Accu-Rite Machine Co.

Plain-English summary

Accu-Rite Machine Co. operates an industrial machine shop in Blythe, Georgia. On May 26, 1991, over the Memorial Day weekend, its employees were at the Ringier America printing plant in Evans, Georgia, removing and replacing an aftercooler unit. To free bolts, they used an oxygen-acetylene cutting torch while working roughly 20 to 25 feet above a blower. Hot slag fell and started a small grease fire, which was extinguished; later an explosion occurred and six people were injured. The citations were not based on the accident itself, which is the subject of separate litigation, but on safety conditions observed during the inspection. Administrative Law Judge Edwin G. Salyers affirmed all four items of the serious citation. He found that Accu-Rite failed to guard the grease fire hazard from sparks and slag during cutting, failed to obtain the facility owner's required hot-work authorization before cutting, failed to protect employees from falls while they worked on an unguarded platform at about 20 feet, and failed to maintain a written hazard communication program, material safety data sheets, and chemical training. The total penalty was $6,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.252(a)(1)(ii) (guarding fire hazards during cutting); § 1910.252(a)(2)(xiv)(D) (management authorization for cutting/welding); § 1910.252(b)(1)(i) (fall protection for welders); § 1910.1200(e)(1), (g)(1), (h) (hazard communication program, safety data sheets, training)
• Outcome: Affirmed. All four items of the serious citation affirmed; total penalty $6,000 assessed as proposed.
• Key point: An employer doing hot work must inspect for and guard fire hazards, obtain the facility's cutting/welding authorization, protect elevated workers from falls, and meet hazard-communication duties. A small employer's unfamiliarity with legal procedures does not excuse these obligations.

Full text (OSHRC public release)

                               UNITED STATES OF AMERICA
          OCCUPATIONAL SAFETY AND HEALTH REVIEW                COMMISSION
                                   1825 K STREET NW
                                       4TH FLOOR
                              WASHINGTON.   DC 20006-   1246

SECRETARY OF LABOR
Complainant,
v.
ACCU-RITE MACHINE COMPANY
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on January 7, 1993. The decision of the Judge
will become a final order of the Commission on February 8, 1993 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.
Any such etition should be received b the Executive Secretary on or before
January 27 , 1993 in order to ermit suif lcient time for its review. See .
Commission Rule 91, 29 C.F. \ . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Remew Commission
1825 K St. N.W., Room 401
Washington, D.C. 200064246

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti atioa
Office of the So7 icitor, U.S. DOf
Room 3004
LOOConstitution Avenue, NW.
Washrngton. D.C. 20210
If a Direction for Review IS Issued by the Commission, then the Counsel for
Re@onal Trial Litigation will represent the Department of Labor. Any party
having questions about revltw nghts may contact the Commission’s Executive
Secretary or call (202) 634.79SO.

Date: January 7, 1993
DOCKET NO. 91-2560

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re 'OIA Trial Liti ation
Office of the Sof ‘dtor, U.S. DO5
Room MOO4
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Ms. Bobbye D. Spears
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Mr. Charles Merritt
Chief Engineer
Accu-Rite Machine Company
16 Murrow Road
Post Office Box 126
Blythe, GA 30805 0126

Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

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                                                     ..

SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No.: 91-2560
.
ACCU-RITE MACHINE Co.,
Respondent.

Appearances:

       John A Black, Esquire                                 Mr. Chark R Merritt
           .  Office of the Solicitor                               Chief Engineer
              U. S. Department of Labor                             Am-Rite MachineCo.
              Atlanta, Georgia                                      Blytbe,Georgia
                      For Complainant                                         For Respondent

Before: Administrative Law Judge Edwin G. Salyers

                                     DECISION AND ORDER


       The Respondent,      Accu-Rite    Machine Co., operates an industrial machine shop in

Blythe, Georgia. On the morning of May 26, 1991, Respondent was engaged at the facilities
of Ringier America,’ located tn Evans, Georgia, in removing an aftercooler unit and
replacing it with a unit that had been repaired by Respondent (Tr. 3940). This work
occurred over the Memorial Day weekend while Ringier was shut down and had only a
skeleton crew on the premises (Tr. 5657).

’ Ringer America operatesa printing pht and producesmagazinerand repaper flyers
 On the dayin question,four employeesof Respondent(Paul Case, David Inng, Greg
Y&o and Greg Goetz) were at the Ringier facility engaged in the removal of bolts that
secured the flanges of the old aftercooler. Since these bolts could not be removed with hand
tools, Respondent’s employees were using a welding torch to cut them loose. During this
cutting operation, some hot slag fell to the floor below and started a small fire by ig&ing
grease spots which had accumulated underneath a blower motor coupling. m fire m
extinguished and Respondent’s employees placed a rubber mat over the coupling to prevent
a recurrence of this situation (Tr. 59). Later, after additional cutting was performed, an
e@osion occurred, resulting in the injury of six persons.*
As a result of the accident, the Secretary of Labor initiated an inspection of the
circumstances under the provisions of the OccuDational Safety and Health Ad of 1970
(29 U.S.C. 651., et seq.) and Respondenp was issued a serious citation containing the
following items:
1
29 C.F.R. 0 1910.252(a)( l)(ii): When the object to be welded or cut could not
be moved and all the fire hazards could not be removed, guards were not used
to confine the heat, sparks, and slag to protect the immovable fire hazards:
(a) 4301 Evans-to-Locks Road, Evans, Georgia - Sohtent
Recovery System Hot slag from cutting process fell under the
#5 Blower resulting in a small grease fire on or about 5-26-91.
2
29 C.F.R. 9 1910.252(a)(2)(xiv)(D): Th e employer did not ensure that thi
supervisor secured authorization for cutting or welding operations fkom the
designated management representative:
(a) 4301 Evans-to-Locks Road, Evans, Georgia - Sobent
Recovery System Authorization for cutting operation was not
obtained by the supervisor on or about S-2691.

• The cause of theexplosion is the subject of litigation between some of the injuredemployees and Ringier.
  The Secretary’scoonsel represented to the court during the hearing that the violations alleged in the dtation
  were not based upon the accident No direct evidence of the cause of the explosion was presental at the
  hewing, and these circumstancesare not considered relevant to a determination of the issues before thk amt
  (Tr. 65-69).

3 Ringier was also cited for alleged infractions of the Act. However, the substance of these chqs k not
revealed in the rea>r&nor is this cimmstana considered relevant to the issues present& in the sue at bar.

                                                  2

3
29 C.F.R 8 1910252(b)(l)(i): A welder or helpers working on platforms,
scaf@olds,or runways were not protected against falling:
(a) 4301 Evans-to-Locks Road, Evans, Georgia - Sokent
Recovery System Employees working on Aftercooler #5 were
not protected against falling on or about 5-26-91.
The alleged violations below have been grouped because they involve similar
or related hazards that may increase the potential for injury and/or illness.
4a
29 C.F.R. Q 1910.12OO(e)(1): Employer had not developed or implemented
a written hazard communication program which at least describes how the
criteria in 29 C.F.R. 0 1910.1200(f), (g) and (h) will be met:
(a) 4301 Evans-to-Locks Road, Evans, Georgia - A written
hazard communication program was not developed and
implemented for employees exposed to hazardous materials
such as, but not limited to, oxygen and acetylene on or about
S-26-91.
4b
29 C.F.R. 0 1910D1200(g)(1): Employer did not have a material safety data
sheet for each hazardous chemical which is used in the workplace:
(a) 4301 Evans-to-Locks Road, Evans, Georgia - A material
safety data sheet (MSDS) was not maintained for hazardous
materials such as, but not limited to, oxygen and acetylene on
or about 5-2691.
4c
29 C.F.R. 5 1920.1200(h): Employees were not provided information and
training as specified in 29 C.F.R. 0 1920.1200(h)( 1) and (2) on hazardous
chemicals in their work area at the time of their initial assignment and
whenever a new hazard is introduced into their work area:
(a) 4301 Evans-to-Lxxks Road, Evans, Georgia - Information
and training was not provided as required in the hazard
communication rtatird on or about 5-2691.

   Following the issuance of the Secretary’s citation, Respondent filed a timely no&

of contest. The Secretary then filed a formal complaint setting forth the factual allegations
upon which the citation was based. Respondent did not, however, file a formal reply setting
forth its answer to the Secretary’s allegations or raising any affirmative defenses. In view of

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e situation, tbc jurisdictional al@ations of the complaint are deemed admitted M &r
normal circunutan ces, Respondent would be precluded from raising any affirmative defew
at the hearing. The court notes, however, that this small employer has been represented
throughout these proceedings by its owner, Charles R. Merritt, actingpvo se, who indicated
to the court at the outset of the hearing that he had no familiarity with legal procedures and
could not afford the setices of a lawyer. With the indulgence of the Secretary’s counsel and
in the interest of providing Respondent a full and fair hearing, this court relaxed the rules
and permitted Respondent to raise all matters it considered essential to properly present its

case (Tr. 8).
serious Citation No. 1, Item 1

       This item charges Respondent with a violation of 29 C.F.R. 0 1920.252(a)(l)@)’ for

its alleged failure to guard a fire hazard (grease spots) from contact with heat, sparks and
slag while performing a cutting operation in the vicinity of blower #5.
It is undisputed in the evidence that on the day in question, Respondent’s emprayets
were engaged in cutting bolts above blower #5 at the Ringier facility. They were working
above the blower (about 20 to 25 feet) using an oxygen/acetylene torch, which generated
sparks and hot slag that fell directly to the floor below. Grease spots had accumulated
underneath couplings contained on the blower and presented a potential for fire in the event
the sparks and slag made contact with the grease. In fact, a small grease fire occurred while
Respondent’s employees were engaged in the cutting operation and was immediately
extinguished. The grease spots were then covered with a rubber mat to shield the grease
from exposure to the falling sparks and slag (Tr. 15-18).
At the hearing Rupomknt did not dispute the factual allegations which form the
basis for the charge. Mcmtt testified Respondent’s employees made a cursory inspection
of the area where the cutt- rvlu to be performed without detecting the grease spots (Tr.
31,32). Respondent main- these spots were visible only by “getting down on our hands

’ 29 c.F.k 0 l910.~2(a)(l)(u) pcoylber: u the Objed t0 bt Wtkkd Or Cut CaMOt be moved ti if ti the
fire hazards cannot be removed, tbea vrdr shall be used to aMine the beat, sparks,awl slag,and to protect
the immovable fire hazards.

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and knees and look[ing] in every nook and cranny” (Tr. 33). This assertion was contra&t&
in the testimony of Troy Pinson, a boiler operator employed by Ringier at the site, who
testified the spo& were visrible to someone standing on the ground below the cutting
operation and were readily apparent if they were. “looked for” (Tr. 56, 60).
In essence, Respondent’s sole defense to this charge is that it lacked knowledge of
the cited condition. The Review Commission has made it clear that knowledge is an
essential element which must be established by the Secretary in every case. This element
is satisfied, however, upon a showing that the requisite knowledge could have been
ascertained through the exercise of “reasonable diligence.” Tamp Shijyanis, Inc., 15 BNA
OSHC 1533, 1992 CCH OSHD 1 29,617 (No. 86360, 1992).
In the case at bar, the evidence supports a conclusion that the existence of the grease
spots was readily ascertainable upon Respondent’s exercise of reasonable diligence. The
cited standard, reasonably construed, places an obligation upon an employer who plans to
engage in welding or cutting operations to inspect the immediate area for potential fire
hazards and, in the event such hazards are found, to guard these areas against contact with
sparks and slag. Respondent did not comply with the mandate of the standard, and this item
will be affirmed.
Serious Citation No. 1, Item 2

    In this item,      Respondent      is charged     with an i&action          of 29 C.F.R.       8

.1910.252(a)(2)(xiv)(D) for its alleged failure to secure authorization to perform cutting and
welding operations from the designated management representative of the facility owner
(Ringier). The purpose of this standard is not an exercise in bureaucratic red tape, but is
a measure designed to insure that the area where the cutting or welding is to occur has been
inspected for fire hazards not only by the welder but also by the owner of the facility prior
to the commencement of these operations’ (Tr. 44-47).

’ A sample cuttingrtmlding permit used by Ringer was received in evidence as~hhiiiit G3. This permit
contains a check-off list for completion by both the welder and the f&Sty representatk to insure that all
measures have been taken to guarantee a Mfe operation.

                                                5

Respondent does not dispute the need for obtaining such a permit prior to
commencing welding and/or cutting operation. Indeed, Respondent had obtained these
permits in the past and was aware that Ringier required their issuance before cutting and/or
welding was performed (Tr. 41-45, Exh. C-2). Respondent concedes it did not obtain a
permit (authorization) from Ringier personnel on the day in question, but argues that this
occurrence should be excused because of the unusual circumstances which existed at the
time.
As previously noted, the work performed by Respondent occurred during a holiday
weekend when Ringier’s regular superintendent, Kelvin Jones, was not at the facility (Tr. 73,
74). Julius Reginald Hilliard, one of Ringier’s boiler operators, had the responsrbility for
overseeing Respondent’s operations on the day in question (Tr. 72, 73), and was asked for
a permit at some point by one of Respondent’s employees but was unable to comply with
this request since he did not know where the permits were “stored” (Tr. 75). HiUiard
explained that he had issued permits in the past but had to “go through channels” and
obtain the permit from the office secretary or one of the supervisors (Tr. 76). Since Hill&d
was the only management representative present at the facility when the permit was
requested and did not know where the forms were located, he was unable to comply with
the request; although he further testified he would have issued the permit if the forms had
been available (Tr. 76, 77).
The disputed issue between the parties concerns the question of when the request
was made. The Secretary maintains that the request for a permit was not made until after
the cutting work was in progress. This contention is supported by the testimony of Hilliard,
who first testified that the request was not made until after the cutting began and the small
grease fire occurred (Tr. 74). On cross-examination., he recounted this statement and
testified the request may have been made before the fire (Tr. 84), but was unequivocal that
he had seen some cutting tn progress before receiving a request for a permit (Tr. 89).
At the hearing, Respondent produced no witnesses to counter Hilliard’s testimony,
but attempted to introduce a deposition of Paul Case, Respondent’s supervisor at the jobsite
on the day in question, which had been taken in connection with a pending case involving
civil litigation. Since that USC did not invoke the same parties or subject matter and the

                                              6

to cross-examine the deponent, Respmdent’s tender of the
Secretary had no oppopom&~~
deposition into cvkknce was denied (Tr. 80,81,86). However,the court agreed to keep the
record open fix a period of thirty days to afford Respondent the opportunity to take the
deposition of be for submission to the court (I’?. 116, 138). Since the hearing, the court
has received no direct communication from Respondent, but is advised by counsel for the
Secretary that no deposition was scheduled.6
As the record now stands, this court fin& as a fact that cutting operations were
performed by Respondent’s employees both before and after a request was made upon

Ringier’s representative to issue a permit. Since this work was performed in the absence of
a permit, the cited standard was breached.

                                 Serious Citation No. 1. Item 3


    This item charges Respondent           with a violation of 29 C.F.R. 0 1910.252(b)(l)(i)’ for

its failure to provide fall protection to its employees working at elevations up to 20 feet
above ground level. Respondent conceded at the hearing that its employees performing the

6 It appears in the secretary’s brief (p. 3) that the parties (at the court’s request) attempted to stipulate the
sum and substance of Case’s testimony and did reach an oral agreement which contained the following
language:

    David Long, Greg Goctl, Grtg Yobo (who were the other three Aax-Rite emplqees
    working on tbe projazt a1 Ringiefs facility), and I arrived at the IXingier plant at
    approximately6:45 am. on hhy 26, 1991. Prior to beginning to remove the bolts hrom the
    after-cooler unit, I asked Ringkr empkqee Reggie HiUyd for a “hot work” (or cutting)
    permit. Hiliyard told me that be did not know where web permits were located, and that
    because there was no o(lt fhna~ Ringkr available to sign it, a permit was not necessary.

This stipulation was fhwankd to Rupcxdent for execution but WIBS not returned. By order dated August 14,
1992, the reawd in this case wpb M (E&L J-10). Since Respondent did not schedule Case3 depodion or
execute and rem the stipuhtk amahing the language r&ted lbavt, tbe decision in this case will be
determined solely on the basis of the rca>rd eloped at the hearing

’ The cited standard provides:

    A welder or helper working oo pkforms, scaffolds, or w            shal) be protected against              .
    falling This may be accomplkbcd by tbc use of railings, safety belts, life lines, or solire othw
    equally effective safeguafch

                                                   7

cutting operation were working born ~II unguarded platformat a height of 20 feet without
any type of falf protection (“II. 22-24). The secretary has, therefore, established a m
facie case that Respondent violated the cited standard.
As a defense, Respondent raises the contention that using safety belts attached to
lanyards to protect its employees from falls would be either infeasl’ble or constitute a greater
hazard under the circumstances which existed at the time. This is based upon Respondent’s
speculation that “had these employees pen] tethered, it would have hampered their ability
to do the job. And if two of those employees had been tethered, they would have been
dead by now, because they were exploded up into the air and had fallen down. They would
have roasted like a hot dog” (Tr. 23). Except for the foregoing self-serving statement,
Respondent offered no additional evidence in support of its claim that tethering the
employees would interfere with the performance of their work or that providing the required
protection would place the employees at greater risk, even though the court advised
Respondent that it had the burden of proof on this affirmative defense (Tr. 24). When
further questioned by the court concerning Respondent’s position on this matter, Merritt
offered only the suggestion that to tether employees would have prevented them from
performing “their work effectively and efficiently” (Tr. 117) and that the use of such a
method was not “practical” (Tr. 119). This view is in contrast with the testimony of Troy
Pinson, who confirmed that Ringier employees who worked in these same areas on a regular
basis wore safety belts and lanyards without any difficulty (Tr. 58), and that it was fea&le
to tie off to pipes and braces in the vicinity (Tr. 59). In short, Respondent has failed to
carry its burden of proof to sustain either the infeasibility or greater hazard defense. See
Seibel Mdem Manuffictzkng and Welding Co., 15 BNA OSHC 1214 1991 CCH OSHD

II 29,442 (No. 88-821, 1991).

                              Serious Citation No. 1, Item 4


   This item charges        Respondent    with a failure     to comply    with 29 C.F.R. 0

1~~~.120(e)(l), (g)(l), and (h) for its failure to develop and maintain a written hazard
~~u~~tion pr08ram, to maintain material safety data sheets (MSDSs) and to provide
the required training.

     At the hearin& Merritt conceded that Respondent                   had not developed        a written

h-d mmmunieation program (Tr. W), nor did it maintain the required MSDSs for oxygen
or acetylene’ (Tr. 26). Respondent also conceded it did not provide specific training

concerning hazardous substances used on the job, since it employed experienced workers
who were already familiar with the nature of the chemicals utilized in Respondent’s
operations (Tr. 27, 28). On cross-examination, Merritt admitted, however, that one of
Respondent’s employees (Greg Goetz) working at the site on the day in question had just
been employed that day and was given no training concerning hazardous chemicals in use
at the jobsite (Tr. 54). Section 1910.1200(h) requires an employer “to provide employees
with information and training on hazardous chemicals in their work area ot the time of their
initial assijpment, and whenver a new hazard k introduced” (emphasis added). See American

Dental Centers, 14 BNA OSHC 1710, 1990 CCH OSHD 1 28,967(Nos. 894369 & 894557,
1990).
Respondent offered no viable defense to the charges raised in Serious Citation No.
1, Item 4, and this item will be affirmed.

                                               Penalties


     The Secretary proposed a penalty of $1,500 for each of the four items set forth in the

serious citation issued in this ease. It appears in the record that compliance officer Susan
J. Sikes, who conducted the inspection and recommended the penalties, gave full
consideration to the facton specified in Section 17(j) of the Act (Le., size of employer,
gravity, good faith and history) and gave Respondent appropriate reductions for its small size
and history (Tr. 103). No reduction was allowed for good faith because of the severity of

8 The evidence also reflects an absence o( MSDSs for toluene and lactol spirits, two hazardous substances in
use at the jobsite in question (n. 101, 102).

                                                    9

the hazard. Upon due consideration, this court concludes the proposed penalties me
appropriate and will, therefore, be assewxL

               JTINDINGS OF FACT AND CONCLUSIONS OF LAW


    The foregoing will constitute the findings of fact and conclusions of law as required

by Rule 52 of the Federal Rules of Civil Procedure.
ORDER
It is hereby ORDERED:
(1) Serious Citation No. 1, Items 1-4, are affirmed.
(2) A total penalty of $6,000 is hereby assessed.

                                 /s/ Edwin G. Sabers
                                EDWIN G. SALYERS
                                Judge

Date: December 17, 1992

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