Docket No. 1243

F.E. MYERS & BROTHERS COMPANY

OSHRC Docket No. 1243

Occupational Safety and Health Review Commission

October 7, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision made by Judge Abraham Gold. He concluded that Respondent committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by violating the safety standard published at 29 C.F.R. 1910.107(e)(4). n1 He assessed a penalty of $600. Judge Gold also found that Respondent committed non-serious violations of the standards published at 29 C.F.R. 1910.107(b)(3) n2 and 29 C.F.R. 1910.212(a)(1). n3 He assessed $30 penalties for each non-serious violation.

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n1 29 C.F.R. 1910.107(e)(4) provides in pertinent part:

Flammable and combustible liquids

Adequate precautions shall be taken to protect against spillage and sources of ignition.

n2 29 C.F.R. 1910.107(b)(3) provides:

The floor surface of a spray booth and operators' working area, if combustible, shall be covered with noncombustible material of such character as to facilitate the safe cleaning and removal of residues.

n3 29 C.F.R. 1910.212(a)(1) provides:

One of more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc.

[*2]

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We have reviewed the record and adopt the decision of the Judge to the extent it is consistent herewith.

Citation for Serious Violation of 29 C.F.R. 1910.107(e)(4)

Respondent, a pump manufacturer, uses paints and thinners in its manufacturing process. On June 2, 1972, Complainant's compliance officer conducted an inspection fo Respondent's workplace. On the fourth floor of the painting department, the compliance officer observed employees adding thinner to spray paint containers on a wooden floor. The floor evidenced prior spillage of paint and thinner, and the ceiling of the third floor showed signs of paint having seeped through the fourth floor.

The compliance officer testifed that the spilled paints and thinner could be ignited by one of three sources: (1) a 110 volt receptacle which was not explosion proof; (2) spray paint containers that were not bonded or grounded to the rack in which they were stored; and (3) leakage of liquids onto the wires of a light fixture at the point where the wires were connected to a receptacle.

Complainant alleged and Judge Gold found, that Respondent [*3] was in violation of 1910.107(e)(4) in that it failed to take adequate precautions against spillage and exposure to sources of ignition. Judge Gold concluded that the violation was serious since ignition of the spilled paint or thinners could result in a fire or explosion that could cause death or serious injury.

We agree with Judge Gold that the record establishes Respondent failed to take adequate precaution against spillage of flammable paints and thinners. However, we believe he erred in finding these spillages were exposed to sources of ignition. In this regard, the record shows that the non-explosion proof 110 volt receptacle was located on the outside and rear of a spray booth, and therefore, was not proximate to the mixing area where the spillage had taken place. As to the unbonded spray paint containers, the record is silent as to how close they were to the spillage area. Furthermore, we find it unlikely that an unbonded spray paint container stored in a rack could ignite spilled paint or thinner being mixed elsewhere. Finally, as to the leakage of liquid on the wires leading to the light fixture, we note that the evidence of record is purely speculative as to the identify [*4] of the liquid. The compliance officer testified that liquid had leaked because he observed its residue on the wires. He admitted that he could not identify the residue, but he opined that even if it had been water a short circuit or spark could result. While the compliance officer's opinion that a spark or short circuit might occur, may be correct, we find it insufficient to support a finding that Respondent had failed to take adequate precautions against a source of ignition within the meaning of 29 C.F.R. 1910.107(e)(4). (It may well be that this evidence is sufficient to establish a violation of some other standard for which Respondent was not cited.) The standard applies only to sources of ignition of spilled flammable or combustible liquids as those terms are used in 29 C.F.R. 1910.107. Thus, Complainant must established that a flammable or combustible liquids were in such proximity to a source of ignition such that the liquid could be ignited. No such evidence was presented in this case.

Complainant has established that spillage took place and that Respondent failed to take adequate precautions to prevent spillage. However, inasmuch as Complainant has failed [*5] to establish that Respondent did not take adequate precautions against sources of ignition, we must conclude that he has also failed to establish a danger of fire or explosion resulting from the spilled thinners and paints. The danger of fire is further reduced by the fact that Respondent's plant is equipped with an automatic sprinkler system. In view of the above, we cannot say that even in the remote circumstances that ignition should occur, that death or serious physical injury would be substantially probable as required by section 17(k) of the Act for a finding of serious violation. Accordingly, we conclude that Respondent was not in serious violation of 29 C.F.R. 1910.107(e)(4).

Although we have found Respondent not to be in serious violation of 29 C.F.R. 1910.107(e)(4), this is not to say that it was not in non-serious violation. The standard requires that Respondent take adequate precautions to protect against spillage of flammable or combustible liquids and sources of ignition. A failure to meet either requirement is sufficient to establish a violation of the standard. As previously stated, we believe Complainant has established Respondent's failure to take adequate [*6] precautions against the spillage of flammable or combustible liquids. Accordingly, we find Respondent in non-serious violation of 29 C.F.R. 1910.107(e)(4).

We turn now to the assessment of an appropriate penalty. Although spillage of paints and thinners on a combustible floor can create a danger of fire, we have found that Respondent took adequate precaution against sources of ignition. In addition, Respondent has no-smoking signs posted and, as previously mentioned, an automatic sprinkler system is present. Furthermore, there is evidence that Respondent put "Floor Dry" on the spillage to absorb it. In view of these factors, we find the violation to be of low gravity. Respondent's business is large, employing over 800 men and women. We have no reason to question Respondent's good faith, although it has received a previous citation. In light of the above, we conclude that a penalty of $30 is appropriate.

Citation for Violation of 29 C.F.R. 1910.212(a)(1) (Non-Serious)

In one of its buildings, Respondent uses an overhead conveyor to transport pumps. Pumps are placed on a hydraulic table, the table is raised, and an employee attaches a hook which hangs from the [*7] conveyor. The conveyor moves at a rate of 6 1/4 feet per minute. If a problem should occur with the conveyor, it can be stopped by a switch located 20-32 feet from the hydraulic table. n4

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n4 The record contains hearsay evidence of pumps having, on occasion, snagged the hydraulic tables. There is no evidence of any injuries resulting from these occurences.

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Leiter, Respondent's Manager of Plant Engineering, testified that the drive of the conveyor contained a shear pin so that should an excessive load be put on the conveyor, rather than damage it or topple a table, the pin whould shear and the conveyor would stop.

Complainant's compliance officer testified that he cited Respondent for a non-serious violation of 29 C.F.R. 1910.212(a)(1) on the basis of his belief that emergency shut-off buttons should be located at each work station, near the reach of the operator. Assuming, without deciding that the cited standard is applicable to the facts in this case, we do not believe that the opinion of a compliance officer, [*8] in the complete absence of any objective evidence, is sufficient, in this case, to support a finding of a violation of the standard. In this regard, we note there is nothing in the standard which suggests that emergency switches must be located at each work station, and Respondent's conveyor is in fact equipped with emergency switches, albeit, not where the compliance officer felt they should be located. Furthermore, the conveyor moves at a slow rate of speed and is automatically stopped by the shear pin in the event of an overload. Therefore, we will vacate the citation for non-serious violation of 29 C.F.R. 1910.212(a)(1).

For the reasons given, the Judge's order is modified to find a non-serious violation of 29 C.F.R. 1910.107(e)(4) and a penalty of $30 is assessed for such violation. The citation for serious violation of 29 C.F.R. 1910.107(e)(4) and non-serious violation of 29 C.F.R. 1910.212(a)(1) as well as the penalties proposed therefore, are vacated. It is so ORDERED.

CONCURBY: MORAN; CLEARY (In Part)

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the result reached in this case only for the purpose of having a decision issue. As the views of all three Commission [*9] members differ on this case it should not be read as establishing any principles of law.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with the majority's finding that the Secretary did not prove by a preponderance of the evidence that respondent failed to comply with the standard at 29 CFR § 1910.212(a)(1).

I dissent, however, from the majority's holding that respondent's failure to comply with 29 CFR § 1910.107(e)(4) constituted only a non-serious violation of the Act.

The critical part of the standard provides that "[a]dequate precautions shall be taken to protect against spillage and sources of ignition." The majority, while finding that respondent failed to take adequate precaution against spillage of flammable paints and thinners, found, however, that the Secretary "failed to establish that respondent did not take adequate precautions against sources of ignition." I desagree.

The record clearly demonstrates that respondent took no steps whatsoever to protect against sources of ignition. The compliance officer testified that respondent did not use an explosion-proof 110 volt receptacle; respondent did not ground [*10] its spray paint containers to the rack in which they were stored; and respondent permitted a liquid (possibly paint thinner) to drip onto the wiring of an eight foot fluorescent light fixture.

All three of these conditions were potentially dangerous. The testimony indicated that a mere spark could be sufficient to ignite or cause an explosion of the toluol, methyl ethyl ketone, isopropyl alcohol, or other combustible liquids present at the worksite that have an extemely low flash point.

Respondent's violation of the Act cannot be considered one of a non-serious nature simply because the fortuity of the circumstances made the likelihood of an accident remote. The fact that respondent's plant was equipped with an automatic sprinkler system is irrelevant to the determination of the seriousness of the violation because this system could not offset the effects of an explosion. Similarly, the violation does not become one of a non-serious nature because respondent used "Floor Dry" to absorb the spills. The evidence shows that this procedure was largely ineffective and even the majority has conceded that respondent did not take adequate steps to prevent spillage.

The Commission has [*11] held on numerous occasions that a substantial probability of an accident occurring is not required in order to find a serious violation. In Standard Glass & Supply Co., No. 585 (April 27, 1973), the Commission stated:

It is our view that substantial probability that death or serious physical injury could result, in conjunction with the knowledge requirement of section 17(k) and the possibility of an accident's occurrence, is all that is required for a violation to be considered serious. The occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious within the meaning of the Act (emphasis in original).

Even though the probability that an accident could occur has no bearing on whether a violation is serious, the likelihood of an accident, along with exposure, determines the gravity of a violation. Baltz Bros. Packing Co., No. 91 (February 8, 1973) (concurring opinion). Gravity is the most important factor in penalty assessment. Baltz Bros., supra.

[The Judge's decision referred to herein follows]

GOLD, JUDGE: This is a proceeding pursuant to Section 10 of [*12] the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act) contesting a Citation issued by Complainant against Respondent under the authority of Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 400 Orange Street, Ashland, Ohio and described as a masonry building, built-up roof, plant and offices, Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

Two Citations and Notification of Proposed Penalty were issued on July 20, 1972, Citation No. 1 alleging a serious violation, Citation No. 2 alleging 8 non-serious violations. Respondent filed a Notice of Contest only as to Citation No. 1 and Items 2 and 7 of Citation No. 2. Since the other items in Citation No. 2 and the proposed penalties therefor were not timely contested, such Citation items and penalties became a final order of the Review Commission, and are not at issue here.

The contested items and proposed penalties are as follows: [*13]

Item Number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected -- Proposed Penalty

Citation No. 1 -- 29 CFR 1910.107(e)(4) -- Inadequate control of spillage from mixing of paint and thinners for spray nozzle supply containers, performed outside spray booth -- 4th floor -- Bldg. #25, in that; (1) Wood floor is being permeated by paint and thinner. (2) Spillage seeps through floor dripping onto electrical light fixture and wiring at the 3rd floor ceiling area. -- 8-24-72 -- $600.00

2 -- Citation No. 2 -- 29 CFR 1910.107(b)(3) -- Spray booth operator's work area, mixing paint on wood floor. -- 8-24-72 -- $30.00

7 -- 29 CFR 1910.212(a)(1) -- No emergency shut-off switch or device for overhead conveyor at each operator's work station: Dept. #40, 3rd Floor, Bldg. #25, to prevent conveyor hooks from snagging and overturning elevated loading tables. -- 8-24-72 -- $30.00.

After a Complaint and Answer were duly filed by the parties, the matter came on for hearing on October 30, 1972 at Cleveland, Ohio.

Section 5(a)(2) of the Act requires that each employer comply with occupational safety and [*14] health standards promulgated under the Act.

Section 17(k) specifies that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

Section 17(b) provides that an employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.

Section 17(c) of the Act states that a civil penalty of up to $1,000 may be assessed for a non-serious violation.

Under Section 17(j), the Commission shall have authority to assess all civil penalties after giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The parties stipulated (J-1, Tr. 9, 10) that Respondent manufactures products which are shipped [*15] to all 50 States; that it owns or controls any equipment or machinery referred to in the Citations; that it is a division of McNeil Corporation, which had a net worth on December 31, 1971 of over 59 million dollars; that Respondent is a pump company which is perhaps the largest employer in Ashland, Ohio, employing an average of 829 employees in the current year.

Respondent also stipulated that it was previously inspected on February 2, 1972, as the result of an employee complaint; that it was not cited for the matter raised by the employee but was cited for 7 minor violations and penalized a total of $60 on 2 items; and that all cited items were brought into compliance.

Respondent has been conducting a painting operation in Building 17 of its plant for over 20 years (Tr. 87-88).

The instant Citations were based on an inspection conducted on June 2, 1972 (Tr. 21). On that date a Compliance Officer of the Occupational Safety and Health Administration, Department of Labor, observed the storage of flammable liquids, toluol and methyl ethyl ketone, in open-topped five-gallon paint can containers standing on a wooden floor, in very close proximity to a 110-volt receptacle [*16] which was not explosive-proof (Tr. 22). This was on the fourth floor of Respondent's Building 17. Paint and paint thinner which had spilled onto the fourth floor had permeated the floor and had seeped through the ceiling below (Tr. 23). Some type of liquid had seeped through the floor to an 8-foot light fixture on the ceiling of the third floor, forming a residue on the wires where the fixture was connected to a receptacle (Tr. 23).

The Compliance Officer noted that trays were provided to catch dripping paint, but there was overflow of the trays (Tr. 24). In the southeast corner of the building, near the opening where the conveyor went through the floor, paint-soaked rags were piled on and around a container provided for that purpose (Tr. 24).

In his testimony, the Compliance Officer pointed out that toluol and methyl ethyl ketone are extremely flammable (Tr. 28). Such solvents, he noted, should be kept in closed containers after each use; they should be kept away from heat, sparks and open flame; they should be sprayed from spraying containers which are grounded and electrically bonded to the rack in which they are placed (Tr. 29). The Compliance Officer testified that the [*17] containers of toluol and methyl ethyl ketone were not grounded and bonded (Tr. 29); that a spark could cause the vapor of these liquids to burst into flame; that such spark could come from the electrical outlet which was not explosive-proof; that the thinner or water or whatever liquid which had formed a residue on the electrical fixture on the third floor ceiling was a fire hazard (Tr. 31), as was as the lack of bonding of the containers (Tr. 30). He felt that the fumes could have reached the receptacle, which was approximately 5 feet from the containers (Tr. 54).

Dorothy Watkins, who has worked for Respondent since 1969, testified that her duties have included bringing the paint from the vault to the painters, placing the 5-gallon bucket on a table. She said that the painter would add thinner, filling the bucket; that the paint is then stirred, and the painter lifts the bucket above his waist and pours the contents into the pot (Tr. 59); that paint is spilled every time this is done (Tr. 59-60); that the floor is wooden, and the surface is not covered with any material such as paint, seal or wax (Tr. 61); that the only way to clean up the spillage is to use Floor Dry, [*18] which absorbs only the top of the oil and paint (Tr. 62), but the paint still seeps through the floor.

In other testimony, she said that the residue from the spillage on the floor is a smooth layer; that it gets to be a quarter of an inch thick; that Floor Dry is put on it, but it takes a while for it to soak up the paint, and then it is shoveled up (Tr. 66).

John L. Owens, President of Local 1297, International Association of Machinists, testified that he has been employed by Respondent for over 7 years; that he has seen green paint from the fourth floor leaking through the ceiling below; that the paint has dropped on him; and that he has seen paint dripping on the electrical fixtures (Tr. 79-80).

According to Raymond Leiter, Manager of Plant Engineering, and an employee of Respondent for 27 years, there has never been a serious fire or injury stemming from the painting operation (Tr. 88). He noted that the paint booth and the enclosure beyond it have steel flooring, but the building itself has a wood floor (Tr. 89-90); it is standard practice to clean the spillage of paint every 3 weeks, but in some areas it is done once a week (Tr. 89); there is no wholesale permeation of the [*19] floor (Tr. 91), only a couple of drips; on occasion there has been seepage of water through the floor (Tr. 91), coming from a parts washer; minor amounts of oil have leaked from a gear box, and it was this oil that the Compliance Officer saw on his inspection trip (Tr. 91). Mr. Leiter testified that there are automatic sprinklers throughout the paint department, special deluge systems in the spray booths and at the conveyor openings, and fire extinguishers at each booth, and an emergency fire association (Tr. 94-95).

It was the testimony of Mr. Owens that Respondent makes large pumps, 3 or 4 feet long (Tr. 76), which travel on a conveyor; that 2 large hooks are used, and they can get caught under the table (Tr. 76); that buttons to stop the conveyor can be as far as 32 feet away from an employee; that an employee may not be able to reach a shut-off button in time; and that this creates a hazard (Tr. 85). Mr. Leiter declared that the conveyor travels 6 1/4 feet a minute (Tr. 96-97); that the conveyor has a shear pin which is so devised that if there is an excessive load, the pin will shear and the conveyor will stop (Tr. 97-98).

The record establishes the three violations [*20] as charged. Under Section 17(k) of the Act, a violation is serious in nature if there is a substantial probability that death or serious physical harm could result from the alleged condition or practice, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. As to the violation of 29 CFR 1910.107(e)(4), there is a substantial likelihood that death or serious physical harm could result from a fire or explosion caused by the failure to take adequate precautions against spillage of flammable or combustible liquids and sources of ignition. It is found that Respondent knew, or with the exercise of reasonable diligence could have known, of the violation.

The proposed penalties for the three violations are considered appropriate, viewed against the background of the size of Respondent's business, the gravity of each violation, the good faith of Respondent, and the history of previous violations and abatement thereof.

It is noted that Citation No. 1 and the Complaint allege that the violation took place in Building #25. Mr. Weaver stated at the outset of the hearing (Tr. 14), and Exhibit C-1 shows, that it was Buildling [*21] #17. Item 7 of Citation No. 2 and the Complaint refer a violation in Building #25, whereas Mr. Weaver pointed out (Tr. 15), and Exhibit C-3 reflects, that it was Building #29. Counsel for Complainant did not move to amend the Citations to conform to the evidence. Respondent made no objection; in fact, Mr. Weaver volunteered the information as to the correct building numbers; the admission of evidence as to the different buildings did not prejudice Respondent in maintaining its defense upon the merits, and the failure to amend did not affect the result of the trial of the issues.

FINDINGS OF FACT

1. Respondent, a division of McNeil Corporation, has its principal office at Ashland, Ohio, has an average of 829 employees, and manufactures pumps which are shipped to all 50 states.

2. On June 2, 1972 Respondent violated the safety standard in 29 CFR 1910.107(e)(4) at Building 17 of its plant by not taking adequate precautions to protect against spillage of flammable or combustible liquids and sources of ignition, by permitting paint, paint thinner, oil and water to seep through the wooden floor on the fourth floor onto the ceiling of the third floor, permitting some type [*22] of liquid to seep through the floor onto an electrical fixture and wiring located at the third floor ceiling, the fixture being connected to a receptacle, and permitting highly flammable liquids, toluol and methyl ethyl ketone, to be stored on the fourth floor in open-topped 5-gallon can containers on a wooden floor in very close proximity to a 110-volt receptacle which was not explosive-proof.

3. There was a substantial probability that death or serious physical harm could result from said violation, and Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the violation.

4. On June 2, 1972 Respondent was in violation of 29 CFR 1910.107(b)(3) by not covering the wooden floor surface of the paint sprayer's working area in the vicinity of the spray booth with non-combustible material of such character as to facilitate the safe cleaning and removal of residues.

5. On June 2, 1972 Respondent violated 29 CFR 1910.212(a)(1) by failure to provide an adequate method of machine guarding in Building 29, specifically, by not providing an emergency shut-off switch for the conveyor at each operator's work station.

6. The proposed penalty of [*23] $600.00 for the serious violation and $30.00 for each of the non-serious violations are appropriate for each violation, considering the size of Respondent's business, the gravity of each of the respective violations, the good faith of Respondent, and history of previous violations.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On June 2, 1972 Respondent was in violation of Section 5(a)(2) of the Act, as alleged in Citation No. 1, for a serious violation, in that Respondent failed to comply with the standard contained in 29 CFR 1910.107(e)(4).

3. Said violation was a serious violation within the contemplation of Section 17(k) of the Act.

4. The proposed penalty of $600.00 for said serious violation is appropriate, in accordance with Section 17(b) and (j) of the Act.

5. On June 2, 1972 Respondent violated Section 5(a)(2) of the Act, as alleged in Citation No. 2, for other than serious violations, by failure to comply with 29 CFR 1910.107(b)(3) and 29 CFR 1910.212(a)(1).

6. The proposed [*24] penalty of $30.00 for each of said 2 non-serious violations is appropriate, in accordance with Section 17(c) and (j) of the Act.

It is ORDERED that Citation No. 1 and Items 2 and 7 of Citation No. 2, and the proposed penalties therefore, be and the same are hereby AFFIRMED.