Kraft Food Ingredients Corp.
Mixed ruling on hot-work explosion hazards
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
Two Kraft maintenance employees were cutting bolts from a valve on a corn-oil pipeline when a fire and explosion occurred; one employee died and the other sustained severe burns. The Commission held that an explosive atmosphere could develop when the cutting torch heated a pressurized mixture of corn oil and air inside the pipeline. It also affirmed a violation for inadequate procedures because Kraft did not ensure that oil pumpers were told about planned cutting or that air pressure and valves were properly controlled before work began. Kraft's employee-misconduct defense failed because its rules did not adequately address those hazards. The Commission vacated a separate scheduling item because there was no evidence that a plant operation would start during cutting or welding, and the Secretary withdrew the used-container charge. The Commission assessed a combined penalty of $375 for the two affirmed serious violations.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.252(d)(2)(vi)(c), 1910.252(d)(2)(xiii)(a), 1910.252(d)(2)(xiv)(c)(3), and 1910.252(d)(3)(i)
- Outcome: Two serious violations were affirmed, one item was vacated, one item was withdrawn, and a combined $375 penalty was assessed.
- Key point: Hot-work procedures must address explosive atmospheres that may develop during cutting, including coordination needed to isolate pipelines and remove pressure before work begins.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 2003&3419
FAX:
CQM (202) 6u6GQ50
FE (202) 6o64osl
..
SECRETARY OF LABOR,
.
Complainant, .
..
v. .. OSHRC DOCKET NO. 884736
.
KRAFI’ FOOD INGREDIENTS CORP., I
..
Respondent. ..
0
.
DECISION
BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:
At issue in this case is whether a Review Commission Administrative Law Judge
erred in affirming several serious violations of requirements for welding and cutting
promulgated by the Secretary’s Occupational Safety and Health Administration (“OSHA”).
The specific standards at issue are:
(1) The former section 1910.252(d)(2)(vi)(c), prohibiting welding and cutting in
potentially explosive atmospheres;
(2) The former section 1910.252(d)(2)(xiii)(a), requiring establishment of procedures for
safe welding and cutting; and
(3) The former section 1910.252(d)(2)(xiv)(c)(3), re q uiring scheduling of welding and -
cutting to avoid start-up of plant operations that might expose combustibles to
ignition.’
For the reasons that follow, we affirm the judge’s findings of violations as to the first two
standards, but we vacate the remaining item.
‘The direction for review in this case also raised the issue whether the judge erred in affirming a nonserious
violation of former 0 1910.252(d)(3)(‘)
I , requiring cleaning of used containers before welding or cutting. The
Secretary has notified the Commission of his intent to withdraw that charge, however. Thus; that item will
be vacated Cyahogu Valley R Co. v. United Trmsp. Union, 474 U.S. 3, 7-8 (1985) (Commission may not
review Secretary’s decision to withdraw citation).
2
BACKGROUND
me alleged violations arose from a fatality investigation at Kraft’s plant in Sherman,
Texas. One maintenance employee died, and another was seriously injured, as the result of
a fire and explosion which occurred while they were using an acetylene torch to cut bolts on
a valve in an overhead metal pipeline.
The pipeline carried various edible oils that Kraft refines and blends to make
margarine, salad dressing and other food products. Oil transfers are carried out in the
process department by Kraft’s oil pumpers, under instructions from their process shift
supervisor. On the morning of April 2, 1988, James Hayden, the corn oil pumper on the
morning shift, transferred corn oil through the section of pipe which was to be affected by
the cutting. Following the transfer, which left some residual corn oil in the section, Hayden
closed a valve on one side of the area to be cut, to block the flow of corn oil to that area.
However, he left the valve on the other side open, and kept on the air pressure of 60-80
pounds per square inch (“psi”). Hayden told K&t’s process shift supervisor, Paul
Montgomery, that the transfer had been completed. When Hayden’s shift ended at noon,
he was replaced by Charles Manhart. Manhart was not aware of the planned cutting, and
he did not turn off the air pressure or close the open valve before the cutting commenced.
Two of Kraft’s maintenance employees, Daniel Cunningham and Michael Bartholo-
mew, began cutting about 1:05 p.m., after being told by Montgomery that the line was ready.
The work was part of the plant’s “kosherization” process, which involved cleaning and
separating oil transfer lines to ensure that animal oils could not mix with vegetable oils.
“Kosherization” involved removing unused three-way valves such as the one involved in the .
accident.
To prepare for the cutting, Bartholomew secured the pipe section with a cable so that
it would not fall to the floor when the bolts were cut. Bartholomew testified that there is
no way to prevent the pipeline from shifting during such a cutting operation. He further
testified that both he and Cunningham stood on a tank which was about four feet high to
do the cutting. Cunningham cut three bolts from the three-way valve with the acetylene
torch, and had started on the fourth bolt when the pipeline shifted slightly. The gasket .at
the flange between the valve and the line then broke loose. Corn oil flowed out of the line
3
and onto the floor for about 60 seconds (probablyabout a quart in all). Then the gasket
exploded into flames and fire spread toward Bartholomew. He tried to jump off the tank,
but was unable to do so before the “fire explosion,” as kaft terms it, reached him. Cup
ningham died as a result of the accident. Bartholomew was hospitalized for several months
with severe bums.
ANALYSIS
1l Citation 1, Item 1: Former section 1910.252(d)(2)(vi)(c) -- now section
1910.2S2(a)(2)(vi)(C)2
The cited provision stated:
8 1910.252 Welding, cutting, and brazing.
(d) Fire prevention tind protection --
i2j. sp ecialprecautiom When the nature of the work to be performed falls
within the scope of iubdivision (ii) of this subdivision certain additional
precautions may be necessary:131
&i) l Prohibited areas. Cutting or welding shall not be permitted in the
following situations:
ii) *In the presence of explosive atmospheres (mixtures of flammable gases,
vapors, liquids, or dusts with air), or explosive atmospheres that may develop
inside uncleaned or improperly prepared tanks or equipment which have
previously contained such materials, or that may, develop in areas with an
accumulation of combustible dusts.
The Secretary argues that the standard was violated because an acetylene torch was
used to cut bolts from a valve connected to the pipeline containing a residue of a flammable
liquid (corn oil) mixed with compressed air. The Secretary asserts that during the cutting,
‘Section 1910.252 was reorganized on April 11, 1990. The provisions cited here were redesignated as parts
of section 1910252(a). The substance of section 1910.252 was unchanged, however. FM Rule: FWfing
Cuttingand Brazing, 55 Fed Reg. 13,694, 13,696 (1990).
?he reference to “subdivision (ii)” was reworded in the 1990 amendment to the standard (see mpra note 2).
The current version (0 1910252(a)(2)), explicitly refers to the preceding subdivision (ii) (now paragraph
(a)(l)(ii)). That paragraph requires heat guards “[i]f the object to be welded or cut cannot be moved and if
all the fire hazards cannot be removed[.]” Heat guards would have been required for the work here, for
example, because of the combustible nature of the corn oil which dripped from the opening in the pipeline.
Kraft does not argue that the limitation of the standard to work within the scope of “subdivision ii” renders
it inapplicable here.
the torch could heat the corn oil/air mixture enough to cause it to develop into an explosive
atmosphere inside the pipeline, which was “uncleaned or improperly prepared equipment”
under the standardo4 The judge found that:
the standard’s requisite of the presence of an explosive atmosphere or a
situation where an explosive atmosphere may develop has been fulfilled by the
facts of this case. . . . Under the circumstances herein, it is foreseeable that
the line and gasket might move, permitting anything therein (air and oil) to
escape.
Thus, he found essentially that the acetylene flame could ignite the corn oil/air mixture’ as
it escaped Tom the pipe when the bolts were cut, and that the ignition could spread into the
pipeline, creating an explosive atmosphere there.
Kraft objects to the judge’s finding of a violation on three basic grounds. It argues
that the judge: (a) improperly construed the cited provision by equating “flammability” or
“combustibility” with “explosive atmosphere”; (b) gave insufficient weight to a study by an
independent laboratory on the hazards in the piping system; and (c) improperly disregarded
the testimony of its Corporate Safety Director on the issue. It also argues that the citation
should be vacated because it did not know, and could not reasonably have known, that the
hazards existed.
a. KrafVs argument that the judge imprqerly equated 6Y’kunmability99or
L’combustibility’9with “explosive atmosphere”
Kraft acknowledges that a “fire explosion” occurred. It contends, however, that the
citation should be vacated because the Secretary did not prove that an explosive atmosphere
existed inside the pipeline. The standard prohibits welding and cutting in the presence of
an explosive atmosphere as well as wherever “explosive atmospheres may datelop inside un-
cleaned or improperly prepared tanks or equipment which have previously contained
[mixtures of flammable gases, vapors, liquids, or dusts with air].” (Emphasis added.) The
4We accept the Secretary’s position, and the judge’s implicit finding, that the pipeline was “equipment”
covered by the standard. Kraft has not disputed the issue. We note that among the common definitions of
“equipment” is “apparatus,” or “the fixed assets other than land and buildings of a business enterprise
5
judge affirmed the violation based on his finding that it was foreseeable that an explosive
atmosphere may develop, and we agree5
Kraft argues that although the corn oil may be flammable or combustible, the
Secretary did not show that it may be “explosive,” which is what the cited standard regulates.
& the judge noted, however, the term “explosive atmospheres” is defined in terms of
“mixtures of flammable gases, vapors, liquids, or dusts with air . . . inside uncleaned or
improperly prepared tanks or equipment which have previously contained such materials.”
The judge correctly found that those flammable mixtures may develop into “explosive atmos-
pheres” where they occur inside uncleaned tanks or equipment.
The judge’s finding is supported by the source standard published by the National
Fire Protection Association (“NFPA”) -- NFPA Standard SlB, 1962 [TFPA welding stand-
ard”1. See section 1910.256. The NFPA welding standard is expressly referred to in former
section 1910.252(d)( 1) -- now section 1910.252&1).6 Kraft relies on that standard as a
guide to the meaning of the cited requirement.
The NFPA welding standard states, “[flire and explosions have also been caused
where this heat [heat of the metal being welded or cut] was transmitted, as in the case of
a container, through the metal to a flammable atmosphere or to combustr’bles within the
container.” The NFPA standard makes clear that where oxygen and ‘fuel gas (such as
‘Kraft points out that the citation and Complaint alleged the violation in terms of “the presence of an
explosive atmosphere” (emphasis added). However, Kraft does not protest the judge’s reliance on the
language of the standard that prohibits cutting where an explosive atmosphere “may ckvep.” The Secretary
submitted a great deal of evidence on that requirement without objection, and that evidence would not be
relevant unless the issue of whether an explosive atmosphere “may develop” was being tried. Kraft does not
suggest that it was unaware that its compliance with that part of the standard was a disputed issue tried at the
hearing. Based on these circumstances, we find that the parties squarely recognized that the issue whether an
explosive atmosphere “may develop” in circumstances like those involved here was being tried, and thus the
judge’s reliance on that language was proper. C’, e.g.,Annour R& Co., 14 BNA OSHC 1817,1823-24,1987-
90 CCH OSHD ll29,088, p. 38,885 (No. 86-247,199(I) (trial by consent of unpleaded issue may be found only
when parties squarely recognized that they were trying that issue).
Vhat provision stated:
(d) Fire prevention and protection-(l) Basic precautions. For elaboration of these basic
precautions and of the special precautions of paragraph (d)(2) of this section as well as a
delineation of the fire protection and prevention responsibilities of welders and cutters, their
supervisors (including outside contractors) and those in management on whose property
cutting and welding is to be performed, see, Standard for Fire Prevention in Use of Cutting
and Welding Processes, NFPA Standard 5lB, 1962. . . .
acetylene) flames have overheated “containers that had not been purged of flammable
materials . . . an explosion generally resulted.” That passage clarifies that NFPA viewed the
hazard from ignition of the flammable materials in such containers as an explosion hazard.
The Secretary’s interpretation of the term “explosive atmosphere” to cover a mixture of a
flammable liquid and compressed air, heated to a temperature at which it could ignite inside
an uncleaned pipeline, is well supported.
We also agree with the Secretary’s view that the corn oil here was a “flammable .
liquid” under the cited standard. The NFPA welding standard does not define “flammable,”
and uses it interchangeably with “combustrble.” It states that both fire and explosion
hazards “can arise where the cutter or welder may not be aware of (1) the proximity or the
flammable nature of nearby combustible solids, liquids, or dusts; [or] (2) the presence or
development of possibly explosive mixtures of flammable gases and air; . . . .” (Emphasis
added.) We have found no evidence that either_ NFPA or OSHA intended to limit the
meaning of “flammable” in their welding standards to substances that ignite at temperatures
below loo0 F.’ On the other hand, it bears noting that the temperature generated by an
acetylene torch during cutting or welding typically exceeds loo00 F at the point of work, as
it did here. In view of the very high temperatures involved with cutting or welding, it would
be incongruous to read the cited standard as only applying to substances that ignite at
temperatures below loo0 F.
Furthermore, “flammable” is sometimes used interchangeably with “combustible” in
ordinary speech. For example, “flammability” is defined as “ability to support combustion:
burning rate
combustion l . . .” Webster’s Third New International Dictionary (196). A common
definition of “flammable” is “capable of being easily ignited and of burning with extreme
rapidity . . . compare COMBUSTIBLE, EXPLOSIVE l . . .” Id. A common definition of
“combustible” is “capable of undergoing combustion or of burning -- used esp. of materials
‘By contrast, the general industry standard on “flammable and combustible liquids” defines “flammable liquid”
as “any liquid having a flashpoint below loo0 F,” except where the portion of the liquid containing-that
flashpoint is 1% or less of the total volume of the mixture. Section 1910.106(a)(19). That standard defines
“combustible liquid” as “any liquid having a flashpoint at or above loo0 F.” Section 1910.106(a)(18). The
source standard for section 1910.106 is NFPA No. 30.1%9, Flammable and Combustible Liquids Code.
Section 1910.115. It is undisputed that Kraft’s corn oil had a flashpoint of 6100F, and thus would be classified
as combustible under that standard, rather than flammable.
7
that catch fire and bum when subjected to fire . . . .” Id. An “explosive substance” is
defined as one “that on ignition by heat . . . undergoes very rapid decomposition (as
combustion) with the production of heat and the formation of more stable products (as
gases) which exert tremendous pressure as they expand at the high temperature produced;
. . . .
99 Id.
Thus, we find here that corn oil was a “flammable liquid” under the standard. Kraft
has not shown that more restrictive definitions of the relevant terms govern the standard. l
We therefore read the standard to prohibit welding and cutting where an explosive
atmosphere may develop due to the heating of a corn oil/air mixture to its flashpoint inside
a pipeline during the welding or cutting.
The evidence establishes that such an explosive atmosphere could develop here. The
flashpoint of the corn oil was 610 degrees Fahrenheit (” F). The “flashpoint” is the
temperature at which a liquid gives off enough vapor to form an ignitable mixture with air
near the liquid’s surface. Corn oil can be ignited at a lower temperature if it forms a mist,
spray or froth with air. The evidence indicates that the corn oil mist could be ignited when
preheated to a temperature in excess of 3ooOF. Corn oil is transferred through the lines at
the Sherman plant at only about 1100 F to 1200 F. However, the judge found that the best
estimate of the heat of the acetylene torch was approximately 17ooOF. He credited the
testimony of Leroy Smith, the former maintenance foreman, to that effect, based on Smith’s
work experience. Smith also testified that it is possfble to heat the corn oil inside a pipe to
3ooOF while cutting pipe bolts with an acetylene
. torch.
Kraft argues that the judge confused the meaning of “explosive atmosphere” by
equating that term with “flashpoint.” To the contrary, however, the judge merely found that
if the mixture of corn oil and compressed air were heated to its flashpoint inside the pipeline,
an explosive atmosphere would exist. Again, his finding is fully supported by the NFPA
welding standard.
Kraft also argues that the judge concluded that if there was an explosion, a fortion’,
the corn oil must have been an explosive atmosphere. The judge did not draw that
conclusion, however. Rather, he decided that the terms of the cited standard were violated,
regardless whether the corn oil/air mixture actually developed into an explosive atmosphere
inside the pipeline. He held that the standard was violated because that mixture co&ii have
developed into an explosive atmosphere in the circumstances.8
Kraft further argues that the cited provision did not apply to mere explosive fire
hazards because it did not explicitly mention them, whereas other provisions of section
1910252(d) specifically regulated “fire hazards,” “combustible material,” “flammable
materials,” and “dangerous combustibles.” Kraft relies on “a fundamental tenet of statutory
construction that where particular language is used in one section of a statute but omitted
in another section of the same statute, it is presumed that the inclusion or exclusion was
done intentionally.” However, Kraft’s “legal presumption” approach would fail, even if it
were appropriate to resort to a legal presumption here. A presumption that the cited
provision did not apply to explosive fire hazards is implausible in view of the fact that the
welding standard addresses such hazards, and that section 1910.252(d) was entitled “Fire
prevention and protection.” The best presumption is that a provision addressing explosive
atmospheres, within a section that expressly addresses fire hazards, would cover explosive
fire hazards.
b0 KrafVs argument that the judge gave insuffkient weight to the independent
laboratoq& study
Following the accident, Kraft had a sample of the corn oil from the piping system
analyzed by the Southwest Research Institute (“SRI”), an independent laboratory in San
Antonio, Texas. SRI’s written report, a one-page letter, was introduced in evidence without
objection. SRI also prepared a videotape showing tests it had conducted to determine the
circumstances under which the corn oil would ignite. No attempt was made to submit that
videotape in evidence. No one from SRI testified, and no one else who had been present
during its tests testified.
SRI’s report states that the flashpoint of the corn oil was 6100 F and the fire point
was 6200 F. The report also states that it was not possible to ignite the corn oil when it was
aspirated at ambient temperature and exposed to a fire source. The results were the same
when welding grade Oxygen from a %-inch tube was introduced under pressure of 50 psi at
8Contrary to Krafi’s assertion, OSHA compliance officer Thomas Smith did not testify that the air/corn oil
mixture was explosive simply because the accident occurred. He acknowledged merely that there must have
been some explosive mixture for the explosion to have occurred.
the base of the spray. “@lition of the mist was successfully accomplished when the corn oil
was preheated to a temperature in excess of 3ooO F.”
The SRI report does not rebut the evidence on which the judge found a violation.
The judge stated:
Unfortunately, the Court had no opportunity to listen to testimony by the
[SRI] research engineer (Eugene L. Anderson) or to view the video tape of
the test which he conducted. However, it is noted that the air pressure in the
subject line (60-80 psi) was higher than the pressure present in the test (50
psi). The heat of the torch at the workplace was vastly hotter than the heat
employed in the test. Also, the size of the venting (prior to explosion) may
[have] been quite different than that used in the test. Moreover, the little or
small fireball seen by Manhart (second stage of chain reaction) was approxi-
mately the same length as the plume described in the test [by Leroy Smith,
based on the videotape]. . . I have not overlooked the possible differences
l
in shapes described by Manhart (fireball-ankle to chest level) as contrasted to
the one described in the test result (plume) or by Hanson’s viewing of the
video (narrow). . . . If not semantical in nature, then any actual difference in
the shape of the fires could have resulted from possible differences in work
and test conditions. In any event, the hazard of an explosive (mixture of
flammable gases, vapors, liquids with air) atmosphere is well established in this
case. The fact that an acetylene explosion dwarf&a corn oil explosion does
not alter the essence of the latter.
(Citations to record omitted). The SRI report does not indicate that the conditions under
which the SRI tests were conducted were actually comparable to those in the Sherman plant.
The failure to submit the videotape, which would show the conditions under which the SRI
tests were conducted, is unexplained. We therefore conclude that the judge correctly
rejected Kraft’s arguments based on the SRI report.
c. KrafPs argument that the judge improperly disregarded the testimony of its
corporate safety director
Kraft’s Corporate Director of Safety, Jack Hanson, testified that in his opinion it is
very unlikely that the accident resulted from an explosive atmosphere due to the corn oil/air
mixture inside the pipeline. Hanson has extensive qualifications on welding safety? As
elaborated below, however, Hanson acknowledged that an explosive atmosphere could have
%anson had an undergraduate degree in mechanical engineering and manufacturingtechnology,and master’s
degrees in industrial operations and industrial safety. He had several years of teaching experience in the
subject areas of welding, fire protection and safety engineering. He also had several years of welding and
cutting supervisory experience.
10
developed inside the pipeline due to the corn oil/air mixture. This is the decisive issue here.
The judge did not disregard Hanson’s testimony. He discussed Hanson’s testimony, and that
testimony supports the judge’s holding on the decisive issue.
When asked his opinion about the possible causes of the accident, Hanson’s first
response was, “[wlell, the corn oil itself was a possibility.” Hanson discussed “two possibili-
ties with the corn oil.” Those were that “the torch ignited the air/oil mixture” after the valve
flange opened, or that the air/oil mixture, already ignited, ignited the acetylene due to a
fissure in the acetylene hose.
Hanson testified that it is “highly unlikely” that the torch could have heated the corn
oil to 3ooO F, because of the mass of the bolts on the valve flange, which were all that
Cunningham was attempting to cut. Hanson further concluded that it is “very unlikely” that
the torch ignited the corn oil vapors, because of Bartholomew’s statement that the oil flowed
from the flange for approximately 60 seconds before the explosion. Hanson opined that if
the corn oil or its vapors were ignitable, they probably would have been ignited much more
quickly and would have been burning when people arrived to investigate (Hazelwood was
on the scene within 30 minutes, for example). On the other hand, as noted above, Hanson
acknowledged that an explosion of the corn oil vapors was a possible cause of the accident.
Hanson testified that in his opinion the most likely cause of the accident was an
acetylene explosion, due to Cunningham inadvertently passing the welding torch over the
acetylene hose, which then vented acetylene, causing the explosion. Hanson testified that
acetylene is extremely flammable and explosive. He testified that the eye witnesses’
descriptions of the fire/explosion were consistent with an acetylene explosion. He also
testified that, based on the SRI tests, corn oil would not be a self-sustaining ignition, and
would tend to be “a narrow, straight type of flame, like a blowtorch as opposed to a big ball
of fire,” such as the one the witnesses to the accident described. Again, however, Hanson
could not rule out a corn oiI/air explosion.
It bears noting that there was a good deal of other testimony that a corn oil/air
mixture may have developed into an explosive atmosphere in the pipeline. Leroy Smith, a
manufacturing engineer for Kraft, testified that Bill Wardlaw, the maintenance superin-
tendent at the time of the accident, said it was very possible that the corn oil caused the
11
accident. r* Smith also testified that it is possible to heat the corn oil inside a pipe to a
temperature of 3ooO F while cutting pipe bolts with an acetylene torch.”
Thomas Smith, the OSHA compliance officer (“CO”) who conducted the inspection,
gave the opinion that the accident happened because corn oil vapors, under air pressure of
60-80 psi, had been heated inside the pipeline during the cutting, expanded out when the
valve flange opened, and were ignited by the acetylene torch. He testified:
By heating you’ve created a mist out ,of the oil and when it mixes in the
proper proportion with air that’s under pressure, the pressure is immediately
released, you’ve got an ignition source in the torch and you have the possibility
of an explosion or fire or both.
The CO testified that “vegetable oils are pretty much known to bum,” and that kitchen fires
can result from overheating of vegetable oil. Smith had been a CO for four years. His
relevant background in flammable and explosive materials was his basic, three-week training
Y
to be a compliance officer, and a hazardous materials course, both conducted by OSHA,
In summary, the evidence supports the judge’s finding that an explosive atmosphere
may develop where a mixture of air with a flammable liquid such as corn oil may become
heated to its ignition temperature inside a pipeline.
d l Whether the Secretary established the requisite knowledge of the violative conditions
In order to prove a violation, the Secretary must show that the employer knew, or
with the exercise of reasonable diligence could have known, of the violative conditions. E.g.,
Tampa Shijyardk, Inc., 15 BNA OSHC 1533, i535, 1992 CCH OSHD 129,617, p. 40,097
(No. 86-360, 1992). Kraft argues that it had no reasonable way of knowing that the corn oil
piping system could produce an explosive atmosphere. Hanson, its highly qualified
Corporate Director of Safety, testified that “[i]n my inspections of this plant and several like ”
‘*Wardlawdid not testify. Smith testified that Wardlawwas in the hospital with chest pains during the
hearing. The judge d&cussed Smith’s hearsay testimony about Wardlaw’sstatements, and Krafi raises no
objection to consideration of that testimony.
“Leroy Smith gave the opinion that generally, when a bolt is cut out of a flange, as Cunningham did just
before the accident, the surrounding pipe will not heat up. He testified that the speed of the operation and
the mass of the flange prevent the heat from transferring to the pipe. On cross-examination,however, he
testified that he was speaking of the “piping away from the bolt,” that is, “within probably a foot” away.
Hanson also testified that employeesoften can place their hand on the pipe while they are cutting off the end
of the bolt, and don’t sense any high temperature. However, Leroy Smith’s testimony that the corn oil inside
a pipe may be heated to 3ooo F while, pipe bolts are being cut (as they were here) indicates that an explosive
atmosphere “may develop” under those conditions.
12
it -0 almost identical -- I’ve been in this [corn oil transfer] area many times and did not
evaluate this as an explosive atmosphere.” Hanson also gave the opinion that the cited
standard “deals with a pre-erdsting condition where you would prevent an employee from
going into an explosive atmosphere.”
Thus, Kraft’s argument that it lacked the means of knowledge of an explosive
atmosphere rests on its interpretation that the standard applies only to explosive
atmospheres that may develop before cutting or welding begins. However, the Secretary
reasonably interprets his standard to prohibit welding or cutting that may produce an
explosive atmosphere. As discussed above, the NFPA welding standard was concerned with
explosions caused by cutting or welding on a container, with the heat being transmitted “to
a flammable atmosphere or to combustibles within the container.” Again, Kraft relies on
the NFPA welding standard as a guide to the meaning of the cited standard. Thus, Kraft
reasonably could have known of the violative conditions here - permitting cutting or welding
where an explosive atmosphere might develop inside the pipeline due to the cutting or
welding.
We emphasize that we are not deciding here what actually caused the accident. We
are addressing the limited issue of whether Kraft bears responsibility under the Act for
noncompliance with the cited standard. We find that it does, because its supervisors
permitted cutting to be done on bolts connected to a valve in a pipeline, when there was a
significant risk of harm due to a potentially explosive mixture of flammable corn oil and air
inside the pipeline.
e. Conclusion
The Secretary has proved all the elements of a violation. The standard applied to .
the cited conditions and Kraft failed to comply with the terms of the standard, for the
reasons discussed above. Kraft’s employees had access to the cited conditions and, with the
exercise of reasonable diligence, Kraft could have known of those conditions. E.g., Gay
Concrete Products Iltc., 15 BNA OSHC 1051, 1052, 1991 CCH OSHD ll 29,344, p. 39,449
(No. 864087, 1991). For these reasons, we affirm Item 1.
13
2l Citation 1, Item 2: Former section 1910.252(d)(2)(xiii)(a) -- now section
1910.252(a)(2)(xiii)(A)
The cited provision stated:
(xiii) Management. Management shall recognize its responsibility for the safe
usage of cutting and welding equipment on its property and:
(a> Based on fire potentials of plant facilities, establish areas for cutting
and welding, and establish procedures for cutting and welding, in other areas.
The judge affirmed this citation item based on his finding that Kraft’s “work policies,
procedures, and work rules l l s were inadequate in this situation.” He further found that
K&t’s safety program “was lax in actual practice.” We affirm a violation because Kraft
lacked adequate procedures to assure that welding or cutting was not inadvertently carried
out in the presence of a potentially explosive atmosphere.
Kraft notes that it established certain procedures for safe cutting and welding. Under
Kraft’s procedures, maintenance employees such as Cunningham and Bartholomew were
required to get the process shift supervisor’s permission before performing work such as
torch cutting or welding with oxygen and acetylene. The process shift supervisor was in a
position to know whether or not the line to be cut was in use.12
Kraft also had written procedures for its oil pumping operations. Before transferring
oil through a pipeline, the oil pumper was to check all valves connected to the line to be
sure the right ones were open and that the others were closed. After completing a transfer,
the oil pumper was to “[b]e sure to burp line so as to clean line of all remaining oils to
prevent contamination of oils or line solidifying . . . [and] [c]lose valve after air has been
turned off .“13
However, at the time of the accident, Kraft did not have a procedure to assure that
oil pumpers were informed if a cutting operation was to be undertaken. The lack of such
‘%e judge found that K&t’s procedure for getting the process shift supervisor’s permissionwasnot followed
in practice. He noted Leroy Smith’s testimony that it was normal to attach a “standard procedure list” to a
work order at the time of the accident. However, he found the testimony of Bartholomew and Montgomery
convincing that mechanics were never given that list. Kraft asserts that the mechanics were given extensive
training which ensured that they knew the required procedures. Kraft may have trained mechanics in its
procedures, but those procedures were inadequate.
13Kraftargues that the written oil pumping procedures were considered safety rules. However, the expressed
purpose of those procedures was to “prevent oil spills or improper mixes” and to “prevent contamination of
oils or lines solidifying.” The evidence that &aft cites does not show that those rules were explained to
employees as safety requirements.
14
a procedure was important because, as oil pumper Manhart testified, it was a common
practice for an oil pumper to leave air blowing on several .different lines when his or her
shift ended.14 In fact, on the day of the accident Montgomery apparently assumed that the
compressed air had been turned off and all valves closed, when oil pumper Hayden reported
that the oil transfer had been completed. However, the air was on and a valve on one side
of the area being cut was left open?
The “procedures” that an employer is to establish are not spelled out in the cited
provision. However, the provision must be interpreted to require reasonable procedures to
avoid the various “fire potentials of plant facilities.” We conclude that Kraft’s lack of a
specific procedure to assure that no welding or cutting was done where an explosive
atmosphere could result inside a pipeline constitutes a deficiency under the cited standard.
30 Citation 1, Item 3: Former section 1910.252(d)(2)(xiv)(c)(3) -- now section
1910.252(a)(2)(xiv)(C)(3)
The cited provision stated:
(xiv) supervisor. The Supervisor:
(C)‘Shall protect combustibles from ignition by the following:
($ ‘see that cutting and welding are so scheduled that plant operations that
might expose combustibles to ignition are not started during cutting or
welding.
The judge found a violation because:
Montgomery, the process shift supervisor, was the only person of those
involved who knew both that the valve was unblocked (had been unblocked)
and that clearance was being given for mechanics to enter the line. Due
diligence mandated that he make certain the air was not on the line and valve
14Montgomerytest&d that he would not let maintenance employees work on a line if it was in use. However,
he testified that he did not remember informing Manhart, the oil pumper whose shift started at noon on the
day of the accident, that Cunningham and Bartholomew would be working on the line. Montgomery did tell
Hayden, the oil pumper whom Manhart replaced at noon, about the planned valve removal. However, Hayden
left the air pressure on (and the valve on one side of the cutting work open) following his oil transfer that
morning, and did not tell Manhart about the planned valve removal. Manhart testified that he did not know
the mechanics would be working on the pipeline until he noticed them, moments before the explosion.
lSMontgomery knew that welding equipment might be used for the bolt removal. Bolts had been cut that way
before during Kraft’s kosherization process. In fact, Bartholomew told Montgomery before lunch that they
were going to bring their rig up so that they could start immediately after he gave them the go-ahead.
15
blocks had been restored. He did neither. His knowledge of the facts is
imputed to the Respondent.
Although &aft’s scheduling of cutting and welding was flawed, as discussed above
under Item 2, the standard cited here only requires scheduling so as to avoid the stating of
plant operations during cutting and welding, where these operations might expose
combustibles to ignition. There was evidence regarding the starting of only one plant
operation -- the transfer of oil -- and the evidence did not show that such a transfer could
start during cutting or welding.
Rather, Kraft required the oil pumpers to check all valves along the pipeline to
assure that the right ones were open and the others closed, before transferring oil. There
was no evidence presented that oil pumpers failed to comply with that procedure. When
checking the valves, the oil pumper would see whether welding or cutting was taking place,
and would avoid any transfer that could affect that_- area. It bears noting that the oil transfer
that Hayden carried out on the morning of April 2,1988, was completed before the cutting
began. There was no evidence presented suggesting that other operations that were shut
down could actually start during cutting or welding. Thus, we vacate this item.
40 Whether Krafkproved the affkmative defense of unpreventable employee misconduct
Kraft argues that no violations should be found in this case because any noncompli-
ance with the standards was due to unpreventable departures by employees from company
safety rules? Kraft points out that it had numerous safety rules and that it communicated
them to employees in writing when they were hired, and in meetings. It notes that its
written oil pumping procedures were distributed to oil pumpers and were discussed at
meetings involving them. Kraft also presented evidence that it disciplined employees when
it learned of violations of the rules.
However, as discussed above, Kraft did not have sufficient safety rules to prevent the
violative conditions in this case from occurring. It lacked adequate procedures to deal with
the hazards of flammable liquids and air mixing in uncleaned portions of its pipeline and
“In order to negate a violation on those grounds, the employer must show that: (1) it established work rules
designed to prevent the violative conditions from occurring; (2) the work rules were adequately communicated
to its employees; and (3) it took steps to discover violations of those rules, and effectively enforced the rules
when violations were discovered. E.g., Gary Concrete, 15 BNA OSHC at 1055,199l CCH OSHD at p. 39,452.
16
developing into an explosive atmosphere during cutting or welding. Accordingly, although
&aft had an active safety program, the program was not sufficient to support itsdefense of
unpreventable employee misconduct.
5 0 Penalties
The Secretary proposed a penalty of $560 for each of the three alleged serious
violations. Finding that each violation could be, and was, corrected by the same measures,
the judge combined the penalties and assessed a single $560 penalty for the three violations
that he found. The Secretary has not objected to that assessment.
Kraft is a large company and the hazards were severe. On the other hand, those
hazards were far from obvious, as the testimony of Kraft’s highly qualified Corporate
Director of Safety indicates. Kraft had an active safety program, and had instituted certain
pertinent procedures. There is no evidence of a: -similar incident occurring previously at a
Kraft facility. ISraft showed complete good faith in cooperating with OSHA’s investigation,
and the Secretary did not indicate that Kraft has an unfavorable history of violations. Thus,
considering the penalty factors set forth in 29 U.S.C. 6 666(j), and considering that we are
vacating one of those items, we will reduce the combined penalty to $375.
60 Conclusions
For the reasons given above, we affkm Items 1 and 2 of the Secretary’s citation for
serious violations, and we vacate Item 3 of that citation. We assess a total penalty of $375
for the two violations.
Chairman
Velma Montoya c/
Commissioner
Dated*. September 20, 1993
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSlohl
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
PHONE:
COM (202) 6064050
COM (202) 5064100
Frs (202) 60&5050
Frs (202) 6os51oo
..
SECRETARY OF LABOR, ..
Complainant,
..
v. .. Docket No. 884736
KXWT FOOD INGREDIENTS
CORP.,
Respondent.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
.
SeDtember 20.1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF T’HEDATE OF TEUS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 9 660.
FOR THE COMMISSION
SeDtember 20, 1993
Date
Docket No. 88-1736
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
James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202
Douglas T. Moring
Senior Counsel
Kraft, Inc.
Kraft Court
Glenview, IL 60025
William IS. Principe, Esq.
Patrick R. Tyson, Esq.
Constangy, Brooks & Smith
Suite 2400
230 Peachtree Street, N.W.
Atlanta, GA 30303-1559
Administrative Law Judge .
Occupational Safety and Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242.0791
UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246
FAX;
COM (202) 634 -4008
m 634-4C98
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 884736
KRAFT, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE MW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on January 24, 1992. The decision of the Judge
will become a final order of the Commission on February 24, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
An such etition should be received by the Executive Secretary on or before
Fe ruary
. . 3 1992 in order to ermit sufficient time for its review. See
C!!si!nRu.le 919 29 C 0F .I!!. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
hawng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.
Date: January 24, 1992 Ray H. -Darling, Jr.
. Executive Secretary
DOCKET NO. 88-1736
NOTICE IS GIVEN TO THE FOLLO\NING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blbg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752b
Douglas T. Moring
Senior Counsel
K&raft,Inc.
Kraft court
Glenview, IL 60025
E. Carter Botkin
Administrative Law Jud e
Occupational Safety an cf Health
I Review Commissron
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791
00100791474:06
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, 0
l
0
.
Complainant, :
0
l
v. 00
*
0 OSHRC DOCKET NO. 88-1736
KRAFT FOOD INGREDIENTS 0
l
CORPORATION, .
0
0
*
Respondent. l
APPEARANCES: E. Jeffery Story, Esquire
Dallas, Texas
For the Complainant.
Douglas T. Moring, Esquire
Glenview, Illinois
For the Respondent.
DECISION AND ORDER
BOTKIN, Judge:
This is a proceeding brought before the Occupational Safety
and Health Review Commission (Vhe Commission") pursuant to S 10 of
the Occupational Safety and Health Act of 1970, 29 U.S.C. S 651 et. .
seq. (Yhe Act?.
The Occupational Safety and Health Administration ("OSHA")
inspected Respondent's plant in Sherman, Texas, after a tragic
accident which occurred on April 2, 1988. As a result of the
inspection, two citations were issued. The first citation alleges
serious violations of 29 C.F.R. §§ 1910.252(d)(2)!vi)(c),
19100252(d)(2)(xiii)(a)and 1910.252(d)(2)(xiv)(c)(3)m The second
2
violation of 29 C.F.R. S 1910.252(d)(3)(i).L
alleges an V1otherqV
Respondent timely contested all items of both citations and a
hearing took place in Dallas, Texas. The Commission's jurisdiction
is not in issue. Only Respondent filed a post-hearing brief.
Background
Respondent has owned and operated the Sherman plant since
October, 1987. Before Respondent purchased the plant, the owner
was Anderson Clayton Foods. The facility refines and blends edible
oils to make margarine, salad dressing and other products. It has
variousprocessingdepartments,includinghydrogenation, bleaching,
and mixing areas. Employees called oil pumpers are responsible for
mixing oils and transferring them to different areas in the plant
through a pipeline system. After a transfer, air is blown through
the lines to clean them. Valves in the lines direct and block the
flow of oil and air through the system. (Tr. Vol. I, pgs. 12-13;
20-22; 34; 46-49; 67; 171; Exh. R-l; R-2).
For several weeks before the accident, the plant was
undergoing "kosherization," which involved cleaning and separating
transfer lines to ensure animal oils were not mixed with vegetable *
oils. It also involved removing unused three-way valves. On April
2I 1988, two of Respondent‘s maintenance employees, Daniel
Cunningham and Michael Bartholomew, were engaged in removing a
.
valve from an overhead line in the hydrogenation area. oil escaped
from the line, vapor appeared and a fire exploded, causing
IThe specific language of the allegations as set out in the
citations appears infra, in the opinion portion of this decision.
Cunningham's death and severe burn injuries to Bartholomew. (Trl
vol. 1, pgs 23-26; 32; 44; 51-52; 76; 99-103; 148-150; Vol. II,
pgs. 29-30).
The Evidence
Michael Bartholomew testified. From October, 1987, up until
the time of the accident, he was an apprentice mechanic in the
maintenance department of the Sherman plant. He is currently a
truck driver at the plant, the position in which he has worked for
about 13 years. (Tr. Vol. I, pgs. 70-72).
Bartholomew explained that on April 2, 1988, he and Cunningham
were assigned to remove a valve in the hydrogenation department
pursuant to a work order and instructions from their foreman, Mike
Nowlan. He had done this kind of work a number of times, although
not with Cunningham They could not start the job that morning
because James Hayden, an oil pumper, was using the line to pump
oil. At 12:30 p.m., Paul Montgomery, the process shift supervisor,
told them the line was ready. They began the removal job at LOO
p.m. (Tr. Vol. I, pgs. 72-77; 85; 88-89; 93-94; Exh. R-3).
Bartholomew% job was to help Cunningham, a journeyman
mechanic. The valve they were to remove was on a line which
crossed over the center of a tank. The tank was about four feet
high, Both he and Cunningham were on top of the tank, and
.
Cunningham was using an acetylene torch to cut the bolts from the
valve. He had cut three bolts and started on the fourth when the
gasket between the valve and the line broke loose and oil, about a
quart, ran out of the line and onto the floor for about 60 seCondsI
.
4
Bartholomew said the gasket exploded into flames and fire spread
towards him. He tried to jump off the tank, but was unable to do
so before the fire reached him. (Tr. Vol. I, pgs. 72-76; 98404).
Bartholomew was in the hospital for several months after the
accident. He said that in July or August, 1988, Bill Wardlaw, the
maintenance superintendent at the time of the accident, visited him
in the hospital. Wardlaw said he'd seen a training film after the
accident about a similar occurrence in another plant in which four
men had died. Bartholomew thought Wdrdlaw said the plant was in
Pennsylvania, but was not sure since he was "pretty doped upl‘at
the time. Wardlaw told him that based on the film, he thought the
accident was caused because the oil pumper, instead of turning off
the air pressure in the line, had blocked the line with a valve to
keep air out of the section being cut into. However, there was
still air pressure in the line, as well as oil. When the line
opened, the air and oil atomized and the cutting torch caused an
explosion. Bartholomew said Wardlaw wanted him to see the film;
however, when he got out of the hospital, Wardlaw no longer had it.
(Tr. Vol. I, pgs. 79-83; 86-87; 104-05; 108-110).
James Hazelwood also testified. He is the process
superintendent at the Sherman plant. He has been at the plant
since 1965 and has overseen product processing since 1974. He
arrived at the scene within 30 minutes of the accident. The fire
department had just extinguished the fire, and there was thick,
black smoke in the area. He saw air and mist blowing out of the
cut valve, which was on an overhead line seven or eight feet from
5
the floor. The mist w'asnot burning, and he saw no oil underneath
the valve. The acetylene torch head and hose were on the floor
below the valve; the hose was burned. The cutting rig was about 30
feet southeast of the site. The temperature had melted metal
covering on insulation about two feet away from the site and
splattered it on walls ten to twelve feet further away. There was
burn damage eight to ten feet east and ten to twelve feet west of
the site, as well as damage six to eight feet south and two to four
feet north. There was also burn damage to the ceiling, which is 15
feet above the pipe and 22 to 23 feet above the floor. (Tr. Vol.
I, pgs. 19-20; 26-29; 31; 54-60).
Hazelwood investigated the accident. He traced the line from
the cutting operation to determine the source of the air and found
it came from kettles 18 and 19. . He learned corn oil was
transferred from those kettles to kettle 376 prior to the cutting
operation. He said Charles Manhart had handled the transfer. His
opinion was that a valve setting had been changed by mistake, which
directed air to the cutting operation. Although there was pressure
in the line, he was not able to determine the amount. (Tr. Vol. I,
pgs. 27; 29-31; 35-38; 54; 57; 62).
Hazelwood's findings are on Exhibit C-l, a diagram he drew of
the site. He marked C-l with a red rrXql
to show where Manhart had
worked and a red *tYtto show where Cunningham and Bartholomew had
worked. He also drew an orange line on C-l to show the common
transfer line, which ties into other lines and transfers oil
throughout the plant. (Tr. Vol. I, pgs. 25-30; 33; 41; 54).
Hazelwood described plant procedures. Maintenance employees
ask the process shift supervisor for permission before beginning
work in the area, which ensures transfer does not take place
through lines being cut into. The shift supervisor controls
transfer orders, which instruct oil pumpers to move oil through
particular lines. Oil pumpers are responsible for setting valves
and turning on and off the air that blows through the lines. At
the end of a shift, the pumper writes down any ongoing operations
in a log. This tells the next pumper what transfers are taking
place and whether there is air in the lines. Hazelwood said these
procedures were in effect at the time of the accident, and are
still in effect, although they are more documented now. Prior to
the accident, there was no procedure to advise an incoming pumper
whether cutting or other work was being performed on the lines.
Since the accident, the plant has implemented line-tagging and hot
work procedures for cutting and welding work. (Tr. Vol. L PW*
35; 39-49; 53; 63; 68; Exh. R-l; R-2).
Hazelwood testified the hazard of cutting into lines during
transfer would be that of warm oil getting on the workers. He said
oil moving through the lines ranges from ambient temperature to 140
or 150 degrees, and that the flash point for corn oil is around 600
degrees. He explained that line entry is a common procedure, and
that during kosherization, valve replacement had taken place in the
process area 20 to 25 times. Although he did not supervise
Cunningham and Bartholomew, he knew they had performed valve
replacement several times before. He said that in'the 23 years he
7,
had been at the plant, to his knowledge there had never been a
similar accident. (Tr. Vol. I, pgs. 23; 32; 37; 51; 57-58; 62-63).
James Hayden, the oil pumper who transferred the oil prior to
the accident, testified. He said he initially blocked the line on
either side of the section where the cutting work was to take
place, He unblocked it when Montgomery told him he had to use the
line, and told Cunningham and Bartholomew not to use it. When
Hayden left at noon, the end of his shift, oil was not going to the
section, but it was still unblocked. He could not remember if he
told Manhart, the incoming pumper I about the cutting operation.
Hayden marked two red rrAWr on Exhibit C-l to show the location of
the valves he used to block off the line for the cutting operation.
He also drew red arrows on C-l to show the direction of the oil he
pumped. He said the oil's temperature was between 110 and 120
degrees. (Tr. Vol. I, pgs. 112; 114-23; 126-31).
Charles Manhart, the oil pumper who relieved Hayden at noon on
April 2, 1988, testified. To the best of his recollection, air was
blowing from kettles 18 and 19 at that time, but no oil was
pumping. He said air blowing through the lines is comon, since it
cleans them after transfer, and,does not signify any danger. He
did not turn the air off. He said he could have adjusted the
valve, which he showed with a black rrX1l
on C-1; to divert air to
the comon transfer line, but that doing so is not unsafe. (Tr0
Vol. I, pgs. 132-34; 137-38; 141-43; 145-46; 168-70).
Manhart was mixing oil at the time of the accident. He was 30
to 35 feet from Cunningham and Bartholomew and had a clear view of
8
them l He had to go where they were to open a valve so he could
finish his mix, and since he didn't know what they were doing, he
was going to ask them. He started towards them; when he was about
halfway there, he heard a pop and a hiss and saw vapor rising from
the floor, He thought the two employees were standing on the
floor, but said they could have been on the tank. He saw
Cunningham holding the torch, which was shooting a flame of eight
to ten inches. A fireball suddenly appeared, about ankle to chest
size. Cunningham reeled back, and to Manhart, it seemed he was
trying to reach over and cut the torch off at the tank. Then there
was an explosion and the fire went from the floor to the ceiling.
Manhart described it as a huge, intense wall of fire with black
smoke at the top, moving towards him with a roaring noise. He said
it happened suddenly, in about a second and a half. (Tr. Vol. I,
pgs. 146-150; 156-63).
Manhart looked over his shoulder as he ran from the fire.
Although he had not seen one before, he thought it might have been
an acetylene explosion, and was afraid the rig would blow up and
hit him. The rig, which is a portable cart holding a bottle of
oxygen and a bottle of acetylene, was five to ten feet from where
Cunningham and Bartholomew were working. Manhart said he had used
acetylene torches to weld and to thaw out lines that had "set up"
with product. (Tr. Vol. I, pgs. 160-63; 166-68; 170771).
Thomas Smith, the compliance officer (lYZOqt)
who inspected the
worksite, testified. He has four years of CO experience and has
had OSHA training dealing with flanunablesand explosives. Smith
9
said that when he saw the site, it was cleaned up and the only sign
of an accident was the scorched tank. He also saw the welding rig;
it had not blown up. He discussed the possibility of an acetylene
fire with company officials, but concluded the properties of the
blaze indicated a vegetable oil fire rather than an acetylene fire.
(Tr. Vol. I, pgs. 174-79; 182-83; 209).
Smith's opinion was that an explosive atmosphere was created
when the torch heat vaporized residual corn oil in the line, which
mixed with pressurized air; when the valve opened, the torch
ignited the oil and air rushing out,.causing the fire. Smith said
there was between 60 and 80 p.s.i. of air pressure in the line, but
that it was not necessarily moving the oil. He also said the oil
was not normally explosive, but became so when torch heat was
applied. When asked if he had determined the flammable properties
of vegetable oil, he said that "just about anything can burn" and
that Wegetable oils are pretty much known to burn? He also
described how cooking accidents involving vegetable oils occur in
the home. (Tr. Vol. I, pgs. 180-85; 204708).
Smith said corn oil has a flash point, which he defined as
ignition temperature, of roughly 550 degrees. He also said liquids
in mist or spray form can ignite at temperatures below their flash
points. He relied on the National Fire Protection Association Fire
Protection Guide on Hazardous Materials ("NFPA Guide'*)to arrive at
this conclusion. He believed the oil misted because of the
acetylene torch heat, which he said would be around 4000 degrees.
Smith has no schooling in thermodynamics and had performed no
13\
calculations to arrive at this conclusion. He recommended the
citation because of the explosione (Tr. Vol. I, pgs. 199-202; 2080
10; vol. II, pgs. 103-04; Exh. C-2),
Paul Montgomery, the process shift supervisor on duty the day
of the accident, testified. He said Cunningham and Bartholomew
talked to him about the valve job that morning. He gave them
clearance to work on the line about 1:05 p.m., since it was no
longer needed for transfer. He did not recall advising his pumpers
about the line work. (Tr. Vol. I, pgs. 224-25; 227-29; 237-38).
Leroy Smith testified. He has worked at the Sherman plant for
over 21 years; for 18 years, he was in maintenance. He has been a
manufacturing engineer for two years; prior to that, he was the
plant's maintenance superintendent. (Tr. Vol. II, pgs. 32-33).
Smith investigated the site shortly after the accident. There
had been extreme heat, and the site was surrounded by a blackened
30 to 400foot circle. Conduit and electrical wiring in the area
had melted, and insulation was burned off the lines. Smith used an
explosionmeter to determine whether there were any explosive gases
in the area, and found none. He also inspected the plant's
hydrogen gas piping system, and found there was no way it could
have connected with the system involved in the accident. (Tr. Vol.
II, pgs. 56-57).
Smith was present during Bartholomew's conversation with
Wardlaw. Wardlaw said a corn oil sample had been sent for testing,
and that it was very possible the oil caused the accident. Smith
explained Wardlaw was not at the hearing because he was in the
11
hospital with chest pains. He said Wardlaw had never showed him a
tape about an accident in Pennsylvania, and that he was unaware of
any such tape. (Tr. Vol. II, pgs. 53-56; 63-64).
Smith said the corn oil sample was sent to Southwest Research
Institute (*%RI~~),where it was subjected to pressure and cutting
torch heat to determine its flammability. He identified Exhibit R-
12 as SRI's test results, and said there was also a video
demonstration of the results. Smith stated the only time he had
seen corn oil burn was in the video, after it was heated to a high
temperature. He said the flame was three feet at the most, with a
yellowish tint and no smoke. (Tr. Vol. II, pgs. 49-51; 60-61).
Smith has seen acetylene leak from a torch rig where the hose
connects onto the cutting tip. He explained that when this
happens, the acetylene "flares off!'with a yellow flame and lots of
black smoke when the torch is lit. Smith thought the temperature
of an acetylene torch was around 1700 degrees. He said torch heat
generally will not transfer
. to a pipe during a bolt-cutting
operation because of the speed of the operation and the mass of the
bolt. He had touched pipes shortly after bolts had been cut, and *
felt nothing more than the normal operating heat. He said it was
possible to hold a torch flame to a pipe and heat corn oil to 300
degrees. (Tr. Vol. II, pgs. 58-62; 71-72).
Jack Hanson testified. He has worked for Respondent in the
area of safety for 15 years and is currently the corporate director
of safety. He has an undergraduate degree in mechanical
engineering and manufacturing technology, and master's degrees in
industrial operations and industrial safety. He has several years
of teaching experience in the areas of welding, fire protection and
safety engineering. He also has several years of welding and
cutting supervisory experience. (Tr. Vol. II, pgs. 72-75).
Hanson viewed the accident scene on April 4, 1988. He also
reviewed all of the written statements of witnesses and was
involved in the decision to test the corn oil. He discussed the
SRI test results. They showed the oil's flash point was 610
degrees and that it was ignitable in mist form when heated to
temperatures in excess of 300 degrees. Hanson defined flash point
as the temperature at which a flammable liquid gives off vapor in
sufficient concentrations to form an ignitable mixture. He said
there was a video of the test results, which he and other company
officials saw. He described the oil mist flame as a narrow two to
three-foot concentration, like a torch, that quit burning when heat
was removed. (Tr. Vol. II, pgs. 77-80; Exh. R-12).
In forming an opinion *about the cause of the accident, Hanson
considered whether the corn oil mixture had ignited upon contact
with the torch heat. He rejected this possibility because the oil *
was about 110 degrees in the line, and the test results showed it
would have to be over 300 degrees to be ignitable. He said it was
highly unlikely the torch could have heated the oil to 300 degrees
because of the mass of the bolts and the fact the torch heat would *
have been concentrated on the bolts. He noted welders can actually
place their hands on pipes from which they are cutting bolts and
not sense any high temperatures. (Tr. Vol. II, pgs. 81; 83-W.
13
Hanson also considered the possibility of an acetylene
explosion and discussed what he believed was the most likely cause
of the accident. He said that during the operation, Cunningham
might have swung or dropped the torch, or draped it over something,
such that it contacted the acetylene hose; if this occurred, it was
very probable the torch cut through the hose and acetylene vented
into the air, causing an explosion. Hanson said this possibility
was in line with the physical characteristics of acetylene. (Tr.
vol. II, pgs. 81-83; 87-88).
Hanson discussed Exhibit R-9, the material safety data sheet
("MSDSV for. acetylene. It states that acetylene ignites very
easily, is highly flammable and explosive, and burns with an
intensely hot flame. Hanson said witness descriptions of a sudden
ball of fire, an explosion, and a very rapid, intense fire are
characteristic of an acetylene explosion. He also said when he
viewed the scene, it looked as though there had been intense heat
resulting from an explosion. Based on the test results, he did not
believe corn oil would have caused the same kind of fire because it
burns like a blowtorch, rather than a fireball, and is not self
sustaining. His opinion1 was that the corn oil was not flammable
under the circumstances and that the accident was caused by an
acetylene explosion. He said the explosive atmosphere was the
result of an unfortunate accident. (Tr. Vol. II, pgs. 78; 88-91; +
96; 98).
14 .
BURDEN OF PROOF
The Secretary has the burden of proving each element of his
case by a preponderance of the evidence. Astro Pharmaceutical
Products, Inc., 9 BNA OSHC 2126, 1981 CCH OSHD 125,578 (No. 780
0647, 1981), affd in pert part, 681 F.2d 69 (1st Cir. 1982).
PRELIMINARY FINDINGS
The standard governing this action contains terms such as
"explosive atmospheres", '\fire potentials", @combustiblesV,and
'flammable materialsL It does not-contain definitions of those
terms, but it does list parenthetically examples of "explosive
atmospheresV1 to be *I(mixtures of flammable gases, vapors, liquids,
or dusts with air).** In defining the words "flammable or
combustible" when used in another standard, the Commission has
looked to the dictionary -for definitions thereof,3 to the
flashpoint of thb liquid involved, and to fire hazard ratings.
*Those elements are that (i) the cited standard applied to the
factual situation, (ii) there was a failure to comply with that
standard, (iii) there was employee access to the violative
condition, and (iv) the cited employer either knew or could have
known of the violative condition with the exercise of reasonable
diligence.
3See Webster's Third New International Dictionarv (1971). It
defines lflammable'as capable of being easily ignitbd and of
burning with extreme rapidity... compare combustible, explosive.o.fi
Vombustible@ is defined as "capable of undergoing combustion or of
burning - used esp. of materials that catch fire and burn when
subjected to fire..." An *explosive substance" is defined as one
"that on ignition by heat... undergoes very rapid decomposition (as
combustion) with the production of heat and the formation of...
products (as gases) which exert tremendous pressure as they expand
at the temperature produced; 0 a 0 I
15 .
AnopIate Corp., 86 OSHRC 9/A3, 12 BNA OSHC 1678, 1690, 1986 CCH
OSHD 927,519 (No. 80-4109, 1986)? In short, the Commission
initially looked for the usual meaning of such words as
llflammable*t,then to the specific properties of the substance at
hand, and finally evaluated the foregoing in the context of the
factual situation at the workplace. The examples of an "explosive
atmosphere'* set forth in the standard are self-explanatory and in
harmony with the dictionary% definition thereof, rendering further
discussion of its meaning unnecessary.-
The flashpoint of corn oil is 610 degrees Fahrenheit (*toF11)5
(Tr. Vol I, pgs;. 57-58 Vol. II, pgs. 50-51: 79-80, Exh. R-12).
The flashpoint can be reduced by heating the liquid (corn oil) and
creating tiny droplets mixed with air, misting, spraying or
frothing. (Tr. Vol. I, pgs. 204-205: Exh. C-2). The evidence
established that, in mist form, the flash point is not reached
until it is preheated to a temperature in excess of 300 degrees.
(Exa R-12). Corn oil is transferred through the lines at
approximately 1100120°F (Vol I, pg. 130)/ At a minimum, the heat
'In ascertaining the flashpoint and fire hazard rating. of
certainmaterials, the Commission referenced N. Sax, Dangerous
Properties of Industrial Materials (5th ed. 1979) and the National
Fire Protection Association ()INFPAII),Fire Protection Guide on
Hazardous Materials.
'It is clear that the CO% figure was an estimate based on a
somewhat sketchy memory. (Tr. Vol. I, pg. 199).
bn so finding, I have not overlooked Hazlewood's comments of
that temperature being between the ambient temperature and 1400
150°F (Vol. I, pgs. 37, 57). Obviously, his remarks represented
the possible variance, depending on the liquid-involved, while
Hayden's testimony was focused on this corn oil.
16
emanating from the acetylene torch was over 1000 degrees higher
than the flashpoint of the corn oilo7 At the time of the accident,
the line contained "some** corn oil and there was air pressure in
the subject line, estimated at 60-80 pounds per square inch (IrpsP)
(Vol I, pgs. 27-31, 35-36, 54-57, 62, 79, 83, 184, 209).
CITATION 1, ITEM 1
This item alleges that 8 1910.252(d)(2)(vi)(c) was violated
(welding or cutting performed in the presence of explosive
atmospheres) when employees used a cutting torch to remove bolts
from a valve flange in the overhead pipe system while that system
contained an air/vegetable oil mixture under pressure of 60-80 psi.
Much of the controversy in this case revolves around the
'lexplosiveatmospherelissue. The CO% recommendation that this
citation be issued was based upon his belief that the work
situation produced an explosive atmosphere. In so doing, he
assumed that, once the flange-gasket moved, an opening was created
for a mist of oil (created by corn oil, air pressure and heat) to
be forcibly discharged therefrom, coming in contact with the
cutting torch and causing a huge fireball (explosion). (Tr. Vol.
I I pgs 180-185; 204-205; Vol. II, pgs. 103-104; Exh. C-2).
Respondent's contentions to the contrary (an explosive atmosphere
7There was a great range in the testimony relating to the heat
of the. torch. (Tr. Vol. 1, pg. 202; Vol. II, pg. 71); Based on
work experience, it appears that the testimony of Leroy Smith
should be more credible (approximately 1700°F). However, his
testimony lacked preciseness. Obviously, the heat emitted by such
a torch would be governed by several variables: and none of the
witnesses touched on any of such particulars (size of tip on torch,
volume of gas fed into the torch, etc.)
17
did-not exist or did not develop) are centered on two principal
areas. Those areas are primarily composed of certain statements by
the CO on the subject matter as measured against the testimony and
opinions given by Hanson thereon. (Respondent% brief, pgs. 290
32)0 8 However, in resolving this issue one need look no further
than the testimony of eyewitnesses. As Bartholomew stated, when
three of the four bolts had been cut (attaching and securing the
valve to the pipe), the line unavoidably shifted some, oil started
escaping and just then the gasket between the valve and line
exploded into flames. (Vol. I, pgs. 75-79; 98-101). Manhart was a
short distance away from the mechanics and walking toward them as
the accident unfolded. (Vol. I, pgs. 146-147; 151-152: 155; 1570
158). After hearing a pop and a hiss, he then saw vapors rising
(apparently) from the floor. At that point, he saw the torch
flame, 8-10 inches long, while still seeing the vapors rise and
hearing a continuous %hhhh*# sound: then a small fireball suddenly
appeared between chest and ankle level (approximately 3 feet); and,
after that, a far more extensive explosion took place. (Tr. Vol.
I, pgs. 148-150; 152; 157-163). Hazlewood arrived at the accident
scene within thirty minutes. He could see an oil mist coming out
of the west side of the flange (Tr. Vol. I, pgs. 27-28, 35-36, 540
55) l
I find the standard% requisite of the presence of an
explosive atmosphere or a situation where an explosive atmosphere
81n so doing, the Respondent mistakenly focuses on how this
explosion occurred rather than was the hazard which the reaation
sought to prevent presented byvirtue of the work situation.
18
may develop has been fulfilled by the facts of this case.
Initially, I observe that one need not possess any particular
. skills in metallurgy to resolve this issueo9 Under the
circumstances herein, it is foreseeable that the line and gasket
might move, permitting anything therein (air and oil) to escape?
Respondent% argument centers on a lack of evidence showing the
existence of an oil mist. In so doing, it relies heavily on a lack
of any eyewitness testimony about mist at or before the accident.
(Respondent% Brief, pg. 30, para. 2). This reliance is misplaced.
It is true that neither Bartholomew nor Manhart mentioned mist in
their testimony. However, they were not asked about its presence
either. Even assuming that if asked they would have so testified,
could a reasonable man question why they might overlook mist in
this factual situation and their respective 1ocations.11 Also, no
explanation is offered by Respondent for the presence of mist after
the accident if none was present before or during the accident.
(Tr. Vol. I, pgs. 27; 54-55; 57). Additionally, when the pipe
moved and oil began to escape at the gasket, the heat emanating
from the torch could easily have raised the temperature (of corn
oil) at or above misting and/or ignition levels. In fact, the
91t is well settled that a judge's findings can properly be
based on reasonable inferences drawn from circumstantial evidence.
See Okland Construction Co., 3 BNA OSHC 2023, 1975-76 CCH OSHD 920,
441 (No. 3395, 1976).
"Indeed, any householder, who has dealt with routine plumbing
problems, would not be surprised by this result.
'IThefact that some oil initially escaped in liquid form does
not preclude the possibility of a mist also being present then or
developing immediately thereafter.
19
torch could have come into direct contact with such oil or the
vapors therefrom. Certainly, the emergence of such circumstances
is foreseeable. The existence of the hazard and the breach of the
standard have been established. Obviously, there was worker
exposure to the hazard.
Without any doubt, the evidence clearly establishes that an
acetylene fire/explosion did occur.12 What Respondent% argument
fails to overcome is the possibility that a corn oil fire/explosion
was or could have been the precipitating factor in this chain of
eventsol Even Respondent+ corporate director of safety (Hanson)
admitted that this was one of several possibilities. (Tr. Vol. II,
pgs* 72-73; 80083).14 Thereafter, he went on at some length to
state reasons why he did not believe the corn oil was the likely
cause (I'the how") of the acetylene explosion.15 (At the same
time, he was unable to rule it out.) (Tr. Vol. II, pgs. 83-91).
Unfortunately, the Court had no opportunity to listen to testimony
by the research engineer (Eugene L. Anderson) or to view the video
tape of the test which he conducted. However, it is noted that the
'*The large explosion (third stage) clearly fits within the
expected results from such an ignition.
13DespiteHanson's testimony, I find it likely that the second-
stage fire/explosion was due to the ignition of corn oil vapors.
Whether it was or not, such a hazard existed.
140n several occasions, he acknowledged that the exact
causative factor was uncertain. (Tr. Vol. II, pgs. 81; 83: 91).
"1 cannot conceive of anyone, lay or expert, willing to place
himself in the work situation of the exposed workmen, with corn oil
escaping in a work area while they were holding a torch emitting
heat of approximately 1700OF.
20
air pressure in the subject line (60-80 psi) was higher than the
pressure present in the test (50 psi). The heat of the torch at
the workplace was vastly hotter than the heat employed in the test.
Also, the size of the venting (prior to explosion) may been quite
different than that used in the test. Moreover, the little or
small fireball seen by Manhart (second stage of chain reaction) was
approximately the same length as the plume described in the test.
(Tr 0 Vol. I, pgs. 146-150; 157-159: Exh. R-12). I have not
overlooked the possible differences-in shapes described by Manhart
(fireball-ankle to chest level) as contrasted to the one described
in the test result (plume) or by Hanson's viewing of the video
(narrow). (Tr. Vol. I, pgs. 149-150: Exh. R-12: Tr. Vol. II, pg.
80) 0 If not semantical in nature, then any actual difference in
the shape of the fires could have resulted from possible
differences in work and test conditions. In any event, the hazard
of an explosive (mixture of flammable gases, vapors, liquids with
air) atmosphere is well established in this case. The fact that an
acetylene.explosion dwarfs a corn oil explosion does not alter the
essence of the latter.
In its brief, Respondent argues that the evidence does not
establish employer knowledge. To establish knowledge, the
Secretary must prove that a cited employer knew, or with the
exercise of reasonable diligence, could have known of the presence
of the violative condition. United States Steel Corls.12 BNA OSHC
1692, 1986-87 CCH OSHD 1 27,517 (NO. 79-1998, 1986). Either actual
or constructive knowledge of an employer's foreman can be imputed
21
to the employer. Dun Par Engineered Form Co., 12 BNA OSHC 1962,
1986-87 CCH OSHD fl27,651 (No. 82-0928, 1986). Additionally,
Respondent cannot (successfully) close its eyes to the inadequacy
of a safety plan or the ineffective implementation of an adequate
safety plan to avoid the doctrine of constructive knowledge.
The Respondent argues that there is's lack of evidence to
establish knowledge on its part, contending that the accident
resulted from a mistake of which its supervisors were unaware. It
states that all of the existing procedures were designed to prevent
such an occurrence, pointing out that line entry procedures
attached to the work order were designed to prevent work on any
type of line in use. (Respondent's Brief, Pgs. 35-36).
There are significant conflicts in Respondent% safety policy
versus actual work practice. In addition, there are significant
differences in testimony concerning the events of the day of the
accident. In resolving those conflicts (in critical areas), I have
evaluated witnesses by their personal demeanor on the stand,
together .with possible motivating factors. By using those
measurements, three witnesses stood out above the others. They .
were Bartholomew (mechanic)" and pumpers Hayden and Manhart.
Without reservation, those three individuals left an impression of
sincerity and honesty. I was unable to detect any personal agenda
on their part.
161hasten to add that, despite the foregoing, I was unable to
give any weight to his testimony relating to a conversation with
Wardlaw about the cause of the accident. By his own admission, he
was heavily sedated at the time.
22
The first matter to be resolved is the genesis of this
accident. It is not shrouded in mystery. Very simply, the
mechanics came to the process area during the morning hours with a
work order, requesting permission to enter a line and remove a
valve, Ultimately, they were told that there would be a delay
until after lunch, resulting from the use of the line by the
pumper, The pumper, Hayden, had been instructed by Montgomery
(process shift supervisor) to transfer a certain product over that
line past the valve where the accident occurred.17
Obviously, to carry out that assignment, any existing blocks
of the valve had to be removed. Hayd&s shift was over at noon.18
He had completed the transfer, but the valve remained unblocked.
His relief, Manhart, came on duty at noon. Manhart received the
log from Hayden. Manhart had some difficulty remembering whether
any oil was being pumped when he arrived, but believed there was
17Earlier the mechanics had asked Hayden if the line was in
use, When told that it was not, they requested that he block the
valve so they could make entry to remove the valve. He did soI but
then told Montgomery who directed him to tell the mechanics to stay
off (the line), as it was going to be used for a transfer of oil.
At about 11:00 a.m., Hayden .told the mechanics and he then *
unblocked the line. He transferred the oil, but did not replace
the blocks (Tr. Vol. I, pgs. 115-118; 125-130). Bartholomew
confirms that the mechanics requested that Hayden isolate the
valve; but, prior to the time that the mechanics got started,
Montgomery stated that the job had to be delayed. (Tr. Vol. I, pgs.
87-88). ,
'%hen a pumper h.ascompleted a shift, he writes up a log to
give to the next pumper, indicating what products are in the
process of being transferred (from where to where) at that time,
and where air is turned on in the lines. (Tr. Vol. I, pgs. 40-43;
125; 134; 137; 154). However, the log would not notify a pumper
whether cutting or welding operations were taking place. (Tr. Vol.
I, pgs. 40; 43; 1440145;.154-155).
23
not. However, he specifically recalled that air was turned on the
subject line. He did not turn it off since it is not unusual for
air to be on for various reasons, including the cleansing of a line
after a transfer. There is nothing wrong in letting it blow. (Tr 0
Vol. I, pgs. 125; 134; 137-138; 142; 168-170; 173). Manharthad no
knowledge that the mechanics were going to work on the line in
question. (Tr. Vol. I, pgs. 144-45; 150-52; 155).
Subsequent thereto (the precise time is not important)
Montgomery told the mechanics that it . was all right to proceed on
the line entry to remove the valve. (Tr. Vol. I, pg. 85) They did
so and the accident occurred.19
Montgomery, the process shift supervisor, was the only person
of those involved who knew both that the valve was unblocked (had
been unblocked) and that clearance was being given for mechanics to
enter the line. Due diligence mandated that he make certain the
air was not on the line and valve blocks had been restored. He did
neither. His knowledge of the facts is imputed to the Respondent.
Despite Respondent's argument concerning the strength of its safety
program, close scrutiny thereof revealsitwaslaxinactualpractice.**
"In so finding, I note that Hazlewood characterizes the
accident as arising from a mistake on the part of Manhart. (Tr. 370
38 r’ 62) His approach ignores the real hazard in this case
(inadequke procedures and rules).
**The evidence establishes that even when valves are blocked
there is still a possibility of air escaping through them. This is
a result of the use of older valves, yet another safety problem.
(Tr. Vol. I, pgs. 140-42).
Montgomery admitted that he did not attend all of the safety
meetings for department supervisors. He did not know with what
regularity safety meeting were held, and had never attended safety
meeting with pumpers. (Tr l Vol. pgs. 233-37). It has not gone
24 a
The Respondent's affirmative defense of employee misconduct is
rejected. There is no reason to rehash the Respondent's work
policies, procedures, and work rules. They were inadequate in this
situation. Those they did have were abridged to some degree by
informal practice. Finally, Respondent offers no evidence of
disciplinary action as a result of the conduct on this day. (Tr.
Vol. I, pgs. 44-45; 107: 165; 236). This defense fails for obvious
reasons.
Under the facts and circumstance of this case, I find a
serious violation of the cited standard. In light of the record
and statutory penalty criteria set forth in Q 17(j) of the Act, I
conclude that a penalty of $560.00 is reasonable and appropriate.21
CITATION 1, ITEMS 2 AND 3
These items allege violations of 5 5 1910.252(d)(2)(xiii)(a)
unnoticed that, while safety meetings of maintenance department
workers are well documented in this case, there is a complete lack
thereof regarding the processing department. (Exh. R-6).
Another example involves the statement by Leroy Smith
(manufacturing engineer) that (i) it was normal procedure to attach
a "standard procedure list" to a work order at the time of the
accident, and (ii) the one found in Exh. R-3 (the subject work
order) was attached thereto and used. (Tr. Vol. II, pgs. 42-47; 640
67) More convincing testimony was given by Bartholomew who
testified that mechanics were never given said list. Even
Montgomery so testified. (Tr. Vol. I, pgs. 93-96: 238-239). I so
find.
Finally, the informal practice employed by most mechanics of
usually contacting pumpers to let them know the they planned to
work on a line is some evidence of a tacit understanding by
mechanics that the Respondent's safety policy was something less
than foolproof. (Tr Vol. I, pgs. 117-119; 123-124; 143-144).
Surely, Montgomery wk aware of that practice or could have been
with the exercise of due diligence.
"One single penalty is being imposed for the three violations
cited in citation 1.
25 .
and 1910.252(d)(2)(xiv)(c)(3). In substance, the second item
alleges thatmanagementdid not establish (adequate) procedures for
cutting and welding based on the fire potentials in the plant: The
third item relates to the supervisor% failure to schedule such
activities so that they did not expose combustibles to ignition.
Respondent% arguments have been carefully considered.
(Respondent% brief, pgs. 32-34). Again, they are not convincing.
The findings of fact made in the sections entitled "PRELIMINARY
FINDINGS' and "CITATION 1, ITEM 1" -are incorporated herein by
reference. They are fully sufficient to establish violations of
the sections cited in items 2 and 3 of citation 1. I so find.
It is noted that the violative conditions of all three
citations items could be and have been corrected by the same
abatement steps. (Tr. Vol. I, pgs. 41-44; 144: 153). For such
circumstances, it is discretionary whether a single penalty is
assessed for such overlapping-violations. In this case, I find it
appropriate and the penalty for all three items is merged into one
penalty, of $560.00.
CITATION 2, ITEM 1
This citation alleges that the subject pipe section,
containing flammable materials (vegetable oil), had not been
blanked (blocked) prior to hot work (cutting by welding torch)
commencing on the line. Again, incorporating by reference those
facts found in sections entitled "PRELIMINARY FINDINGS" and
"CITATION 1, ITEM" 1 leads to the conclusion that the violation
hasbeenestablished. Nopenaltywas proposed, andnone is assessed.
26
FINDINGS OF FACT
All findings of fact relevant and necessary to a determination
of the contested issues have been found specially and appear above.
See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed
findings of fact or conclusions of law that are inconsistent with
this decision are DENIED.
CONCLUSIONS OF LAW
1 l At all times material thereto, Respondent was an employer
within the meaning of 5 3(5) of the Act, engaged in a business
affecting commerce, and having employees.
2 l The Commission has jurisdiction over the parties and
subject matter of the proceedings.
30 Respondent was in serious violation of 29 CFR
§Q 1910.252(d)(2)(v i) (C)I 1910.252(d)(2)(xiii)(a) and
1910.252(d)(2)(xiv)(c)(3).
40 Respondent was in nonserious violation of 29 CFR
1910.252(d)(3)(i).
ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, it is ORDERED that:
10 To the extent that the Respondent's proposed findings of
fact and conclusions of law are inconsistent with this decision,
they are DENIED.
20 Item 1 of citation 1, alleging a serious violation of 29
CFR 1910.252(d)(2)(vi)(c), is AFFIRMED.
3 l Item 2 of citation 1, alleging a serious violation of 29
27
CFR 1910.252(d)(2)(xiii)(a), is AFFIRMED.
40 Item 3 of citation 1, alleging a serious violation of 29
CFR 1910.252(d)(2)(xiv)(c)(3), is AFFIRMED.
50 A single civil penalty of $560.00 is ASSESSED for the
three violative conditions enumerated in the foregoing paragraphs .
(2, 3 and 4).
60 Item 1 of citation 2, alleging a nonserious violation of
29 CFR 1910.252(d)(3)(i), is AFFIRMED. No penalty is assessed.
E. CARTER BOTKIN
Administrative Law Judge
Date=
3RAl
-
IO jgg2
APPENDIX
The Standards
(a) Serious Citation
1910.252 Welding, cutting and brazing.
* * *
(d) Fire Prevention and protection-
* * *
(2) Special precautions. When the nature of the work
to be performed falls within the scope of subdivision (ii) of
this subdivision certain additional precautions may be
necessary?
(vi) Prohibited areas. Cutting or welding shall
not be permitted in the following situations:
* * *
w In the presence of explosive
atmospheres (mixtures of flammable gases, vapors,
liquids, or dusts with air), or explosive atmospheres
that may develop inside uncleaned or improperly
prepared tanks or equipment ’ which have previously
contained such materials, or that may develop in areas
with an accumulation of combustible dusts.
* * *
(xiii) Management. Management shall recognize its
responsibility for the safe usage of cutting
and welding equipment on its property and
(a) Based on fire potentials or plant
facilities, establish areas for cutting and
welding, and establish procedures for cutting .
and welding, in other areas.
"Subdivision (ii) provides as follows:
Guards If the object to be welded or cut cannot be
moved and if all the fire hazards cannot be removed, then guards
shall be used to confine the heat, sparks, and slag, and to
protect the immovable fire
. hazards.
* * *
(xiv) Supervisor. The Supervisor:
(c) Shall protect combustibles from ignition
by the following:
* * *
(3) See that cutting and welding are so
scheduled that plant operations that might expose combustibles to
ignition are not started during cutting or welding.
(b) Other Citation
$1910.252 Welding, cutting, and brazing.
* * *
(d) Fire prevention and protection-
* * *
(3) Weldin
g-
(i) Used containers. No welding cutting or
other hot work shall be perfo'rmed on ;sed
drums, barrels I tanks or other containers
until they have been cleaned so thorouoghly
as to make absolutely certain that there are
no flammable materials present or any
substances such as greases, tars, acids, or
other materials which when subjected to heat,
might product flammable or toxic vapors. Any
pipe lines or connections to the drum or
vessel shall be disconnected or blanked.
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