Container Corporation of America

Plain-English summary

Container Corporation of America operated a paper mill in Fernandina Beach, Florida. The parties settled most citation issues before the hearing, leaving three items concerning wet and oily floors, protective clothing for welders, and insulation or guarding of steam pipes. The judge vacated the floor item because the incorporated sanitation requirement addressed health conditions, the mill maintained drainage and routine cleaning, and OSHA did not prove noncompliance. He vacated the welding-clothing item because the compliance officer did not observe the welding operation and OSHA did not prove the alleged hazard, exposure, or need for additional equipment. He also vacated the steam-pipe item because OSHA did not establish that any uninsulated pipe was within the distances specified by the standard. The settlement was approved and incorporated into the decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.261(a)(3)(xviii); 29 C.F.R. § 1910.261(b)(2); 29 C.F.R. § 1910.261(k)(11).
• Outcome: The settlement of other issues was approved, and the three remaining disputed items were vacated.
• Key point: OSHA must prove that the cited standard applies and that the evidence satisfies its specific terms, including any required exposure, location, or dimensional facts.

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 20036-3419

PHONE:
COM (202) 606-5100
FTS (202) 606-5100

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR

Complainant,

v. OSHRC DOCKET
NO. 92-1310

CONTAINER CORPORATION OF AMERICA

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 November 10, 1993. The decision of the Judge
will become a final order of the Commission on December 10, 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 petition should be received by the Executive Secretary on or before
November 30, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. § 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission

1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
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
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: November 10, 1993
/s/ Ray H. Darling, Jr.
Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-1310
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

William H. Berger

Deputy Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 339

1371 Peachtree Street, N.E.
Atlanta, GA 30309

Robert A. Dimling, Esquire
Frost & Jacobs

2500 Central Trust Center
201 E. 5th Street
Cincinnati, OH 45202

Paul L. Brady

Administrative Law Judge

Occupational Safety and Health
Review Commission

Room 240

1365 Peachtree Street, N.E.

Atlanta, GA 30309-3119

00018351437:04

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1365 PEACHTREE STREET, N.E., SUITE 240

ATLANTA, GEORGIA 30309-3119

PHONE:
COM (404) 347-4197
FTS (404) 347-4197

FAX:
COM (404) 347-0113
FTS (404) 347-0113

SECRETARY OF LABOR,
Complainant,

v.

CONTAINER CORPORATION OF
AMERICA,
Respondent.

OSHRC Docket No. 92-1310

Appearances:

Rafael Batine, Esq.
Office of the Solicitor
U. S. Department of Labor
Atlanta, Georgia
For Complainant

Robert A. Dimling, Esq.
Frost & Jacobs
Cincinnati, Ohio

For Respondent

Before: Administrative Law Judge Paul L. Brady

DECISION AND ORDER

This proceeding is brought pursuant to § 10 of the Occupational Safety and Health
Act of 1970 (Act) to contest one citation and proposed penalty issued by the Secretary of
Labor (Secretary) pursuant to § 9(a) of the Act. Prior to the hearing in this cause, the

parties resolved all of the issues involved except the alleged violations contained in Items 8,

12 and 19 of the citation.1

Respondent, Container Corporation of America (Container), operated a paper
manufacturing facility in Fernandina Beach, Florida, at all times pertinent hereto. Three

1 A duly executed settlement agreement was

filed which has become part of the record.

large paper machines were operated 24 hours per day, seven days a week. The alleged
violations were associated with the machines and the paper making process.

Alleged Violation of 29 C.F.R. § 1910.261(a)(3)(xviii)

This standard incorporates the Requirements for Sanitation in Places of Employment.
USAS Z4.1-1968. Section 3.1.2 of the requirements states:

The floor of every workroom shall be maintained in a clean and, so far as
possible, a dry condition. Where wet processes are used, drainage shall be
maintained, and false floors, platforms, mats, or other dry standing places
should be provided where practicable.

The alleged violation is described in the citation as follows:

The floor of every workroom maintained was not in a clean and so far as
possible a dry condition. Where wet processes were used, drainage was not
maintained, and false floors, platforms, mats, or other dry standing places
were not provided where practical:

a. Basement level: Paper machines three and four;
oil, water pulp were on the floor on the east and
west sides of each paper machine.

b. Ground level: North section of the main
passageway; water was on the floor.

c. Operations level: Paper machine #2, North
section; water was on the floor.

Mr. Anthony Will, occupational safety and health specialist, conducted the inspection
that resulted in issuance of the citation. He testified that there was water and an oily, greasy
substance on the floor under machines 3 and 4, where an employee was working (Exh. C-4;
Tr. 15-18).

Mr. Charles Johnson, mechanic and president of the local employee’s union, testified
about disclosure of his safety concerns to Container. He related that on April 10, 1991, he
presented a document to the safety director containing safety items to be addressed. Items
listed included the presence of oil and wet and slippery floors. These conditions were
brought to the attention of management again on July 11 and September 15, 1991, noting
the oil in the basement was “untouched” (Exh. C-25; Tr. 39-40).

2

Mr. Michael Holden, machine manager for Container, testified about the machinery
and paper making process. He explained that the number 3 machine, for example, was
about 20 feet wide, over 400 feet long and occupied two floor levels at nearly 70 feet high
(Tr. 66-67). The process begins with a mixture of ½% fiber and 99½% water, with the water
being removed at about 40,000 gallons per minute. The mixture leaves the first process
about 27% fiber and 63% water and moves to the press section. With a combination of
belts and rolls, it exits the press section 47% paper and 53% water and enters the dryer
section, where it wraps around steel cans filled with steam. Considered paper upon leaving
the dryers, it contains about 6% water. The paper goes through an ironing out process and
is then wrapped on spools (Tr. 69-70).

Mr. Holden further explained about the system for draining the water. In the initial
process, a large catch basin about the size of an olympic swimming pool carried the water
from the area. In the press section, water is pumped to another catch basin in the machine.
Also, there are drains that run the length of the machine on both sides.

Mr. Holden noted that the many rotating parts with bearings and gears require a
large amount of lubrication. He stated that, “we try to keep the operating floor cleaned
once a day,” and the basement level is washed down with water hoses “probably two to
three times a week” (Tr. 72-74). A degreaser is used on a routine basis to clean the floors
and accumulations of dust are removed in the dryer section on a weekly basis (Tr. 75-76).
He maintained that because of the water involved in the process, platforms, applications of
surface compounds and other alternatives are not feasible to alleviate the wet
conditions (Tr. 77-78).

The Commission has held that in order to establish a violation, the Secretary must
show by a preponderance of the evidence that (1) the cited standard applied, (2) its terms
were not met, (3) employees had access to the violative condition, and (4) the employer
knew or could have known of the violation with the exercise of reasonable diligence. Seibel
Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1991 CCH OSHD ¶ 29,442, p. 39,678
(No. 88-821, 1991).

Container first contends that the cited standard does not apply in this case because
§ 1.2 of the Sanitation Requirements states:

The purpose of this standard is to prescribe minimum sanitary requirements
for the protection of the health of employees covered by this standard.

It is, therefore, argued that these requirements are directed toward maintaining the
workplace in a sanitary condition, which is defined at § 2 as follows:

Sanitary Condition. Within the meaning of the code, that physical condition
of working quarters which will tend to prevent the incidence and spread of
disease.

The requirements applicable in this case clearly pertain to measures designed to
protect the health of employees. It is also clear that the evidence does not indicate
employees were exposed to any specific health hazards, as the Secretary alleges the presence
of water and oil created fall hazards.

The evidence of record shows there is merit to Container’s contention that the
standard does not apply in this case. The compliance officer agrees that the standard’s
purpose is to address sanitation. Therefore, a valid question remains as to whether a
violation occurred on the basis of sanitation. The issue is whether the Secretary has
established by a preponderance of evidence that the floors were “maintained in a clean and,
so far as possible, a dry condition.”

There is no dispute that Container operates a “wet process.” The evidence also
shows that drainage is maintained at both the operating and basement levels, and the
basement level is sloped to facilitate drainage. It is indicated that because of the constant
presence of water and steam, platforms or dry standing places are not practicable (Tr. 77).

The testimony regarding the presence of oil indicates it “apparently dropped down
from the paper machines up above” (Tr. 18). With the need for lubrication of the numerous
moving parts, it is reasonable to assume that some oil would drip to the floor. Routine
cleaning, as explained by Container’s witnesses, shows the floors were adequately maintained.
Although mechanic Johnson stated oil remained “untouched” over a period of time, it is not
indicated it was the same oil. In light of the undisputed evidence of routine cleaning, it must
be concluded that the same oil did not remain in place beyond a short period of time. The
evidence does not show that more drainage, better platforms, or other dry standing places

would be more effective.

There is no question in this case regarding the difficulty in maintaining clean and dry
floors, due to the nature of the work. The conditions existing at Container’s plant were
shown to be consistent with those in other plants involved in the paper making
process (Tr. 77-78). The Secretary did not establish by a preponderance of the evidence
that Container failed to comply with the terms of the standard.

Alleged Violation of 29 C.F.R. § 1910.261(b)(2)

The standard requires in pertinent part as follows:

Foot protection, shinguards, hard hats, noise attenuation devices, or other
personal protective clothing and equipment shall be worn when the extent of
the hazard is such as to warrant their use.

The citation alleges that “aprons, welding jackets and/or sleeves were not provided
to workers performing welding operations under pipes, exposing employees to a fire hazard.”
The compliance officer testified that welders were not provided with aprons, welding jackets

and sleeves. He stated he discussed the matter with the safety director, who revealed
Container did not have this protective equipment for its welders (Tr. 21-22).

Container’s stock issue clerk testified that aprons and jackets are not kept for use as
protective equipment. He indicated, however, that protective equipment is issued to
employees, “Whatever that they need” (Tr. 57). Welders are obviously included as
employees.

The cited standard does not specify what type of protective clothing and equipment
must be worn when a hazard “warrants their use.” In this case, the inspecting officer did
not observe the welding operation (Tr. 21). Also, the record does not show by a
preponderance of evidence that the alleged hazard existed or of employee exposure thereto.
It is not established that more protective clothing and equipment was necessary than that
provided by Container.

The standard was not violated as alleged.

Alleged Violation of 29 C.F.R. § 1910.261(k)(11)

The standard which pertains to steam and hot-water pipes states as follows:

All exposed steam and hot-water pipes within 7 feet of the floor or working
platform or within 15 inches measured horizontally from stairways, ramps, or
fixed ladders shall be covered with an insulating material, or guarded in such
manner as to prevent contact.

The citation alleges that in the paper mill, “the steam piping on paper machines three
and four was not fully insulated, nor quartered, exposing employees to the hazards of burns.”
The compliance officer testified that during his inspection, he observed numerous steam
pipes that were not insulated (Exhs. C-19, C-20; Tr. 23). The pipes were in use and he
could see some steam (Tr. 26, 27).

Ms. Nellie Jubito, an oiler on number 4 paper machine, testified that in performing
her work, she got “within two to three feet” of several uninsulated pipes (Tr. 52, 53).
Mr. Johnson stated that on several occasions, Container was informed in writing of this
condition (Tr. 44).

A review of the record discloses a lack of evidence that steam pipes “within seven
feet of the floor or a working platform or within 15 inches measured horizontally from
stairways, ramps, or fixed ladders” were uninsulated. The Secretary’s witnesses and evidence
fails to show that uninsulated pipe was within the specified dimensions or in a location that
would violate the standard. Container’s motion to dismiss that part of the citation alleging
violation of 29 C.F.R. § 1910.261(k)(11) is granted.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER

1. The agreements of the parties, both written and oral as stated in the record, are
   approved and incorporated as part of this decision.

2. Citation No. 1, alleging violations of 29 C.F.R. § 1910.261(a)(3)(xviii), 29
   C.F.R. § 1910.261(b)(2), and 29 C.F.R. § 1920.261(k)(11) are hereby vacated.

/s/ Paul L. Brady
PAUL L. BRADY

Judge

Date: November 2, 1993