McWane, Inc., d/b/a Atlantic States Cast Iron Pipe Company

Plain-English summary

An employee cleaned hot iron and calcium oxide from a foundry pit without heat- and chemical-resistant coveralls, exposing unprotected skin to thermal and chemical burns. McWane conceded the violation but disputed whether it was repeat. The judge found it substantially similar to a 2003 violation at the same foundry involving missing protective gloves and footwear because both exposed workers to the same burn hazards under the same standard. The repeat item was affirmed with a $10,000 penalty. Two airborne-contaminant items had already been resolved by partial settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.132(a), 1910.1000(a)(2), 1910.1000(e)
• Outcome: The protective-clothing item was affirmed as repeat with a $10,000 penalty, and the airborne-contaminant items were resolved by settlement.
• Key point: Different missing garments still supported a repeat violation when the prior and current conditions violated the same standard and created substantially similar burn hazards.

Full text (OSHRC public release)

                                     United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 05-0846
:
MCWANE, INC., d/b/a ATLANTIC :
STATES CAST IRON PIPE CO., :
:
Respondent. :

Appearances:

             Jeffrey S. Rogoff, Esquire                     Carla J. Gunnin, Esquire
             U.S. Department of Labor                       Constangy, Brooks & Smith, LLC
             New York, New York                             Atlanta, Georgia
             For the Complainant.                           For the Respondent.

Before: JOHN H. SCHUMACHER
Administrative Law Judge

                                DECISION AND ORDER

      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”). Respondent, McWane, Inc., d/b/a Atlantic States Cast Iron Pipe
Company, operated a pipe manufacturing facility in Phillipsburg, New Jersey, at all times relevant
to this case. Respondent admits that it is an employer engaged in a business affecting commerce
within the meaning of section 3(5) of the Act.

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Background
Between October 5, 2004 and April 1, 2005, the Occupational Safety and Health
Administration (“OSHA”) conducted an inspection of Respondent’s work site. As a result of the
inspection, on April 1, 2005, OSHA issued to Respondent a citation alleging “repeat” violations of
OSHA standards. Specifically, Item 1 of the citation alleged a violation of 29 C.F.R. 1910.132(a),
Item 2a alleged a violation of 29 C.F.R. 1910.1000(a)(2), and Item 2b alleged a violation of 29
C.F.R. 1910.1000(e); the citation proposed a total penalty of $11,000.00 for the alleged violations.
Respondent filed a timely notice of contest, bringing this matter before the Commission.
On June 27, 2005, the Secretary filed her complaint, in which she amended the citation to
allege that Items 2a and 2b were serious rather than repeat violations. On December 12, 2005, the
parties reached a Stipulation of Partial Settlement, wherein the Secretary amended Item 1 to delete
the allegation that a worker was not using “heat resistant gloves” and to allege instead that a worker
was exposed to thermal and chemical burns from exposure to calcium oxide by failing to wear
“heat/chemical resistant coveralls.” Respondent withdrew its notice of contest as to the violation
alleged in Item 1, as amended, but not as to the classification of the violation as repeated or as to the
penalty; Respondent also withdrew its notice of contest as to Item 2, as amended. As agreed to by
the parties, the only issues remaining for the undersigned are the proper classification of Citation 1,
Item 1, as amended, and the proper penalty for that item. The Secretary contends the item is properly
classified as a repeat violation and seeks a penalty of $10,000.00. Respondent contends the item is
properly classified as a serious violation and that the penalty should be no more than $2,500.00.
Each party has submitted its respective Motion for Summary Judgment in this matter.
Statement of Uncontested Material Facts
On January 26, 2006, the parties entered into a Statement of Uncontested Material Facts.
Exhibit 1 to the Statement contains the stipulated facts the parties have agreed to, as follows:
1. Atlantic States Cast Iron Pipe Company, located at 183 Sitgreaves St. Phillipsburg, NJ
(“the Philipsburg foundry”) is a cast-iron foundry which manufactures and supplies iron pipes used
for the transportation of domestic water and for fire hydrants.

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2. In the casting clean-up area of the Philipsburg foundry, workers typically work an eight
hour shift and use tools, such as shovels, to remove slag and other materials from the casting
machines.
3. Each shift a worker cleans out a section of the casting clean-up area of the Phillipsburg
foundry known as the “bull ladle pit.”
4. The bull ladle pit is a dirt excavation measuring approximately 10 feet in diameter and 7
feet deep.
5. The bull ladle pit contains lime (whose chemical name is calcium oxide) which is added
to a machine known as the “U-ladle” or “bubbler” to de-sulfurize the melted iron. During the
bubbling and pouring of melted iron, lime falls from the U-ladle and onto the floor of the bull ladle
pit. After the material is sprayed with water to cool it down, a worker then enters the pit to clean the
hot hardened iron and lime from the area. The worker climbs into the pit and uses a pick, bar, and
sledge hammer to loosen the hardened lime in the pit, and a shovel and broom to transfer excess lime
from the pit to a bin.
6. Employees enter the bull ladle pit to remove spilled debris typically during the third shift
each work day.
7. On or about October 5, 2004, Respondent’s employee was wearing short-sleeved shift
without coveralls while working the bull ladle pit shoveling/sweeping debris, exposing the employee
to the hazard of having his unexposed skin come into contact with hot metal, which could cause
thermal burns and the lime, which could cause chemical burns.
8. As a result of the condition described above, Respondent was issued a citation which
alleged a violation of 29 CFR 1910.132(a). Pursuant to the parties’ partial settlement agreement the
citation and complaint was amended (see partial settlement agreement attached hereto as Exhibit A)
to allege the following description of the violation of 29 CFR 1910.132(a):
29 CFR 1910.132(a): Protective equipment was not provided, used and maintained
when necessary whenever hazards capable of causing injury and impairment were
encountered:
a. Melting Department - Personal protective equipment to include heat/chemical
resistant coveralls were not used by a worker exposed to thermal and chemical burns
while cleaning out the bull ladle/lime pit. During such operations the worker
performed chipping, shoveling and manually lifting of hot, hardened iron along with

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shoveling/sweeping debris containing calcium oxide. Condition noticed on or about
10/05/2004.
McWane, Inc. dba Atlantic States Cast Iron Pipe Co. was previously cited for a
serious violation of this Occupational Safety and Health Standard or its equivalent
standard, 29 CFR 1910.132(a), which was contained in OSHA inspection Number
113673248, Citation 1, Item Number 1, issued on 06/03/2003 pertaining to a
workplace located at 183 Sitgreaves St. Phillipsburg, NJ 08865. The citation was not
amended and became a final order on 06/25/2003.
9. On June 3, 2003, Respondent was issued a citation for a violation of 29 C.F.R. §
1910.132(a) at the Phillipsburg facility (“the June 3, 2003 citation”). The June 3, 2003 citation
stated:
29 CFR 1910.132(a): Protective equipment was not provided, used and maintained
when necessary whenever hazards capable of causing injury and impairment were
encountered:
a) Facility Wide – Personal Protective Equipment to include footwear and gloves
were not provided and maintained in good working condition exposing workers to
thermal and chemical burns. Steel toe shoes and protective gloves were
worn/damaged with holes in their leather, suede, canvas and/or rubber material
construction. Workers used duct tape around gloves to ensure that they last longer.
Protective gloves and footwear are required to be used during operations to include
but not limited to core making, casting pipe, spray painting, cleaning and/or
maintenance equipment. Condition noted on or about 4/3/03.
(copy of June 3, 2003 citation item attached hereto as Exhibit B).
10. Respondent did not contest the June 3, 2003 citation and paid the penalty in full.
11. The June 3, 2003 citation became a final order on June 25, 2003.
Discussion
To avoid the expense of an evidentiary hearing, in that the underlying facts are uncontested,
the parties have agreed to the admission of the foregoing Statement of Uncontested Material Facts
as part of the evidence of record. The parties further agree that Respondent’s Motion for Summary
Judgment and the Secretary’s Motion for Summary Judgment will be admitted into evidence as part
of the record that the undersigned judge will consider in entering a final order in this case.
I have examined the record before me, which consists of the citation, the notice of contest,
the complaint and answer, the parties’ Statement of Uncontested Material Facts (consisting of
Exhibits 1, A, B, 2 and 3), Respondent’s Motion for Summary Judgment, the Secretary’s Motion for

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Summary Judgment, and the Secretary’s Memorandum of Law in Support of her Motion for
Summary Judgment.
Based on the record, I find that the Secretary has met her burden of proof and has established
a repeated violation of 29 C.F.R. § 1910.132(a). My reasons follow.
The Commission has held that “[a] violation is repeated under section 17(a) of the Act if, at
the time of the alleged repeated violation, there was a Commission final order against the same
employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No.
16183, 1979). The Secretary may establish a prima facie case that a violation is repeated by showing
that the two violations were of the same standard, or if they were not, that they otherwise were
substantially similar. Id. (“substantially similar” test explained, with illustration that permitting use
of unguarded scaffold for two different projects – such as construction work the first time, and
replacing light bulbs the second time – could result in repeated violation under two entirely different
standards). See also J. L. Foti Constr. v. OSHRC, 687 F.2d 853, 857 (6th Cir. 1982), wherein the
court upheld as reasonable the Commission’s test in Potlatch that a repeated violation may be based
on “substantially similar” violations of different standards.
The Commission has also held that “the principal factor in determining whether a violation
is repeated is whether the two violations resulted in substantially similar hazards.” Amerisig
Southeast, Inc., 17 BNA OSHC 1659, 1661 (No. 93-1429, 1996), aff’d without published opinion,
117 F.3d 1433 (11th Cir. 1997). Here, the hazards created by the prior and current violations are the
same – that is, burn hazards from a lack of required protect clothing. See Superior Elec. Co., 17 BNA
OSHC 1635, 1638 (No. 91-1597, 1996) (installing guardrails without midrails on work platform
resulted in same hazard as installing no guardrails at all), rev’d on other grounds without published
opinion, 124 F.3d 199 (6th Cir. 1997); Automatic Sprinkler Corp. of America, 8 BNA OSHC 1384,
1389-90 (No. 76-5089, 1980) (minor factual distinctions do not make scaffold guardrail violations
dissimilar – same hazards exist in all instances).
In addition to the above, the Sixth Circuit has noted that “[u]nder Potlatch, circumstances
such as the geographical proximity of the violations, the commonality of supervisory control over
the violative condition, and the time lapse between the violations bear only on the size of the penalty
to be assessed, not on the ‘repeated’ character of the infractions.” J. L. Foti, 687 F.2d at 857.

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Further, the Fifth Circuit has stated that “factors such as the employer’s attitude ... were declared
irrelevant ... to the substantial similarity of the past and present violations.” Bunge v. Sec. of Labor,
638 F.2d 831, 837 (5th Cir. 1981).
Contrary to Respondent’s arguments, the surrounding circumstances here are almost
indistinguishable from those at issue in the 2003 citation. Both cases involve missing items of
protective clothing, at the same workplace, and in a foundry performing the same type of
manufacturing work, namely, the casting of iron pipe. In both cases, the hazard involved laborers
who were exposed to potential chemical and thermal burns, throughout the facility. The alleged
violation in each case – missing personal protective clothing – is virtually identical. The only
difference is that one of the employees was missing protective coveralls, while the other was missing
protective footwear and gloves. The underlying hazards, however, are the same, and I find, based
upon the record and the foregoing precedent, that the current violation is substantially similar to the
serious violation affirmed in 2003.1 Respondent was therefore in repeat violation of the cited
standard, and Item 1 of the citation is accordingly affirmed. I further find the stipulated penalty of
$10,000.00 to be appropriate for this item, and a penalty of $10,000.00 is assessed.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).

    1
     Respondent takes great pains to distinguish between missing protective coveralls in the

instant case and missing protective footwear and gloves in the former case. However, both cases
involve the absence of “personal protective clothing,” and employees performing duties facility-
wide without the articulated protective clothing would be exposed to both thermal and chemical
burn hazards.

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ORDER
Based upon the foregoing, it is hereby ORDERED that:
1. Citation 1, Item 1, alleging a repeat violation of 29 C.F.R. § 1910.132(a), is AFFIRMED,
and a penalty in the amount of $10,000.00 is assessed.
2. Citation 1, Item 2, alleging serious violations of 29 C.F.R. § 1910.1000(a)(2) and 29
C.F.R. § 1910.1000(e), has been previously disposed of in accordance with the terms of a
STIPULATION OF PARTIAL SETTLEMENT, dated December 12, 2005.

                                                /s/
                                                JOHN H. SCHUMACHER
                                                Judge, OSHRC

Dated: April 13, 2006
Washington, D.C.

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