Superior Tank and Trailer Co.

Plain-English summary

Superior repaired commercial tanks and trailers that had carried products ranging from food to gasoline and acids. The judge found that its contractor washouts, supervisor checks, atmospheric testing, periodic retesting, and forced-air ventilation adequately evaluated the units and prevented them from being permit-required confined spaces. Both confined-space items were therefore vacated. The abrasive-wheel item was also vacated because OSHA did not sufficiently prove that employees used unguarded grinders for work outside the standard's internal-work exception. The press-brake item was affirmed because employees placed their hands in the danger zone while guards such as a light curtain or pull-backs were feasible. That violation was serious, and a $1,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.146(c)(1), 1910.146(c)(4), 1910.212(a)(3)(ii), and 1910.215(a)(1)
• Outcome: The press-brake item was affirmed with a $1,000 penalty, and the two confined-space items and abrasive-wheel item were vacated.
• Key point: An employer's actual evaluation and ventilation practices can establish that cleaned tanks are not permit spaces, but a press brake still requires point-of-operation guarding when hands enter the danger zone.

Full text (OSHRC public release)

                             United States of America
      OCCUPATIONAL SAFETY AND HEALTEI REVBW COlMMI!BION
                        1120 20th Street, N.W., Ninth Floor
                           Washington, DC 20036-34 19

                                                                           e-


                                                                     Phone:(202)606-5400
                                                                      Fax:(202)606-5050

SECRETMY OF LABOR
Complainant
V. OSHRC DOCKET
NO. 950870
SUPERIOR TANK AND TIMILER CO.
Respondent.

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

docketed with the Commissi on on August l5, 1996. The decision of the Judge
will become a final order of the Commission on September 16,1996 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
September 4, 1996 in order to permit suf&ient time for its rewew. 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
-. Rerew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 200364419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
OfEke of the Solicitor, U.S. DOgL
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
havmg questions &out review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: August 15, 1996
,

DOCKET NO. 95-0870
NOTICE IS GIVEN TO THE FOLLOWING:



Benjamin T. Chinni
Associate Regional Solicitor
Of&e of the Solicitor, U.S. DOL
Federal office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199



Tom Burkey, President
The Su ‘erior Tank & Trailer Co.
Co. R%46
PO Box 555
Sugarcreek, OH 44681



Ken S. Welsch
Administrative Law Jud e
Occupational Safety an B Health
 Rewew Commisaon
Room240
1365 Peachtree Street, NE.
Atlanta, GA 30309 3119




ool2l91ool2:os

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240 w
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4197 Fax: (404) 347-0113

                                                           .
                                                           .

SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC Docket No. 95-870
.
THE SUPERIOR TANK & TRAILER CO., ;
Respondent. ..
..

APPEARANCES:

      Patrick L. DePace, Esquire                                               Mr. Thomas Burkey, President
          Office of the Solicitor                                                 The Superior Tank & Trailer Co.
          U. S. Department of Labor                                               Sugarcreek, Ohio
          Cleveland, Ohio                                                              For Respondent Pro Se
               For Complainant

Before: Administrative Law Judge Ken S. Welsch

      The Superior Tank & Trailer Company (STT) repairs commercial tanks and trailers at its

workplace in Sugarcreek, Ohio. On April 5,1995, Occupational Safety and Health Administration
(OSHA) Compliance Officer Bruce R. Bigham conducted an inspection of SIT’s workplace in
response to an employee complaint.. As a result of Bigham’s inspection, the Secretary issued a
citation to STT on April 19,199s. The Secretary alleges in the citation that STT committed serious
violations of four standards of the Occupational Safety and Health Act of 1970 (Act):
$19 10.146(c)(l), for failure to determine whether the interiors of tanks and trailers were
permit-required confined spaces (item 1); 6 1910.146(c)(4), for failure to develop a written
permit space entry program (item 2); 5 19100212(a)(3)(ii),for ftilure to guard the point of operation
on a press brake (item 3); and 9 1910.215(a)(l), for failure to use safety guards on abrasive wheels
on grinding machinery (item 4). STT contests all items and proposed ‘penalties contained in the
citation.
Background

        SIT repairs commercial tanks and trailers that have been used to haul a variety of products,

including milk, eggs, meat, gasoline, soap, acids, and concrete mix (Tr. 18-20). Before the tanks and
trailers are brought to STT’s workplace, another company washes out the interiors with soap and
water (Tr. 17,54). STT uses several different contractors to wash out the units. The contractor gives
STT a receipt for the washout of a unit, specifying what product the unit contained prior to the
cleaning, and confirming that it has been washed out (Tr. 125-126).
After the unit is washed out, it is brought to SIT’s yard where it may sit for several days (Tr.
126). When STT is ready to service the unit, a supervisor checks the unit to see that it has actually
been washed out. The supervisor opens the hatch or hatches on the unit and uses an oxygen meter
to determine the level of oxygen in the tank (Tr. 127-128). The supervisor tests for oxygen by
holding the oxygen meter in the manway opening of the unit (Tr. 130).
Once the supervisor has performed the initial check on the unit, it is brought into SIT’s shop.
STT’s shop can hold up to six units (Tr. 132). STT makes periodic oxygen checks and ventilates
each unit with a fan (Tr. 129-130). The units vary in size and configuration. Some units are as long
as 40 feet and contain several compartments. Some units have only one manway through which an
employee can enter, and some have several manways (Tr. 50-53, 132).
The length of time needed to repair a unit varies. Edward Swihart, a welder formerly
employed by SIT, commented on the time needed for repairs: “If it’s a roll-over, it could take up
to a couple of months, or a month. If it’s just to repair lights or repair a crack, it could take them as
short as maybe a couple of hours” (Tr. 18). Repairs to the units usually require STT employees to
weld and then sand and buff the interior of a unit (Tr. 32).
 Item 1: Alleged Serious Violation of 4 1910.146(c)(l)

    The Secretary alleges that STT committed a serious violation of 5 1910.146(c)( l),*which

provides:
The employer shall evaluate the workplace to determine if any spaces are
permit-required confined spaces.

    NOTE: Proper application of the decision flow chart in Appendix A to section
    19 10.146 would facilitate compliance with this requirement.

   The flow chart that appears in Appendix A asks at the top of the chart, “Does the workplace

contain Confined Spaces as defined by $1910.146(b)?” Section 1910.146(b) defines a confined
space as a space that:
(1) Is large enough and so configured that an employee can bodily enter and perform
assigned work; and

    (2) Has limited or restricted means for entry or exit (for example,tanks, vessels,
    silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means
    of entry); and

    (3) Is not designed for continuous employee occupancy.

   The Secretary and STT agree that the tanks and trailers which STT repairs are confined

spaces within the meaning of 5 1910.146(b) (Tr. 133). If, as here, the answer to the first question in
the flow chart is “yes,” the chart directs the reader to proceed to the next question, which is, “Does
the workplace contain Permit-required Confined Spaces as defined by 6 1910.146(b)?” That standard
provides:
“Permit-required confined space (permit space)” means a confined space that has one
or more of the following characteristics:

    (1) Contains or has a potential to contain a hazardous atmosphere;

    (2) Contains a material that has the potential for engulfmg an entrant;




                                               3

(3) Has an internal configuration such that an entrant could be trapped or
asphyxiated by inwardly converging walls or by a floor which slopesdownward and
tapers to a smaller cross-section; or

    (4) Contains any other recognized serious safety or health hazard.

    The Secretary and STT disagree as to whether the tanks and trailers that STT repairs are

permit-required confined spaces. The Secretary believes that the units contain, or have a potential
to contain, a hazardous atmosphere and, thus, are permit-required confined spaces as specified in
the frst characteristic of the defmition. Bigham testified that the units have a potential to contain
a hazardous atmosphere resulting from toxic exposure, oxygen deficiency, or flammable vapors (Tr.

70) .
To establish a violation of a standard, the Secretary must show by preponderance of
the evidence that: (1) the cited standard applies, (2) its terms were not met, (3)
employees had access to the violative condition, and (4) the employer knew or could
have known of it with the exercise of reasonable diligence. See, e.g., Walker Towing
Corp., 14 BNA OSHA 2072, 2074, 1991 CCH OSHD 29,239, p. 39,157
(No.87.1359,199 1). Seibel Manufacturing & Welding Corporation, 15 BNA OSHA
1218,1221-1222 (No. 88-821).

    STT argues that its evaluation process meets the terms of the standard. It evaluates each of

the tanks and trailers that come into its workplace and determines whether or not they are
permit-required confined spaces. The evaluation includes the determination that the units do not
contain or have the potential to contain a hazardous atmosphere.
The Secretary contends that STT’s evaluation process fails to meet the terms of the standard
because STT does not properly evaluate the spaces. The Secretary asserts that STT incorrectly
determines that the spaces do not contain or have the potential to contain, a hazardous atmosphere.
STT president Thomas Burkey, representing his company pro se, testified that STT uses a
three-step process to evaluate whether a unit contains, or has the potential to contain, a hazardous
atmosphere: (1) a contractor washes out the unit; (2) an STT supervisor tests the unit with an oxygen
meter and a flammability meter (explosimeter) after the unit is brought into its yard; and (3) STT
employees test the unit periodically once it is brought into the shop (Tr. 15 1-152). In addition, STT
ventilates the space with a fan while employees are working inside the unit (Tr. 130-l 3 1). STT

                                              4

contends that by washing out the unit, STT eliminates the potential for a hazardous atmosphere, and
that it confirms that the potential is eliminated by repeatedly testing the unit for oxygen content and
flammability potential. *

   The Secretary asserts that STT has not provided adequate documentation to establish that its

evaluation process eliminates the potential for a hazardous atmosphere. The Secretary refers to the
preamble of $19 10.146 to support his contention that the space must be hazard-free in order to avoid
classification as a permit-required confined space. The Secretary also states that STT does not
follow its own safety program because the company (Secretary’s Brief, pg. 11):
. . . [m]ust be able to document that the recognized potential hazards have been
eliminated and [it] must further document that there is no likelihood of any hazard
arising in the units once brought into SIT. 29 C.F.R. $1910.146(c). STT has failed
to make such a showing. In addition, STT did not make available to its employees
the documentation regarding how the hazards were eliminated. 29 C.F.R.
$1910.146(c).

   Despite the Secretary’s repeated references to § 1910.146(c), nothing in that standard imposes

the documentation requirement that the Secretary implies it does. SIT was not cited because it
failed to meet the terms of the standard’s preamble or its own safety program. STT was cited for
violating the terms of 5 1910.146(c), which requires that the employer evaluate spaces to determine
whether they are permit-required confined spaces. Section 19 10.146(c) does not specify what the
evaluation process should consist of, but only that it be adequate to determine if a space is a
permit-required confined space.
The Secretary also complains that STT “presented no evidence that the initial entry into the
units was performed as if the space were known to be a permit space” (Secretary’s Brief, pg. 12),
and claims that such an entry was required by 6 1910.146(c)(7). The Secretary did not cite STT for
the violation of 5 1910.146(c)(7), however, and even if it had, that section is inapplicable to the
present case. Section 1910.146(c)(7) provides, “A space classified by the employer as a permit-
required confined space may be reclassified as a non-permit confined space,” and proceeds to specify
the procedures for the reclassification. In the instant case, the employer never classified any spaces
as permit-required confined spaces.
 The Secretary’s evidence directly addressing § 1910.146(c)( 1) is thin. The Secretary claims
that SIT’s evaluation process is inadequate, but the Secretary failed to adduce sufficient evidence
to support his claim. No expert witness testified regarding what conditions create the potential for
a hazardous atmosphere.
The Secretary disputes SIT’s claim that it used ventilation in the units while employees were
working in them, but Compliance Officer Bigham conceded that ventilation would eliminate any-
hazardous atmosphere in the units (Tr. 73). Former STT employee Swihart, testifying for the
Secretary, stated that STT did not require ventilation in its units, but his testimony was vague (Tr.
29-30):
Ventilation was never used unless an individual -- they had two little blower fans
there you could hook up to. And, a lot of them I think used to remove smoke and to
get cool air into the shop or into the tank whenever he was working there. But, as far
as the ventilation system, there wasn’t any to ventilate a tank.

      Later in his testimony, Swihart again states that there was no ventilation, but he seems to be

speaking of ventilation in the shop itself, and not in the individual units (Tr. 36):
We had no such ventilation at all, no fan, no nothing, no anything. The building was
too huge. It had a little fan at the top, but the building was so tall and so big, that it
wouldn’t create any air movement at all.

      Brian Kovalske, part owner and “day-to-day operations man” (Tr. 197) of STT, testified

regarding STT’s ventilation procedure. STT introduced a photograph of a fan (Exh. R-2), which
Kovalske explained is “a fan with forced air ventilation. It’s something to move the fresh air inside
a confined space” (Tr. 200-201). Kovalske stated that STT had ten to twelve fans and that they are
used “whenever people are working inside a confined space” (Tr. 201). Kovalske’s testimony is
accepted regarding the ventilation procedure used by STT. His testimony is more specific and
detailed than that of Swihart.
The Secretary has failed to establish that STT committed a violation of § 1910.146(c)( 1).
STT used an evaluation process adequate to determine whether or not a confined space was a
permit-required confined space.
 The Secretary alleges that STT violated $1910.146(c)(4), which provides:

   If the employer decides that its employees will enter permit spaces, the employer
   shall develop and implement a written permit space program that complies with this
   section. The written program shall be available for inspection by employees and
   their authorized representatives.

   The spaces which STT’s employees were required to enter were not permit spaces.

Therefore, 5 19 10.146(c)(4) is inapplicable to the cited conditions. Item 2 is vacated.

                 Item 3 : Alleged Serious Violation of 6 1910.2 12(a)(3)(iil

   The Secretary cited STT for a serious violation of 5 1910.2 12(a)(3)(ii), which provides:

   The point of operation of machines, whose operation exposes an employee to injury,
   shall be guarded. The guarding device shall be in conformity with any appropriate
   standards therefor, or, in the absence of applicable specific standards, shall be so
   designed and constructed as to prevent the operator from having any part of his body
   in the danger zone during the operating cycle.

   SIT uses its press brake to form metal pieces required for repair of certain units. The press

brake is capable of forming pieces of varying sizes ranging from 2 inches square to 10 feet long (Tr.
140-142). When working on a piece of metal 2 inches square, the operator must place his hands in
the danger zone while operating the press brake. Press guards were available for the press brake, but
the press brake was operated routinely without guards (Tr. 38.39,79).
STT does not dispute that its employees used the unguarded press brake while working on
small pieces of metal. SIT contends, however, that its operators cannot work on the smallest pieces
of metal with a guard in place. STT argues that its safety training of the operators is sufficient to
prevent injuries. Compliance Officer Bigham testified convincingly that the press brake could be
used to work on small metal pieces with guards in place. STT stated that it could not use a light
curtain as a guard because the guard would have to be adjusted constantly to accommodate the
different sizes and configurations of the metal pieces (Tr. 204). Bigham explained at length how the
light curtain could be used without extensive adjustments:

                                              7

The light curtain is just a series of light beams in fkont of the point of operation that
would prevent the press fkom operating if the hands were in the point of operation,
but it would allow the hands to be as close as they needed to be until the ram touches
the material to be bent, and then the light curtain is deactivated and the material can -
bend without shutting the press off.

(Tr. 217)

   There should be no adjustments necessary at all. There might be a need to deactivate
   the lowest light beam if the material to be bent was thick enough to break that beam.
   But, normally, the thickness of the material is not going to be that large a variable,
   so that ordinarily no adjustments are necessary, and the light beam can be spread out
   as wide as the ram of the press.

(Tr. 218)

   [T]he operator can continue to hold the piece of metal as it’s being bent if they wish
   to with the light curtain because as soon as the opening between the ram and the
   material to be bent is closed, the light curtain deactivates so that it continues to make
   the bend without breaking the beams because the light beam is deactivated at that
   point.

(Tr. 220)

   Bigham also testified that pull-backs could be used to guard the press brake while still

allowing the operator to work on small pieces of metal. Bigham stated the pull-backs do not pull
the operator’s hands “away from the point of operation until the ram is closing so that they can be
adjusted to allow the hands to be as close as they need to be to do the work”( Tr. 2 18).
The Secretary has established that STT violated $1910.2 12(a)(3)(ii). The citation alleges a
serious violation. A violation is serious under section 17(k) of the Act if “an accident is possible
and there is a substantial probability that death or serious physical harm could result from the
accident.” Consolidated Freightways Corp., 15 BNA OSHC 13 17, 1324 (No. 86-35 1, 1991). An
operator using the unguarded press brake risks amputation should his finger or fingers get caught
in the point of operation (Tr. 79). The violation created the possibility of an accident with a
substantial possibility that serious physical harm could result. The violation was serious.
 Item 4: Alleged Serious Violation of 5 19 10.2 15(a)(l)

   The Secretary alleges that STT committed a serious violation of 6 1910.215(a)(l), which

provides:
Abrasive wheels shall be used only on machines provided with safety guards as
defined in the following paragraphs of this section, except:

    (I) Wheels used for internal work while within the work being ground;

    (ii) Mounted wheels, used in portable operations, 2 inches and smaller in diameter;
   and

    (iii) Types 16, 17, 18, 18R, and 19 cones, plugs, and threaded hole pot balls where
   the work offers protection.

   STT had several hand-held grinders available for its employees to use. Although the grinders

were equipped with guards, at times the employees removed the guards and used the unguarded
grinders to perform their work. STT argues that the grinders were used without guards only when
they were used for “internal work while within the work being ground,” as provided in exception
(I) of the cited standard and, therefore, their use was not in violation of $1910.215(a)( 1) (Tr. 137).
The Secretary maintains that the record establishes the grinders were used routinely to
perform work regardless of whether the work was internal or external. He cites the testimony of
Swihart and Bigham in support of his contention.
Swihart testified that SIT employees used the grinders without guards, but he does not state
that he observed the employees use the unguarded grinders for external work (Tr. 42-43):
Q.: Now, would they [STT employees] use the grinder without the guards?
Swihart: Yes.
Q.: What would they use to grinder without guards for?
Swihart: They would use with regular grinding wheels which required the guard but would
use them because sometimes they could put special wheels onto these grinders and bti with
them and stuff; and they were too big for the guards. So, you couldn’t use them. It just took
a special buffer wheel to put on them.
 So, they would run them, but at that point, the guard would never get returned to the
thing. If a guy needed to switch over and use grinding wheel, they would just switch
over and use a grinding wheel. So basically, there were never any guards around.

   Nowhere in his testimony does Swihart specifically state that he observed STT employees

using unguarded grinders in a situation that was not excepted by § 1910.215(a)(l)(I). Swihart
himself used his personal grinder which was equipped with a guard that Swihart stated he had never
removed “from the day that I bought it” (Tr. 65).
Bigham’s testimony regarding the use of the unguarded grinders is similarly vague. Bigham
testified that he did not observe any STT employees using the grinders but that he interviewed an
employee who told him that the employee “used the grinder routinely without the guard in place”
(Tr. 81). The compliance officer conceded that the grinders did not need to be guarded “[wlhen the
work that is being grinded on would provide protection for the employees if the wheel would break”
(Tr. 8 l-82). Bigham stated that Burkey told him that the grinders were used without guards “at
times” but did not ask him if those times were covered by exception (I) (Tr. 82). .
Later in his testimony, Bigham states the employee he interviewed told him the grinders
were sometimes used for external work. This statement comes, however, in the midst of memory
lapses and is accompanied by admissions that Bigham failed to ask crucial questions during his
inspection (Tr. 106- 107):
Q.: [ylou only saw one grinder?

   Bigham: I only recall seeing one grinder. I did see some grinders that had guards on
   them.

   Q.: You did?

   Bigham: Yes.

   Q.: Did you ask Mr. Burkey about this particular grinder, this Hitachi hand-held
   grinder; why there wasn’t a guard on that grinder?

   Bigham: No.

    Q.: And, I think you testified that there was an exception to requiring a guard on a
    grinder; is that correct?

                                             10

Bigham: Yes.

   Q.: How did you know either one of those exceptions applied in this particular
   situation?

   Bigharn: Because I interviewed the operator, and he said that while sometimes those
   exceptions apply, at other times they grinded outside tanks, and there was no guard
   being used, and there was nothing between the wheel and him to protect him.

   Q.: Did he indicate to you whether or not there was a guard for that; that he just
   wasn’t using it or what?

   Bigham: I don’t recall.

   Q.: Did you discuss that with Mr. Burkey about the guard on this grinder?

   Bigham: Yes.

   Q.: What did he say?

   Bigham: I don’t recall.
   Aside corn Bigham’s statement that an employee told him unguarded grinders were used for

external work, the Secretary adduced no direct evidence that a violation occurred. Swihart did not
testify that he observed STT employees use unguarded grinders for external work. No other
employee testified regarding this issue. Kovalske testified that STT had a specific work rule
regarding the use of the grinders: “The rule is, if you’re using a hard disk grinder, you should have
a guard on it unless it’s in such a tight space, it can’t be used” (Tr. 2 15). Bigham’s statement alone
is insufficient to establish that STT violated the cited standard. Item 4 is vacated.

                                    Penalty Determination

   The Commission is the final arbiter of penalties in all contested cases. Under 5 17(j) of the

Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good

                                               11

faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
STT employed approximately twenty employees at the time of the inspection (Tr. 86). The
Secretary had previously cited the company for serious and repeat violations (Tr. 87). Bigham
testified that STT had exhibited a lack of good faith by delaying his walk-around inspection (Tr.
117-l 18). The gravity of the violation of $1910.2 12(a)(3)(ii) is high. Operators of the press brake
were required to place their fingers in the danger zone in order to work on small pieces of metal.
Based upon these factors, it is determined that a penalty of $l,OOO.OO
is appropriate.

                                 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

    Based upon the foregoing decision, it is hereby ORDERED:
    1. Item 1 of the citation, alleging a violation of $ 1910.146(c)(l), is vacated and no

penalty is assessed;
2. Item 2 of the citation, alleging a violation of 5 1910.146(c)(4), is vacated and no
penalty is assessed;
3. Item 3 of the citation, alleging a violation of 0 1910.212(a)(3)(ii), is affirmed and a
penalty of $l,OOO.OO
is assessed; and
4. Item 4 of the citation, alleging a violation of 5 1910.215(a)(l), is vacated and no
penalty is assessed.

                                                   Judge

Date: August 5, 1996

                                              12