National Steel Erection, Inc.

Plain-English summary

National Steel Erection stored oxygen, acetylene, and propane cylinders on a rack at a Tennessee construction site. The oxygen and acetylene cylinders were adjacent to each other behind a quarter-inch metal partition with one-inch gaps on both sides. The judge found that the partition lacked the required half-hour fire-resistance rating and that fire could pass around the gaps, so it did not provide the separation required by the standard. The violation was affirmed as serious because a fire or explosion could cause severe burns. The proposed penalty was reduced to $1,500 because the company had attempted to comply, secured the cylinders, installed a traffic barricade, and had limited employee exposure.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.350(a)(10)
• Outcome: The serious cylinder-storage item was affirmed with a $1,500 penalty.
• Key point: A gas-cylinder partition must have the required fire rating and prevent fire from passing around its edges.

Full text (OSHRC public release)

                                     United States of America
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1924 Building - Room 2R90, 100 Alabama Street, SW
                                    Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v.
OSHRC Docket No. 11-2467
National Steel Erection, Inc.,

   Respondent.

Appearances: Joseph B. Luckett, Esq., U. S. Department of Labor, Office of the Solicitor
Nashville, Tennessee
For the Complainant

           Josh Searcy, Esq., and John Bickel, Esq., Thacker, Bickel, Hodskins & Thacker, LLP
           Owensboro, Kentucky
           For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                  DECISION AND ORDER
   National Steel Erection, Inc. (National Steel), was engaged in fabricating holding tanks

for the waste water system on the Tennessee Valley Authority-John Sevier Combined Cycle site
in Rogersville, Tennessee. On August 3, 2011, National Steel was in the process of concluding
its work activities at the site when Occupational Safety and Health Administration (OSHA)
compliance officer Michelle Sotak conducted an inspection of the Tennessee Valley Authority-
John Sevier Combined Cycle site. The OSHA inspection resulted in the Secretary issuing one
serious citation to National Steel on August 29, 2011, alleging National Steel violated a
construction standard of the Occupational Safety and Health Act of 1970 (Act).
The citation alleges a violation of § 1926.350(a)(10), for failing to separate oxygen and
acetylene cylinders by a fire-wall with an appropriate fire rating. The Secretary proposed a
penalty of $2,380.00 for this alleged violation. National Steel timely contested the citation. The
undersigned held a hearing in this matter on March 22, 2012, in Owensboro, Kentucky. The
parties have filed post-hearing briefs.
 For the reasons discussed below, Item 1 is affirmed and a penalty of $1,500.00 is
assessed.
Jurisdiction
The parties stipulated that jurisdiction of this action is conferred upon the Commission
pursuant to § 10(c) of the Act, and that at all times relevant to this action, National Steel was an
employer engaged in a business affecting interstate commerce within the meaning of § 3(5) of
the Act, 29 U.S.C. § 652(5) (Tr. 6).
Background
National Steel was a subcontractor on the Tennessee Valley Authority-John Sevier
Combined Cycle site in Rogersville, Tennessee, (jobsite) where electricity is produced (Tr. 11).
Kiewit was the general contractor on the jobsite (Tr. 11). National Steel was responsible for
fabricating holding tanks for the waste water system on the jobsite (Tr. 44). On August 3, 2011,
OSHA Safety and Health Compliance Officer Michelle Sotak conducted an inspection of the
jobsite pursuant to a local emphasis program for federal construction. On that day she inspected
National Steel as a result of violative conditions she observed relating to its work on the site
(Tr. 10-11). At the time of the OSHA inspection, National Steel was in the process of finishing
its part of the project and only one of its employees, Don Morsaw, project superintendent, was
onsite (Tr. 12, 45). National Steel was not performing any welding or cutting on the jobsite since
they were concluding their work onsite (Tr. 44).
During a walk around inspection of the jobsite, Sotak observed an oxygen cylinder
storage rack belonging to National Steel (Tr. 12; Exhs. C-1, C-2, C-4, C-5). The storage rack
was made by National Steel and contained two acetylene cylinders, four propane cylinders and
two oxygen cylinders (Tr. 16, 18, 19, 45). The valves on the oxygen and acetylene cylinders had
been removed and protective caps were in place. The cylinders also were secured to the storage
rack’s vertical surface (Tr. 33). They had not been used for one week and were not to be used
onsite (Tr. 14). The cylinders were separated on the rack by a noncombustible barrier which was
5 feet in height and ¼-inch thick (Tr. 17, 30, 31, 32). However, there was a 1-inch gap between
the barrier and the frame on the right and left sides of the frame (Tr. 16, 17, 40, 50; Exhs. C-2,
C-5). The oxygen cylinders were placed on the right side of the storage rack directly in front of
the gap (Tr. 17; C-2). The acetylene cylinders were placed on the right side of the storage rack

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opposite side of the barrier, directly behind the oxygen cylinders (Exhs. C-2, C-5). National
Steel had not tested the barrier to determine its fire resistance rating (Tr. 20, 60).
The storage rack containing the cylinders was protected on one side by a barricade.
Ladder cages were located on the back side of the storage rack (Tr. 21, 17, 40, 50-53, 63, 64;
Exh. C-3). The closest work activity onsite was occurring approximately 30 feet from the
storage rack (Tr. 15). The storage rack was located 5 feet from the road which was used by
contractors to come in and out of the area (Tr. 18, 21; Exhs. C-1, C-2, C-3).
As a result of her inspection, Sotak recommended the issuance of a citation for a violation
of § 1926.350(a)(10) for the conditions she observed relating to the storage of oxygen cylinders
on the storage rack. The Secretary issued the instant citation to National Steel on August 29,
2011.
Discussion
The Secretary has the burden of establishing the employer violated the cited standards.
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the employer
failed to comply with the terms of the cited standard; (3) employees had access to
the violative condition; and (4) the cited employer either knew or could have
known with the exercise of reasonable diligence of the violative condition.
JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

                                       Citation

        Item 1: Alleged Serious Violation of 29 C. F. R. § 1926.350(a)(10)
    The Secretary cited National Steel for a serious violation of § 1926.350(a)(10),

alleging:

    On or about 8/03/22, employees were exposed to fire and explosion
    hazards when oxygen and acetylene cylinders were not separated by a fire-
    wall with a ½ hour rating.
    Section 1926.350 (a)(10) provides:
    Oxygen cylinders in storage shall be separated from fuel-gas cylinders or
    combustible materials (especially oil or grease), a minimum distance of 20
    feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high
    having a fire-resistance rating of at least one-half hour.




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The facts of this case are not in controversy. National Steel was engaged in fabricating
holding tanks for the waste water system on site (Tr. 13). This work is construction activity
(Tr. 13). Applicability of the standard is established.1 Project Superintendent Don Morsaw and
four or five employees of another contractor had access to the conditions (Tr. 26). These
employees were painting and sandblasting the tanks located to the right of the storage rack,
approximately 30 feet away (Tr. 15, 45; Exh. C-1). In addition, a job trailer belonging to another
contractor working onsite was directly behind the storage rack, approximately 50 feet away
(Tr. 15; Exh. C-1). Access to the violative conditions is established. Actual knowledge is shown
by evidence that Morsaw, project superintendent onsite for National Steel, was aware that the
barrier had not been tested and that the cylinders were in storage. In addition, constructive
knowledge is established by the location of the storage rack and cylinders in plain view
(Exhs. C-1, C-2, C-3, C-5). Morsaw should have been aware of the violation.
The only issue in dispute is whether the barrier on the storage rack was sufficient and
complied with the terms of the standard. For the reasons set forth below, the undersigned finds
that the barrier was insufficient.
Compliance with the Terms of the Standard
When oxygen cylinders are in storage, § 1926.350(a)(10) provides employers with two
methods for complying with the standard. Oxygen cylinders must be separated a minimum
distance of 20 feet from fuel-gas cylinders or they must be separated by a noncombustible barrier
at least 5 feet high with a fire-resistance rating of at least ½ hour. There is no dispute that
National Steel’s oxygen cylinders were in storage. Morsaw told Sotak the cylinders had not been
used for one week and were not to be used onsite (Tr. 14). Further, the valves on the oxygen and
acetylene cylinders had been removed and protective caps were in place (Tr. 33). Rather than
separating the oxygen cylinders by a distance of 20 feet, National Steel used a barrier to separate
the stored oxygen cylinders.
The barrier separating the oxygen cylinders was 5 feet in height and ¼-inch thick;
however, there was a 1-inch gap between the barrier and the frame on each side of the frame
(Tr. 6, 17, 30 ; Exhs. C- 2, C-5). The fire resistance rating of the barrier is not known. Neither
the Secretary nor National Steel tested the barrier to determine its fire resistance rating (Tr. 20,

1
In its brief, National Steel argues it was denied due process due to vagueness of the standard, and a lack of fair
notice of the requirements of the standard as it applied to ¼-inch barriers. The undersigned has considered National
Steel’s arguments and finds they lack merit and are not supported by a preponderance of the evidence.

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30-31, 60). National Steel should have tested the barrier or otherwise ascertained that it met the
fire resistance rating required by the standard. In order to meet her burden, the Secretary must
show the barrier failed to meet the fire resistance rating of the standard. National Steel argues
the standard should be vacated because the Secretary did not test the barrier for a fire resistance
rating (National Steel’s Brief, p. 4). The Secretary contends she did not need to test the barrier
because OSHA’s interpretative guidance provides that a ½-inch thick solid steel barrier would
not provide at least ½-hour fire resistance. Therefore, the ¼-inch barrier used by National Steel
undoubtedly would not provide the appropriate fire resistance (Secretary’s Brief, p. 10;
Exh. C-7).
The interpretative guidance relied upon by the Secretary is a June 30, 2006,
Memorandum on Interpretation for Fire Resistance Ratings for Metal (Exh. C-7). Although the
interpretation guidance deals with a different standard, § 1910.253(b)(4)(iii), Sotak testified
§ 1910.253(b)(4)(iii) addresses the same hazard and the same conditions found in this case
(Tr. 22). Sotak’s testimony was uncontroverted. The June 30, 2006, Memorandum provides in
relevant part:
In fact, a solid mild steel plate barrier, ½-inch thick, would fail to meet the fire-
resistance rating for ½-hour (see attached memorandum, dated July 15, 1982). To
obtain a ½-hour fire-resistance rating criteria, the most common materials used
are plaster (cement, lime, and perlite) fillers, and mineral wool fillers. For
example, a fire barrier (solid partition) would be comprised of metal lath on ¾-
inch steel channels, combined with a 2-inch thick cement plaster (see attached
notes titled, 1910.253- Welding, Cutting and Brazing). Solid mild steel plate
barriers combined with plaster fillers such as concrete provide a higher protection
factor that meet or exceed the ½-hour fire-resistance rating, because concrete has
low thermal conductivity and capacity properties.

   Based on the above information, solid mild steel plate barriers, ½-inch thick, used
   alone would not meet OSHA’s ½-hour requirements. However, a combination of
   materials used in conjunction with solid mild steel plate barriers would achieve
   the ½-hour fire-resistance rating criteria. Therefore, any material used that meets
   or exceeds the ½-hour fire-resistance rating would be in compliance and
   acceptable for 29 CFR 1910.253(b)(4)(iii).

(Exh. C-7, Emphasis Added).
The evidence adduced at the hearing refers to the barrier used by National Steel only as a
noncombustible metal barrier (Tr. 30). There was no evidence that the metal it was comprised of
was solid steel. Also there was no evidence that it was comprised, as well, of other non-metal
materials such as cement plaster and mineral wool fillers, which would obtain the required
5
½-hour fire resistance rating as set forth in the June 30, 2006, Memorandum. Not knowing
whether the metal the partition was comprised of solid steel, the undersigned cannot conclude
that the ¼-inch barrier used, based on thickness alone, renders the barrier insufficient, as the
Secretary contends.2 However, because the evidence adduced shows the ¼-inch partition was
made only of metal and was not combined with something such as cement plaster, the
undersigned finds the barrier does not meet the ½-hour fire resistance rating, based on the
June 30, 2006, Memorandum.
Even if the metal partition were ½-inch solid steel and combined with concrete plaster,
the undersigned finds the barrier would be insufficient nonetheless because of the 1-inch gap on
either side of the barrier exposing the oxygen cylinders to the acetylene cylinders. The
undersigned agrees with the Secretary’s assertion that there was no barrier at all because of the
1-inch gap between the barrier and the frame. The Secretary relies on an April 20, 1992,
Interpretation Letter which provides the partition between the oxygen and fuel-gas cylinders
must be configured so as to prevent fire from circumventing the barrier (Exh. C-6). The barrier
used by National Steel only provided partial separation between the oxygen and fuel-gas
cylinders and because of the 1-inch gap Sotak testified fire could circumvent the barrier (Tr. 20).
The undersigned agrees and finds the barrier was insufficient. National Steel’s contention that
the cylinders were physically separated as required by the standard fails. Photographs admitted
into evidence show the oxygen and acetylene cylinders were adjacent to each other (Exhs. C-2,
C-5). The proximity of the cylinders to each other can be seen via the 1-inch gap on the right
side of the storage cylinder (Exh. C-2, C-5). The Secretary has met her burden of proving a
violation of § 1926.350(a)(10).
The Secretary classified this item as serious. Under § 17(k) of the Act, a violation is
serious “if there is a substantial probability that death or serious physical harm could result from”
the violative condition. Sotak testified employees could sustain severe burns in the event of a
fire explosion resulting in a serious injury (Tr. 27). Item 1 is properly cited as serious.
National Steel contends the citation should have been classified as de minimis. A
violation is de minimis when a deviation from the standard has no “direct or immediate”

2
National Steel also contends the barrier exceeded the industry standard of 3/16 inches. As this case involves a
specific OSHA standard which must be complied with, National Steel’s arguments as to industry standard are not
relevant and are rejected.

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relationship to employee safety. Dover Elevator Co., 15 BNA OSHC 1378, 1382 (No. 88-2642,
1991). National Steel relies on OSHA’s Letter of Interpretation to Kenneth Yotz, dated May 8,
2006, in support of its argument the violation should have a de minimis classification (National
Steel’s Brief, pp. 6 - 7). That letter of interpretation provides specific conditions must be met in
order for a violation to be classified as de minimis. One of those conditions, as National Steel
points out in its brief, is there must be only one acetylene cylinder and one oxygen cylinder
(National Steel’s Brief, p. 7). The evidence adduced shows there were two oxygen cylinders
and two acetylene cylinders on the storage rack at the jobsite. National Steel’s reliance on the
May 8, 2007, Yotz Letter of Interpretation fails.3 Sotak testified a serious injury could result in
the event of a fire explosion. The undersigned finds Sotak’s testimony credible. This violation
had a direct or immediate relationship to employee safety, and National Steel’s reliance on the
Yotz Interpretation Letter is misplaced.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). The Commission must
determine a reasonable and appropriate penalty in light of § 17(j) of the Act and may arrive at a
different formulation than the Secretary in assessing the statutory factors. Section 17(j) of the
Act requires the Commission to give “due consideration” to four criteria when assessing
penalties: (1) the size of the employer's business; (2) the gravity of the violation; (3) the good
faith of the employer; and (4) the employer's prior history of violations. 29 U.S.C. § 666(j).
Gravity is the primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood of an actual
injury. J. A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993).
The Secretary proposes a penalty of $2,380.00 for this violation taking into account
National Steel’s size and good faith, applying a 30 percent reduction for size because the
company had 50 employees; and applying a 15 percent reduction for good faith because National
Steel had a safety and health program in place (Tr. 27-28). The severity of the hazard was rated
at medium and the probability was rated at lesser because the cylinders were secured and only
one employee of National Steel was exposed (Tr. 26-27). There is no evidence of a prior history

3
The Yotz Interpretation Letter was not offered into evidence at the hearing, therefore, is not a part of the record
evidence in this case.

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of violation of this standard, and because employees were not working in the immediate vicinity
of the hazard, but were directly exposed to it only as they drove by, the undersigned finds a
lower penalty is appropriate. Further, although there were eight cylinders stored in violation of
the standard and the cited conditions existed for as long as one week, National Steel certainly
attempted to comply with the standard by erecting a metal barrier between the oxygen and
acetylene tanks and ensuring the cylinders were secured. Additionally, National Steel erected a
barricade in front of the storage rack to reduce vehicular contact. These factors also weigh in
favor of a smaller penalty. Accordingly, undersigned finds a penalty of $1,500.00 is appropriate
under § 17(j) of the Act.
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:
Citation 1, item 1, alleging a violation of § 1926.350(a)(10), is affirmed as serious and a
penalty of $1,500.00 is assessed.

                                              /s/ Sharon D. Calhoun
                                        SHARON D. CALHOUN
                                        Judge

Date: May 4, 2012
Atlanta, Georgia

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