Conagra Flour Milling Company
Commission splits flour-mill safety citations and assesses $500
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Conagra operated a flour-milling facility in Martins Creek, Pennsylvania, where OSHA cited battery servicing, powered industrial trucks, machine guarding, compressed-air cleaning, and grain-handling practices. The Commission vacated the personal-protective-equipment and eyewash items because OSHA's evidence of electrolyte exposure was speculative and did not establish a realistic hazard. It also vacated the item involving an unrated forklift in a combustible-dust area and an item involving an unguarded conveyor roller because the evidence did not establish the required hazardous conditions or employee exposure. The Commission reclassified violations involving an unguarded shaft and the flour-bag sewing machine's belts and pulleys as other-than-serious and assessed one $100 penalty for four related guarding items. It affirmed violations for cleaning flour bags with compressed air above 30 psi and for conducting blowdowns while ignition sources were present, assessing $200 for each, and affirmed a preventive-maintenance recordkeeping item without penalty. The ALJ's dispositions of the remaining citation items, which were not reviewed, also became final.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.24(h), 1910.132(a), 1910.151(c), 1910.178(c)(2)(vi)(a), 1910.178(g)(11), 1910.212(a)(1), 1910.212(b), 1910.215(b)(9), 1910.219(c)(2)(i), 1910.219(d)(1), 1910.219(e)(1)(i), 1910.219(e)(3)(i), 1910.242(b), 1910.252(a)(2)(ii)(b), 1910.252(a)(2)(iv)(c), 1910.272(i)(3), 1910.272(l)(3), and 1910.304(f)(5)(v)
- Outcome: Four reviewed items vacated, two guarding items reclassified as other-than-serious, three reviewed violation groups affirmed, and $500 assessed on the reviewed items.
- Key point: Speculation about how a hazard might arise is insufficient when experienced workplace witnesses and operating evidence show that the cited exposure is not realistically present.
Full text (OSHRC public release)
..
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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-1246
FAX
COM (202) 634-4008
FTS(202) 634-4008
SECRETARY OF LABOR, ..
.
Complainant,
V. Docket No. 884250
CONAGRA FLOUR MILLING
COMPANY,
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
April 22,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WEIO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 0 660.
FOR THE COMMISSION
April 22, 1993
Date
Executive Secretarvd
Docket No. 884250
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104
Dean G. Kratz, Esquire
McGrath, North, Mullin & Kratz. P.C.
Suite 1100 One Central Park Plaza
222 South Fifteenth Street
Omaha, NE 68102
David G. Oringer
Administrative Law Judge
Occupational Safety and Hea Ith
Review Commission
Room 420
McCormack Post Office and Court house
Boston, MA 02109-4501
UNITED
STATES OF AMERICA
~C~~UPATIONAL
SAFETYANDHEALTHREviEw COMMISSION
1825K STREET. N W
4TH FLOOR
WASHINGTON. 0 c 20006-l246
f AX 81(202,634-4008
July 16 9 1990
IN REFERENCE TO SECRETARY OF LABOR v.
OSHRC
CON AGRA FLOUR MILLING COMP&lY DOCKET NO. 88-1250
NOTICE IS GIVEN TO THOSE LISTED BELOW:
NOTICE OF DOCKETING .
Daniel 3. Mick, Esq. Notice is given that the above case ~55
Counsel for Regional Trial Litigation docketed with the Comission on
Office of the Solicitor, USDOL July 16. 1990 The decision of the
200 Constitution Ave., N. W., Room S-4004 Judge will become a iind order of the
Washington, D. C. 20210 Commission on Auqust 15, 1990 unless a
Conmission member directs review of the
decision on or before that date.
Petitions for discretionary review should be
received on or before- Auqust 6, 1990 ir
Marshall H. Harris, Regional Solicitor
order to permit sufficient time for their
Office of the Solicitor, USDOL
review. See Comission.Rule 91, 29 C.F.R.
14480 Gateway Building
3535 Market Street
sec. 2200.91. Under Rule 91(h) petitioning
corporations must also file a declaration of
Philadelphia, PA .19104
parents, subsidiaries, and affiliates.
All pleadings or other documents that may be
filed shall be addresses as follows:
Executive Secretary
Dean 6. Kratz, Esq.
Occupational Safety and Health
McGrath, North, Mullin & Kratz, P.C.
Review Comnrission
Suite 1100 One Central Park Plaza
1825 K St., N.W., Room 401
Omaha, Nebraska 68102
Washington, 0. C. 20006-1246
A copy of any petition for discretionary
review must be served on the Counsel for
Regional Trial Litigation, Office of the
Solicitor, USDOL, 200 Constitution Ave.,
N.W., Room 54004,Washington, 0. C. 20210.
Judqe David 6. Orinaer If a Direction for Review is filed the Counse
0cc6pdtional Safety-and Health
for Regional Trial Litigation will represent
Reviebd Commission
the Department of Labor.
McCormack Post Office and
Courthouse
~~ FQR$-& ,s.
Room 420
Boston, MA 02109-4501
*
Ray H. Darling, Jr.
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEAL= REVIEW COMMISSION
ELIZABETH DOLE, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
Complainant,
oSHRC DOCKET
v. NO. 88-1250
CON AGRA FLOUR MILLING COMPANY,
AND ITS SUCCESSORS,
Respondent.
Amearances
FOR COMPLAINANT:
James E. Culp, Esq.
Office of the Solicitor
3535 Market Street .
Philadelphia, Pennsylvania
FOR RESPONDENT:
Dean G. Kratz, Esq.
McGrath, North, Mullin 61Kratz, P.C.
Suite 1100 One Central Park Plaza
Omaha, Nebraska .
Decision and Order
ORINGER, J.: This is a proceeding brought under section
10(c) of the Occupational Safety and Health Act of 1970 (84 Stat.
1590, 29 U.S.C. 5651 et seq., hereinafter sometimes referred to
as The Act’) to review citations issued by the Secretary of
Labor pursuant to section 9(a) and a proposed assessment of
penalties thereon issued pursuant to section 10(a) of the Act.
Subsequent to an April 12, 1988 inspection of respondent's
flour milling facility in Martins Creek, Pennsylvania, a serious
citation and an other-than-serious citation were issued on May 9,
1988.
Respondent timely filed with a representative of the
Secretary of Labor a notification of intent to contest the
citations and proposed penalties. A hearing on the matter was
held in Philadelphia, Pennsylvania on June 7, 8 and 9, and
November 13, 14, 15 and 16, 1989. Parties filed post-hearing
briefs in March of 1990.
Backaround
Respondent, ConAgra Flour Milling Company, is a conglomerate
consisting of 60 operating companies and 28 flour mills
(Transcript, 11/15, p.534). Respondent is an employer engaged in
a business affecting commerce within the meaning of §93(3) and
3(5) of the Act.
In the packing room of ConAgra*s Martins Creek facility, a
powered industrial truck enters several times a day and delivers
empty flour bags on a pallet. The employee known as the "packeP
fills the empty bags with flour by way of the packing machine
which is fed flour by a hopper above it (Tr. 6/8, p.8). When the
bag is full, it is sent down a conveyor belt to the station
manned by the %eweP who, with a sewing pedestal, sews the bag
closed (Tr. 6/8, p.10). The closed bag is then sent on the v-
belt conveyor to the end where it falls on to an incline flat
belt conveyor which ascends from two to ten feet off the ground.
The bags then fall off the conveyor on to another elevated belt
conveyor of the same height.
The filled bags then travel down this conveyor to the
2
palletizer, an elevated device which loads the bags on to wooden
pallets (Tr. 6/8, p.12). The palletizer operator then loads
damaged bags which are picked up by the fork lift operator (C-
20) l
On April 12, 1988 f Compliance Safety and Health Officer
Donald Newell was assigned to conduct an inspection of ConAgra*s
Martins Creek facility in response to a formal complaint (c-1;
Tr l 6/7, p. 10). Mr. Jackson, the company plant manager, and a
union representative accompanied Newell on his inspection (Tr.
6/L p.13). Consequently, the following citation items were
issued and remain in dispute?
Citation Number One
Item 1: Alleaed Serious Violation of §5{a) (11 of the Act* the
General Duty Clause.
ConAgra maintains a Bemis flour bagging machine at its cited
facility. The packer takes a bag with either a 50 or 100 pound
capacity and slides it on to a tube on this machine. He then
steps on a foot pedal whereupon the machine's clamps close to.
hold the bag in place. Flour is fed into a hopper above the
machine and the auger proceeds to fill the bag with flour (Tr.
6/7, p. 18: 11/Z, p.464). After the cycle is complete, in
approximately four seconds time, the bag is released and sent
down a conveyor (Tr. U/15, p. 464). Approximately 2,500 to
1 After the hearing, the parties were able to settle with
respect to six items. Respondent agreed to withdraw its notice
of contest to Citation No. 1, Items 6 and 8d and Citation No. 2,
Item 1 and their proposed penalties. The Secretary agreed to
withdraw Citation No. 1, Items 5, 7a(c) I and lla, and Citation
No. 2, Item 5 and their proposed penalties.
3
3,000 bags are packed in an eight-hour shift.
Compliance Officer Newell testified that the foot pedal on
this machine was unguarded at the time of the inspection posing
the recognized hazard of having an employee's hands or fingers
become pinched, fractured, or crushed by the clamp by the
inadvertent activation of the pedal (C-3; Tr. 6/7, p.19, 21).
Robert J. Farronato, safety supervisor for the OSHA Wilkes
Barre Area Office, testified that an unguarded foot pedal is a
recognized hazard in the industry (Tr. 11/14, p.218, 221).
On one occasion, James E. Smith, a sanitarian and fumigant
handler for ConAgra was injured by this machine when he
unintentionally hit the foot pedal causing the clamps to close on
the tip of his thumb, holding it for four seconds, which resulted
in a minor bruise (Tr. 11/15, p.466). Smith testified that the
type of injury that he sustained would be the worst possible
physical harm that could be caused by the clamps (Tr. 11/15,
p.467). Only one other known incident of this nature, at another -
.
ConAgra facility, had occurred (U/15, p.539).
Wayne R. Bellinger, corporate safety director at ConAgra,
testified that none of the 25 or 30 Bemis packers maintained in
ConAgra's facilities have guards on their foot pedals (11/15, p.
536). This item was abated with the installation of a foot pedal
guard by December, 1988 (C-4; Tr. 6/7, p.13).
To prove a violation of the general duty clause,2
? Section 5 (a) (1) of the Act states that,
**(a)Each employer ---
(1) shall furnish to each of his employees employment and a
4
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[T]he Secretary must prove (1) that the employer
failed to render its workplace ltfreelt
of a
hazard which was (2) **recognized"and (3) "causing
or likely to cause death or serious physical
harm."
Userv v. Marauette Cement Mfg. Co., 568 F.2d 902, 909 (2nd Cir.
1977) quoting National Realty and Construction Co., Inc. V.
OSHRC 1 489 F.2d 1257, 1265 (D.C. Cir. 1973). See also
Connecticut Light & Power Co., 13 BNA OSHC 2214, 2217 (No. 850
1118) (Rev. Comm. 1989).
"[T]he term 'recognized' connotes knowledge" and is proven
if the "dangerous potential of a condition or activity" is
Vgactually...known either to the particular employer or generally
in the industry." Pratt 6iWhitney Aircraft, Etc. v. Secretasv o$
Labor, 649 F.2d 96, 100 (2d0 Cir. 1961) quoting Userv v.
Marouette Cement, supra at p. 910.
The Secretary relies on the testimony of Compliance Officer
Newell and Safety Supervisor Farronato, who claimed that an
unguarded foot pedal is a recognized hazard throughout general
.
industry. Newell testified that foot pedal guards were in place
in three bagging operations which he had observed: those
involving whey, dog kibble, and chemical resins (Tr. 6/7, p.120).
Respondent contends-that these named industries are separate
and distinct from the grain handling or processing industry in
which it is involved, and thus, it is not within the
place of employment which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm
to his employees:**
sphere of recognized hazards pertinent to its industry.
Respondent also points to the low rate and severity of injury
caused by the bagging machine to refute any imputation of
employer knowlege of this alleged hazard. Moreover, ConAgra
notes, none of the other Bemis machines have such a guard.
The record was bereft of evidence showing that the grain
handling industry recognizes an unguarded foot pedal on this type
of machine as a hazard. The Secretary submits, however, that the
proper industry for determining recognition of this hazard is
businesses in general industry using foot pedal operational
contr01s08 .(Secretarys Brief, p.6), See, Eddv Bakeries ComDanv,
9 BNA OSHC 2149, 2150. In addition, that the level of knowledge
in the industry may be so low or the hazard so obvious that the
.
industry's standard is not controlling (see Secretary's Brief, p.
3, citing Userv v. Marauette Cement, supra).
Was this a recounized hazard?
The Secretary is correct in noting that industry recognition
is not dispositive proof of an employer's knowledge of a hazard.
Similarly she is correct in asserting that the lack of accidents
caused by this machine does not negate the existence of a hazard.
I'
. . .The Act does not establish as a sine uua non any specific
number of accidents or any injury rateJ* Ryder Truck Lines. Inc.
v. Brennan, 497 F.2d 230 (5th Cir. 1974, reh. denied (1974).
Although the absence of accidents is entitled to great weight,
this fact alone is not dispositive of the question whether a
violation has occurred. Faultless Div.. Bliss & Laughlin Inds..
0
6
Inc., v. Secv 0 of Labor, 674 F.2d 1177 (7th Cir. 1982), citing
A.E. Buruess Leather Co. v. OSHRC, 576 F.2d 948, 951 (1st Cir.
1978); Allis-Chalmers CorD. v. OSHRC, 542 F.2d 27, 30-31 (7th
Cir. 1976).
The purpose of the Act is to prevent the first accident,
**notto serve as a source of consolation for the first victim or
his survivors." Mineral Industries & Heavv Construction Group v.
OSHRC # 639 F.2d 1289, 1294 (5th Cir. 1981)t Lee Wav Motor
Freight, 511 F.2d 864, 870 (10th Cir. 1975) citing Ryder Truck
Lines, supra, at 233.
The Secretary, however, failed to prove that there was any
recognition by this employer or its industry that an unguarded
foot pedal on this machine was a hazard, nor that the hazard was
so obvious that the industry's standard would not be controlling.
The near absence of injuries caused by this machine, coupled with
the only minor injuries which have resulted, is evidence that the
employer was not on notice that more stringent safety methods
were required.
Causinu or Likely to Cause Death or Serious Physical Harm.
Regardless of whether or not ConAgra recognized an unguarded
foot pedal as a hazard, the Secretary failed to prove that the
hazard was @*causing or likely to cause death or serious physical
harxCg While Newell and Farronato were of -the opinion that
crushing or fractures could result from the force of the clamps,
the employee who worked with and was injured by the machine, and
who was also a witness for the Secretary, testified otherwise.
LT
7
Accordingly, this item is vacated.
Iten 2atal: Alleged Serious Violation of 29 CFR 61910.132fa).
The Secretary alleges that respondent was in serious
violation of 29 CFR 51910.132(a) by its having failed to provide
employees servicing forklift truck batteries with personal
protective equipment. This standard provides:
(a) Application. Protective equipment including
personal protective equipment for eyes, face, head, and
extremities, protective clothing, respiratory devices,
and protective shields and barriers, shall be provided,
used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of proccesses
or environment, chemical hazards, radiological hazards,
or mechanical irritants encountered in a manner capable
of causing injury or impairment in the function of any
part of the body through absorption, inhalation or physical
contact.
Newell testified that the forklift operator, when adding
water to truck batteries, a process he performed weekly, was not
protected from the hazard of having electrolyte (a mixture of
sulfuric acid and water) from the battery splash on him. It is
undisputed that contact with electrolyte can cause chemical burns
(Tr. 6/7, p. 23, 24, 31; C-2 at rrBtt). The forklift operator used
a funnel to fill the batteries with water. Newell did not
observe this process, any spillage, nor was he aware of any
employee having been splashed in this manner (Tr. 11/13, p. 26,
29, 46, 48). He testified that employees at other facilities in
which batteries are filled with water are required by their
employers to wear protective clothing.
Farronato testified that while he also did not observe an
accident or spillage, the use of a funnel does not alleviate the
possibility of a splash hazard: the process of removing the
funnel from the battery is potentially hazardous, he claimed (Tr.
11/14, p.224, 225). He would recommend eye, hand, and mid-section
protection with available eye wash +nd a quick drenching shower
(Tr. 11/14, p. 232).
Philip Ascani, forklift operator at ConAgra for 17 years,
put water in the battery once a week, filling it one to two
inches from the top of the battery cap. He testified that he was
never given any protective gloves, shields, or glasses, nor did
he receive any training on how to prevent splashes or the
recommended course of action in the event that electrolyte was
splashed on to him (Tr. 11/14, p. 279, 280). He claimed that,
though -unlikely, one would have to overfill the battery in-order
to be splashed with electrolyte (Tr. 11/14, p.304).
Bellinger did not dispute the fact that ConAgra failed to
provide protective clothing, but contended only that no splashing
or chemical burns have occurred at any ConAgra facility and that, -
in his opinion, he did not believe that splashing could occur
with the use of a funnel (Tr. 11/15, p.550, 553, 641).
The Secretary claims that the lack of protection is a hazard
and finds support for her position in the testimony of Newell and
Farronato, as well as by documentation of the National Safety
Council, which recognizes the handling of battery electrolytes as
a hazard and advocates the use of personal protective equipment
and a deluge shower and eye wash fountain where electrolyte acid
is handled (C-8: NSC data sheet I-635-79, 1979).3 Further I the
owners and Operators Guide to the Hyster Electric Lift Truck
owned and operated by Respondent states that "electrolyte is very
caustic and must be neutralized immediately? (C-15; Tr. 6/7,
p.33).
Respondent refutes the contention that this is a hazard
based on the absence of injuries and the rare likelihood of
becoming splashed.
As discussed previously, the Act is designed to prevent the
first accident. 'IThe application of §1910.132...involves
evaluating whether a 'reasonable man* would require the use of
protective equipment, considering common understanding, industry
practice...and the circumstances of the job in question?
Marshall v. Havside Div. of Svnthane Taylor Corw8 [9 BNA OSHC
14431 (3rd Cir. 1980); McLean Truckins v. OSHRC, 503 F.2d 8 (4th
Cir. 1974).
While the record reveals that there were no known accidents .
caused by such spillage, the hazardous potential for contact with
this substance was well documented. The evidence showed that,
however unlikely, such spillage was possible, and any resulting
injury, serious.
This conclusion does not conflict with Remblic PaDer Board
3 The National Safety Council Data Sheet I-635-79, states in
pertinent part,
w50. Personnel should wear acid-resistant gloves, arm
gauntlets, aprons, and face shields for proper eye protection.
Running water should be immediately available, and the type of
protection should be governed by local CircumstanceS,"
(C-8, p.7).
10
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co ., 13 BNA OSHC 1335 (1987) in which an ALJ vacated a citation
for ~1910.132(a). In that case, the Secretary alleged a
violation of this standard in that respondent failed to require
its employees to wear rubber boots during an acid transfer
operation. The citation was vacated since there was no spillage
and testimony that no acid could reach the plant floor during the
transfer.
Here, however, while there was no proof that such spillage
occurred, the record revealed that spillage could occur if the
battery was overfilled. The Secretary established that ConAgra
had knowledge of a hazard in its facility which required the use
of personal protective equipment. Cape & Vineyard Div. of the
New Bedford Gas & Edison Liaht Co. v. OSHRC, 512 F.2d 1148, 1152
(1st Cir. 1975).
Accordingly, this item is affirmed. The penalty is reduced,
however, because of the absence of prior accidents.
Item 2albl: Allesed Serious Violation of 29 CFR §l910,132(aL
.
The Secretary contends that ConAgra was in violation of this
provision by its failure to provide and require the use of hard
hats by employees exposed to the risk of sustaining the impact of
50 and 100 pound flour bags which could fall from an elevated
conveyor which was ten feet above the floor.
In the packing room an elevated conveyor, approximately
three feet wide, carries flour bags which are approximately two
feet wide, ten feet above the floor (Tr. 6/7, p.36, 37: C-16).
Employees who must walk through the packing room are the forklift
11
operator, the sanitarian, the railcar loader and the packer.
While employees normally walk within five to six feet of the
incline conveyor, they are able to walk, and have walked, closer
(Tr0 11/15, p. 473). Employee Smith had observed employees
walking next to and crossing under the conveyor while it is
running (Tr. 11/15, p.469, 471, 473). In the past, he has
observed flour bags fall off the conveyor and break (Tr. U/15,
p.475). If a packer must straighten out a flour bag that is on
the belt at a height greater than six feet, he explained, he will
turn off the machine first (Tr. 11/15, p. 502).
Forklift operator Philip Ascani must go into the packing
room hourly. When he removes damaged bags from underneath the
palletizer he must drive underneath the belt and can come within
approximately two feet of the conveyor (Tr. 11/14, p. 280, 297).
At the time of the inspection, Ascani did not recall that
falling bags were a problem at the Martins Creek facility. He
explained that ConAgra had installed railings around the conveyor
system at this facility, as a result of a prior OSHA inspection,
which ameliorated the problem of falling bags. The conveyor
system was perfected six months prior to the hearing (Tr. ll/l4,
p.297, 298, 300, 315, 317).
Neither Newell nor Farronato observed any bags falling.
Neither witness knew of whether any injuries have been sustained
by such an occurrence (Tr. 11/13, p.30, 34, 41, 42; 11/14, p.
266)
ConAgra employees are required to wear bump caps in this
12
area for the purpose of restraining hair (Tr. G/7, p.44).
FarronatO testified that walking underneath this conveyor without
head protection is a recognized hazard; a hard hat, but not a
bump cap, he opined, would lessen the impact of a falling flour
bag (Tr. 11,'14, p. 230, 231, 265).
Smith and Bellinger testified, however, that a hard hat
would not afford any greater protection from the impact of a
falling flour bag than a bump cap (Tr. 11/15, p.509, 556).
The Secretary asks that the testimony of Farronato and
Newell be credited more favorably. Further, she notes that in
mills that were acquired from P.B. Company by ConAgra, which have
the same bagging process, the employees wear hard hats as part of
the predecessor company's policy (Tr. U/15, p. 559, 560).
ConAgra maintains that employees do not come within the
potential zone of danger. In the past, Respondent notes, a flour
bag has never fallen on an employee: the packer turns off the
machine if he must straighten out a flour bag and the forklift
operator is adequately protected by the overhead guard of his
truck.
"The Secretary may establish a violation of gl910.132(a) by
showing that an employer had either actual or constructive
knowledge of a hazard in its facility which required the use of
'personal protective equipment. ICape brVineyard, supra, at 512
F.2d 1148, 1152. The record established that ConAgra was aware
of the hazard of falling bags as manifest in its construction of
a railing system around the conveyor. The Secretary, however,
13
failed to prove that a reasonable person familiar with the
circuxnstances at this facility would have recognized a hazard
requiring protection by a hard hat. The unlikelihood of employee
exposure, the absence of any head' injuries from falling flour
bags I and the lack of evidence that the use of hard hats would
have prevented or significantly reduced any injuries establishes
that the employer was not on notice that such protective
equipment was required. See Helmark Steel, Inc., 13 BNA OSHC
1331 (1987); ConAara, Inc., 12 BNA OSHC 1071 (1984).
Accordingly, this item is vacated.
Item 2b: Alleued Serious Violation of 29 CFR !!i1910~151(c~o
The standard at 29 CFR 1910.151(c) states:
91910.151 Medical services and first aid.
(C 1 Where the eyes or body of any person may be
exposed to injurious corrosive materials, suitable
facilities for quick drenching or flushing of the eyes and
body shall be provided within the work area for immediate
emergency use.
The Secretary alleges that the forklift operator was exposed .
.
to electrolyte, an injurious corrosive material, when checking
the forklift batteries and that ConAgra failed to provide eye
wash or other suitable facilities for quick drenching in the
event of exposure. Newell testified that the nearest flushing
facility would be in the building adjacent to the location where
the forklift operator fills the batteries (Tr. 6/7, p.54).
Bellinger testified, as he did with respect to Citation
Number One, Item 2a(a), that a drenching facility is not needed
due to the lack of employee exposure to this substance (Tr.
14
-
11/15, p. 647).
Respondent relies on OSHA Instruction STD l-8.2 paragraph d.
for the proposition that since the Secretary did not substantiate
employee exposure to electrolyte, that no need for an emergency
facility was established. This paragraph reads:
d At construction sites and in commercial and
minufacturing facilities at locations where
powered industrial trucks are parked for over-
night storage and routine battery recharging
0-y I no need for emergency facilities exists
unless potential exposure to electrolyte is
substantiated. Where exposure is possible (i.e.
servicing batteries) the provisions of E.2.b:and
E.2.e. should be evaluated for applicability.
(R-2).
The Secretary asserts that ConAgra's reliance on this part
of the Instruction is inappropriate, as the record revealed that
the forklift operator serviced the battery. I agree. Moreover,
the Instruction states that it is the potential exposure to
elecrolyte which must be substantiated, not actual exposure. See,
Donovan v.Adams Steel Erection, Inc., 766 F.2d 804 (3rd Cir.
1 985) l
Whether a violation [of 1910.151(c)] exists depends on a
consideration of all circumstances.f1 Gibson Discount Center.
Store No.15, 6 BNA OSHC 1526 (No. 14657)(Review Commission,
1978); see also Continental Electric Co,, 14 BNA OSHC 1345 (No.
830921)(Review Commission 1989). Because potential exposure to
this corrosive material was established, I find Respondent to
have violated this standard by failing to provide emergency eye
wash facilities.
15
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Ita 3: Allead Serious Violation of 29 CFR 61910~178~~~ (2)(vi),
The standard at 29 CFR 1910.178(~)(2)(vi) states,
(vi) (a) 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 alleges that in the packing room of the cited
facility, a type 1fE" electric forklift was used: in this
location, due to "mechanical failure or abnormal operation of
machinery or equipmenF, ignitable or explosive mixtures of
combustible dusts might be produced. The Secretary asserts that
ConAgra violated this standard by allowing the use of a type E
rather than an approved type EX powered industrial truck.
Compliance Officer Newell classified the packing room as a
Class II, Division 2 area.4 He observed that flour dust had
accumulated in the room but was more concerned about an abnormal
occurrence such as a flour bag breaking and dispersing its
contents into the room (Tr. 6/7, p.64).
John Nagy, an expert in the area of explosions testified
4 29 CFR §1910.399(a)(25) (ii) defines a Class II, Division 2
location as one in which: "(a) combustible dust will not
normally be in suspension in the air in quantities sufficient to
produce explosive or ignitible mixtures, and dust accumulations
are normally insufficient to interfere with the normal operation
of electrical equipment or other apparatus; or (b) dust may be in
suspension in the air as a result of infrequent malfunctioning or
handling or processing equipment, and dust accumulations
resulting therefrom may be ignitible by abnormal operation or
failure of electrical equipment or other apparatus."
c
16
that anwhere that combustible dust is handled is a hazardous
location and would be categorized as Class II, Division 2 (C-45;
Tr . 11/14, p.393.396, 400).5 When he visited the Martins Creek
Facility, he noted that it was extraordinarily free of
accumulated dust but he did not dismiss the possibility that dust
could be dispersed into the air if a flour bag were to fall (Tr.
U/14, p.402). He observed sufficient amounts of dust within the
plant that could pose a hazard under unusual circumstances (Tr.
u/14, p. 404, 407).
A type E forklift, Nagy testified, offers no protection
against explosive hazards, only fire hazards. In this plant, he
claimed, a model EX forklift should be employed (Tr. 11/14, p.
403, 404, 409).
The minimum explosive concentration of industrial dust is
equivalent to 50 grams per cubic meter. Two hundred pounds of
flour dust would be required to fill the room to meet this lower
explosive limit concentration. This concentration has been
described as "more than a dense fog** (Tr. 11/13, p.49; 11/14, p.
417, 421). Nagy stated, however, that dust could fill a portion
of the room and with a source of ignition such as a hot surface,
5 The National Fire Protection Association recognizes this
as a hazardous location and does not authorize the use of a type
E truck in such a location (C-13, Table l-7; Tr. 6/7, ~~65-75).
Factory Mutual System's Loss Prevention Data Sheet 7-39
(April, 1975) describes the safeguards particular to types E, ES,
EE and EX trucks (C-11)0 Factory Mutual System% Loss
Pkvention Data Sheet 7-76 (August, 1976) concerning combustible
dusts states under the heading "Control of Ignition Sources**that
"industrial lift trucks should be as recommended for Class II,
Division 1 or 2 locations (C-9; Tr. 6/8, p.19.21).
(t
17
flame, or electrical arcs ana sparks, an explosion could occur.
only five to ten pounds of dust around a type E forklift, he
explained, could create the requisite amount of dust. An
employee in the middle of such a dust cloud could be severely
burned even if the cloud did not fill the entire room (Tr. ll/l3,
p. 57; 11/14, p.416, 429, 432).
Employee Smith testified that the bin on the packer holds up
to 60 bags or 6,000 pounds of flour. The bin indicator may
malfunction, he explained, causing flour to spill on to the
flour (Tr. 11/E, p. 478). While he could only recall this
breakdown having happened four times in fifteen years, he
described that the packing room, at these times, became foggy and
cloudy for approximately five to six minutes (Tr. 11/B, p.479,
513). The whole room was covered with dust and it had taken 20
to 30 minutes to clear once the packing machine was shut off (Tr.
11/15, p. 480). He claimed that 30 to 40 bags, or 3,000 to 4,000
pounds of flour could be dispersed and has seen four or five bags
fall off at a time (Tr. 11/15, p. 480, 482).
Bellinger conceded that parts of the bagging room could be
considered Class II, Division 2 locations, and that at the time
of- the inspection, there had been a problem with bin overflow
(Tr l 11/15, p. 564: X/16, p. 650, 675). He claimed that not
enough dust could circulate into the air which could create a
dense fog in the warehouse. He conceded, however, that this was
possible in a localized area (Tr. 11/15, p. 563; 11/16, p.651).
Bellinger determined that the type E truck meets Class II,
18
Division 2 standards by his visual inspection of the forklift and
by an unsuccessful attempt to ignite flour dust aCCUmUlations at
the cited facility with a **bi@ ligher (Tr. 11/15, p.572: 11/16,
p. 666). Further, he believed that ,theequipment in the forklift
truck met the requirements of the National Electric Code and the
standard at 29 CFR §1910.307(d)6 (Tr. U/15, p. 565).
Respondent also relies on a May 13, 1985 settlement
agreement in which the Secretary vacated a citation for an
alleged violation of 29 CFR 1910.178(c) (2)(vii) at the Martins
Creek Facility due to insufficient evidence and the Respondent%
housekeeping procedures for the packing room (R-3).
The issue to be determined is whether, due to mechanical
failure or abnormal operation of machinery or equipment,
combustible dust may be in suspension continuously,
intermittently, or periodically in quantitites sufficient to
produce explosive or ignitable mixtures at the cited location.
No air sampling was performed by the compliance officer. -
Thus, the Secretary was ltminimally obliged to prove such a
density by some rule of thumb based upon the appearance of a dust
cloud." ConAara. Inc., 8 BNA OSHC 1498 (No.7805010)(1980).
6 That standard states in pertinent part: "General purpose
equipment or equipment in general-purpose enclosures may be
installed in Division 2 locations if the equipment does not
constitute a source of ignition under normal operating
conditions?
Respondent contends that the type E truck is "general
purpose equipment" which "does not constitute a source of
ignition under normal operating conditions.' Respondent does not
substantiate its claim that this type of truck can be classified
as "general purpose equipment?@ nor that the standard at
1910.178(c) may be supplanted by this provision.
19
Expert witness Nagy described this concentration as *more than a
dense fog" (Tr. 11/l& p.49; 11/14, p.417, 421). This is an
amorphous criterion, at best. Nagy testified, nevertheless, that
a quantity capable of causing an explosion could be produced by
five to ten pounds of flour dust in a localized area in the
vicinity of a type E truck.
Employee Smith testified that he had observed the bin
indicator malfunction, causing flour spillage and the packing
room to become *foggyl'and ~cloudy~~. While Bellinger refuted the
assertion that enough dust could disperse into the entire packing
room to meet the lower explosive limit, he did not deny that this
was possible in a localized area.
In. Foseco. Inc., 10 BNA OSHC 1949 (No. 810944)(1982), a
citation for an alleged violation of 1910.178(c)(2)(vi) was
.vacated when air samples of the cited area were never analyzed
and the compliance officer based his conclusion of the hazard
merely upon observing the pre-batching operation and the
transportation of aluminum dust. The Secretary's expert, as in
the case at bar, testified that an explosion could occur because
of the presence of dust and the potential ignition sources in the
area. The Respondent's expert testified otherwise, however, and
there was no evidence that either the electrical systems or the
forklift trucks had ever malfunctioned.
In Luis A. Ayala Colon, Inc., 12 BNA OSHC 1533 (No.847
624)(1985), a citation for an alleged violation of
1910.178(c)(2) (vi)(a) was vacated when the Secretary based his
20
allegation of a violation on the fluctuating statements of
employees and the OSHA Area Director, which asserted that there
was a potential for explosion, rather than by air sampling to
determine the explosive character of the atmosphere.
To require the Secretary to provide photographic evidence
or air sampling results of the flour dust emissions in this case,
which were described as having occurred infrequently, due to the
malfunctioning of mechanical equipment rather than to normal
operating conditions, would present an anomalous result. The
weight of the evidence revealed, however, that the amount of dust
dispersed into the air at those times was of a quantity
sufficient to sustain a violation of the standard. The
Secretary% expert witness -testified that the amount of dust
maintained at the Martins Creek Facility exhibited the potential
for such an explosion under unusual circumstances: employee
testimony revealed that the amount of flour dispersed into the
plant under the abnormal occasion that the bin indicator
malfunctioned was "in quantities sufficient to produce explosive
or ignitable mixtures." This is underscored by Bellinger's
concession that enough dust could accumulate in a localized area
to meet the lower explosive limit.
Accordingly, I find that this item must be affirmed.
Item 4: Alleqed Serious Violation of 29 CFR §1910.178(q)~ll) a
The standard at 29 CFR 1910.178(g)(ll) provides:
(g) Changing and charging storage batteries...
(11) Precautions shall be taken to prevent open flames,
sparks, or electric arcs in battery charging areas.
21
The Secretary alleges a violation of this provision in that
an unprotected incandescent bulb was located four feet above a
battery charging area (C-5; C-6).
The forklift truck operator is responsible for charging
batteries at the plant (Tr 0 6/8 I p.30). Compliance Officer
Newell testified that in the process of being charged lead-acid
batteries give off a flammable hydrogen gas. He claimed that the
explosive limit for hydrogen gas is four per cent and that the
exposed 750watt light bulb, if turned on,7 could cause arcing.
On cross-examination, Newell testified that charging the battery
could not produce four per cent of the atmosphere of the
warehouse (Tr. 11/13, pp. 68-70). Presumably, given this
testimony, the lower explosive limit for hydrogen gas could not
be reached during battery charging at the cited location.
Bellinger testified that the standard does not specifically
require that an incandescent bulb over a battery charging area
must be enclosed (Tr. 11/15, p. 573). He corroborated Newell's
testimony that not enough hydrogen gas could escape from the
battery in an eight-hour period to reach the lower explosive
limit (Tr. 11/15, p.574; 11/'16,p.682).
The Secretary failed to meet her burden of proof as to this
item. There was no testimony to show that the unprotected light
bulb was a potential harbinger of flames, electrical arcs or
sparks. The Secretary's sole witness who testified on this
7 This light bulb was not lit during Newell's inspection
(Tr. 11/13, p.72),
22
issue, Newell, recanted his assertion that the battery could emit
the requisite amount of hydrogen gas to create such a hazard.
Accordingly, this item is vacated.
Item 7a(aJ: Alleged Serious Violation of 29 CF'R ~1910.212~a)tl).
The general machine guarding standard at 29 CFR
§1910.212(a) (1) provides:
§1910.212 General requirements for all machines.
(a) Machine guarding--(l) Types of guarding. One or
more methods of machine guarding shall be provided to
protect the operator and other employees in the machine
area from hazards such as those created by point of
operation, ingoing nip points, rotating parts, flying
chips and sparks. Examples of guarding methods are--
barrier guards, two-hand tripping devices, electronic
safety devices, etc.
The Secretary alleges that the Bemis bagging machine
(involved in Citation Number One, Item 1) bore a nip point
between the bag holding sleeve and an augur chute which was
unguarded, exposing employees to the risk of getting a hand
caught in the clamp between the chute and the sleeve (Tr. 6/8,
p.32; C-3).
As discussed previously, approximately 2,500 to 3,000 flour
bags are filled in an eight-hour shift at the cited facility,
each bag requiring approximately four seconds time to load (Tr.
6/8, p.35). It was employee Smith's finger which was injured by
this allegedly unguarded "'nippointY (Tr. 11/13, p.75).
Newell and Farronato's suggested method of abatement would
be the use of two-hand tripping devices instead of the foot pedal
control in addition to further modification of the machine.
They recommended that a fork or raised conveyor be used to
23
--
support the flour bag to obviate the need for manual placement of
the bag (Tr. 6/8, p. 35, 36; 11/14, p. 236). Newell had seen
this type of support on whey bagging and dry dog food packaging
machines (Tr. 6/8, p.38.39). Farronato was not aware if this
particular modification was available for this machine at the
time of the inspection (Tr. 11/14, p.251).
Although he conceded that a finger could get pinched by the
"pinch pointon the machine's clamp, Bellinger attested that the
manufacturer% modification of this machine was not available at
the time of' the inspection (Tr0 11/15, p.578). Further,
Respondent notes that the low incidence and minimal degree of
severity of injuries caused by this machine is evidence that it
had no knowledge of this hazard.
-
29 CFR 1910.212(a)(l) is a general, introductory standard
setting forth guarding requirements applicable to "all machines.
Faultless Div. Bliss & Lauqhlin Inds., Inc. v. Secretarv of
Labor, 674 F.2d 1177 (7th Cir. 1982); Irvinqton Moore. Division -
of U.S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431 [5 BNA
OSHC 15853 (9th Cir. 1977). It requires protection from "hazards
such as those created by point of operation,8 ingoing nip points,
rotating parts, flying chips and sparks."
In Stacey Manufacturinq Company, the Review Commission held
that in order to establish a violation of this provision, the
Secretary must first prove the existence of a hazard which is
('point of operatiorP is defined as **the area on a
8 The
machine.where work is actually performed upon the material being
processed." g1910.212(a)(3).
24
revealed *'by how the machine functions and how it is operated by
the employees.qt 10 BNA OSHC 1534 (No. 7601565)(1982), citing
A.E. Burgess Leather Co., 5 BNA OSHC 1096 (No. 12501)(1977) aff'd
576 F.2d 948 [6 BNA OSHC 16611 (1st Cir. 1978); Rockwell
International Corp., 9 BNA OSHC 1092 (No l 12470)oeview
Commission 1980).
While Bellinger agreed that an employee could get his
fingers pinched between the chute and the sleeve if he
inadvertently activated the machine's foot pedal, I- find that the
near absence of accidents, which were relatively minor in nature,
revealed that the employer did not and could not with the
exercise of reasonable diligence know of the presence .of the
violation.
Moreover, the Secretary did not establish the existence or
availability of the two-hand tripping device or other
modification of this machine,g nor that the alleged hazard
caused or was likely to cause death or serious physical harm.
Accordingly, this item is vacated.
Item 7atbl: Alleqed Serious Violation of 29 CF'R 51910.212~a~~l).
The Secretary alleges that in the packing area, ConAgra
failed to guard a nip point "created by the conveyor running over
g Proof 'of feasibility *'places an eminently reasonable
limitation on the breadth to which the standard's literal
language might otherwise be extended." Diebold. Inc. v.
Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978)(*the standard
applies only where there exists an identifiable and practical
means for guarding the specific machine in the specific uses to
which the cited employer puts it!).
w 25
--
an idler roller located on the underside of the inclined conveyor
belt/ (Tr. 6/8, p. 48, 50; C-22, C-23). The roller was three to
four feet above ground and ran at a brisk speed (Tr. u/14,
p.269, 270). Newell claimed that this presented a hazard to
three employees whose job it was to straighten out the flour bags
on the belt, although he did not know whether any injuries have
resulted from this nip point (Tr. U/13, p. 87; 11/14, p.55, 58).
Farronato testified that the nip point can cause fractures, other
major injuries, or possibly fatalities (Tr. U/14, p. 238, 239).
The portion of the conveyor under which the idler roller
operates is located in the ten to twelve foot-wide path which an
employee must follow to exit the room. Employee Smith testified
that the packer and the sanitarian must get within one to two
feet of the idler roller to either straighten out bags or clean
up and that it is approximately three feet away from the sewer
(Tr0 11/15, p.483, 519). Smith testified that it would be
difficult for one to get his hand caught in the roller (Tr.
11/15, p.484).
Bellinger countered that the roller is not a hazard because
there are barriers built into the design of the machine conveyor
(Tr. 11/l& p. 579). He also claimed that there would be nothing
to draw one’s hand in there, and in the unlikely event that this
would occur8 that the roller is so loose that no injury could
result (Tr. 11/15, p.579). An employee, he claimed would hav to
stoop to come into contact with the idler roller.
Respondent also notes decisions of Review Commission
0
26
Administrative Law Judges which have found no hazard to exist
when machines were found to be operating at slow speeds. See,
Marathon Letourneau Companv, 7 BNA OSHC 1170; Eeckel
Manufacturing Company, 9 BNA OSHC 2145.
The record does not support the finding that the machine in
this case ran at a slow speed. In fact, just the opposite was
testified to be true. Further, Newell disagreed with Bellinger's
assertion that the brace supporting the conveyor acts as a
barrier guard (Tr. 11/14, p.86). The photographic evidence
supports Newell's rebuttal.
I do find, however, that the brace supporting the conveyor
belt discourages contact and that the low position of the machine
would make inadvertent contact with the idler rol1e.r unlikely.
Because the probability of injury from this nip point is so
remote as to be negligible, as would the injury, I find that this
item warrants the classification of "other than serious" with no
resulting penalty.
Item 7atcl: Alleqed Serious Violation of 29 CFR
§1910.212[a) (11,
The Secretary's Brief and Proposed Findings of Fact and
Conclusions of Law indicate that this item was subsequently
settled by the parties. Respondent, however, included defenses
to this item in its Brief. In the event that there is a
discrepancy concerning this item, it will be dispelled here.
Compliance Officer Newell, himself, testified that ConAgra
complied with the letter of the standard. Respondent's manlift
27
--
contained three separate safety devices which would stop the
manlift before it could reach the purported nip point. In light
of this testimony, this item is hereby vacated.
Item 7b: Alleqed Serious Violation of 29 CFR §1910.212(a)[l).
This item involves a Howe-Richardson scale spill mechanism
which allows an amount of flour to accumulate in a hopper to be
weighed and then spilled into another container. This takes
place every 23 to 24 seconds, twenty four hours a day (Tr. 11/14,
P 0 355, 357). Rotating parts, cams, and levers of the device
move as the contents are spilled. The Secretary claims that
these parts were unguarded in violation of the standard (Tr; 6/8,
p.70: C-27, C-28; R-6).
Newell testified that the scale is located 16 inches beside
an aisleway in the mill and that an employee could come into
inadvertent contact with the exposed parts if he, fell or reached
into it with his hands fTr l 6/8, p. 72; 11/13, p. 101).
Farronato testified that a fractured finger or hand could result
from being caught in these moving parts (Tr. ll/ 14, p. 240).
Neither witness knew of any injuries associated with this
machine (Tr. 11/14, p. 276).
Henry Salinas, a sanitarian at ConAgra, and Head Shop
Steward of the Bakery and Confectionary Union, Local 6 testified
that when he cleans around the Howe Richardson scale, he comes
within a foot of the exposed parts approximately three times a
day. The millers are similarly exposed (Tr. 11/14, p. 319, 324).
One miller, Robert Sarisky, testified that he did not believe the
28
.
-
scale was a hazard, although included a caveat that while he was
around the machine hourly, he did not work around it as much as
the sanitarians do (Tr. 11/14, p. 363, 364). Sarisky testified
that an employee could get a pinched finger when trying to
replace "cotter pins" in the machine, as this process is
performed when the machine is running and cannot be turned off
(Tr. 11/14, p. 365).
Bellinger testified that the machine presented no hazard and
noted that the piping system around the scale provided a barrier
guard to these exposed parts (Tr. 11/15, p. 582-586; R-11, R-12).
Newell and Farronato disagreed with Bellinger's design-guard
contention, attesting that this piping did not constitute an
appropriate guard and that employees remained within the zone of
danger (Tr. U/14, pe 276).
It is not disputed that these parts were unguarded. While
the piping around the scale appears to provide a partial
obstruction to the exposed parts of the scale, it does not
completely protect an employee from contact with the uncovered
cams, levers, and rotating parts of the scale (See C-27, C-28; R-
11I R-12). The aisle through which employees exit the room is
adjacent to this machine and it is this side of the scale,
closest to the aisle-y, which is unprotected by piping. In
addition, an employee tesitified that it was possible that a
pinched finger could result from contact with these parts.
I find that this allegation was proven by the Secretary and
must be affirmed.
29
Iten 8a: Alleqed Serious Violation Of 29 CFR 519100219(c) (2](i),
In the milling house, Newell observed an unguarded
horizontal rotating machine drive shaft which was six feet from
the floor (Tr. 6/8, p. 79-82; 11/14, p. 329, 330; C-29). This,
he claims, was in violation of 29 CFR §1910.219(c)(2)(i) which
provides:
(c) Shafting...
(2) Guarding horizontal shafting. (i) All exposed parts
of horizontal shafting seven (7) feet or less from floor
or working platform, excepting runways used exlusively
for oiling, or running adjustments, shall be 'protected
by a stationary casing enclosing shafting completely
or by a trough enclosing sides and top or sides and
bottom of shafting as location requires.
One exception to this requirement is found at 29 CFR
~1910.219(C)(5) which provides that "All mechanical power
transmission apparatus located in basements, towers, and rooms
used exclusively for power transmission equipment shall be
guarded.. .except.. .when...(i) The... room occupied by transmission
equipment is locked against unauthorized entrance."
Newell acknowledged this exception, but claimed that during
the inspection, the room was not locked and he had no knowledge
of whether it was locked otherwise (Tr. N/13, p. 110, 116, 195).
Employee Salinas *testified that millers and their
assistants and sanitarians periodically enter the basement line
shaft room where the machine drive shaft was located to check to
see that the pipes are not choked (Tr. 11/14, p. 327, 328). He
testified that the steel doors were always kept open to this ten
foot by 100 foot room, and that if he stood up in the room, he
30
would hit his head on the unguarded machine drive shaft (Tr.
11/14, p. 329, 332, 333).
Bellinger claimed that the series of doors to this room
which consist of a single door leading to double steel doors are
normally closed but were open on the day of the inspection.
Further, that a sign on one of the doors reads, "Danger Moving
Machinery. Authorized Personnel Only. Not An Exit" which was the
suggested means of abatement at the time of an earlier inspection
(Tr. 11/15, p. 591; R-4).
In addition, Bellinger claimed that the horizontal drive
shaft is smooth and that while admitting that an employee could
come into conact with it, he contended that no injury could occur
(Tr 0 li/l5, p.594; 11/16, - p.692). Newell disagreed, and
testified that scalping or abrasions could occur from contact
with this exposed machinery.
The Secretary refutes Respondent's argument that this room
falls into one of the exceptions to the guarding requirement. She
notes that it cannot qualify under the exception in subpart
(a (5)I because this area is not used "exclusively for power
transmission equipment." The room contains piping as well, used
to transport flour to the upper floors of the facility.
I find the standard was violated. Respondent failed to
prove that the basement line shaft room fell into this excepted
category. In addition, the room on the day of the inspection, as
admitted by Respondent's witness, was not locked against
unauthorized entrance. It is undisputed that the horizontal
31
shaft was unguarded. Therefore1 I find that this -item must be
affirmed.
Item 8bfa): Alleged Serious Violation of 29 CFR §1910.219 ld) (1).
The standard at 1910.219(d)(l) requires:
(d) Pulleys--- (1) Guarding. Pulleys, any parts
of which are seven (7) feet or less from the floor
or working platfrom, shall be guarded in accordance
with the standards specified in paragraphs (m) and (0)
of this section. Pulleys serving as balance wheels
(e.g. puch presses) on which the point of contact
between belt and pulley is more than six feet six inches
(6 ft. 6 in.) from the floor or platform may be guarded
with a disk covering the spokes.
The Secretary contends that ConAgra did not fully guard the
five inch rotating pulley, located three feet from the floor, of
a Simon mill in the milling area, exposing employees working at
or walking in aisles in between the machines to an inrunning nip
point (Tr. 6/8# p. 84, 89; c-30).
Newell attested that there was only a partial guard on the
pulley, while Bellinger countered that it was fully guarded (Tr.
U/13, p. 198: 11/15, p. 595, 596). Newell claimed that guards
were installed on other such machines in the same plant (Tr. 6/8,
p. 85, 86).
There are a series of 25 such machines on both sides of an
outrig on each floor of the facility (Tr l 11/14, p.359).
Employee Sarisky stated that there would be nothing to cause him
to go between pulleys, but that several times a day he might be
within two feet of the roller (Tr. 11/14, p. 360). He testifed
that if one's hand got caught in the pulley, the resulting injury
could be anything from broken skin to a fractured finger.
32
The issue is whether the pulley in this Case was guarded in
accordance with sections (m) and (0) of the standardlO. While
the evidence revealed that the pulleys were partially guarded
(see C-30), there was substantial exposure of the moving parts.
I find that this item must be affirmed.
Item 8b(b): Allesed Serious Violation of 29 CFR U910,219(d)(l),
The Secretary alleges that ConAgra failed to guard a pulley
on its micro ingredient feeder,. located in the flour blending
plant, which adds ingredients to flour as it is blended (Tr.
u/15, p.486). The pulley was within three feet of the floor
and there were two belts, one that was five inches and the other
four inches wide running over a six inch pulley which created an
inrunning nip point (Tr. 6/8, p. 94, 95).
Smith testified that blenders and sanitarians can come
within 12 to 18 inches of the pulley to clean and set the feeder.
He noted that the danger existed of getting caught in the pulley
or belt (Tr. 11/E, p. 490).
The unrebutted testimony showed that the machine's pulley
was unguarded presenting a hazard to employees who must work near
it. This item is affirmed.
Item 8bk): Alleqed Serious Violation of 29 CF'R ~1910.219~dl(_l~~
The Secretary alleges that Respondent failed to guard a
lo The Secretary claims that sections (m) and (0) are
irrelevant to a determination of compliance with the cited
standard. I disagree. If there is a guard which Respondent
claims to exist, sections (m) and (0) which are necessarily
incorporated in section (d)(1) act as a reference upon which to
determine compliance.
33
pulley on the sewing machine pedestal. The pulley was located
approximately two feet above the employee work station, four to
five feet above the floor, and was eight to twelve inches wide
(Tr. 6/8, p. 97, 98, 99; C-31, C-32).
Smith testified that the preexisting guard on the pulley had
been off for six to eight months prior to the inspection (Tr.
11/15, p.491). He stated that the sewer does not have to go near
the pulleys and drive belt of the machine when it is in
operation. If there is a jam, or if the bagger must change the
needle, the machine is first turned off (Tr. 11/15, p.492, 521,
600). During performance of regular work, an employee can come
within two feet of the pulley at shoulder level. Contact with
the pulley would have to be-inadvertent (Tr. 11/13, p.127, 129,
130, 132).
Smith claimed that if an employee slipped and fell in the
area of the machine, the sewing machine pedestal would probably
prevent contact with the pulley. The only danger that he -
perceived was the possibility that the belt, if unguarded, could
fly off and hit an employee (Tr. U/15, p.494).
Respondent asserts that there was no showing that this
machine exposed employees to injury, and thus, the item must be
vacated. Rockwell International Corporation, 9 BNA OSHC 1092.
The record established that the pulley was unguarded but at
the times employees must come near the pulley, the machine is
turned off. The possiblity of exposure to injury or inadvertent
contact with the pulley when in operation was revealed to be so
34
remote as to be negligible. Therefore I find that this item
must be reduced to a de minimis classification.
Item 8c(a): Allesed Serious Violation of 29 CFR
~1910.219(e~ ~l~~i~.
The Secretary alleges Respondent to be in violation of
section 1910.219(e)(l)(i) in that it failed to guard the
horizontal riveted belt of a dump sifter in the flour mill (Tr.
6/8 8 p.102, 103; C-33). The sifter operates twice a day for
varying periods of time. The belt was 18 inches above the floor
and Newell testified that employees who must clean and perform
maintenance work while the belt is in motion could brush against
it or lean into the machine (Tr. 6/8, p. 106, 107; 11/l& p.137).
He attested that this type of belt is more hazardous than a solid
feed belt.
The standard provides:
(e) Belt, rope, and chain drives--- (1) Horizontal belts
and ropes. (i) Where both runs of horizontal belts are
seven (7) feet or less from the floor level, the guard
shall extend to at least fifteen (15) inches above the belt
or to a standard height (see Table O-12), except that
where both runs of a horizontal belt are 42 inches or
less from the floor, the belt shall be fully enclosed
in accordance with paragraphs (m) and (0) of this section.
It is undisputed that the belt was unguarded. Sarisky
testified that employees come within twelve inches of the pulley
while it is operating (Tr l 11/14, p. 334, 335). Respondent
presented no evidence on this item. Accordingly, this item is
affirmed.
Item 8elal: Alleqed Serious Violation of 29 CFR
§1910.219(e)[31 [iI.
The standard at section 1910.219(e)(3)(i) provides:
35
(3) Vertical and inclined belts. (i) Vertical and
inclined belts shall be enclosed by a guard conforming
to standards in paragraphs (m) and (0) of this section.
The Secretary alleges that the micro-ingredient feeder
(cited as the subject in item 8b(b)) had an improperly guarded
vertical v-belt exposing employees to three hazards: 1)contact
with the rotating belt itself; 2) the inrunning nip point between
the pulley and the belt; and 3) the risk of a flying broken belt.
(Tr. 6/8, p.109).
Newell testified that contact with the belt may occur when
an employee cleans and sets the feeder when the blender and
sanitarians come within a foot of the belt and pulley (Tr, 11/13,
p.111, 141; 11/15, ~0488, 490). Smith testified that an employee
could get caught in the belt.
It is undisputed that there was no guard on the belt and
that employees had accesss to this hazardous condition.
Accordingly, this item is affirmed. \
Item 8elb1: Allesed Serious Violation of 29 CFR
U910,219(ej (3)(I).
The Secretary contends that Respondent failed to guard the
incline belt of the Simon flour mill described in item 8b(a).
The additional hazard presented by an unguarded belt on this
machine is that of the belt flying off and hitting an employee
(Tr. 6/8, p.112)
Newell stated that employees milling flour could trip and
fall coming into accidental contact with the belt, which was
partially guarded on top, but not on the bottom (Tr. 11/13,
p.142). Newell stated that a full bgrrier enclosure guard, which
36
was provided to all other machines of this kind at the plant, was
required (TL 6/8, p.112-116; 11/13, p.142; C-30).
Sarisky stated that if he had to replace the feeder belt
while it was running, he might break the skin *on his finger or
fracture it if he fell into the moving belt (Tr. 11/14, p. 369).
Bellinger testified only that the belt would break if one stuck
his hand into it (Tr. 11/16, p.694).
The belt on this machine was not fully guarded as required
by the standard. Because Sarisky works near the machine, his
testimony concerning the possible injury from contact with the
belt shoul'd be credited more favorably than Bellinger's.
Accordingly, this item is affirmed.
Item 9: Alleaed Serious Violation of 29 CFR ~1910.242(bL
The standard at section 1910.242(b) proveds:
g1910.*242 Hand and portable powered tools and
equipment, general....
(b) Compressed air used for cleaning.
Compressed air shall not be used for cleaning purposes
except where reduced to less than 30 p.s.i. and then
only with effective chip guarding and personal
protective equipment.
The Secretary alleges that ConAgra violated this provision
by maintaining a compressed air hose in its warehouse above 30
p.s.i. (Tr. 6/8, p.118). Newell measured the pressure with an
air pressure gauge and determined it to be 90 p.s.i. (C-34)*
Newell was told by Ascani or Jackson that the air hose was used
daily by the forklift operator to blow off flour from bags before
loading them into trucks. Newell claimed that if the pressure is
greater than 30 p.s.i., foreign particles could be injected into
37
an employee's body causing a.6 air embolism which is potentially
fatal (TL 6/8, p. 120, 121).
Ascani testified that the thin layer of flour dust which
accumulates on flour bags must be blown off with the air hose
once a week for approximately 15 to 20 minutes (Tr. 11/14, p.
288-290) l He stated that there had been an air pressure reducing
device but that it had been missing for months before and during
the inspection. When the pressure reducing device is used, he
testified, the air is not strong enough to remove the flour dust
completely (Tr. 11/14, p. 290, 293).
Bellinger did not deny the absence of a pressure reducing
device, but contended that the air hose was not used for
'cleaningpurposes*within the purview of the standard, but-.fora
tlprocesslg purpose as part of the manufacturing practice (Tr.
U/16, p. 697, 698).
A similar argument was rejected in Pvmm Thermometer Corp. 13
BNA OSHC 2059 (No. 87-401 and 402)(1989) where the employer
argued that an employee using a compressed air gun to remove
broken glass from automatic bulb setting machines was not using
the air gun for a "cleaning purposel* but rather "for a special
purpose*' to dislodge and remove particles caught inside the
chuck.
Respondent's argument must be re jetted here as well. The
fork lift operator used the air hose to clean off flour bags,
clearly a *kleaning purposett as contemplated by the standard.
Nor does this acti?Jity pose any different or lesser hazard
38
.
because used to clean flour. bags rather than other types of
machinery. Accordingly, this item is affirmed.
Item 10a: Alleqed Serious Violation of 29 CPR
p9101252(al(2) (ii.)
(bL
The standard at section 1910.252(a)(2) (ii)(b) provides:
5 1910.252 Welding, cutting and brazing.
(a) Installation and operation of oxygen-fuel gas
systems for welding and cutting---
(2) cylinders and containers---
(ii) Storage of cylinders---general.
(b) Inside of buildings, cylinders shall be stored
in a well-protected, well-ventilated, dry location,
at least 20 feet from highly combustible materials
such as oil or excelsior. Cylinders should be stored
in definitely assigned places away from elevators,
stairs, or gangways. Assigned storage spaces shall
be located where cylinders will not be knocked over
or damaged by passing or falling objects, or subject
to tampering by unauthorized persons. Cylinders
shall not be kept in unventilated enclosures such as .
lockers and cupboards.
The Secretary alleges that Respondent violated this
provision by allowing an acetylene cylinder to be stored in an
assigned location where the cylinder could be knocked over or .
damaged.
Newell observed an empty acetylene cylinder in Respondent's
maintenance shop sitting upright and unsecured (Tr. 6/8, p.1230
125; c-35). The container had held liquid acetone, a highly
flammable substance capable of causing thermal burns. The
cylinder was placed at this location to be picked up by the
supplier the next day and was not to be used again until refilled
(Tr. 11/13,p. 147, 148).
Full acetylene cylinders were stored in an area beneath the
shop (Tr. 11/14, p.384; H/15, p.605). Empty cylinders were kept
39
in the maintenance shop awaiting pick up (Tr 0 11/15, p.606;
11/16, ~0701).
Millwright Robert Bray stated that this cylinder had been
in this area for a couple of days but no longer than a week
before pick-up (Tra 11/14, p. 375,376) 0 He testified that
employees carry materials, tools, hardware, and steel when
passing through this area which is next to the door to the
maintenance shop (Tr. 11/14, p. 375). He claimed that it was
possible for an employee to trip and fall into the cylinder (Tr.
11/14, p.389).
Respondent argues that this was not the "assigned storage
area" for these cylinders but does not contend that the hazards
to be.'prevented by the standard do not also present themselves
here.
The Review Commission has held that for the standard to
apply, cylinders must be "in storage? Grossman Steel & Aluminum
Copmoration, 6 BNA OSHC 2020 (Review Commission 1978) citing
United Enqineers b Constructors, Inc., 3 BNA OSHC 1313 (No.
2414)(1975) appeal dismissed (3rd Cir. 1975). See also Williams
& Davis Boilers, Inc., 8 BNA OSHC 2148 (79-3817) (1980). Although
the cylinders in those cases were found not to be "in storage"
because they were "available for use", I find that the facts in
this case warrant the vacation of this item for the same reason.
Respondent had a designated storage area for its full acetylene
cylinders. The empty cylinder awaiting pick-up was not in
storage for purposes of the standard% prohibition.
40
--
Accordingly, this item is vacated.
Item lob: Alleaed Serious Viol&ion of 29 CFR
§1910.252ta1(2) (iv1 tc),
Section 1910.252(a)(2)(iv)(c) provides:
(iv) Oxygen storage...
(c) 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 one-half hour.
The Secretary contends that Respondent violated this
provision by permitting an oxygen cylinder to be stored within 20
feet of a fuel gas cylinder in absence of a noncombustible
barrier.
A partially full oxygen cylinder was stored 11 inches to two
feet away from and acetylene cylinder (Tr. 6/8, p.131; 11/13,
p.152;' 153: 11/14, p-378; C-35). This location, Bray and
Bellinger testified, was the normal storage area for the oxygen
cylinder, which was chained to the wall (Tr. 11/14, p.377, 385;
11/16, p.705). *_
Newell testified that oxygen increases the fire hazard in
the area potentially causing severe burns. In addition, if
oxygen is stored near fuel gases, the risk of spontaneous organic
burns could result (Tr. 6/8, p.132).
Respondent argues, again, that the acetylene cylinder was
not %tored11 in that location, but was only there briefly. Under
these circumstances, however, the standard addresses the storage
of oxygen cylinders. It is undisputed that this was the normal
storage area for the oxygen cylinder. Because the oxygen was
41
-
stored in violation of the standard, I find that this item must
be affirmed. See I Sea Land Associates, Inc., 8 BNA OSHC 2194
(7904135)(1980),
Item llb: Alleqed Serious Violation of 29 CFR ?$19100272[i)(3~,
The Secretary alleges that in the milling area, compressed
air lines were used to clean equipment which was not first turned
off before cleaning was performed. The standard at section
1910.272(i)(3) provides:
(i) Housekeeping...
(3) The use of compressed air to blow dust from ledges,
walls, and other areas shall only be permitted when. all
machinery that presents an ignition source in the area is
shut-down, and all other known potential ignition sources in
the area are removed or controlled.
Salinas testified that in the mill, sanitarians "blow down"
a floor, using an air gun to blow dust from sifters, pipes,
around and underneath motors and other areas when they vacuum the
floor (Tr. 11/14, p. 336). This is done while the machinery in
the mill is in operation. Salinas stated that he was never
trained to shut machines off during blow-down operations (Tr.
U/14, p.337). Bellinger claimed that this procedure is followed
in all other ConAgra plants as well (Tr. 11/E, p.620).
Newell testified that this practice is dangerous, causing
combustible dust to be blown into the atmosphere and setting the
scene for an explosion in the presence of electrical ignition
sources such as sparks from machine&(Tr. 6/9, p-6). Newell did
11 As stated previously, the quantity of flour dust
necessary to meet th3 lower explosive limit for dust is 50-60
grams per cubic meter (Tr. 11/13, p.156).
42
--
not observe the blow-down operation nor did he see any arcs or
sparks during his inspection (Tr. 11/13, p.158).
In defense of its housekeeping practice, ConAgra submitted
correspondence concerning OSHA*s interpretation standards for
grain handling facilities (R-13, R-14, R-15). In a paragraph
from a letter from John A. Pendergrass, Assistant Secretary for
the Occupational Safety and Health Administration, he expresses
OSHA’s intent with respect to section 1910.272(i)(3):
It is OSHA's position that all equipment and machinery,
including equipment used in milling flour, can be a
potential ignition source in grain handling facilities.
The Agency's intent is to assure that such potential
ignition sources are controlled during g8blow-downg1
operations. If an effective preventive maintenance program
is implemented: and electrical wiring, motors, and machinery
are in compliance with 29 CFR Part 1910, Subpart .
S and other appropriate provisions, OSHA would consider
these to be adequate controls. Under these circumstances
"blow-down" operations would be permitted when equipment
and machinery are in operation.
Respondent submits that it had an effective preventive
maintenance program at the Martins Creek facility and that the
electrical wiring, motors and machinery were in compliance with
29 CFR 51910 subpart S (Tr. U/16, p.709). Finally, that there
was no evidence to suggest that there would be enough dust in the
atmosphere to support combustion.
The Secretary disagrees with Respondent% assessment of its
preventive maintenance program. She points to item six of Other-
Than-Serious Citation Number 2 of this case to show that
certification records were not maintained on all equipment as
required. This record, she correctly argues, is part of the
preventive maintenance program. Thus, she contends, Respondent
43
was not in a position to claim that it had effected alternative
means of compliance with the standard.
Bellinger testified that ConAgra has a Vast preventive
maintenance program" for “greasing, lubrication, for regular
inspections of a whole host of equipment in that flour mill.~~ He
continued to describe that the Martins Creek facility is v'down*g
four hours every Monday to repair malfunctioning equipment which
is placed on a list on Friday by the miller and maintenance
superintendent (Tr. 11/16, p.708, 709). Bellinger stated that
this is a program which is committed to writing and that
employees understand that they are to periodically inspect
certain equipment (Tr. 11/16, p. 711). There was no written plan
for regular inspections of these items and no written program or
other evidence that such a program existed was produced.
Respondent did not establish that it effected alternative
means of compliance with this provision. In light of the fact
that. its preventive maintenance program was the subject of a
. l
citation in this case (see, infra) I its adequacy, in absence of
any proof that it exists, has not been verified.
Accordingly, this item is affirmed.12
l2 Respondent contended that section 1910.272(i)(3) was
stayed at the time of the inspection. It submitted the Preamble
to the standard which stated, **EFFECTIVE DATE: This final rule
becomes effective March 30, 1988, except for the information
collection requirements contained in 51910.272(d) and (i) which
are subject to Off ice of Management and Budget approval..Jg (R-
16) As Newell testified, and as the Secretary correctly argues,
thii aspect of part 272(i) does not impose an information
gathering enterprise on the employer. Thus, this stay was
inapplicable to this part of the cited standard.
44
-
Items 12taL 12 lb) and 12(ch Alleued Serious Violations of 29
cm !!1910.304~f~~5~wL
The Secretary alleges that with respect to three items in
Martins Creek facility, Respondent failed to electrically ground
in violation of 29 CFR §1910.304(f)(5)(v). This standard
provides:
(f) Grounding...
(5) Supports, enclosures, and equipment to be grounded---
(v) Equipment connected by cord and plug. Under any of
the conditions described in paragraphs (f)(5)(v)(A)
through (f)(5)(v)(C) of this section, exposed non-
current-carrying metal parts of cord-and plug-
connected equipment which may become energized
shall be grounded.
Item 12(a): the Dedestal fan.
Newell testified that the metal chassis of a pedestal fan
located in the work area of the packing room was not electrically
grounded. At the time of the inspection, the plug did not have a
ground prong and the third prong of the plug was broken off (Tr.
6/9, p.10; 11/13, p. 165, 172). Smith testified that since the
switch on the fan had been broken, they would activate the fan by
plugging and unplugging the fan into the electric . (Tr.
socket
11/15, p. 497, 524.).
Newell measured the electric potential of the fan with a
tif-tic tester and determined that if an electrical short were to
occur, the chassis could-be energized and present a shock hazard
(Tr. 6/9, p.lO,ll; 11/13, p.204).
Bellinger agreed with Newell that the concrete floor in the
packing room was a grounded surface (Tr. 11/13, p. 201: 11/16, p.
712). He considered the area of the packing room in which the
pedestal fan was located to be an unclassified area (Tr. 11/15,
45
SLY-
P . 621). Earlier, however, he agreed with Newell and Nam that
this was a Class II, Division 2 location (see discussion in Item
3, supra).
I find that this equipment was not grounded in accordance
with (f)(5)(v)(A)I because it is located in a lghazardous
(classified) locatioxVg, and (f)(5)(v)(C)(5), because it is a
*'[c]ord and plug-connected [appliance] used...by employees
standing on the ground....*' Accordingly, this item is affirmed.
Item 12(b): the time clock.
A time clock located in the milling area office was used by
employees to punch in and out of daily. The metal parts of the
chassis on the clock were exposed and the clock had a two-prong
plug that was not grounded at the time of the inspection .(Tr.
6/9, p.13, 14,16). Newell again measured with a tif-tic tester
to determine the risk of shock.
While Newell considered this area to be a hazardous
location, Bellinger disagreed. The office is separated from the
mill by a wall, therefore, it cannot be considered a Class II,
Division 2 location, he argues (Tr. 11/13, p.203,204; 11/15, p.
622; U/16, p.713).
Respondent is correct in noting that this is not a
classified location and therefore, cannot come within the
hazardous location restriction. The time clock must be grounded,
however, according to subpart (C)(5): the clock is a "cord and
plug-connected appliance used...by employees standing on the
ground," Since this appliance exposed employees to the risk of
v
46
electric shock, 1 find that this item must be affirmed.
Item UN: the farinoaraDh.
Newell observed a farinograph in the plant laboratory which
is used for testing grain. The machine was not electrically
grounded and the counter upon which the machine was situated was
wet due to the mixing of water and grain on top of it. This
wetness, he testified, provided a source to ground, exposing an
employee to electric shock if the machine were to experience an
electrical short (Tr. 6/9, p. 17-20). Later, however, Newell
contradicted his testimony on direct, stating that he saw the
water inside the machine (which was appropriate), but did not
recall any on the table or floor (Tr. U/13, p.176).
Respondent argues that the counter was not a wet location as
defined in section 1910.399(a)(78) (i) or (iii).13 The Secretary
failed, however, to meet her burden of proof as to this item.
Newell's inconsistent testimony failed to establish that the
farinograph was in a wet location as provided by the standard.
Accordingly, this item is vacated.
Other than Serious Citation Number 2
Item 2: Alleaed Violation of 29 CFR §1910.24(h).
The standard at 29 CFR 51910.24(h) provides:
(h) Railings and handrails. Standard railings shall
l3 A "wet 1ocatiorP is defined as *'Installationsunderground
or in concrete slabs or masonry in direct contact with the earth,
and locations subject to saturation with water or other liquids,
such as vehicle-washing areas, and locations exposed to weather
and unprotected.*@ 3
47
be provided on the open sides of all exposed stairways
an stair platforms. Handrails shall be provided
on at least one side of closed stairways preferably
on the right side descending. Stair railings and
handrails shall be installed in accordance with the
provisions of §1910.23.
Newell observed that fixed industrial stairs in the
maintenance shop were not fitted with handrails presenting the
danger of falling (Tr. 6/9, p.27: C-36).
Bray supporting this testimony and noted that this stairwell
was used daily by maintenance personnel (Tr. 11/14, p.378, 379).
The unrebutted testimony established a violation of this
item. It is therefore affirmed.
Item 3: Alleaed Violation of 29 CFR S191&212(bL
The standard at 29 CFR §1910.212(b) provides:
(b) Anchoring fixed machinery. Machines designed
for a fixed location shall be securely anchored to
prevent walking or moving.
Newell observed, and Bray confirmed, that a drill press
located in the maintenance shop was not anchored. Such a
condition, Newell stated, created the danger of this equipment
*'walking"as it vibrates, possibly tipping and falling over. He
claimed that the drill press is top-heavy and can easily tip over
(Tr a 6/9, p.34; 11/13, p.181). Through employee interviews, he
learned that this machine was permanently wired with a flexible
cord of limited lenqth and is normally anchored to the floor with
lag bolts or affixed to a heavy plate (Tr. 6/9, p.34, 35, 37).
Bray testified that several times a week the press is used
to drill holes in metal (Tr. U/14, p.380). He and Bellinger
stated that while it was not anchored, it is incapable of
48
"walking8 by itself and can gnly move if pushed by the operator.
Bray explained that since it is blocked on both sides, only the
operator has access to the machine (Tr. U/14, p. 381, 386, 389;
U/15, ~626).
The Secretary claims that a hazard is presumed in this case
by noncompliance. Ormet CorDoration, 9 BNA OSHC 1060 (Review
Commission, 1980). Since the press has three holes in its base,
she argues, it was designed to be anchored to the floor, thus,
while the difficulty of movement reduces the hazard, the hazard
continues to exist and must be abated. I agree. The machine was
designed for a fixed location. Accordingly, the item is
affirmed.
Item 4: Alleued Violation of 29 CFR §1910,215tb1(9).
The standard at 29 CFR 51910.215(b)(9) provides:
(b) Guarding of abrasive wheel machinery---
(9) Exposure adjustment. Safety guards of the
types described in subparagraphs (3) and (4) of
this paragraph, where the operator stnds in front of the
opening, shall be constructed so that the peripheral
protecting member can be adjusted to the constantly
decreasing diameter of the wheel. The maximum
angular exposure above the horizontal plane of the wheel
spindle as specified in paragraphs (b) (3) and (4)
of this section shall never be exceeded, and the distance
between the wheel periphery and the adjustable
tongue or the end of the peripheral member at the top
shall never exceed one-fourth inch.
Newell testified that in the maintenance shop, a baldor
pedestal abrasive Gheel grinder used to dress metal had an
excessive gap of one half inch between the abrasive wheel and the
tongue guard (C-41). Newell claimed that a work particle or
broken wheel fragment could exit from the top of the wheel and
49
strike an operator (Tr. 6/9, p.40).
Bray testified that he was not trained in the use of tongue
guards on a bench grinder, a piece of machinery which is used
daily. (Tr. 11/14, p. 382, 388).
Respondent provided no testimony on this issue.
Accordingly, this item is affirmed.
Item 6: Alleued Violation of 29 CFR S1910.272~1~~3L
The standard at 29 CFR 51910.272(l)(3) provides:
(1) Preventive maintenance...
(3) A certification record shall be maintained of each
inspection, performed in accordance with this paragraph
(l), containing the date of the inspection, the name
of the person who performed the inspection and the serial
number, or other identifier, of the equipment specified
in paragraph (l)(l)(i) of this section that was inspected.
The equipment in section (l)(l)(i) includes:
0
(1) Regularly scheduled inspections of at least the
mechanical and safety control equipment associated
with.dryers, grain steam processing equipment, dust
collection equipment including filter collectors, and bucket
elevators;....
Newell testified that he was informed by plant manager
Jackson during his inspection that no certification records were
maintained on the equipment (Tr. 6/g 8 P 0 52 I 53) 0 While the
record revealed that an elevator inspection was performed on
April 18, 1988, other equipment was not inspected, including,
Newell stated, roll grinders and dust collection equipment (Tr.
11/13, p.187).
Bellinger asserted that the only certification record
required under the standard is for the bucket elevator which, he
claimed, is regularly filled out weekly and kept on file (Tr.
50
--
11/16, p. 722: R-15; R-16). Respondent points to correspondence
from Mr. Pendergrass expressing OSHA's intent with respect to the
standard (R-15).
The Secretary argues that Pendergrass' April, 1988 letter
merely iterates that certain dust collection systems are not
covered by 29 CFR 51910.272(k) but in no way exempts ConAgra dust
collection systems from the inspection certification
requirements. Moreover, she argues, ConAgra has failed to
demonstrate the certification of inspections of both its hammer
mills and bucket elevator.
Respondent failed to demonstrate that certification records
were maintained for its hammer mills, grain steam processing
equipmmt and dust collection equipment. The Secretary's
..
interpretation of Pendergrass' correspondence is correct.
Accordingly, this item is affirmed.
PENALTIES
Having assessed the factors contained in sections 17(j) of--
the Act, 29 U.S.C. 5661(i), I find that, giving due consideration
to the size of the employer's business, the gravity of the
violations, the good faith of the employer, and the history of
previous violations, that the penalties contained in this order
are appropriate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact and conclusions of law contained in
this opinion are incorporated herein in accordance with Rule
52(a) of the Federal Rules of Civil Procedure.
51
In view of the foregoing, good cause appearing therefore, it
is ORDERED that:
(1) The allegation of serious violation by this respondent
of the general duty clause, section 5(a) (1) of the Act, found in
item 1 of serious citation number one is vacated.
(2) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.132(a) found in item
2a(a) of serious citation number one is affirmed, and of the
standard set forth at 29 CFR §1910,15l(c) found in item 2b of
serious citation number one is affirmed, and a penalty of $200.00
assessed herein to reflect both items.
(39 The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.132(a) found in item
2a(b) of serious citation number one is vacated.
(4) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR ~1910.178(~)(2)(vi) found in -
item 3 of serious citation number one is affirmed and a penalty
of $280.00 assessed herein.
(5) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR ~1910.178(g)(ll) found in
item 4 of serious citation number one is vacated.
(6) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.212(a)(l) found in item
7a(a) of serious citation number one is vacated.
(7) The allegation of serious violation by this respondent
52
of the standard set forth at 29 CFR §1910.212(a)(l) found in item
7a(b) of serious citation number one is affirmed as other-than-
serious with no penalty assessed herein.
(8) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §19100212(a)(1) found in item
7a(c) of serious citation number one is vacated.
(9) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.212(a)(l) found in item
7b of serious citation number one is affirmed and a penalty of
$100.00 assessed herein.
(10) The allegations of serious violations by this
respondent of the standards set forth at ,29 CFR .
§1910.219(c)(2)(1) and 29 CFR g1910.219(d)(1) found in items 8a,
Wa) 8 and 8b(b) of serious citation number one are affirmed and
a penalty of $100.00 assessed herein to reflect all three items.
(11) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.219(d)(l) found .in item
8b(c) of serious citation number one is affirmed as de minimis
with no penalty assessed herein.
(12) The allegations of serious violations by this
respondent of the 'standards set forth at 29 CFR
§1910.219(e)(l)(i) and 29 CFR 51910.219(e)(3) (i) found in items
Wa) 8 8eW 8 and 8e(b) of serious citation number one are
affirmed and a penalty of $100.00 assessed herein to reflect all
three items.
(13) The allegation of serious violation by this respondent
53
of the standard set forth at 29 CE'R§1910.242(b) found in item g
of serious citation number one is affirmed and a penalty of
$200.00 assessed herein.
(14) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR §1910.252(a)(2)(ii)(b) found
in item 10a of serious citation number one is vacated.
(15) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR 51910.252(a) (2)(iv)(c) found
in item 10b of serious citation number one is affirmed and a
penalty of $200.00 assessed herein.
(16) The allegation of serious violation by this respondent
of the standard set forth at 29 CFR 51910.272(i)(3) found in item
11b of serious citation number one is affirmed and a penalty of
$200 assessed herein.
(17) The allegations of serious violations by this
respondent of the standard set forth at 29 CFR §1910,304(f)(5)(v)
found in items 12a, 12b of serious citation number one are
l.
affirmed, and of the standard set forth at 29 CFR
§1910.304(f)(5)(v) found in item 12~ of serious citation number
one is vacated and a penalty of $450 assessed herein to reflect
both items. .
(18) The allegation of other-than-serious violation by this
respondent of the standard set forth at 29 CFR 51910.24(h) found
in item 2 of other-than-serious citation number two is affirmed
with no penalty assessed herein.
(19) The allegation of other-than-serious violation by this
54
respondent of the standard set forth
. at 29 CFR §1910.212(b) found
in item 3 of other-than-serious citation number two is affirmed
with no penalty assessed herein.
(20) The allegation of other-than-serious violation by this
respondent of the standard set forth at 29 CFR §1910.215(b)(9)
found in item 4 of other-than-serious citation number two is
affirmed with no penalty assessed herein.
(21) The allegation of other-than-serious violation by this
respondent of the standard set forth at 29 CFR 91910.272(l)(3)
found in item 6 of other-than-serious citation number two is
affirmed.
:..
IT IS SO ORDERED.
.
.
Dated:
Boston, Massachusetts
55
UNITED
STATES -
OFAMERICA
O&“PATlONAL SAFETYAND HEALTH REVIEW COMMISSION
JOHN w. McCORMACK
POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON,
MASSliCHUSErrS 02109-4501
PHONE: FAX:
COM (617) 223-97’46 COM (617) 223404
Fls 223-9746 m 223-4004
NOTICE OF DECISION
TO :
CON AGRA FLOUR MILLNG COYPAYY
Secretary of Labor v.
OSHRC Docket No 0 28-1259
1 0 Enclosed is a copy of my decision. It will be submitted to
the Commission's Executive Secretary on v !i-
ulv - 199tl
The decision will become the final order of the Commission a&he
expiration of thirty (30) days from the date of docketing by the
Executive Secretary, unless within that time a Member of the
Commission directs that it be reviewed. All parties will be
notified by the Executive Secretary of the date of docketing.
2 Any party adversely affected or aggrieved by the decision may
file a petition
l
for discretionary review by the Review
Commission. : A t>etition mav be filed with this Judae within
twentv (201 days from the date of this notice. Thereafter. any
petition must be filed with the Review Commission's Executive
Secretarv within twenty (201 days from the date of the Executive
SecretamPs: notice of docketina. See Paragraph No. 1. The
Executive Secretary's address is as follows:
Executive Secretary
Occupational Safety and Health Review Commission
1825 K Street, N.W., Room 401
Washington, D.C. 20006
3 The full text of the rule
fir discretionary review is
32026, September 8
Dated:
Boston, Massachusetts
0
5 2200.91- Discretionarvreview, Petitionlsfor discreti ary
review Eosition to peti~tiz 0
M .. l ,
00 Lo Review by the Commission is not
a right, A Commissioner may, as a matter of discretion,-direct
revj.ewon his own motion or on the petition of a party0 - .
(b) etitionsxOr discretionaw review A party &&&sely
affected or aggrieved by the decision of 'the Judge may seek
review by the Commission by filing a petition for discretionary
review. Discretionary review by the Commissionmay be sought by
filing with the Judge a petition for discretionary review within
the twenty-day period provided by 5 22OO.9O(b). Review by the
commission may also be sought by filing directly with the
Executive Secretary a petition for discretionary review. A
petition filed directly with the Executive Secretary shall be
filed within 20 days after the date of docketing of the Judge's -
report. The earlier a petition is filed, the more consideration
it can be given. A petition for discretionary review may be
conditional, and may state that review is sought only if a
Commissioner were to direct review on the petition of an opposing
.
party. . -. w .
I R*.
.g-+:
.-
. 1--
* + + +
\
w tents of the Detitioq
‘0b No particular form is
required for a petition for discretionary review. A petition
should state why review should be directed, including: Whether
the Judge's decision raises an important question of law, policy
or discretion: whether review by the Commission will resolve a
question about which the Commission's Judges have rendered
differing opinions; whether the Judge's decision is contrary to
law or commission precedent: whether a finding of material fact
is not supported by a preponderance of the evidence: whether a
prejudicial error of procedure or an abuse of discretion was
committed. A petition should concisely state the portions of the
decision for which review is sought and should refer to the
citations and citation items (for example, citation 3, item 4a)
for which review is sought. A petition shall not incorporate by
reference a brief or legal memorandum. Brevity and the inclusion
of precise references to the record and legal authorities will
facilitate prompt review of the petition.
(8) Whenfilina A petition for discretionary
review is filed when received. If a petition has been filed
with the Judge, another petition need not be filed with the
Commission. J
w ilfile
Fa The failure of a party adversely
affected or aggrieved by th'eJudge's decision to file a petition
for discretionary review may foreclose court review of the
objections to the Judge's decision. $ee Pevstone Roofinu Co. v.
PunloP, 539 F.2d 960 (3d Cir. 1976). (See other Side).
- 2-
..
.
.
z
(s) tatements in 0Dposition to Detitiog Statements in
opposition to petitions for discretionary revie; may be filed in
the manner specified in this section for the filing Of petitions
for discretionary review. Statements in opposition shall
concisely stat8 why the Judge's decision should not be reviewed
with respect to each portion of the petition to which it is
addressed.
-s- \ . :
(h) JWnber of CoDies, & briginal and three copies of a
petition or a statement in opposition to a petition shall be
.
filed. - .. 8-: 8 - .,' a
. . m . . . 'J.$T
Employer
Dean G. Kratz, Esq.
McGrath, North, Mullin & Kratz, P.Cm
Suite 1100 One Central Park Plaza
Omaha, Nebraska 68102
I hereby certify that a
copy of the decision in
this case has been served
by First Class Priority
Mail upon the parties
whose names and addresses
appear on this notice.
Boston, Linda M. Ouinn
June 14, 1990 (date)
.
Regional Solicitor
- Marshall H. Harris, Esq.
Regional Solicitor
U.S. Dept. of Labor
14480 Gateway Building
3535 Market Street
Philadelphia, PA 19104
Attn: James E. Culp, Esq.
Daniel J. Mick, Esq.
Counsel for Regional Litigation
Office of the Solicitor - U.S. Dept. of Labor
200 Constitution Avenue, N.W., Room S. 4014
Washington, D.C. 20210
UNITED STATES OF AMERrC;A
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N W
4TH FLOOR
WASHINGTON DC. 20006- 1246
FAX:
. COM (202) 634-4008
FTS 634-4008
SECRETARY OF LABOR, ..
.
Complainant, ..
..
v. : OSHRC Docket No. 884250
.
CON AGRA FLOUR MILLING CO., :
.
Respondent. ..
DECZSZON
BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
Respondent, Con Agra Flour Milling Company (“Con Agra”), was issued citations
alleging serious and other than serious violations of the Occupational Safety and Health Act
of 1970, 29 U.S.C. $5 651-678 (“the Act”), at its flour-milling facility in hiartins Creek,
Pennsylvania. The issue before us is whether Review Commission Administrative Law Judge
David G. Oringer erred in (1) affirming seven items of the serious citation, (2) finding
another item of that citation to be de minimis in nature, and (3) affirming one item of the
other than serious citation. For the reasons that follow, we affirm the judge’s decision in part
and reverse in part.
1. Citation No. 1, Item 2a(a), 29 C.F.R. 8 1910.132(a)
and Citation No. 1, Item 2b, 29 C.F.R. 5 1910.151(~)~
‘The standards provide: \
5 1910.132 General requirements.
(a)Appkation. Protective equipment, including personal protective equipment for eyes, face,
head, and extremities, protective clothing, respiratory devices, and protective shields and
barriers, shall be provided, used, and maintained in a sanitary condition wherever it is
necessary by reason of hazards of processes or environment, chemical hazards, or mechanical
irritants encountered in a manner capable of causing injury or impairment in the function of
any part of the body through absorption, inhalation or physical contact.
(continued...)
.2
Facts
- Citation NO. 1. Item 2a(a), Personal Protective Equipment
Con Agra uses electrically-powered forklifts at the Martins Creek facility. One em-
ployee regularly services the batteries of these forklifts, recharging them daily and checking
the level of the battery fluid (“electrolyte”) once a week. When the level of the electrolyte
is low, this employee adds water using a funnel. While Con Agra’s employees do not handle
electrolyte, the Secretary’s inspector, compliance officer Donald R. Newell, believed that
when water is added to electrolyte, the two liquids become mixed and distributed evenly, and
as a result the funnel will necessarily come into contact with electrolyte. In Newell’s opinion,
it was “possible” that electrolyte could drip on an employee when he removed the funnel.
Electrolyte could also splash on an employee when he removed the caps from the battery,
and Newell believed that the bubbles which normally form in the electrolyte when a battery
is recharged could escape and get on an employee. Newell felt that Con Agra’s employees
should be protected by goggles or a face shield and by gloves, arm gauntlets, and an apron.
He stated that he had seen employees of other companies, such as Lehigh Valley Dairies,
Bethlehem Steel, and United States Steel, using such equipment when adding water and
checking batteries.
Robert J. Farronato, a safety supervisor in the OSHA area office, also conducted an
inspection of the facility. Farronato was admitted as an expert in forklifts and testified that
there is a hazard of a splash when water is added to the battery through the funnel and
when the funnel is removed. He explained that there is a “possibility” that electrolyte might
remain in the funnel when it is removed and that because a battery “probably” is filled to
the top, there would “always”
d be “a little bit” in the funnel unless the person filling the
battery was very careful. Farronato recommended the same types of protective equipment
‘(...continued)
5 1910.151 Medical services and first aid.
@Where the eyes or body of anv person may be exposed to injurious corrosive materials,
suitable facilities for quick drenihing or flushing of the eyes and body shall be provided
within the work area for immediate emergenq use.
3
as did Newell. Farronato stated that when he was employed as a forklift operator, he had
used eye protection and rubber gloves when filling batteries. Farronato also stated that he
had seen protective equipment in use at two other companies in addition to Bethlehem
Steel. Neither Newell nor Farronato, however, observed any batteries being filled at the time
of their inspections, and they did not determine whether there had ever been any injuries
to Con Agra’s employees from this operation.
Philip Ascani, who had been servicing batteries for the seventeen years he had been
employed by Con Agra as a forklift operator, testified that he had never had any electrolyte
splash or spill on him, nor had it ever dripped off a funnel. Ascani explained that the funnel
did not leave any space for water to splash out from around the funnel and that he only
poured enough water into the battery to cover the battery elements themselves, about an
inch and a half below the top of the battery. Ascani stated that he did not think that liquid
could escape out of the battery unless the battery were overfilled, and even in that event,
liquid would not splash out but would simply flow down the sides of the battery. Wayne R.
Bellinger, Con Agra’s corporate safety director, stated that he had observed employees
adding water to batteries in Con Agra’s various facilities. Bellinger denied that use of a
funnel could produce any splashing. He stated that he had never seen any liquid splash or
drip on an employee, nor did he know of any injuries resulting from this process in any Con
Agra facilities. Because Con Agra’s employees only added water and did not directly handle
electrolyte, Bellinger felt that protective equipment was not needed.
- Citation No. 1, Item 2b. Emergency Eyewash or Eveflush Facilitv
Newell regarded an emergency eyeflush facility under section 1910.151(c) as a
necessary “backup” in case the electrolyte containing sulfuric acid “would get past” the
personal protective equipment required by section 1910.132(a) and onto an employee’s body
or into his eyes. The nearest flushing facility was in another building; in Newell’s opinion,
a facility would have to be located within 25 feet in order to be considered suitable under
the standard.* Farronato also stated that an emergency eyewash with spouts to spray water
2A document introduced by the Secretary, National Safety Council Data Sheet 1-635-79, Leti-Acid Storage
Batteriespara. 53 (rev. 1979), specifies 25 feet as the maximum distance between a battery charging room and
an eyewash facility.
4
directly into the eyes would be needed at a minimum and that a quick-drenching shower to
wash down other parts of the body might be needed depending on exposure. According to
Farronato, normally the equipment available is a dual purpose combination eyewash and
shower. In the operation in question here, Farronato said he would recommend both the
shower and eyewash, and he had seen such equipment in use in other companies in similar
operations. Bellinger testified, however, as he had with respect to the allegation that
employees should have worn protective equipment, that a quick-drenching facility was not
necessary because employees were not exposed to corrosive material.
Judge’s Deckion and Parties’ Contentions
The judge concluded that while there were no known accidents resulting from filling
the battery, the hazard of contact with electrolyte was “possible,” although unlikely. He
determined that Con Agra had knowledge of a hazard in its facility requiring the use of
personal protective equipment, citing Cape & yineyardDiv., NW Bedford Gas & Eki&onL@ht
Co. V. OSHRC, 512 F.2d 1148 (1st Cir. 1975). In that case the court held that section
1910.132(a) is satisfied either by proof that an employer has actual knowledge that a practice
is hazardous or by the “objective” test of whether a reasonably prudent person familiar with
the circumstances of the industry would have protected against the hazard.
Similarly, the judge found a violation of section 1910.151(c) on the basis that the
Secretary had shown “potential exposure” to a corrosive material.
Con Agra takes issue with this finding, contending that forklift operator Ascani is the
employee most familiar with the circumstances of the industry under the test defined in NW
Bedford Gus and that his testimony clearly establishes that a reasonable person would not
see a hazard requiring protective equipment in the circumstances here. In Con Agra’s view,
the judge’s decision is contrary to Commission decisions involving section 1910.132(a),
Amour Food Co., 14 BNA OSHC 1817, 1987-W CCH OSHD B 29,088 (No. 86247,1990),
and General Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 1984-85 CCH OSHD
1 26,%1 (No. 781443,1984) (consolidated), afd, 764 F.2d 32,12 BNA OSHC 1377 (1st Cir.
1985). Con Agra notes that in General Motors the Commission relied on a low injury rate
in finding that no hazard existed and asserts that the incidence of injury resulting born its
process at issue here is even less than in General Motors. Con Agra reiterates that kcani
5
stated that only spilling would occur if the battery were overfilled and disputes that the five
other companies named by the compliance officers establish an industry-wide custom or
practice to use protective equipment when adding water to lead storage batteries. Con Agra
contends that the item alleging a violation of section 1910.151(c) is “closely related” to the
section 1910.132(a) allegation and should be vacated for the same reasons: electrolyte has
never spilled out of a battery, and employees only handle water, not electrolyte.
The Secretary agrees that an employer must have either actual or constructive
knowledge of a hazard requiring protective equipment under section 1910.132(a) and,
further, that constructive knowledge is determined under the reasonable person test. In
concluding that a hazard was shown here, the Secretary contends that evidence showing a
lack of injuries does not negate the existence of a hazard. The Secretary asserts that here
the existence of a hazard is supported by (1) the testimony of experienced compliance
officers that “numerous businesses” protect employees from electrolyte and (2) the
documentary evidence, see infa note 4. Thise evidence, which shows that a hazard is known
not only in the grain handling industry but also in the broader category of industry that
services batteries generally, distinguishes this case in the Secretary’s view from General
Motors and Amour Food, where there was no evidence of industry practice to wear
protective equipment. The Secretary also argues that unlike Amour Food, where employees
.
testified that they did not perceive a hazard, here Ascani testified that exposure could occur
if a battery was overfilled.
The Secretary contends that a violation of section 1910.151(c) is shown because it is
undisputed that Con Agra’s nearest flushing facility was in another building and because Con
Agra does not assert that that facility-was of the appropriate type.
As the judge properly stated, the test for determining whether a hazard exists
requiring personal protective equipment under general personal protective equipment
standards such as section 1910.132(a) is whether the employer had actual notice of a need
for protect.ive equipment or whether a reasonable person familiar with the particular
industry would recognize such a hazard. Amour Food, 14 BNA OSHC at 1820, 1987-90
CCH OSHD at p. 38,881. In this case, there is no evidence to show that Con Agra had
6
actual knowledge that the conditions warranted the use of protective equipment when its
employees serviced the batteries, and the Secretary does not contend that a violation should
be found on the basis of actual knowledge. In determining whether Con Agra should have
been aware of a need to use protective equipment in the circumstances, we apply the
well-established principle that a broad regulation such as section 1910.132(a) must be
interpreted in the light of the conduct to which it is being applied, and external, objective,
criteria, including the knowledge and perceptions of a reasonable person, may be used to
give meaning to such a regulation in a particular situation. Ryder Truck Lines, Inc. v.
Brennan, 497 F.2d 230,233 (5th Cir. 1974). See Brenrtanv. OSHRC (Santa Fe Trail Transport
Co.), 505 F.2d 869, 872-73 (10th Cir. 1974).
General Motors, on which Con Agra relies, involved a citation under section
1910.132(a) for failure of employees handling parts of various sizes and weights to wear foot
protection. There had been five foot injuries in a 2?&year period. The inspector, a former
corporate safety director with some familiarity but no first-hand experience with
parts-handling facilities of the type at issue, testified that a person acquainted with the
circumstances of the warehousing industry would have used safety shoes in those situations.
He also stated that a hazard was evidenced by the injury rate, and he mentioned three
employers who used safety shoes in warehouses. The employer presented two safety officials
who opined that the injury record did not warrant protective equipment. In vacating, the
Commission concluded that since the rate equated to 1.33 injuries per million parts handled,
it was too low to give the employer actual notice that a hazard existed. The Commission
further noted that of five employees who testified, only two wore safety shoes even after they
had been injured, and most employees declined to wear them. The Commission specifically
characterized employees as “those persons most clearly familiar with the industry.”
11 BNA OSHC at 2066,1984-M CCH OSHD at p. 34,612. The appellate court affirmed the
Commission’s decision, essentially for the same reasons the Commission gave. The court
noted that the Secretary’s witnesses had considerably less experience with the automobile
parts warehouse industry than did the employer’s witnesses, and it reiterated that employees
themselves are the persons most familiar with that industry.
7
InAmour F&xi, the Commission vacated a citation under section 1910.132(a) alleging
employees were not wearing mesh gloves while sharpening the blades of a meat slicer. As
is the case here, there were no injuries over an extensive period of time. Noting that blades
were sharpened four times each day, the Commission analogized the injury rate to that in
General Motors. Citing General A40tors for the proposition that evidence of industry custom
will aid in determining whether a reasonable person would see a hazard in a particular
industry practice but is not determinative, the Commission found that the Secretary had
introduced no evidence to show it is customary for mesh gloves to be worn in Armour’s
industry when slicer blades are sharpened.
Consistent with this precedent, we conclude that the Secretary failed to establish the
existence of a hazard warranting personal protective equipment. Not only are Con Agra’s
witnesses more familiar with the manner in which Con Agra services its forklift batteries, but
the Secretary’s witnesses, Newell and Farronato, testified in a speculative and hypothetical
fashion. Both of the Secretary’s witnesses, neither of whom observed the batteries being
filled, gave opinions as to ways in which a hazard could conceivably occur. The testimony
of Con Agra’s witnesses, having actual experience with the operation, indicates that the
opinions of Newell and Farronato are not persuasive because they are not grounded in a
realistic understanding of how Con Agra performs the operation. For example, Ascani
testified that he never filled the battery more than an inch and a half below the top, thereby
refuting Farronato’s belief that the battery liquid could escape because the battery was filled
to the top. Essentially, the Secretary’s witnesses merely stated their supposition that a hazard
could occur, whereas the testimony of Ascani and Bellinger convincingly establishes that
there is no substantial likelihood or probability of an employee coming into contact with
battery electrolyte based on the manner in which Con Agra’s employees add water to the
batteries.
Generally speaking, where employees testify from their own knowledge and
experience on matters that pertain to their specific work activities, their testimony should
be given greater weight than that of witnesses who do not have first-hand experience with
the operation in question. General Motors; Ray EverS Welding Co. v. OSHRC, 625 F.2d 726
(6th Cir. 1980); Jefferson Smu@t Corp., 15 BNA OSHC 1419, 1421, 1992 CCH 0SI-D
ll 29,551, p. 39,953 (No. 89-553, 1991). Furthermore, it is of no consequence that Fanonato,
who opined that a hazard could exist, was admitted as an expert. The testimony of an expert
is not necessarily controlling even if it is unrebutted, UIlired States Steel Cop. v. OSHRC,
537 F.2d 780 (3d Cir. 1976). In this case, moreover, the Srrcretary’s witnesses did not give
any opinion as to the likelihood of a hazard occurring. Accordingly, on that question, the
testimony of Con Agra’s witnesses is entitled to weight even though they were not admitted.
as experts. Bay State Ret Co., 15 BNA OSHC 1471, 1473, 1992 CCH OSHD ll 29,579, p.
40,022 (No. 88-1731, 1992). See ako Cleveland Corzsol., hc. v. OSHRC, 649 F.2d 1160, 1167
(5th Cir. Unit B 1981).
The judge, in his decision, found that a hazard was only possible and not likely. Since
a preponderance of the evidence supports that finding, we conclude that the judge erred in
affirming the citation item with respect to section 1910.132(a). A violation of that standard
cannot be founded on a mere unsubstantiated possibility that a hazard could occur. As the
court stated in Arkansas-Best Freight Systems v. OSHRC, 529 F.2d 649, 655 (8th Cir. 1976),
“the phrase ‘hazards of processes or environment’. . . . must be read in the light of the
objective test of foreseeability.” See Pratt & WlritneyAircraft v. Secretary of Labor, 649 F.2d
96 (2d Cir. 1981), and Pratt & wlzitney Aircraft v. Douovart, 715 F.2d 57 (2d Cir. 1983). In
those decisions the Second Circuit considered section 1910.94(d)(7)(iii), a ventilation
standard which, like section 1910.132(a), requires proof of the existence of a hazard. The
court held that the Act “is intended to guard against significant risks, not ephemeral
possibilities,” 649 F.2d at 104, and that therefore the Secretary “must show more than the
mere possibility of injury” and “must show the existence of conditions likely to lead to the
[hazard].” 715 F.2d at 64, 65 (emphasis added). See also Anoplate Corp., 12 BNA OSHC
1678,1681-82, 1986-87 CCH OSHD n 27,519, pp. 35,679.80 (No. 80.4109,1986) (expressing
agreement with the reasoning in Pratt & lWrit;lzeyand applying a “significant risk” test to a
9
standard requiring proof of the existence of a “danger”); cf: General Motors, 764 F.2d at
35-36 (applying a “significant level of risk” test in determining whether an employer has
actual knowledge of a hazard under section 1910.132(a)).
In addition to the evidence showing only a mere possibility that a hazard could exist,
no employee had ever been injured when filling the forklift batteries. While the occurrence
of an injury is not an essential element in establishing ;i violation, Rockwell Intl. Cop.,
9 BNA OSHC 1092, 1098, 1980 CCH OSHD ll 24,979, p. 30,846 (No. 12470, 1980), the
absence of any injuries is consistent with a finding that a reasonable person, considering all
the circumstances, would not perceive a sufficient likelihood of a hazard to warrant the use
of protective equipment. Although the refilling of batteries, which is performed weekly, is
not as frequent or as intensive as the work activities at issue in Amour Food and General
Motors, it still has been performed on a consistent and regular basis over an extended period
of time. As the Commission stated in Amour Food, “[tlhe evidence that no employee had
been injured while sharpening the blades in over 20 years strongly suggests that no hazard
was present.” 14 BNA OSHC at 1820, 1987-90 CCH OSHD at p. 38,881.
Furthermore, we do not regard the Secretary’s evidence regarding the custom and
practice in other companies to indicate a need for the use of protective equipment in the
circumstances here.3 Newell referred to other companies that use protective equipment, but
gave no opinion as to whether their circumstances were representative of the conditions in
Con Agra’s facilities. Farronato, the expert, testified likewise, but since he also stated that
some companies did not use such protection, his testimony fails to show even that there is
a general, consistent industry-wide practice. C’ IItlaud Steel Co., 12 BNA OSHC 1968,
1971-73, 198687 CCH OSHD II 27,647, p. 35,998.36,000 (No. 79-3286, 1986) (in order to
establish that the employer’s industry recognizes a need for protective equipment, the
31n most federal circuit courts, industry custom and practice is relevant to the reasonable person test but not
d&positive.Famns Tree Surgeons, Inc., 15 BNA OSHC 1793,199Z CCH OSHD R 29,770 (No. W-998,1992)
(lad and partial dissenting opinion). As Farrens indicates, the Fifth and Eleventh Circuits require that in the
absence of actual recognition of a hazard, an employer can only be required to implement the protective
measures that are customary in its industry. This case does not arise in either of those circuits.
10
Secretary must show that the equipment is generally in use throughout the relevant industry
under generally similar circumstances).4
We reach a similar conclusion with respect to the alleged violation of section
1910.151(c) for lack of an eyewash facility. As is the case under section 1910.132(a), this
standard by its plain terms requires the Secretary to prove the existence of a hazard
requiring the use of the protective measures specified, here quick-drenching or flushing
facilities. The purpose of section 1910.151(c) is to protect employees who are exposed -to*
corrosive chemicals by giving them a means to wash such chemicals from their eyes or body
before they suffer injury. Bridgeport Brass Co., 11 BNA OSHC 2255, 1984-85 CCH OSHD
ll 27,054 (No. 82-899, 1984). As the judge correctly noted, whether there is a violation of this
standard depends on the totality of the circumstances, including the nature and amount of
.
the substance in question. E.I. du Porrt de Nemours & Co., 10 BNA OSHC 1320, 1325,
1982 CCH OSHD li 25,883, p. 32,381 (No. 76-2400, 1982); Gibson Discount Center, 6 BNA
OSHC 1526, 1978 CCH OSHD ll 22,669 (No. 14657, 1978). The judge, however, erred in
finding that a violation can be found based solely on a “potential” hazard. The standard
applies generally’ to all situations in which corrosive materials are used and
. does not
specifically address battery charging. Accordingly, the Secretary must demonstrate that the
employer is on notice of a need for a washing or flushing facility in the circumstances in
?he Secretary introduced into evidence and the judge relied on two documents. The first, an operator’s
manual for the Hyster electric lift truck used by Con Agra warns that “[e]lectrolyte is very caustic and must
be neutralized immediately.” The second, National Safety Council Data Sheet l-635-79, Lad-Acid Storage
Batteries (rev. 1979) “discuss(es] the construction, use, and safe practices that should be followed when
lead-acid storage is used for commercial and industrial purposes” and states that “[plersonnel should wear
acid-resistant gloves, arm gauntlets. aprons, and face shields for proper eye protection.” A similar instruction
also appears in a third exhibit, a brwhure from the Industrial Truck Division of Eaton Corporation, which
is not mentioned either in the jud@s decision or in the parties’ submissions before us.
Like all evidence of industry custom or understanding, these documents are not controlling but are simply
additional evidence to be considered as part of the entire record. See Gold-K%, Inc., 7 BNA OSHC 1855,
185940 (No. 76-2049, 1979) (standard using broad terms acquires meaning when read together with other
codes or indicia of industry custom). Weighing these documents together with the other evident showing only
a remote possibility of a spill or other contact with electrolyte, we conclude that the documentary material
stating that generally equipment should be used to protect against such cOntactdoes not indicate a need for
protection in the particular circumstances here.
11
question. See Hamilton Die Cash Inc., 11 BNA OSHC 2 169, 2.172, 1984-85 CCH OSHD
ll 26,983, p. 34,690 (No. 79-1686, 1984). See generally Miami Ikh.s., 15 BNA OSHC 1258,
1261-65, 1991 CCH OSHD ll 29,465, pp. 39,739.43 (No. 88-671, 1991), aff’d in part without
published opinion, 983 F.2d 1067 (6th Cir. 1992). For the reasons discussed above, the mere
possrbility that battery electrolyte might splash onto an employee’s body or into his eves does 4
not establish that a sufficient hazard existed to require a facility for washing or flushing the
eyes or body. Since the Secretary did not satisfy his burden of proof, we vacate this citation
item as well.’
2. Citation No. 1, Item 3, 29 C.F.R. 0 1910.178(c)(2)(vi)(a)6
Facts
The allegations at issue in this item deal with the packing room, at the Martins Creek
facility, where empty bags are filled with 50 to 100 pounds of flour from a hopper at the
packing machine. A V-shaped conveyor then transports the filled bags in an upright position,
across a scale’
. where they are weighed, to a work station where the bags are sewn shut. The
bags are then taken by a 3-foot-wide inclined flat belt conveyor to a height of 10 feet where
they are deposited onto a level conveyor leading to an elevated device known as a palletizer
‘The parties dispute whether Con Agra’s operation comes within the scope of an exception to the .
requirements of the standard set forth in an administrative interpretation by the Secretary which Con Agra
introduced into evidence: OSHA Instruction STD l-8.2, ,39 CFR 1910.251 (c), Medical Services and First Aid;
29 CFR 1926.50 and Sl, Medicnl Service and First Aid, and Sanitation, Respective@;Applicable to Elect&
Storage BatteryCharging and Mkntenance Areas (Mar. Z&1982), 1 BNA OSHR Ref. File 21:~:8409. Since
we conclude that Con Agra did not violate the standard because the Secretary failed to establish the existence
of a hazard requiring an eyewash facility, we do not reach the question of whether Con Agra would have been
exempted from complying with the standard if a hazard in fact were present.
%he standard provides:
5 1910.178 Powered industrial tmcks.
(c) Designated locations.
... .
(vi)(a) Only approved powr operated industrial trucks designated as EX shall be used in
atmospheres in which comtwstible dust is or may be in suspension continuously, intermittent-
ly, 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.
12
which loads the bags onto pallets. The forklift used to deliver empty bags and remove full
and damaged bags had an “E” classification, which is a designation assigned by independent
testing laboratories such as Underwriter’s Laboratories or Factory Mutual Engineering
Corporation.7
Newell was not concerned about normal operations, but about the possibility that
there could be an accidental accumulation of combustible dust. He absented that some bags
of flour had broken as they were being taken to the palletizing area and noted that Con
Agra had a separate pallet where the palletizer operator places damaged bags. He felt that
combustible or ignitable dust could be produced if flour spilled from the hopper or the
hopper conveyor, if a malfunction caused a discharge of dust into the air, if a bag fell off the
conveyor and broke, or a damaged bag opened. If the concentration of dust in the air
reached the “lower explosive limit” of 50 to 60 grams of dust per cubic meter of.air, it could
then be ignited by the “non-standard” electrical circuitry in the truck, causing an explosion.
Newell conceded, however, that he did not know that any malfunctions had ever occurred.
John Nagy, a consultant with an extensive background as a research physicist in the
hazards of dust explosions, testified for the Secretary as an expert in that field. Having
visited the packing room, Nagy testified that he found it “quite clean” with a “very limited”
quantity of dust in comparison to the average manufacturing plant. Nagy also testified,
‘Section 1910.178(a)(7) provides that “[a)s used in this section, the term, approved truck or approved indumiuf
truck means a truck that is listed or approved for fire safety purposes for the intended use by a nationally
recognized testing laboratory, using nationally recognized testing standards.”
Section 1910.178(b) describes v;trious designations of electrically-powered industrial trucks. Type E trucks have
“minimum acceptable safeguards against inherent fire hazards.” Section 1910.178(b)(4). The ES, EE, and EX
designations in that order have incrcxsingly greater fire protection, based on the quality of the enclosures for
the electrical circuitry. For example, an ES type truck, unlike a Type E, is designed to eliminate emission of
sparks and to have lower surface temperatures. Section 1910.178(b)(S). Table N-l of section 1910.178
describes hazardous locations by class and division within class but also by groups within classes as a
subcategory of class. Class II locations *‘are hazardous because of the presence of combustible dust”; within
this class are three “groups” of dust: Group E (metal dust), Group F (coal dust and coke dust), and Group
G (“[glrain dust, flour dust, starch dust, organic dust”). According to this table, type E trucks are not
permitted in any Class II location.
Newell opined that the packing room was a Class II, Division 2 area and that the truck was not suitable for
this location. Bellinger agreed that areas within the packing room around the packing machine, the sewing
machine, and the conveyor would be Class II, Division 2 locations.
13
however, that there is “always a potential” for dust to reach an explosive concentration. He
testified that a possibility of dust dispersal existed, if, for example, an employee filling a bag
did not shut off the flow of grain when the bag was full, a bag was not sewn properly or was
defective, or a bag was dropped or tom. Nagy also stated that the forklift itself could cause
dust to be dispersed. Nagy did not observe the forklift in operation, however.
Based on his background and experience, and taking into consideration the
dimensions of the packing room, Nagy estimated that a concentration of dust sufficient to
cause an explosion would require that approximately 200 pounds of flour dust be dispersed
evenly throughout the entire room. However, Nagy testified, it is not necessary for the entire
packing room to be evenly filled with dust in order for there to be a fire hazard if a source
of ignition were present. For instance, 5 to 10 pounds of dust dispersed through a volume
of 1000 cubic feet could cause a flame, and 50 pounds of dust would fill three-quarters of
the packing room with flame if ignited. An explosion resulting from a limited amountof dust
dispersion would not be very forceful and would cause only minimal damage, but the
temperature of burning dust would be high enough to cause serious injury. Nagy stated that
it is not uncommon for injuries from flour dust flame to be fatal, depending upon a person’s
position within the dust cloud. Someone in the middle of a dust cloud in the packing room
would probably be severely burned even if the cloud did not fill up the entire room. In his
opinion, if there were a source of ignition on the forklift, approximately 5 to 10 pounds of
dust dispersed around the forklift would cause enough of a flame to seriously or possibly
fatally injure an employee.
An employee, James E. Smith, testified for the Secretary that he had seen bags fall
and break, spreading dust out on the floor and producing a “little cloud” of dust about 3
feet high which remained suspended in the air for less than a minute before it fell to the
floor. Nagy conceded that normally “most” of the dust would drop immediately to the floor .
if a bag broke rather than being dispersed in the air but insisted that dispersal could occur
if a bag fell from the elevated conveyor and tore open by striking the side of the equipment
before it reached the floor or if a bag were open or became tom while traveling on the
conveyor. Ascani, however, testified that bags no longer fell off the conveyor because two
years previously (about five months prior to the inspection) Con Agra had installed railings
14
along the conveyor and that at the time of the inspection, Con Agra had no problem with
bags falling.
Smith testified that the only equipment dealing with dust that has ever malfunctioned
is a “bindicator” that regulates the flow of flour into the hopper that supplies the packing
machine. According to Smith, there have been four or five times during his fifteen years of
employment when this bin has overflowed, spilling between 3000 and 4000 pounds of flour
and causing the room to fill up with a cloud or fog of dust, during which time the employees
usually leave the room until the dust settles. The most recent such overflow was within the I
past two years, or not earlier than November 1987, five months before the inspection.
Bellinger, however, did not believe that a malfunction could result in any substantial quantity
of dust escaping. Bellinger observed that normally a bag is in place at the packing machine
and that even if a bag were missing, which is “extremely unlikely,” the bagger operator can
immediately shut off the machine. Therefore, he testified, the packing machine could not
malfunction m any way that would result in more than the contents of one bag, 100 pounds
of flour, falling on the floor. In the event that were to occur, the amount of dust dispersed
into the air would be the same as that caused by a bag falling and breaking open. Most of
the dust would stay on the floor; the rest would rise 2 or 3 feet before sinking back down.
Bellinger also could not conceive of any abnormal condition that would form a dense cloud
of dust. Bellinger stated that the overflows Smith described were not due to a defective
bindicator but to a malfunction in the blender and that that defect had been corrected at
least for the past two years by additional safety devices on the flour stream. At the time of
the inspection, it would not have been possible for flour to spill out of the hopper in the
manner Smith described unless all three new safety devices were to malfunction simulta-
neously.
Judge’s Decision and Parties’Contentions
The judge concluded that the Secretary had satisfied his burden of proof because (1)
Nagy testified that 5 to 10 pounds of dust in a localized area around the forklift would be
sufficient, (2) Smith had observed the room become foggy or cloudy from dust accumula-
tions, and (3) Bellinger did not “deny” that the lower explosive limit could be achieved in
a “localized area.” The judge concluded that the weight of the evidence showed that the
15
amount of dust discharged into the air on infrequent occasions was sufficient to establish a
violation of the standard.
The Secretary argues that Nagy’s testimony, as corroborated by Smith, establishes that
an explosion as well as fire hazard existed and that Bellinger’s testimony also is consistent
with Nagy’s opinion that combustible concentrations of dust could exist in “localized areas.”
Con Agra contends that Bellinger’s testimony, taken in its entirety, indicates that Bellinger
did not believe that there would ever be enough ambient dust to present a hazard and that
Nagy’s testimony is not “undisputed,” as the Secretary claims.
Analysis
There is no dispute that the forklift did not have the rating required by the standard
to ensure that the forklift would not be capable of igniting combustible concentrations of
dust.8 The issue before us is whether the Secretary established that such concentrations
might be produced by “mechanical failure or abnormal operation of machinery or
equipment.” Nagy’s testimony that a combustible concentration of dust would exist if as little
as 5 to 10 pounds of dust were dispersed around the forklift is unrebutted. However, the
Secretary’s evidence showing that there could be conditions that would cause a dispersal of
dust in the air sufficient to create a combustible concentration suffers from the same
deficiency as discussed in the previous items: it is hypothetical, speculative, and rebutted
. by
8We reject Con Agra’s contention that the citation should be vacated because Bellinger testified that the
forklift complied with the specifications set forth in the electrical standards in Subpart S of Part 1910,
specifically the “Design Safety Standards foi Electrical Systems” and section 1910.307, which is entitled
“Hazardous (classified) locations.” The hazard at issue here is the operation of an industrial truck in combusti-
ble dust atmospheres. As the judge correctly pointed out, section 1910.178 is the standard more specifically
applicable to that hazard. See Bratton Cop, 14 BNA OSHC 1893, 1895, 198790 CCH OSHD lI 29,152, p.
38,991 (No. 83.132,199O). Section 1910.178(c)(2)(vi)(a) does not require proof that a forklift presents a source
of ignition but rather presumes that a forklift not properly rated is hazardous when a combustible concen-
tration of dust is present.
Although it is not necessary to our disposition, we also note that Con Agra erroneously argues that there is
a distinction between a forklift which presents a source of ignition to cause a fire and one which constitutes
a sourceof ignition for purposes of causing an explosion. That contention results from a misunderstanding
of the record and the judge’s decision. The record shows that whether a fire or an explosion will result from
the ignition of combustible dust depends on the manner in which the dust is dispersed and not on the nature
of the ignition source presented.
16
the testimony of Con Agra’s personnel who are familiar with the day-to-day operations in
the plant.
The testimony of Ascani and Bellinger shows that Con Agra had taken effective
measures to prevent bags from falling and breaking and machinery from malfunctioning and
these measures were in effect at the time of the inspection.’ Smith, in fact, was the only
witness who explicitly stated that malfunctions had occurred, and he testified that the most
recent malfunction occurred before the inspection and two years prior to the hearing. His
testimony, therefore, corroborates Bellinger’s testimony that corrective measures had been
implemented for at least a 2-year period. Nagy also agreed that generally speaking, dust
would not be dispersed even if a bag did break open, but claimed that dispersal could occur
if a bag opened while it was traveling on the conveyor. However, there is no evidence to
support Nagy’s supposition that there are any devices on the conveyor that could tear a bag.
While the record does show that bags do get damaged, there is no specific showing of how
that damage occurred or that such damage ever caused an airborne dispersal of dust.
Accordingly, we conclude that the Secretary has failed to meet his burden of proof and
vacate this citation item.”
%nder section 9(c) of the Act, the Secretary may allege that the violation occurred up to six months prior
to the citation. Here, however, the citation and complaint specifically allege that the violation occurred on
the inspection date, April 12, 1988.
‘*e find it unn ecessary to address, and we express no opinion on, Con Agra’s remaining contentionsthat
(1) the standard at issue is invalid because it delegates the authority to create legally binding requirements to
private testing laboratories and (2) the Secretary in a prior settlement agreement of other citations issued10
an Agra had agreed that operation of a forklift in the packing room was not hazardous.
17
3. Citation No. 1, Item 7a(b), 29 C.F.R. 8 1910.212(a)(l)”
Facts
This item concerns the inclined conveyor in the packing room. Newell observed an
unguarded idler roller located about 3 to 4 feet above the floor on the underside of this
conveyor, on the conveyor return belt. The record establishes that occasionally bags will get
turned sideways on the conveyor and have to be straightened to prevent jamming the
conveyor. Smith testified that when straightening the bags employees would come within 1
to 2 feet of the unguarded roller. Newell testified that this roller was 4 feet from the
operator of the sewing machine and that the operator could reach over from his work
station to straighten a bag. Newell also felt that employees could be exposed as they walked
alongside the conveyor when exiting the room, although he conceded that the aisle was 10
to 12 feet wide and that the employees were not required to walk “close to” the roller.
Smith stated that employees normally would walk by no closer than 4 to 6 feet from the
conveyor, but he had, albeit infrequently, seen employees walk right next to the conveyor
and cross under it near the roller while it was running. Smith also stated that a cleaning
employee normally would sweep the floor within 2 or 3 feet of the idler roller and would
have occasion to cross underneath it while the conveyor is running.
Smith, however, did not consider the roller hazardous; the conveyor return belt is
loose, and Smith did not think there would be any injury if someone put his hand under the
belt at the roller. Bellinger likewise testified that there is slack in the belt and that an
employee’s hand could not be drawn into the roller. In fact, Bellinger had placed his own
hand in the area of the roller without any injury. Bellinger also stated that both the metal
structure that supports the convevor
d and the conveyor itself constitute a barrier to contact
“The standard provides:
8 1910.212 General requirements for all machines.
(a) Machine guarding-(l) Types of guarding. One or more methods of machine guarding
shall be provided to protect the operator and other employees in the machine area from
hazards such as those created by point of operation, ingoing nip points, rotating parts, flying
chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping
devices, electronic safety devices, etc.
18
with the roller. While Smith did not know whether an employee could get his hands into the
roller, he believed it would be difficult to reach in there and saw no reason for an employee
to do so. Smith stated that he had never known anyone to get his hand caught in the roller,
and did not believe that someone would accidentally get caught if he lost his balance; he felt
that an employee would first grab the support structure. Newell, however, denied that this
support would act as a barrier between an employee and the roller.
Farronato testified that the likelihood that an employee would get caught in the nip
point would depend on the speed of the belt and whether it was loose or tight. Farronato.
did not know specifically whether it was loose, but he observed no sagging in the belt which
would indicate looseness. He gave the following description of the speed: “[I saw it running
at] a brisk speed. It was running slowly.”
Newell concluded that if an employee caught a portion of his body, his hands and
arms or perhaps his hair, in the inrunning nip point between the elevated side of the belt
and the pulley, he could suffer abrasions an-d contusions. However, he had no knowledge of
there having been any injuries from the roller. Farronato stated that injuries could range
from a fractured finger or hand to a fatality if someone’s entire body became wedged in the
nip point area.
Judge’s Decision and Parties’ Contentions
The judge noted that Con Agra had cited unreviewed judges’ decisions dealing with
an absence of a hazard when machinery is operating at a slow speed. He found those cases
distinguishable on the ground that the evidence showed that the conveyor here did not
operate at a slow speed?* He also found that the photographic exhibits supported Newell’s
opinion that the supporting structure of the conveyor would not prevent access to the nip
point, but he found the violation other than serious rather than serious in nature as alleged
because the support and the low height of the roller made inadvertent contact unlikely and
‘*in finding .that a hazard existed, the judge interpreted Farronato as saying that the roller ran at a “brisk”
speed. There is a dispute on review as to what Farronato actually said. The Secretary claims that the court
reporter transcribed the testimony incorrectly and that Farronato really said the conveyor did not run slowly.
tin Agra points out that the Secretary never formally asked for the record to be corrected and therefore, the
record must stand as it is. Resolution of this precise question is not necessary to our disposition.
1.9
indeed would “discourage” such contact. The judge concluded that “the probability of injury
from this nip point is so remote to be negligible, as would the injury.”
Con Agra contends that the facts show that there was no possibility for injury. In
addition to the absence of any injuries, it asserts that the Secretary has shown only a mere
speculative possibility of a hazard occurring. It asserts that greater weight should be given
to the testimony of Smith and Bellinger than that of the compliance officers and that the
Secretary has not proven by a preponderance of the evidence that it could “reasonably
anticipate” an injury. The Secretary asserts that exposure to a hazard is shown because
employees who straighten bags were “required” to be “near” the roller, and it is located in
the path they use to exit the room. The Secretary also contends that the violation should be
found serious in nature in view of his testimony of the type of injuries that could occur.
Analysis
Section 1910.212(a)(l) requires the Secretary to prove that a hazard within the
meaning of the standard exists in the employer’s workplace. Armour Food, 14 BNA OSHC
1817, 1821, 1987-90 CCH OSHD at p. 38,883 (No. 86-247, 1990). The Secretary must show
that employees are in fact exposed to a hazard as a result of the manner in which the
machine functions and is operated. Jeflenon Smwjit, 15 BNA OSHC at 1421, 1992 CCH
OSHD at p. 39,953.
The testimony establishes that employees would come within 1 to 2 feet of the
unguarded roller when adjusting bags and would on occasion come close to it while walking
by. On the other hand, the judge found that while the surrounding structure would not
preclude contact, it would “discourage” inadvertent contact and that circumstance, combined
with the low height of the roller, would make the likelihood of an injury negligible. That
finding is also supported by the evidence, and no basis is shown for us to disturb it on
review. OkZandConm Co., 3 BNA OSHC 2023, 1975-76 CCH OSHD ll 20,441 (No. 3395,
1976). See EL. Jones & Son, 14 BNA OSHC 2129, 2132-33, 1991 CCH OSHD ll 29,264,
pp. 39,231.32 (No. 87-8, 1991). Generally speaking, employees who pass within close
proximity to moving parts are not exposed to a hazard within the meaning of section
1910.212(a)(l) if other factors are present that would hinder access or make it unlikely. As
20
the Commission held in Amour Food, the mere fact that it may be physically possible for
an employee to come into contact with the moving parts is not suffkient to establish a
violation of the standard. Applying this principle in Amour Food, the Commission vacated
an allegation that unguarded mixer blades located 12 to 14 inches below the top of the
mixing unit violated section 1910.212(a)( 1) on the ground that the configuration of the
equipment prevented any employee from actually falling into the blades and made it difficult
for anyone to reach the blades with his hand. 14 BNA OSHC at 1821-22, 1987-90 CCH
OSHD at p. 38,883. See aLroJeflenon Smutfit, 15 BNA OSHC at 1422, 1992 CCH OSHD
at p. 39,954 (no exposure to a hazard where adjusting devices and control buttons are-
designed and positioned in such a way as to keep employees’ hands away from nip points), ,
and QWWZ, Inc., 83 OSAHRC 83/Cl (No. 81.1491S, 1983) (ALJ), afd, 11 BNA OSHC
.
1868, 198384 CCH OSHD II 26,841 (1984) (citation under section 1910.212(a)(l) vacated
where an employee stood about 1 foot from the unguarded blade of a bandsaw while setting
it up and then turned away from the saw, which automatically made the cut and then shut
Off)l
Furthermore, Smith and Bellinger testified that even if an employee did
. come into
contact with the nip point, he would not suffer injury. This testimony is contrary to the
opinion testimony of Newell and the expert opinion testimony of Farronato. The judge
implicitly credited the testimony of Smith and Bellinger when he found that the possibility
of any injury resulting from contact would be negligible, and no basis is shown for us to
disturb that finding. In addition, no injuries were known to have occurred. While not dis-
positive, the absence of injuries corroborates Smith’s and Bellinger’s testimony and supports
a finding that no hazard exists. Annour Food, 14 BNA OSHC at 1822,1987-90 CCH OSHD
at p. 38,883. A violation of section 1910.212(a)(l) cannot be found where contact with
unguarded moving parts would not result in injury to an employee. Blocksom & Co., 11 BNA
OSHC 1255, 1261, 1983-84 CCH OSHD ll 26,452, p. 33,600 (No. 76-1897, 1983).
Accordingly, based on the evidence we vacate this citation item.
21
4. Citation No. 1, Item Sa, 5 1910.219(c)(2)(i)13
Facts
On the lower level of the milling house Newell saw an unguarded horizontal drive
shaft which in his opinion could cause abrasions, contusions, or “scalping” if a portion of an
employee’s body came into contact with the shaft or his hair got caught in it. The shaft is
6 feet above the floor, and approximately 6 feet of the total shaft length of 30 feet was
unguarded. The shaft is positioned in front of a system of vacuum pipes which transport
flour to an upper floor. An employee, Henry Salinas, stated that this equipment is checked
regularly to ensure that the flow of flour is unimpeded, and when unclogging the. pipes
employees would stand directly under the shaft while it is rotating. Occasionally employees,
including Salinas himself, would touch the shaft with their heads, but they are required to
wear a “bump cap,” which protects against bumps and minor blows to the head but, unlike
a hardhat, is not intended to protect against falling objects. If an employee wearing a bump
cap contacts the shaft, the only result will be that the shaft will scratch the cap. Also,
Bellinger stated that the shaft is completely smooth; it has no protuberances whatever that
could cause injury. An employee who placed his hand on the shaft would .simply feel it
moving; he would not be hurt, and there have never been any injuries from the shaft.
Newell in his testimony referred to section 1910.219(c)(5)(i), which states an .
exception from the requirements of section 1910.219(c)(2)(i).14 Newell testified that the
?he standard provides:
0 1910.219 Mechanical power-transmission apparatus.
(c)‘shafring. . . .
(2) Guarding horizorztalshaftig. (i) All exposed parts of horizontal shafting seven (7) feet or
less from floor or working platform, excepting runways used exclusively for oiling, or running
adjustments, shall be protected by a stationary casing enclosing shafting completely or by a
trough enclosing sides and top or sides and bottom of shafting as location requires.
14Section 1910.219(c)(5) provides as follows:
(5) Power-transmission apparatus located in basements. All mechanical power transmission
apparatus located in basements, towers, and rooms used exclusively for power transmission
equipment shall be guarded in accordance with this section, except that the requirements for
(continued...)
22
enclosure in which the shaft is located was not locked at the time of his inspection and in
fact its doors were fully open; moreover, Salinas testified that the doors were always kept
open.
Judge’s Decision and Parties’ Contentions
The judge found that the standard had been violated because the shaft was not
guarded. He rejected Con Agra’s argument that it came within the exception set forth in
section 1910.219(c)(5)(i). The judge concluded that Con Agra had not shown that it came
within the scope of the exception because the area in which the shaft was located was not-
used exclusively for power-transmission apparatus but contained the flour transport piping
as well and because the door to this area was not locked.
Con Agra asserts that the shaft is not hazardous because its surface is smooth, and
Con &a emphasizes that there have never been any injuries. It also contends that it came
within the exception set forth in section 1910.219(c)(5)(i). The Secretary argues that a
violation is shown because employees frequently passed under the shaft and could come
close to it. The Secretary also argues that the exception stated in the standard is not satisfied
for the reasons the judge gave. .
Anaitysis
Unlike section 1910.212(a)( 1) discussed above, the standard at issue here imposes a
mandatory requirement that horizontal shafting no more than 7 feet high be guarded. Thus,
the standard does not require proof of the existence of a hazard. American Steel Works,
9 BNA OSHC 1549, 1551 n.4, 1981 CCH OSHD ll 25,285, p. 31,270 n.4 (No. 77-553, 1981).
safeguarding belts, pulleys, and shafting need not be complied with when the following re-
quirements are met:
(i) The basement, tower, or room occupied by transmission equipment is locked against
unauthorized entrance.
(ii) The vertical clearance in passageways between the floor and power transmission beams,
ceiling, or any other objects, is not less than five feet six inches (5 ft. 6 in.).
(iii) Th e intensity of illumination conforms to the requirements of ANSI Al1.L1965
(R-1970).
(iv) [Reserved].
(v) The route followed by the oiler is protected in such manner as to prevent accident.
- ‘zz (Brackets in original).
i
23
However, while the Secretary is not obligated to show that the conditions in question are
themselves hazardous in order to prove a violation, he must establish that employees have
access to the hazard. A.P. O’Horo Co., 14 BNA OSHC 2004, 2006, 1991 CCH OSHD
li 29,223, p. 39,127 (No. 85.369,199l). Here, access is shown by the evidence that employees
could and did come into contact with the unguarded shaft. Also, we agree with the judge for
the reasons he states that the unguarded shaft does not come within the exception clause
. the clause requires a showing not only
in section 1910.219(c)(5)(i). We additionally note that
that access is restricted but that the remaining conditions set forth in the clause have been
met. Con Agra, which has the burden of proof to show that it comes within the exception,
Dover Elevator Co., 15 BNA OSHC 1378, 1381, 1991 CCH OSHD l’l29,524, p. 39,849
(No. 88-2642, Ml), has not presented evidence showing that it complied with the other re-
quirements pertaining to vertical clearance, intensity of illumination, and safety *ofemployee
A
routes of travel? The record, however, establishes that any injuries resulting from contact
with the unguarded shaft would be minor. Under section 17(k) of the Act, 29 U.S.C.
8 qq, a violation is not serious in nature unless it presents “a substantial probability that
death or serious physical harm could result.“-Accordingly, we find the violation other than
serious in nature rather than serious as it was alleged.
“Con Agra contends that it reasonably relied on a representation by a compliance officer at a previous
inspection that posting a warning sign at the main door of the room in which the shaft enclosure is located
would be sufficient to comply with the cited standard. The Secretary, in response, argues that it is not bound
by representations of compliance officers as to the abatement requirements of a standard.
Contrary to the Secretary’s argument, statements of compliance officers are relevant to whether an employer
has fair notice of the requirements of a standard in a particular set of circumstances. Mkzmi Indus., 15 BNA
OSHC 1258, 1262, 1991 CCH OSHD ll29,465, p. 39,740 (No. 88671, 1991), affd in part withoutpublished
opinion, 983 E2d 1067 (6th Cir. 1992). Here, however, the requirements of the cited standard are clear, and .
the exception clause on which Con Agra relies by its plain wording does not allow an exemption from the
standard simply through the posting of a sign. Compare CardinalZhdus.,14 BNA OSHC 1008,1011-12,1987-90
CCH OSHD ll28,510, pp. 37,801-02 (1989) (reliance on statements by OSHA representatives where standards
do not clearly delineate the employer’s obligations). Furthermore, the Secretary is not estopped from enforcing
a standard except where he has engaged in affirmative misconduct. The record here does not support a finding
of active misrepresentation and resulting injustice to the employer necessary to establish affirmative
misconduct on the part of the Secretary. En’e Coke Cop.‘, 15 BNA OSHC 1561, 1570, 1992 CCH OSHD
a29,653, p. 40,155 (No. 88-611, 1992), petition for review fired, No. 92-3297 (3d Cir. June 8, 1992); Miami
Industries, 15 BNA OSHC 1258 at 1266, 1991 CCH OSHD at pp. 39,743-44.
24
Section 17(j) of the Act, 29 U.S.C. 0 666(j), requires that the Commission must assess
penalties based on four criteria: the size of the employer’s business, gravity of the violation,
good faith, and prior history of violations. Because the unguarded shaft would result at most
in only minor injuries, the gravity of the violation is low. Also, Newell testified that the
Secretary’s proposed penalties gave Con Agra credit for good faith because it had made
efforts to improve employee safety and indicated a willingness to correct conditions which
Newell regarded as hazardous. On the other hand, Con Agra is a large employer which
operates a number of facilities. It also has a history of prior violations of the Act. The judge
assessed a combined penalty of $100 for item 8a and two other subitems, item 8b(a) and I
8b(b), which are not before us for review. Considering the factors set forth in section 17(j),
we conclude that the judge’s assessment is appropriate.
5. Citation No. 1, Item 8b(c), 8 1910.219(d)(1)16
Facts
Thiscitation item concerns the machine used to sew shut bags of flour. The machine’s
operator, who works at the machine almost continuously, normally places his hands 1 to 1%
feet below the belts and pulleys which run the sewing needle. The belts and pulleys, which
were not guarded at the time of the inspection, are approximately 4 to 5 feet above the
floor. Newell was of the opinion that the operator could inadvertently reach into the pulleys
while the equipment is operating and that his hair or face could contact the belt or pulleys
if the employee leaned forward, either of which would result in abrasions and fractures from
the pulley or the nip point between the pulley and the belt.
Both Smith and Bellinger agreed that an employee would suffer injury if he got
caught in the pulley when it was operating, but they testified that no employee would have
‘6The standard, in pe rtinent part provides:
6 1910.219 Mechanical power-transmission apparatus.
;d;AcZky-(1) Guarding. Pulleys, any parts of which are seven (7) feet or less from the floor
or working platform, shall be guarded in accordance with the standards specified in para-
graphs (m) and (0) of this section.
The referenced sections prescribe detailed specificationsfor the design and installation of guards.
25
any reason to come into contact with the nip point during operation, nor has anyone ever
been injured in the pulleys or belts.
Judge’s Decision and Parties’ Contentions
The judge found that the possibility of inadvertent contact during operation or of
injury was “so remote as to be negligible,” and he concluded that the violation was de
minimis in nature. Con Agra argues that the judge should have vacated- the item instead
. because employees were not exposed to a hazard. Con Agra emphasizes that: (1) an
employee normally would come no closer than 1 foot to the pulleys and belts when the
machine is operating, (2) the compliance officer agreed that contact with the pulleys would
have to be inadvertent, and (3) there have been no injuries.
On the other hand, the Secretary argues that the judge should have affirmed the item
as a serious violation. He contends that exposure to a hazard is shown because it is
“reasonably predictable” that employees would enter the zone of danger represented by the
unguarded pulley. In the Secretary’s view, the facts here are similar to those in other cases
in which exposure to a hazard was found where employees came within 1 to 2 feet of
haqrdous machinery. The Secretary also points out that the Commission has previously held,
with respect to the general machine guarding standard at section 1910.212, that employers
must use guarding devices for protecting employees and cannot rely on employee skill or
attention. Lastly, the Secretary contends that the violation cannot be appropriately found de
minimis because the hazard could “potentially” lead to serious injury.
Anatjxis
The standard at issue here imposes a mandatory requirement to guard pulleys located
no more than 7 feet in height. As in the case of the standard at issue in item 8a, the
Secretary does not have to establish that unguarded pulleys present a hazard, but the
Secretary must show that employees have access to the hazardous conditions. The
Commission’s test for determining access is whether in the course of the employees’ duties,
it is “reasonably predictable” that they will be, are, or have been in a “zone of danger.”
26
Clement Food CO.,11 BNA OSHC 2120,2123,1984-85 CCH OSHD II 26,972, p. 34,633 (No.
80-607, 1984); Gilles & Catting Inc., 3 BNA OSHC 2002, 2003, 197576 CCH OSHD
lI 20,448, p. 24,425 (No. 504, 1976). We conclude that this test has been satisfied here.
The operator of the sewing machine regularly worked with his hands in relatively
close proximity to the unguarded belts and pulleys. Unlike other cases in which the
Commission has vacated citations for unguarded machinery where the circumstances were -
such that an employee would not be likely to come into the area of danger, here neither the .
operation of the machine nor its configuration would prevent or impede the employee from
approaching the belts and pulleys. Compare Jefferson Smuflt, 15 BNA OSHC at 1422,1992
CCH OSHD at p. 39,954 (no exposure to a hazard based on specific configuration and.
design of the control and adjustment devices for the machinery); Annow Food, 14 BNA
OSHC at 1821-22, 1987-90 CCH OSHD at p. 38,883 (same conclusion where surrounding
structure makes entry into the area of moving blades difficult and unlikely). As the Commis-
sion stated in Hughes &OS., 6 BNA OSHC 1830, 1832, 1834, 1978 CCH OSHD ll 22,909,
pp. 27,716, 27,718 (No. 12523, 1978), in order to comply with standards requiring that
employees be protected from contact with machinery, an employer may not rely on the skill
or attention of employees to keep themselves away from the moving parts but rather must
install protective devices that are not primarily dependent on employee behavior.
Accordingly, as the Secretary correctly points out, the Commission has consistently held that
working in close proximity to unguarded machinery where access is not otherwise impeded
or obstructed is sufficient to show exposure to a hazard. See Tnre Drilling Co. v. Donovan,
703 F.2d 1087 (9th Cir. 1983) (hazard found where employees regularly pass within 2 feet
of rotating parts); Clement Food, 11 BNA OSHC at 2124, 1984-85 CCH OSHD at p. 34,633
(No. 80-607, 1984) ( access to a hazard established where employee reaches within 1 foot of
unguarded pulleys); ConsolidatedAluminum Cop, 9 BNA OSHC 1144,1155-56,198l CCH
OSHD l’l 25,069, p. 30,975 (No. 77-1091, 1980), arg 80 OSAHRC 125/ClO (1978) (ALJ)
(finding exposure on evidence showing that employees worked and stood “in close
proximity” to nip points and walked past the machine “directly adjacent” to the nip points).
We note that while we vacated a citation item in Amour Food because we found that
27
contact with the machinery would be unlikely, we affirmed another machine guarding
allegation in that case where the facts showed that employees could inadvertently place their
hands within a nip point. 14 BNA OSHC at 1822, 1987-90 CCH OSHD at p. 38,884.
Because we find that it was reasonably predictable that the operator of the sewing
machine could come into contact with the unguarded belts and pulleys, we conclude that
exposure was shown despite the fact that no injuries have resulted. As we have stated above,
the occurrence of injuries is not dispositive in determining whether a violation exists. We
have previously held that “evidence of this type [absence of injuries] does not preclude a
finding of employee exposure to a hazard when the presence of a hazard is established by
the objective facts concerning the configuration and operation of a machine.” Consolidated
Aluminum, 9 BNA OSHC at 1156, 1981 CCH OSHD at p. 30,975.
Accordingly, the judge erred in concluding that there was only a remote possibility
that the operator could come into contact with the unguarded belts and pulleys and that the
violation was de minimis. However, we reject the Secretary’s contention that .it should be
found serious in nature. The evidence fails to show that serious injury would be likely to
result fkom contact with the moving parts in question. We therefore affirm the violation as
other .than serious. For purposes of a penalty assessment, we will combine item 8b(c) with
items 8a, 8b(a), and 8b(b).
6. Citation No. 1, Item 9, 0 1910.242(b)”
Facts
It is undisputed that the forklift operator uses a compressed air hose to blow flour
dust off bags before they are loaded onto trucks. Using a gauge, Newell measured the
pressure in the hose at 90 pounds per square inch (“psi”). Newell stated his opinion that
“The standard provides:
6 1910.242 Hand and portable powered tools and equipment, general.
@;;: ompressed clirused for cleaning. Compressed air shall not be used for cleaning purposes
except where reduced to less than 30 p.s.i. and then only with effective chip guarding and
personal protective equipment.
28
pressure of this magnitude could force a foreign object into the employee’s body, inject air
into the body causing an “air embolism,” or even dislodge an eye.
Con Agra blows dust off the bags because its customers will not accept bags covered
with dust. Therefore, Bellinger opined that Con Agra was not engaged in “cleaning” within
the meaning of the standard but rather was performing an operation that is part of its
manufacturing process.
Judge’s Decision and Parties’ Corttmtions
The judge concluded that the terms of the standard had not been met. He further
concluded that cleaning off flour bags is a cleaning purpose within the meaning of the’
standard. Con Agra does not dispute that air pressure in excess of 30 psi was being used,
but argues that compressed air was not being used for cleaning purposes but for meeting
food sanitation requirements. Con Agra cites Anoplate, 12 BNA OSHC at 1691,
1986-87 CCH OSHD at p. 35,689, in support of this contention. The Secretary briefly argues
that the standard does not distinguish between cleaning a workplace and cleaning a product ’
and that Amplate is factually distinguishable. The Secretary further contends that the
Commissioti has previously held that section 1910.242(b) does not exclude cleaning
performed as part of a manufacturing process, citing S~~PWZOIZ.SJ,
Inc., 6 BNA OSHC 1157,
1977-78 CCH OSHD ll 22,387 (No. 12862, 1977), to support his argument.
Analysis
There is no dispute that Con Agra used compressed air in excess of the limit of 30
psi set forth in the standard. The issue before us is whether Con Agra was using compressed
air at excessive pressures for cleaning purposes. In Anoplate, on which Con Agra relies, the
employer used a series of open tanks to apply finishes to its products. The parts were first
placed in a cleaning tank and then a rinsing tank. The Commission concluded that this
standard was not violated where compressed air at 70 to 80 psi was used to blow excess
water and chemicals off the parts after they were removed from the rinsing tank. On the
facts in Anoplate, the Commission reasoned that the air pressure was only being used to dry
parts which had previously been cleaned. As the Secretary contends, Anopkzte is distin-
guishable because the facts there showed that the parts had already been cleaned before the
29
air pressure was applied. Here, Con Agra’s witnesses concede that the bags were being
cleaned of dust. As we stated in Simmons, section 19 10=242(b) “does not exclude cleaning
as part of a production process.” 6 BNA OSHC at 1159, 1977-78 CCH OSHD at p. 26,988.
While Simmons involved cleaning of machinery as opposed to a product, our holding in that
case is applicable here inasmuch as the standard makes no distinction between cleaning a
product and cleaning the equipment used to manufacture the product. Accordingly, we
affirm the judge’s finding of a violation.
The judge assessed a penalty of $200. Although the record indicates that no
employees had ever been injured by the excessive pressure of compressed air, the evidence
shows that the violation presents a potential for serious injury. Considering the statutory
penalty assessment factors, we conclude that the judge’s assessment is appropriate.
7. Citation No. 1, Item lib, 8 1910.272(i)(3)
and Citation No. 2, Item 6, 5 1910.272(1)(3)18
Facts
- Citation No. 1, Item lib, Dust Cleaning
Con Agra also uses compressed air to clean equipment and surfaces within the plant,
an operation referred to as a “blowdown.” This procedure removes dust Tom areas that
*tie standards require:
0 1910.272 Grain handling facilities.
iij’;iousekeeping. . . .
iii ‘he use of compressed air to blow dust from ledges, walls, and other areas shall only be
permitted when all machinery that presents an ignition source in the area is shut-down [sic],
and all other known potential ignition sources in the area are removed or controlled.
...
i) I+ eventive maintenance. (1) The employer shall implement preventive maintenance
procedures consisting of:
(i) Regularly scheduled inspections of at least the mechanical and safety control equipment
associated with dryers, grain stream processing equipment, dust collection equipment includ-
ing filter collectors, and bucket elevators;
& k certification record shall be maintained of each inspection, performed in accordance
with this paragraph (l), containing the date of the inspection, the name of the person who
performed the inspection and the serial number, or other identifier, of the equipment
specified in paragraph (l)(l)(i) of this section that was inspected.
30
cannot be cleaned through other means. Newell opined that blowing dust into the air in this
fashion could produce the explosive concentration of 50 to 60 grams of dust per cubic meter.
Milling machines which were operating at the time could generate sparks and arcs which
could ignite the dust, and “static type” sparks could also be produced from machinery or
parts rubbing together. Salinas testified that equipment operates normally during blowdowns
and that he has never been instructed to shut off the mill machinery.
Con Agra introduced into evidence copies of correspondence between Tom Klevay,
vice president of the Millers’ National Federation, and then-OSHA administrator John A.
Pendergrass regarding the application of section 1910.272(i)(3). Bellinger also testified with
respect to this correspondence. Klevay wrote to Pendergrass that in his view “[elquipment
used in milling wheat flour is not considered a known or potential ignition source. Electrical
equipment and systems in compliance with appropriate codes for the area also would not
be considered an ignition source.” In a letter dated shortly after the inspection occurred
here, Pendergrass replied:
It is OSHA’s position that all equipment and machinery, including machinery
used in milling flour, can be a potential ignition source in grain handling
facilities. The Agency’s intent is to assure that such potential ignition sources
are controlled during “blow-down” operations. If an effective preventive
maintenance program is implemented; and, electrical wiring, motors, and
machinery are in compliance with 29 CFR Part 1910, Subpart S and other
appropriate provisions, OSHA would consider these to be adequate controls.
Under these circumstances, “blow-down” operations would be permitted when
equipment and machinery are in operation.
Bellinger testified that Con Agra has “an effective preventive maintenance program” in
effect at the Martins Creek facility. Regular inspections are conducted; any defects which
are detected are scheduled for repair. Every Friday a maintenance schedule is prepared
listing the maintenance or repairs to be conducted. The mill is shut down four hours the
following Monday for the maintenance work. All electrical wiring, motors, and machinery
are in compliance with the Secretary’s electrical standards in Subpart S of Part 1910, and all
equipment in the area of the blowdown complies with the National Electrical Code.
31
2. Citation NO. 2, Item 6, Certification of Eauipment Inspections
Newell requested that Jackson, Con Agra’s plant manager, supply copies of the
records certifying that Con Agra had conducted maintenance inspections of its equipment,
but Jackson indicated that Con Agra did not maintain such records. Newell testified that
records should be kept of “critical equipment such as the safety equipment, bearings, belts
and pulleys.” He noted that section 1910.272(1)(l)(i), which is referenced in section
1910.272(l)(3), lists some of the equipment for which regularly scheduled inspections are
required. Newell testified that he was told that the motion detectors on Con Agra’s bucket
elevators are inspected and certified that they are operable, and he stated that the bearings
on elevators are critical equipment which also should be certified. Newell felt that Con
Agra’s violation of the certification provision was other than serious in nature because Con
. Agra did in fact perform maintenance; its failure to be able to certify its maintenance meant
that it did not have a “formal” program. By not having formal certification in effect, Con
Agra might .overlook some needed maintenance items.
Bellinger in his testimony referred again to Klevay’s letter to Pendergrass and
Pendergrass’ reply. Members of the flour milling industry, including Con Agra, wanted
clarification as to what equipment was subject to the certification requirement. Klevay’s
letter notes that section 1910.272(l)(‘)1 re q uires inspection of “mechanical and safety control .
equipment associated with” dryers, grain stream processing equipment, dust collection
equipment, and bucket elevators and that section 1910.272(m) states that “grain stream
processing equipment” consists of “hammer mills, grinders, and pulverizers.” The letter
proposes that “[elquipment used routinely in the production of flour such as separators,
aspirators, scourers, tempering equipment, entoleters, rollers, sifters, purifiers, packaging
equipment and pneumatic systems handling products are not subject to certification record
requirements.” Pendergrass replied that “[i]t is OSHA’s intent that a equipment receive
appropriate maintenance as part of an effective preventive maintenance program” (emphasis
added) but that the equipment mentioned in Klevay’s proposal “would not be considered
‘grain stream processing equipment’ and, consequently, not subject to the certification record
requirements.” Bellinger claimed that Con Agra has no dryers, grinders, or pulverizers and
that while it has a hammer mill, there is no mechanical safety and control equipment
32
associated with that mill. He also asserted that Pendergrass’ letter excuses dust collection
equipment associated with product handling from the certification requirement. Thus,
Bellinger concluded that the only certification record required is for Con Agra’s bucket
elevator, and he testified that Con Agra in fact does have a form for certifying the
inspections of its elevators. According to Bellinger, this form is filled out on a weekly basis
and kept in Con Agra’s files.
Judge’s Decision and Parties’ Contentions
The judge determined that Con Agra had not complied with section 1910.272(i)(3),
which prohibits blowing down where operating machinery presents a source of ignition, as
alleged in item llb of citation no. 1. He also concluded that Con Agra had not established
that it had effectuated “alternative means of compliance” as set forth in the Pendergrass
letter-because it had not shown that it had an “effective preventive maintenance program”
within the meaning of that letter. The judge noted that Con Agra’s maintenance program
is in issue in citation no. 2, item 6. In affirming the latter item as well, the judge found that
Con Agra had failed to demonstrate that records were kept for hammer mills, grain stream
processing equipment, and dust collection equipment. He specifically noted that the
Pendergrass letter did not exempt dust collection systems from the certification requirement.
Con Agra contends that the Secretary presented no evidence that there was any
machinery which could present an ignition source in the area of the blowdown. It also
contends that vacation of this citation item is dictated by a judge’s decision in an earlier case,
Con Agra, Inc., 85 OSAHRC 28/A3 (No. 84-311, 1985) (AU). In that decision, Review
Commission Judge Ramon M. Child vacated a citation alleging that a blowdown operation
performed at Con Agra’s flour mill in Alton, Illinois violated section S(a)(l) of the Act,
which requires that an employer keep his workplace free of “recognized hazards that are
causing or are likely to cause death or serious physical harm.” Judge Child concluded that
the Secretary had failed to show that the blowdown created a fire or explosion hazard on
the facts in that case. Asserting that the blowdown process is the same wherever it is con-
ducted, Con Agra contends that the Commission must find that there was no hazard here
based on Judge Child’s decision. Con Agra also argues that it was exempted from the
requirement of the standard that blowdown operations cannot be conducted while machinery
33
is in operation because it met the two criteria for exemption se.t forth in the Pendergrass
letter--its equipment was in compliance with the Secretary’s electrical standards and it had
an effective maintenance program.
The Secretary contends that section 1910.272( i)( 3) p resumes the existence of a hazard
if its terms are not met, and that therefore the Secretary is not required to prove that a
blowdown operation presents a hazard of fire or explosion. In the Secretary’s view, Judge
Child’s decision on which Con Agra relies is distinguishable because. it involved a provision
of the Act which requires the Secretary to prove that a hazard exists. Because it is
undisputed that compressed air was used for housekeeping purposes, and Newell testified
that ignition sources were present, the Secretary argues that a violation has been shown
here.
With respect to the certification provision of section 1910.272(l)(3), Cob Agra does
not deny that no records were presented to Newell and indeed concedes that records were
not available to be put into evidence. It asserts, however, that its list of items to be repaired
or maintained constitutes a certification within the meaning of section 1910.272(l)(3). The
Secretary contends that Bellinger’s opinion that records were required only for bucket
elevators is erroneous and supports a finding that records had not been maintained for the
other equipment set forth in section 1910.272(l)(i)(i). The Secretary also contends that
because performing inspections is not the same as documenting them, Con Agra’s equipment
maintenance program is not a substitute for the certification required under the standard.
Analysis
- Compliance With Section 1910.272(i)(3)
In relying on Judge Child’s decision, Con Agra is raising the doctrine of collateral
estoppel: a determination by a court in a prior action is subsequently binding on the parties
to that action. The purpose of collateral estoppel is to foreclose the relitigation of issues
litigated and decided in the prior litigation. Caterpillar Tractor Co., 12 l3Ni OSHC 1768,
198687 CCH OSHD lI 27,554 (No. 80-4061, 1986). That principle is inapplicable here,
however, because section 5(a)(l) imposes a higher burden of proof on the Secretary than
does section 1910.272(i)(3). As the Secretary correctly argues, section 1910.272(i)(3) pre-
sumes that the use of compressed air to conduct a blowdown operation is hazardous where
34
a source of ignition is present. Unlike section 5(a)(l), the existence of a hazard is not an
element of proof of a violation of section 1910.272(i)(3). See Bunge Cop. v. Secretary of
Labor, 638 F.2d 831 (5th Cir. 1981) (distinguishing a specific standard from section 5(a)(l)).
Accordingly, while the Secretary in a prior case involving Con Agra may have been unable
to prove that a blowdown operation constitutes a hazard within the meaning of section
5(a)(l), he is not estopped from proceeding against Con Agra under a specific standard
which does not require such proof. See Bmck v. WZ1iam.s
Enterp,, 832 F.2d 567 (11th Cir.
1987) (collateral estoppel is not present where prior litigation does not involve same facts
and there has been an intervening change in the relevant law).”
There is no dispute that blowdown operations were conducted while machinery was
running. Contrary to Con Agra’s argument, Newell did testify that the machinery presented
ignition sources. Bellinger did not directly refute that testimony, but stated that all
equipment was in conformity with the Secretary’s electrical standards and the National
Electrical Code. The Secretary, however, through the Pendergrass letter has in effect issued
an interpretation that all operating equipment is presumed to present an ignition source
within the meaning of section 1910.272(i)(3) but that compliance with the standard will be
excused under two circumstances: the equipment must meet the specifications of the OSHA
electrical standards and there must be an effective maintenance program as well. Although
the Commission is obligated to defer to the Secretary’s interpretation of a standard if the
interpretation is reasonable, Martin v. OSHRC (CFdU Steel Corp.), 111 S. Ct. 1171 (1991),
the Commission may review an interpretation by the Secretary to determine whether it
satisfies the Court’s criteria for reasonableness. Simpson, Gurnpe~ & Heger, Inc., 15 BNA
OSHC 1851, 1992 CCH OSHD li 29,828 (No. 894300, 1992), petition for reviewfzZed,No.
92-2237 (1st Cir. Oct. 23, 1992). In this case, however, Con Agra does not assert that the
interpretation embodied in Pendergrass’ letter is not reasonable and is not entitled to defer-
ence; instead, Con Agra contends that it has come within the terms of that interpretation.
In other words, since blowdowns are conducted while machinery is operating, the terms of
lVhe citation at issue i n Judge Child’s case predated the grain dust standard. Section 1910.272 was not
promulgated until December 1987,52 Fed. Reg. 49,625 (1987), well after the proceedings before Judge Child
arose.
35
the standard have been violated; the question then is whether Con Agra, having the burden
to show that it comes within an exemption, has established that it met the stipulations set
forth in the Pendergrass letter. We address this issue ‘below.
- Compliance With Section 1910.272(l)(3)
Section 1910.272(l)(3) re q uires that records be maintained certifying that maintenance
inspections have been conducted for the types of equipment specified in section
1910.272(1)(i) , including bucket elevators and dust collection equipment. Even assuming that
Con Agra did in fact maintain certification records for its bucket elevators even though it
did not produce those records during Newell’s inspection and could not make them available
for admission into evid,ence, the judge properly found from Bellinger’s testimony that Con
Agra did not maintain such records for its dust collection equipment. Despite Bellinger’s
opinion that certification of inspection of dust collection equipment is not required, section
1910.272(1)(i) includes dust collection equipment as part of the equipment which must be
inspected, and, as the judge properly found, the Pendergrass letter on which Bellinger based
his opinion does not exempt dust collection devices from that requirement. The Secretary
therefore has established a prima facie case of noncompliance with section 1910.272(l)(3)
inasmuch as there is sufficient evidence to support a finding that Con Agra failed to
maintain certification records of all the types of equipment covered by the standard.
Although Bellinger believed that certification of inspections of dust collection
equipment is not required, Con Agra contends that its written lists of items requiring
maintenance constitute compliance with section 1910.272(l)(3). The standard, however, sets
forth very specific requirements for certification records; they must show the date of the
inspection, the name of the inspector, and serial number or identifier of the equipment
inspected. Con Agra has not demonstrated that its lists of maintenance items includes this
information. We therefore find that Con Agra has not rebutted the Secretary’s case-in-chief,
and we conclude that the judge properly affirmed item 6 of citation no. 2, alleging a violation
of section 1910.272(l)(3). - Exemption From Section 1910.272(i)(3)
In affirming item 11(b) of citation no. 1, which alleges that Con Agra violated section
1910.272(i)(3) by performing a blowdown operation while sources of ignition were present,
36
the judge concluded that Con Agra was not exempted from compliance because it had not
shown that it had “an effective preventive maintenance program” within the meaning of the
Pendergrass letter. In reaching this conclusion, the judge noted that Con Agra’s maintenance
program was in issue in item 6 of citation no. 2. We agree with the judge’s reasoning.
Section 1910.272(l) is entitled “Preventive maintenance.” Because Con Agra’s
certification records do not satisfy the requirements of this section, Con Agra has not shown
that it had “an effective preventive maintenance program” within the meaning of the
Pendergrass letter and therefore is not exempted from compliance with the requirements of
section 1910.272(i)(3).
The judge assessed a penalty of $200 for the violation of section 1910.272(i)(3). The
Secretary did not propose a penalty for the violation of section 1910.272(l)(3) and the judge
assessed none. We conclude that the judge’s assessments for these two items are
appropriate.
ORDER
For the reasons stated above, we reverse the judge’s decision and vacate the following
items of citation no. 1: item 2a(a) (section 1910.132(a)), item 2b (section 1910.151(c)), item
3 (section 1910.178(~)(2)(vi)(a)), and item 7a(b) (section 1910.212(a)(l)). We amend the
characterization of item $a (section 1910.219(c)(2)(i)) and item 8b(c) (section 1910.219(d)(i))
to other than serious. We assess a single penalty of $100 for items 8a, 8b(a), 8b(b), and
8b(c). We affirm the judge’s decision affirming item 9 (section 1910.242(b)) and item llb
(section 1910.272(i)(3)) an d assessing a penalty of $200 for each item. We also affirm the
judge’s decision affirming item 6 of citation no. 2 (section 1910.272(l)(3)) and assessing no
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37
penalty for that item. The judge’s disposition of other citation items not before us for review
is a final order of the Commission.
4
Commissioner
Commissioner
Dated: April 22, 1993
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