDER
Based on the foregoing decision, the citation items are disposed of and penalties are assessed
as follows:

Citation Violation Disposition Classification Penalty

Item
Citation 1 29 C.F.R.§1910.178(c)(2)(vi)(a) Vacated Serious
Item 5a

Citation 1 29 C.F.R. § 1910.307(b) Affirmed Serious $875.00
Item 9

                                                                  /s/


                                                          G. MARVIN BOBER
                                                          Judge, OSHRC

Dated: 24 SEP 2001
Washington, DC

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