The Thomas J. Dyer Company

Plain-English summary

The Thomas J. Dyer Company kept oxygen and fuel-gas cylinders in separate compartments of a steel cage while performing daily welding and cutting work at a medical-center project. The judge found that OSHA did not prove the cylinders were “in storage” because the cage was accessed as needed and gas was reasonably expected to be used within 24 hours. The storage-separation standard therefore did not apply. The judge also found that, even if it applied, OSHA did not reliably establish that the cage’s steel barrier lacked the required fire-resistance rating. The citation was vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.350(a)(10)
• Outcome: Serious gas-cylinder storage item vacated; proposed $6,234 penalty eliminated.
• Key point: OSHA must prove both that cylinders qualify as stored and that a noncombustible barrier fails the required fire-resistance standard.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-314

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
1 7-0950

THE THOMAS J. DYER COMPANY ,

Respondent .

Attorneys and Law Firms :

Anthony M. Berry ,
Attorney,
Office of the Solicitor, U.S. Department of Labor,
Nashville, TN ,
for Complainant.

John R. Patton, Safety Director, Cincinnati, OH ,
for
Respondent .

DECISION AND ORDER

John B.
Gatto ,
United State Administrative Law
J udge .

I. INTRODUCTION

This case arises from a n inspection
conducted by the
Department of Labor’s
Occupational Safety and Health Administration ( “ OSHA ” ) , which resulted in the issuance of
one serious
citation
with a
proposed penalty of $6,234.00
to
The Thomas J. Dyer Company (“Dyer”)
for
allegedly
violating
the Occupational Safety and Health Act
of 1970 (the
“ Act ” ) ,
29 U.S.C. §§ 651–678 .

The
c itation
charged
a
violation
of
29 C.F.R.
§
19 26.350(a )( 10) ,
an OSHA
construction industry
standard related to gas welding and cutting .

After
Dyer
timely contested the citation, the Secretary
of Labor (the “Secretary”) 1
initiated this enforcement proceeding before the Occupational Safety
and Health Review Commission (the “Commission” or the “Court”) by filing
a formal complaint charging
Dyer
with violating the Act and seeking an order affirming the citation and proposed penalt y . 2
Dyer filed an answer denying it violated the Act
and a
bench trial was held in
Lexington, Kentucky .

There is no dispute , and the Court finds,
that
it has
jurisdiction
pursuant to
section 10(c) of the Act , 29 U.S.C. § 659(c),
that
Dyer
is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act,
29 U.S.C. § 652(5), and that
Dyer’ s principal place of business is in
Cincinnati, Ohio
( Pretrial Order
¶ 2 ) . Pursuant to
Commission Rule 90(a),
after hearing and carefully considering all the evidence
and the arguments of counsel , the Court issues this Decision and Order ,
which
constitutes its final disposition of the proceedings . 3
For the
reason s indicated
infra , the
Court concludes
the
c itation
must be
vacated .

II. BACKGROUND

On March 20, 2017,
OSHA
Compliance Safety and Health Office r
Michelle
Sotak
conducted an inspection at
the VA Medical Center in Lexington, Kentucky. (Tr. 10).

During this inspection, nine of
Dyer ’s employees were present at the center and engaged in “retro-fitting the Chiller Plant,” which involved “welding, cutting, and construction.”
( Pretrial Order
¶ 2c ; Tr. 11-12 . )

During her inspection,
Sotak
discovered a cage
built by Dyer with at least
ten liquid petroleum cylinders
in the left compartment
and two oxygen cylinders
in the right compartment . (Tr. 14 ,
15-16, 26.) The two compartments were separated by two
1/8 -inch steel barriers
separated from each other by
2
inches of air. (Ex. C- 10; Tr. 22-3.) B oth barriers were taller than
5
feet. (Ex. C- 10; Tr. 40.) A corrugated metal ceiling enclosed the roof of the cage, creating a gap between the ceiling and the barriers. (Ex. C- 10; Tr. 29-30, 35.) Additionally, a small gap was present at the bottom of the right compartment. (Ex. C- 10; Tr. 75.) The purpose of these gaps was to mimic the
“chimney effect” utilized by the
“ Anthony cart, ”
a small
2 -compartment cart
that
fits
2
cylinders divided by a metal barrier,
which
enabl es
hot air to be pulled from the bottom of the cage and expelled from the top of the barriers in the event of a fire. (Tr. 75-7.)

After interviewing Dyer’s employees,
Sotak
determined
th e
cage had been present for approximately six months
and when the employees “need a cylinder, they’ll go to the cage and get the cylinder and bring it to where it’s needed.”
(Tr. 20) .
Sotak
also testified
Dyer’s employees passed through this area daily to reach the Chiller Plant where they were working. (Tr. 24.) Although
Sotak
testified the case
“is accessed
as
needed
throughout the day or throughout the week , depending on how much welding or torching is occurring on site , ”
she also testified they were “performing torching and welding activities
on a daily basis .”
(Tr. 20) .

As a result of her inspection,
Sotak
recommended the issuance of
a
citation
for a violation of
section 1 926.350(a )( 10) for the conditions she observed relating to the storage of
the
oxygen cylinders . (Tr. 21.) The Secretary
subsequently
issued the instant citation to
Dyer on May 2 , 201 7 .

III. ANALYSIS

T he fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980).

“ The Act requires that employers
‘ comply with occupational safety and health standards promulgated under this chapter. ’
29 U.S.C. § 654(a)(2). ”
Mountain States Contractors, LLC v. Perez , 825 F.3d 274, 277
(6th Cir. 2016) . 4
The Commission serves as a “neutral arbiter” between the Secretary and cited employers.
Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 7 (1985). Thus,
Congress
vested the Commission with the “adjudicatory powers typically exercised by a
court
in the agency-review
context.”
Martin v. Occupational Safety and Health Review Comm'n
(CF&I Steel Corp. ) , 499 U.S. 144, 151, 154 (1991) (emphasis in original).

The Secretary has the burden of establishing
Dyer
violated the cited standard. “To establish a prima facie violation of the Act, the Secretary of Labor must show by a preponderance of the evidence that ‘(1) the cited standard applies to the facts, (2) the requirements of the standard were not met, (3) employees had access to the hazardous condition, and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence.’”
Id. , 825 at 279 ( quoting
Carlisle Equip. Co. v. Sec'y of Labor & Occupational Safety , 24 F.3d 790, 792–93 (6th Cir. 1994) (internal citation omitted)).

Most of t he facts of this case are not in controversy. 
Dyer was engaged in welding, cutting, and construction at the worksite where it had both oxygen cylinders and liquid petroleum cylinders. Dyer’s employees retrieved the cylinders and passed through this area daily to reach the Chiller Plant where they were working. Access to the alleged violative conditions is established. Actual knowledge is also shown since Dyer knew the barrier had not been tested and that
oxygen and liquid petroleum cylinders
were in storage. In
addition, constructive knowledge is established by the location of the storage rack and cylinders in plain view. Therefore,
Dyer
knew or could have known of the alleged hazardous condition with the exercise of reasonable diligence.
Thus, the only issue s
in dispute
are
the applicability of
the
cited standard and whether the
barrier on the storage rack complied
with the terms of the standard.

The cited
construction
standard mandates “[o] xygen
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.”
29 C.F.R. § 1926.350(a )( 10). The citation asserts Dyer violated the standard
since
employees were
allegedly
exposed to fire and explosion hazards when oxygen and
liquid petroleum
cylinders were not separate d by a non-combustible barrier.
( Compl . Ex. A.)

A condition precedent to the applicability of the cited standard is
that
the oxygen cylinders were “in storage.” In a December 31, 1998, Standard Interpretations Letter, OSHA
interpreted this “in storage ”
requirement
as it relates to the cited construction standard,
and
indicated
OSHA
“ consider [s]
a cylinder to be in storage when it is reasonably anticipated that gas will not be drawn
from the cylinder within 24 hours (overnight hours included). At that point the storage requirements must be met. ”
( Standard
Interpretation s
Letter, dated December 31, 1998 . ) 5

“ In contrast, if it is reasonably anticipated that gas will be drawn from the cylinder during the next 24 hours, the cylinder is not considered to be in storage and the §1926.350(a )( 10) storage requirements do not apply. ” ( Id. )

“ Whether i t is ‘reasonably anticipated’
that gas will be drawn within 24 hours is based on whether specific welding or cutting work is planned for that period and the number of gas cylinders expected to be required to do that work. ” ( Id. ) As indicated
supra , the record shows Dyer was performing torching and welding activities
on a daily basis
and the cage was accessed as needed throughout the day. Therefore, it was reasonably anticipated that gas would be drawn from the cylinder during the next 24 hours, and therefore, the cylinders were not considered to be in storage. Thus, the section 1926.350(a )( 10) storage requirements did not apply.

Further, a lthough an agency's interpretation of its own regulation is entitled to substantial deference so long as it is reasonable,
Martin ,
499 U.S. 144 , in this case the Secretary has not produced any evidence regarding
Dyer’s
intended use of the cylinders within the relevant
twenty-four hour
period. T he Commission has
held
that based on
“ the evidence as a whole, ”
cylinders were not
“in storage”
under section 1926.350( j ) 6
where “ it is unclear when the cited cylinders were last used or when they were to be used next.”
Andrew
Catapano
Enterprises, Inc. , 17 BNA OSHC 1776, 1781 (Nos. 90-0050, 90-0189, 90-191, 90-0192, 90-0193, 90-0071, 90-0772, 91-0026, 1996)
( quoting
American Bridge/ Lashcon , J.V. , 16 BNA OSHC 1867, 1869 (No. 91-633, 1994),
aff'd , 70 F.3d 131 (D.C.Cir.1995)) .
Th e Court’s holding,
supra ,
is c onsistent with the Commission's holding in
Andrew
Catapano
Enterprises, Inc. ,
id. ,
since,
based on the evidence
as
a whole, it
is unclear when the cited cylinders were last used or when they were to be used next.

Therefore, the Secretary has not established the
cited standard applied to the facts.

Even assuming the Secretary established
the
cylinders were “in storage,”
he
failed to
prove the barrier on the
cage
did not comply with the terms of the standard.
As indicated
supra , Dyer had two options to comply with the
cited
standard
and
Dyer chose the latter option: to
separate
the oxygen and liquid petroleum cylinders
by
a noncombustible barrier at least 5 feet high with a fire-resistance rating of at least ½ hour. The parties do not dispute
the barrier
between the
oxygen and liquid petroleum cylinders
was made of
noncombustible
steel,
and that it exceeded the 5-foot tall requirement. (Tr.
20, 22, 24-5,
40,
46.)

Pa tton testified the ir
cylinder cart
was premised on the
engineered steel fire barriers patented
by
Anthony Welded Products ( “ Anthony
cart” ) . In
a January 23, 2004,
Standard Interpretation s
Letter , the Secretary n oted
that
while
OSHA
did not have the background technical information regarding the design and testing of
the
Anthony
cart , “as long as the barrier is at least 5 feet high, meets the ½-hour fire resistance rating and is designed to prevent the spread of the fire from one cylinder to another, employers using the product would meet the requirements of §1926.350(a)(10).” 7
The Secretary argues “the record contains no indication that the steel barriers fabricated by [Dyer] are so specifically engineered.” (Sec’y’s Br. 9.)

Th e Secretary’s
assertion
i s true ,
since
t he
Secretary
failed to
test the barrier to determine its fire resistance rating , and ,
as he is
well aware , he ha d
the burden to prove
Dyer’s
barriers
did
not
comply with the terms of the cited standard .
Nonetheless,
the Secretary contends he 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. Thus,
the Secretary
argues
the ¼-inch barrier used by Dyer
did
not provide the appropriate fire resistance.
(Sec’y’s Br. 9)
( citing
Ex. C-11 ; Ex.
R -4 at 00 22-24 ).

The Court finds no merit in this argument.

T he Secretary relie s
on a n
unpublished ,
June 30, 2006 ,
internal
m emorandum
from OSHA ’s
Director of Enforcement Programs to
an
OSHA regional a dministrator ,
addressing a
general industry standard, section 1910 . 253 ( b )( 4)(iii ) . The
internal
memorandum
indicate s
“a solid mild steel plate barrier,
½- inch thick, would fail to meet the fire-resistance rating for
½- hour [.]”
(Ex. C-11) .
This unpublished in ternal memorandum in turn references
a July 5, 1982 unpublished internal memorandum
addressing
yet
another general industry standard, section 1910 . 252 ( a )( 2 ) (iv)(c) , which
opines “ a
½
inch mild steel
plate barrier does not meet the intent of standards 29 CFR
1910.252(a)(2) (iv)
(e)[.]” (Ex.
R-4 at 0024 ) . 8

Assuming
the
Secretary gave adequate notice to regulated parties ,
including Dyer,
of
the
unpublished internal memorandum , 9
the Cour t
nonetheless concludes
th e y are
not
reliable
for at least two reasons . First, t he Secretary failed to establish the
opinions
were based on sufficient facts or data, were the product of reliable principles and method, or that the principles and methods were reliably applied to the facts of this case. 10

Second,
i n addressing the cited construction standard,
1926.350(a)(10),
the Secretar y acknowledged in a March 4, 200 4, Standard
Interpretation s
Letter
that
the “term ‘fire-resistance rating’ has traditionally been used in the industry to refer to a time period of fire-resistance determined in accordance with a viable testing protocol. ”
( Ex. R-9 at
0 042.)

As
the Secretar y acknowledged in that
interpretive letter ,
“ We are not aware of any industry consensus standards designed to assess fire-resistance of barriers in vehicles. ” ( Id. )

“ A fire-resistance testing protocol for a barrier in a vehicle designed by a registered professional engineer familiar with fire-resistance testing would be acceptable. Similarly, a testing protocol developed by a Nationally Recognized Testing Laboratory would also be acceptable. ” ( Id. ) T he internal memoranda do not indicate the
opinions were based upon
testing protocol
designed by a registered professional engineer familiar with fire-resistance testing
or
a testing protocol developed by a Nationally Recognized Testing Laboratory . Therefore, the Court
does not find them reliable. Thus, the Court
concludes the Secretary
also
failed to prove
the barrier in this case
violated the
fire-resistance rating
requirements of the cited
construction
standard . 11

Thus, for the foregoing reasons, the Court concludes the Secretary failed to prove a violation of the cited construction standard. Accordingly,

IV. ORDER

IT IS HEREBY ORDERED THAT
the citation is
VACATED
and
no
civil
penalty is imposed .

SO
ORDERED .

/s/ John B. Gatto   

John B. Gatto 

Administrative Law Judge 

Dated:
October 5 , 2017

Atlanta, GA

"

1
The Secretary’s responsibilities under the Act have been delegated to an Assistant Secretary who directs
OSHA. Secretary of Labor’s Order 1-2012, 77 Fed. Reg. 3912 (Jan. 25, 2012).
The terms “Secretary” and “OSHA” are used interchangeably
herein.

2
Attached to the complaint and adopted by reference were the two citations at issue . Commission Rule 30(d) provides that “[s] tatements
in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”
29 C.F.R § 2200.30(d).

3
If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

4
Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). This case arose in Kentucky, and the company’s corporate office is in Ohio, which are both in the Sixth Circuit. “[I]n general, ‘[w]here it is highly probable that a Commission decision would be appealed to a
particular circuit , the Commission has ... applied the precedent of that circuit in deciding the case—even though it may differ from the Commission's precedent.’”
Dana Container, Inc. , 25 BNA OSHC 1776, 1792 n.10 (No. 09-1184, 2015) ,
aff’d ,
847 F.3d 495
(7th Cir.
2017 )
(citation omitted). Therefore, the Court applies the precedent of the Sixth Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed to.

5
See
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22674
(last accessed
October 5 , 2017).

6
Section 1926.350(j)  was the
predecessor to  section
1926 . 350 ( a )( 10 ) , with the same requirements for stored cylinders.
Section 1926.350(j) provides:
“ For additional details not covered in this subpart, applicable technical portions of American National Standards Institute, Z49.1–1967, Safety in Welding and Cutting, shall apply. ” Section 3.2.4.3 of
ANSI Z49.1–1967 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 or by a noncombustible barrier at least 5 feet high having a fire - resistance rating of at least ½ hour. ”
See
https://archive.org/stream/gov.law.ansi.z49.1.1967/ansi.z49.1.1967_djvu.txt
(last accessed
October 5 , 2017).

7
See
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24741 ( last accessed
October 5 , 2017).

8
The Secretary asserts that even though OSHA did not publish the memoranda, the Court relied on them in
National Steel Erection, Inc. , 24 BNA OSHC 1240, 1244 (No. 11-2467, 2012) (ALJ Calhoun). (Sec’y’s Br. 9.) However, an unreviewed administrative law judge decision, such as in
National Steel , does not constitute binding precedent for the Commission.
KS Energy Serv. Inc. , 23 BNA OSHC 1483 (No. 09-1272, 2011);
Leone Constr. Co. , 3 BNA OSHC 1979, 1981 (No. 4090, 1976). For the reasons indicated
infra , t o the extent
National Steel
relied on
the cited
memoranda, the Court does not find it persuasive and declines to follow it.

9
When deciding whether to
defer to the Secretary's interpretation of his own regulations , the
Commission, like the
reviewing courts,
tak es
into account
such factors as the adequacy of notice to regulated parties.
Martin , 499 U.S. at 158-159. Here, the
internal
memoranda were not
published on
OSHA ’s web site where it
maintains its standard interpretations .
See
Wal-Mart Distribution Ctr. # 6016 , 25 BNA OSHC 1396, 1408 (No. 08-1292, 2015) ( view of
Commissioner
MacDougall )
( citing
Martin , 499 U.S.
at
158-159 )
(reviewing courts must defer to the Secretary's interpretation of his own regulations where that interpretation is reasonable, taking into account such factors as the consistency with which the interpretation has been applied, “the adequacy of notice to regulated parties,” and “the quality of the Secretary's elaboration of pertinent policy considerations”).
See also
Superior Masonry Builders, Inc. , 20 BNA OSHC 1182, 1184 n.2
(No. 96-1043, 2003);
Union Tank Car Co. , 18 BNA OSHC 1067, 1069 (No. 96-0563, 1997).

10
This action was assigned to the Commission’s Simplified Proceedings, where the Federal Rules of Evidence do not apply. 29 29 C.F.R. § 2200.209(c). Under
such p roceedings, the Court is required to “receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious or unreliable.”
Id.
Even when the
Federal Rules of Evidence do not apply, “they can provide guidance as to the types of evidence that may be less reliable and, therefore, properly excluded without violating due process.”
Lacinaj
v. Ashcroft , 133 F.
App'x
276, 287 (6th Cir. 2005). The Secretary sought
in part
to prove the cited violation vis-à-vis scientific or technical opinions contained in the
unpublished
internal
memoranda. Under Rule 702 , expert opinion testimony is permitted
when
the testimony is based on sufficient facts or data ,
is the product of reliable principles and methods ,
and the witness has reliably applied the principles and methods to the facts of the case. FRE 702.

11
The Secretary also appears to argue a violation occurred because
the Secretary stated in an April 20, 1992, Standard Interpretations Letter interpreting section 1910.253(b)(4)(iii)
the “partition must be configured to prevent the fire from circumventing it.” (Sec’y’s Br. 5) ( citing
Ex. C-12). However, that general industry standard is not relevant since it
does
not
relate to
cylinder storage , but rather,
relates to welding or cutting being performed in confined spaces. Therefore, any reliance on it by the Secretary is misplaced.