Constructural Dynamics Inc.

Plain-English summary

Constructural Dynamics, which traded as Silvi Concrete, repaired its concrete mixer trucks at an in-house shop. A welder was killed when a repaired 200-gallon water tank exploded during a pneumatic leak test. OSHA cited the company under the general duty clause, alleging that employees were exposed to an exploding-tank hazard during this testing method. The administrative law judge found that the Secretary had not proved that the company or its industry recognized low-pressure pneumatic leak testing as a hazard, distinguishing it from high-pressure integrity testing. The Commission affirmed that reasoning and noted that the Secretary's expert testified that shops testing vessels exempt from the relevant boiler and pressure-vessel code would not recognize the alleged hazard without knowing the code. The citation and proposed $4,900 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: General-duty citation and proposed $4,900 penalty vacated.
• Key point: A general-duty citation requires proof that the employer or its industry recognized the hazard as defined, not merely a related hazard involving a different testing procedure.

Full text (OSHRC public release)

Constructural Dynamics, Inc.,t/a Silvi Concrete, Docket No. 07-0976

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 07-0976

CONSTRUCTURAL DYNAMICS, INC., t/a
SILVI CONCRETE,

Respondent.

APPEARANCES:

Ronald J. Gottlieb, Attorney; Michael P. Doyle, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor of Labor for Occupational Safety and Health; Gregory F. Jacob,
Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Thomas Benjamin Huggett, Esq.; Courtney A. Wirth, Esq.; Morgan, Lewis & Bockius LLP,
Philadelphia, PA

For the Respondent

DECISION

Before: ROGERS, Chairman; THOMPSON, Commissioner.

BY THE COMMISSION:

Constructural Dynamics, Inc. (“CDI”), a producer and supplier of ready mix
concrete, operates a repair shop for its concrete mixer trucks and equipment at its
company headquarters in Fairless Hills, Pennsylvania. On December 28, 2006, a welder
in CDI’s repair shop was killed when a mixer truck’s 200-gallon water tank he had
repaired exploded while he was conducting a pneumatic leak test of the weld repair.
After an inspection by the Occupational Safety and Health Administration, the Secretary
issued CDI a citation alleging a serious violation of § 5(a)(1) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 654(a)(1) (“General Duty Clause”),

on the grounds
that “[CDI] employees were exposed to the hazard of an exploding water tank during
pneumatic leak testing.” The Secretary proposed a penalty of $4,900 for the alleged
violation.

Administrative Law Judge Covette Rooney issued a decision vacating the citation
on the grounds that the Secretary failed to show that either CDI or its industry recognized
the alleged hazard.

We have examined the record in its entirety, considered the
arguments of the parties, and affirm the judge for the reasons stated in her decision.

Although not relied upon by the judge, we further note that the Secretary’s own expert
witness significantly undermined her case regarding recognition by testifying that a repair
shop which tests vessels exempt from the American Society of Mechanical Engineers
Boiler and Pressure Vessel Code—like the water tanks used by CDI—effectively would
not recognize the hazard of water tanks exploding during pneumatic leak testing:

[Y]ou must go to the code, you must know the code for the warnings
concerning the pneumatic testing.

If you don’t know the code, you won’t see the danger in the
pneumatic testing, because the non-code vessels, obviously, don’t have a
code. There’s nothing in writing. So, you have to know written documents,
the national standards in this area.

So, you really have to deal with something more sophisticated than a
non-code vessel to understand non-code vessels.

(Tr. 253.) Accordingly, we affirm the judge, whose decision is attached hereto.

SO ORDERED.

/s/                                                               

Thomasina V. Rogers

Chairman

/s/                                                               

Horace A. Thompson III

Dated: December 3, 2009                                     Commissioner

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 07-0976

CONSTRUCTURAL DYNAMICS, INC.,

Trading as SILVI CONCRETE,

Respondent.

APPEARANCES:

For the Complainant:

Judson P. Dean, Esq., U.S. Department of Labor, Office of the Solicitor,

The Curtis Center, Suite 630 East

Philadelphia, Pa. 19106

For the Respondent:

Thomas Benjamin Huggett, Esq.

Morgan, Lewis & Bockius, LLP

1700 Market Street

Philadelphia, Pa. 19103

Before: Covette Rooney

Administrative Law Judge

DECISION AND ORDER

This case is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(“the Act”), to review a citation issued by the Secretary of Labor (“Secretary”) . The citation
alleg es that respondent, Constructural Dynamics, Inc., committed a violation of Section 5(a)(1)

of
the Act, the “General Duty Clause, 29 U.S.C.§ 654(a)(1) on the grounds that “employees were
exposed to the hazard of an exploding water tank during pneumatic leak testing.” The Secretary
proposes a penalty of $4,900.00 for the violation.

BACKGROUND

A. Leak Testing

Respondent, Constructural Dynamics, is an independent producer of ready mix concrete. It
is a family business, and is commonly known by the trade name of Silvi Concrete. As part of its
business, respondent owns and uses numerous concrete mixer trucks and each of these trucks has
a water tank. (Tr. 32-33) Respondent also operates a repair shop at the company headquarters in
Fairless Hills, Pennsylvania. (Tr. 7) This repair shop only services vehicles and equipment owned
by respondent. (Tr. 30) Respondent’s employees who work in the shop are mechanics, service
personnel and welders. (Tr. 31) As of December 2006, one of the services routinely performed at
the shop was repairing leaks in the water tanks from the concrete mixer trucks. (Tr. 33-34) To
repair a tank, the water tank is removed from the concrete mixer truck and brought into the shop.
The leak is welded and then leak tested to confirm that the repair was successfully made. (Tr. 33-36)

Leak-testing involves pressurizing the vessel with air and then pouring soapy water on top
of the pressurized tank. Air bubbles will form if the tank is not properly sealed. (Tr. 71, 257)

According to Tim Kurtz, respondent’s vice-president and safety director, it only takes 5
lbs. of pressure to determine if a repair is good. (Tr. 71) However, respondent’s employees Strauss
and Watson both told the Compliance Officer (CO) that they pressurized the tank to 25-30 psi.
(Tr. 141) The tanks were rated for 55 psi. (Tr. 79) Respondent has been using this method of
leak testing for at least 32 years without incident. (Tr. 75) To ensure that the tanks are not over
pressurized, employees use pressure gauges, pressure relief valves and regulators. There is no
evidence that employees ever conducted leak testing without these devices. (Tr. 218-221)

Pneumatic leak-testing must be distinguished from integrity testing. Integrity testing, as its
name implies, is intended to determine the integrity of a tank. Therefore, the tank is intentionally
pressurized beyond its rated limit to see if it holds together or explodes. (Tr. 72) Respondent does
not conduct pressurized integrity testing. (Tr. 73)

Another method of conducting least-testing is the hydrostatic method which uses water
instead of air. (Tr. 36, 157, 199) In hydrostatic testing, the tank is filled with water and observed
for leaks. (Tr. 267) Unlike air, water is not compressible and does not cause a tank to explode.
(Tr. 200-01) There is no indication in the record to suggest that respondent could not have used
hydrostatic testing. (Tr. 283)

B. The Accident

On December 28, 2006, one of respondent’s welders, { redacted } was conducting
pneumatic leak testing a 200 gallon water tank in Bay 8 to determine if a leak had been properly
repaired. (Tr. 8-9, 116) During the operation, the tank exploded and { redacted } was killed. The
force of the explosion knocked an electrical panel off the wall, dented a transformer and knocked
out electrical service to the facility. (Tr. 121-122, Ex.G-4G) { redacted } left leg was found 140
feet from the bay (Tr. 127, 131) and his right leg was found 35 feet away. (Tr. 131) No evidence
was introduced to suggest why the tank exploded. However, after the accident, an air hose was
still attached to the tank and was leaking air. (Tr. 121)

The accident was investigated by OSHA compliance officer Adam Hamrick (“CO”). As a
result of that inspection, respondent was issued a citation alleging a serious violation of Section
5(a)(1) of the Act for failing to furnish employment or a place of employment that was free from
recognized hazards that were causing or likely to cause death or serious physical harm to
employees in that “employees were exposed to the hazard of an exploding water tank during
pneumatic leak testing. ” (emphasis added) The citation continued: “[t]he employer did not comply
with the manufacturer’s specifications applicable to an Oshkosh S-Series concrete mixer truck in
that an empty 200 gallon water tank was repaired and pressurized with air on or about December
28, 2006.”

The citation further asserted that “one feasible method to abate this hazard is to follow
warnings from the tank manufacturer, McNeilus truck, which states that welding or repairing may
weaken the water tank causing it to explode; if tank is damaged or worn it should be replaced with
new equipment.”

A penalty of $4,900.00 was proposed by the Secretary.

Respondent filed a timely notice of contest and a hearing on this matter was heard in
Philadelphia, Pennsylvania on April 29, 2008. Briefs have been filed by both parties, and this
matter is now ready for disposition.

DISCUSSION

In order to prove a violation of section 5(a)(1), the Secretary must show that a condition
or activity in the workplace presented a hazard, that the employer or its industry recognized this
hazard, that the hazard was likely to cause death or serious physical harm, and that a feasible and
effective means existed to eliminate or materially reduce the hazard. Arcadian Corp. , 20 BNA
OSHC 2001, 2007 (No. 93-0628, 2004); Pelron Corp. , 12 BNA OSHC 1833, 1835 (No. 82-388,
1986). A hazard must be defined in a way that apprises the employer of its obligations, and
identifies the conditions or practices over which the employer can reasonably be expected to
exercise control. Arcadian Corp. , 20 BNA OSHC at 2007. Here, the citation explicitly states that
“employees were exposed to the hazard of an exploding water tank during pneumatic leak
testing. ” (emphasis added)

At the hearing, the Secretary attempted to adduce evidence to establish that pneumatic leak
testing constituted a recognized hazard. However, the Secretary regularly bootstrapped her case by
mixing in evidence of the undisputed hazard of pneumatic integrity testing, where the purpose of
the activity is to pressurize a tank beyond its rated limit to assess its structural integrity. Moreover,
the Secretary adduced evidence of manufacturers’ warnings against pressure testing which, upon
examination, has nothing to do with leak testing. Therefore, on this record, I cannot conclude that
the Secretary established that pneumatic leak testing constituted a recognized hazard causing or
likely to cause death or serious physical harm.

To establish that pneumatic leak testing constitutes a “recognized hazard” the Secretary
asserts:

1. Respondent had actual knowledge of the potential danger of pneumatic leak testing;

2. The hazard of pneumatic leak testing was recognized by respondent’s industry as
   demonstrated by:

a. the manufacturer of the tank and concrete truck warned against pneumatic
testing; and

b. the testimony of the Secretary’s expert witness, John Mooney.  

1. Respondent’s Actual Knowledge Throughout the hearing, the Secretary sought to adduce testimony from Respondent’s
   officials that would demonstrate that they had actual knowledge of the hazard of pneumatic leak
   testing. However, the Secretary sought to demonstrate that pneumatic leak testing constituted a
   recognized hazard by blurring the distinction between leak testing and integrity testing. Indeed,
   one wonders if the Secretary is aware of this blurring. In her opening brief, the Secretary properly
   notes that the citation specifically alleged that “employees were exposed to the hazard of an
   exploding water tank during pneumatic leak testing.” (emphasis added)(SOL opening brief at 3).
   Yet, at the beginning of her analysis she states that “the alleged hazard is the activity of
   ‘pneumatic testing” of water tanks. (SOL opening brief at 5) By including hazards encountered
   during all types of pneumatic testing, including pneumatic integrity testing, the Secretary seeks to
   expand the hazard far beyond what was alleged in the citation.

This improper expansion of the hazard beyond the citation is endemic in the evidence
relied on by the Secretary. For example, Tim Kurtz, respondent’s vice-president and safety
director testified that while there was a danger of a tank exploding during pneumatic integrity
testing, there was generally no such hazard when conducting pneumatic leak testing. (Tr. 36-37)
When the Secretary’s attorney further inquired whether the danger of a tank exploding is limited
by the type of pneumatic testing the following exchange took place:

A. I think there’s only one type of pneumatic testing, testing using air. So, I
don’t know that there’s a different type of testing that can be done.

Q. Okay. So, then, I’ll ask my original question again, which is one of the
dangers associated with doing pneumatic testing, of which there’s only one kind,
testing using air is that the test will fail and explode?

A. Yes.

Q. And you’re also aware that another danger associated with pneumatic
testing of a tank is that air pressure that’s released from inside the tank through a
release valve or through a leak can cause injury?

A. That’s correct.

Q. Now, with regard to the first danger of performing pneumatic testing,
the danger of the tank failing and exploding, isn’t it true that one of the reasons you
are aware of this danger is based on information that you’ve obtained through
communications with peers in the industry?

A. That’s one source, yes.

Q. And another source of that information is information that you obtained
through your participation in industry meetings?

A. Yes.

Q. And another source of that information for you is that you obtained that
information through reading industry magazines?

A. That’s correct.

Q. And this danger that we’re talking about, the danger that during
pneumatic testing a tank will fail and explode, that’s something you were aware of
before the accident on December 28, 2006?

A. Yes. To answer your question, yes.

(Tr. 37-39)

On cross-examination, however, Kurtz made it clear that he was not aware of any hazard
of explosion presented by pneumatic leak testing. He explained that the hazard of pneumatic
testing was caused by over pressurization. (Tr. 70) Pneumatic leak testing, however, does not
present such a hazard because there is no need to take the pressure anywhere near the rated
capacity of the tank. (Tr. 71) Indeed, he testified that a tank can be successfully leak tested at
pressures as low as 5 psi. (Tr. 71) He clarified that the industry sources he referred to were
referring only to testing done at high pressures. (Tr. 73) Kurtz stated that none of his industry
sources identified those hazards with leak testing. (Tr, 73-74)

The Secretary implicitly recognizes
this weakness in her case, for in her brief, she relies on this testimony as evidence that respondent
had actual knowledge of the hazard presented by “pneumatic testing.” (Secretary’s Brief at 9,
Reply brief at 3)

A similar exchange occurred between the Secretary’s attorney and Respondent’s fleet
manager, Gerald Dohn:

Q. Mr. Dohn, you are aware, are you not, that pneumatic testing and hydro testing
are two forms of testing that can be done on a tank to determine whether a tank leaks?

A. Yes, I am.

Q. And that was something you were aware of before the accident?

A. Yes.

Q. And you are aware that pneumatic testing is a general description–a general
description is using air to test?

A. Yes, I am.

Q. And hydrostatic testing is testing using water?

A. Yes.

Q. Again, that was something that you understood before the accident in
December of 2006?

A. Yes.

Q. And you were also aware, prior to the accident, that a potential danger involved
with the process of pneumatic testing is that because you’re pressurizing a tank with air,
the tank can fail and explode; isn’t that right?

Q. Anything can happen, regardless of what it is, could explode, you know
break. You hook your air hose to a gun, it doesn’t hook right with the connector,
sure.

(Tr. 199-200)(emphasis added)

Later, however, Dohn explained that a hazard exists when the air inside a vessel “exceeds
the limits to a certain point, it can expand and explode.” (Tr. 218) Those limits, he explained,
occur when they exceed the rating of “any of the vessels.” (Tr. 218) He never observed an
employee exceed the rating of a vessel during leak testing. (Tr. 221)

While both Dohn and Kurz admitted that tank failure was a possibility, even during leak
testing, they both did so in recognition that “anything can happen.” Thus, Kurz stated “As remote
possibility-wise as it is ever to happen, anything can fail.” (Tr. 94) Similarly, when asked the
circumstances under which a tank could fail even though pressurized below its rated limits, Dohn
responded: “I really couldn’t tell you. I mean, anything could happen.” (Tr. 226) Recognition that
“anything can happen” is not sufficient to establish actual recognition of a hazard under section
5(a)(1). To prove the existence of a hazard within the general duty clause, the Secretary cannot
merely show that there may be some degree of risk to employees. She must show, at a minimum,
that employees are exposed to a significant risk of harm. Kastalon, Inc. and Conap, Inc. , 12 BNA
OSHC 1928, 1932 (No. 79-3561, 1986)(consolidated). To hold otherwise would essentially
eliminate the element of establishing recognition from the Secretary’s burden of proof.

As noted, the citation specifically denominated the hazard as “pneumatic leak testing.”
What the Secretary demonstrated, however, was that Respondent’s employees recognized the
hazard of pneumatic integrity testing, a procedure designed to stress a tank to or beyond its rated
limits. Leak testing, to the contrary, is a procedure conducted at pressures far below the rated limits
of a tank and is designed only to determine if a weld was sufficient to prevent water from leaking
out. In essence, the Secretary is attempting to demonstrate that the hazard presented by a
firecracker is recognized by adducing evidence that the employer recognized the hazard presented
by a stick of dynamite. The evidence as adduced, fails to demonstrate that Respondent actually
recognized that “pneumatic leak testing” presented a hazard to its employees.

2. Industry Recognition

In the citation, the Secretary specifically alleged that “The employer did not comply with
the manufacturer’s specifications applicable to an Oshkosh S-Series concrete mixer truck in that an
empty 200 gallon water tank was repaired and pressurized with air on or about December 28,
2006.”

At the hearing, the Secretary entered into evidence several warning labels that were either
on the concrete mixing truck or in the operator manual ostensibly warning against pressurizing the
tank with air. For example, one warning stated: “Do NOT pressurize empty tank.” (Ex. G-8 at p.
14 of 18 Figure 1) . In another example, the Mixer Operation and Maintenance Manual states
“WARNING ,“DANGER ...Over pressurizing can cause explosive discharge of air pressure, water,
and metal fragments. Death or serious injury can result, and “Do not pressurize tank unless it is
filled with water. ” (Ex. G-7 at p. 14 of 18)

Upon examination, however, it was revealed that these warnings were not directed at leak
testing on a vessel after it had been removed from the truck. Rather, the concern was that inflating
a tank with air when on a truck could result in the tank sucking up air intended for the air brakes,
thereby leaving the truck with inoperable brakes. (Tr. 57) (Ex. R-7) The CO testified that this
warning played a large part in his conclusion that there was a hazard. (Tr. 143-44) However, the
CO admitted that this and similar warnings on Ex G-7, p. 14 did not relate to occasions when the
tank is being repaired, but during normal operations when the tank is on the truck. (Tr. 148) (Ex.
R-7)

The Secretary also points out that the same page in the safety manual has a warning that
states: “Do not tamper with regulator or relief valve. Tank is designed for 55 psi max. Over
pressurizing can cause explosive discharge of air pressure, water and metal fragments. Death or
serious injury can result.” There is no evidence, however, that this warning was directed at leak
testing which is conducted at pressures far below the 55 psi maximum of the tank. In any event, the
CO admitted that this warning, like the previous two warnings, were taken out of context and
related to normal operations when the tank is on the truck. (Tr. 148)

The Secretary also relies on the testimony of its expert witness, professional engineer John
Mooney. Mooney has a Master’s of Science degree in stress analysis, and extensive corporate
experience in pressure vessels, tanks and piping for companies such as Exxon (11 years) and
Mobil (20 years) (Tr. 230-236) where he conducted in-house courses in pressure vessels, tanks and
piping. (Tr. 232) Mooney testified that in the course of his duties, he witnessed repair shops
conducting hydrostatic leak testing a dozen times, but never witnessed pneumatic leak testing. (Tr.
233). Mooney testified that “pneumatic testing is much more dangerous than hydro testing...”(Tr.
254) Further, he testified that tanks can fail due to defects in material, corrosion, or other defects
and that certain defects could cause the tank to fail before it reaches design pressures. (Tr. 259-60,
264) Mooney stated that it is common knowledge among experts in repair and testing of pressure
vessels and tanks that “pneumatic testing” of pressurized tanks constitutes a hazard to employees.
(Tr. 270) He explained that, in reaching his conclusion he relied on industry standards and codes,
specifically the American Society of Mechanical Engineers (ASME) boil pressure vessel code,
paragraph UG-100, note 34, that has a warning related to pneumatic testing. (Tr. 271) Mooney
pointed out that the ASME Code states that “Air or gas is hazardous when used as a testing
medium. It is therefore recommended that special precautions be taken when air or gas is used for
test purposes.” (Tr. 272, Ex. G-8 at p. 9 of 9)

However, Mooney admitted that, due to its small size, the water tanks at issue are exempt
from the cited ASME Code. (Tr. 290-91) The record contains nothing to suggests why ASME
found it appropriate to exempt tanks of the size used by respondent. Therefore, the ASME code is
of little probative value in establishing that industry recognizes the hazard of pneumatic leak
testing of respondent’s tanks.

The other problem with Mooney’s testimony, as with the Secretary’s case in general, is that
it failed to distinguish between pneumatic leak testing and pneumatic integrity testing. Indeed,
most of his testimony involved situations that would specifically apply only to pneumatic integrity
testing. For example, Mooney testified that, under the ASME code:

The safe way to do the pneumatic test is to increase the pressure to half of
the test pressure and then to take it up in steps of ten percent of the test pressure
until the test pressure is reached. Now that can be above the design pressure .

Then you reduce that pressure by ten percent back down to the design
pressure, and then and only then can you approach the vessel.

Before that, you have to stay a sufficient distance to keep from getting hit
by flying pieces of the vessel so it explode, so take it slowly up, then take it down,
then you’re safe to pressurize the vessel, because the vessel has survived the higher
pressure. And if you do that, nobody is going to get injured or killed.

(Tr. 284-85)(emphasis added)

Clearly, what Mooney is describing is the proper procedure for conducting pneumatic
integrity testing, the purpose of which is to determine if the tank can withstand pressures up to and
exceeding those for which it is designed to operate. In short, its purpose is to see if a tank will
explode. Pneumatic leak testing however, is intended to determine only if a weld is properly sealed
and need be conducted at low pressures sufficient only to create a bubbling of water should the
weld be improper. Such a procedure must be conducted close up, rather than remotely, since the
welder must be able to see subtle bubbles of air coming from the tank.

While Mooney may have established that pneumatic integrity testing constitutes a
recognized hazard, something not disputed by the parties, not placed in issue by the citation, and
not conducted by respondent, he failed to demonstrate that industry

recognizes that pneumatic leak
testing constitutes a recognized hazard.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the
contested issues have been found specially and appear in the decision above. See Rule 52(a) of the
Federal Rules of Civil Procedure .

ORDER

The Secretary having failed to establish that either respondent or person’s familiar with
conditions in the industry recognized the hazard of pneumatic leak testing, the Citation for
Violation of Section 5(a)(1) of the Act, it is ORDERED that the citation and the proposed penalty
are VACATED .                      

/s/

Covette Rooney

Judge, OSHRC

Dated:   September 9, 2008                                           Washington, DC