SUNBEAM CORPORATION
OSHRC Docket No. 3664
Occupational Safety and Health Review Commission
July 6, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Herman Grant, Regional Solicitor
Anton Motz, Asst. General Counsel, SUNBEAM CORPORATION, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
An April 29, 1974 report of Review Commission Judge Sidney J. Goldstein is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Goldstein vacated citations alleging violations of 29 C.F.R. § 1910.132(a), and 29 C.F.R. § 1910.108(c)(3)(i). For the reasons which follow, we affirm his disposition of the § 1910.108(c)(3)(i) charge, and reverse his finding that § 1910.132(a) was not violated.
The instant citations were issued with respect to Respondent's (Sunbeam) small appliance manufacturing plant in Chicago, Illinois. Of forty alleged violations, Sunbeam contested only the two here at issue.
Alleged Violation of § 1910.132(a) n1
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n1 This standard provides:
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation, or physical contact.
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The citation alleged that the failure of the employees in the Die Cast Department to wear protective footwear violated the standard. In this area, parts for appliances were cast from aluminum and zinc. Ingots of these metals were melted in pots, and the molten metal was then poured into molds. When the parts were cooled, employees would take them and carry them to a conveyer or table, from which they would go to separate machines where they would be trimmed. The finished parts would then either be placed directly on pallets or smaller parts would be boxed before being placed on pallets.
These operations required the employees to regularly carry the ingots, cast parts, finished parts, and boxes of parts for distances of several feet between operations. On occasion, pallets would also be moved. The ingots usually weighed 12 to 14 pounds, but on some occasions could weigh as much as 40 pounds. The aluminum castings weighed up to 30 pounds, and the zinc castings about 15 pounds. Before being trimmed, some parts had jagged edges. The boxes of parts weighed up to 50 pounds. The pallets weighed up [*3] to approximately 35 pounds. n2
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n2 One of the employees in the Die Cast Department estimated the maximum weight of boxes of parts and pallets as 100 and 90 pounds respectively. Sunbeam challenges the credibility of this witness, noting that his estimates were widely at variance with those of another employee and the department supervisor. The exact weight of the objects involved is not critical to our conclusion. Accordingly, we have accepted the lower estimates of the other witnesses.
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Employees in the department were prohibited from wearing soft shoes, such as canvas shoes or sneakers. They were not, however, required to wear protective footwear of the type described in 29 C.F.R. 1910.136. n3 Sunbeam did, however, encourage employees to wear such footwear if they so desired, and arranged for a "shoemobile" to visit the plant in order to facilitate employees' purchase of protective footwear.
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n3 This standard provides:
Safety-toe footwear for employees shall meet the requirements and specifications in American National Standard for Men's Safety-Toe Footwear, Z41.1-1967.
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Seventy-two employees worked in the Die Cast Department. In the period from August 1971 to January, 1973, four employees were injured by objects dropped on their feet. None of the injuries resulted in lost work time, although at least three required medical attention, including x-rays.
On these facts, the Judge found that there was not a sufficient hazard to require the use of protective footwear. We do not agree. The record shows that, in a period of approximately a year and a half, one in each eighteen employees in the Die Cast Department suffered an injury from an objet dropped on the foot. Although these injuries were not serious enough to cause time lost from work, neither were they inconsequential. Furthermore, the record shows that employees regularly carry boxes of parts weighing up to 50 pounds, and castings, some with jagged edges, weighing up to 30 pounds. Future accidents could result in injuries more severe than those already suffered. We conclude that the evidence shows a hazard to the feet within the meaning of § 1910.132(a), and that the standard was violated. Arkansas-Best [*5]
Sunbeam also claims that the cited standard is unenforceably vague. We have consistently rejected this contention. Lee Way Motor Freight, Inc., supra, and cases cited therein.
Turning to the assessment of an appropriate penalty, we note that Sunbeam is a large employer, with no prior history of violations. The gravity of the violation is moderately low. A number of employees were exposed, but only relatively minor injuries were likely to occur. Sunbeam's good faith is demonstrated by an effective safety program. On balance, we find a penalty of $30 to be appropriate.
Alleged Violation of § 1910.108(c)(3)(i) n4
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n4 This standard states, in pertinent part:
Dip tanks over 500 gallons in liquid capacity shall be equipped with bottom drains automatically and manually arranged to quickly drain the tank in the event of fire. . .
The term "dip tank" is defined at 29 C.F.R. § 1910.108(a)(1) as:
(Dip tank) shall mean a tank, vat, or container of flammable or combustible liquid in which articles or materials are immersed for the purpose of coating, finishing, treating, or similar processes.
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The Heat Treat Department at Sunbeam's plant contained two pieces of apparatus called integral quench chambers, which were used for the heat treatment of metal parts. Each chamber contained a furnace used for heating the parts to approximately 1500 degrees F., and a tank containing a quenching oil into which the parts were immersed immediately after heating. During both the heating and immersion operations, the chambers contained an atmosphere consisting of 40% hydrogen, 20% carbon dioxide, 40% nitrogen, and a trace of methane.
The quenching oil used had the trade name "Houghto-Quench K," and had a flashpoint of 355 degrees F. n5 In use, the tanks contained 463 gallons of this liquid. If filled to the brim, however, each tank would hold approximately 580 gallons. n6 It is undisputed that the tanks were not provided with bottom drains to drain them in the event of fire. Complainant's witness testified that the standard is directed at the hazard that a fire occurring in the plant would be fed by the liquid in the tanks unless it was removed from the site by means of the drains allegedly required by [*7] the standard.
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n5 The flashpoint is the temperature at which a flammable or combustible liquid gives off sufficient vapor to form an ignitable mixture with the air near the surface of the liquid. See 29 C.F.R. § 1910.106(a)(14).
n6 Filling the tanks to the brim would be impractical because they would then overflow when the parts were immersed. Even allowing for sufficient space at the top to prevent overflow, however, the tanks could hold more than 500 gallons of liquid.
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Sunbeam contends that it is not in violation of the standard because (1) Houghto-Quench K is not a flammable or combustible liquid to which the standard applies: (2) the standard does not apply because the capacity of each tank is effectively less than 500 gallons; and (3) its tanks are not "dip tanks" of the type contemplated by the standard because they are not open to the atmosphere. Sunbeam also contends that equipping its tanks with drains would give rise to the possibility of explosion, and thus create a greater hazard than that against which [*8] the standard is directed. n7 For the reasons which follow, we conclude that Houghto-Quench K is not a flammable or combustible liquid to which the standard applies. It therefore becomes unnecessary to reach Sunbeam's other contentions.
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n7 Sunbeam claims that, if the liquid was suddenly drained from the tanks, the resultant partial vacuum would draw air into the chambers, and that the oxygen in the air mixed with the hydrogen in the chambers would constitute an explosive mixture. The Judge agreed, and based his disposition on this ground. Since we conclude that there was no violation of the standard, the question of whether compliance would create a greater hazard does not arise.
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The standards in 29 C.F.R. Part 1910 contain three sections dealing with flammable and combustible materials. Section 106 is entitled "Flammable and Combustible Liquids." Section 107 is entitled "Spray Finishing Using Flammable and Combustible Materials." Section 108, under which Sunbeam was cited, is entitled "Dip Tanks Containing Flammable [*9] or Combustible Liquids." All three sections originated as standards adopted by the National Fire Protection Association (NFPA), and were promulgated as occupational safety and health standards by Complainant pursuant to 29 U.S.C. § 655(a). n8 Of the three sections, only § 106 contains definitions of flammable and combustible liquids. Flammable liquids are defined as those with flashpoints below 140 degrees F. n9 Combustible liquids were defined at § 106(a)(18) as follows:
Combustible liquids shall mean any liquid having a flashpoint at or above 140 degrees F. (60 C.), and shall be known as Class III liquids. Class IIIA shall include those having flashpoints at or above 140 degrees F. (60 C.) and below 200 degrees F. (93.4 C.). Class IIIB shall include those having flashpoints at or above 200 degrees F. (93.4 C.).
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n8 36 Fed. Reg. 10466, 10589-90 (May 29, 1971). The source of § 108 is given as NFPA No. 34-1966, Standard for Dip tanks Containing Flammable or Combustible Liquids. No source was listed for § 106, but the source of § 105, which is entitled "Nitrous Oxide," is stated to be NFPA No. 30-1969, Flammable and Combusitble Liquids Code. This is an obvious misprint. An examination of NFPA No. 30-1969 indicates that it is actually the source of § 106 rather than § 105.
n9 29 C.F.R. § 1910.106(a)(19). Since this case arose, the definition has been changed to make the upper limit for flammability 100 degrees F. 38 Fed. Reg. 27047.
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Under this definition, Houghto-Quench K is classified as a Class IIIB liquid. Section 106(a)(18) went on to provide:
This section does not cover Class IIIB liquids. Where the term combustible liquids or Class III liquids is used in this section, it shall mean only Class IIIA liquids. n10
NOTE: The upper limit or 200 degrees F. is given because the application of this section does not extend to liquids having flashpoints above 200 degrees F. and should not be construed as indicating that liquids with higher flashpoints are non-combustible.
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n10 This limitation of applicability did not appear in NFPA No. 30-1969. The NFPA standard instead contained some provisions applicable to all combustible liquids, and some applicable only to Class IIIA liquids.
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Thus, the provisions of § 106 do not apply to Houghto-Quench K. Sunbeam argues that since the definition of combustible liquids in § 106 is the only such definition in 29 C.F.R. Part 1910, [*11] the same definition also applies to § 108. Sunbeam asserts that this argument is supported by § 108(d), which provides:
The storage of flammable and combustible liquids in connection with dipping operations shall conform to the requirements of section 1910.106, where applicable. . . .
Sunbeam argues that, by including this cross-reference to § 106 in § 108, Complainant explicitly recognized that the two sections were related, and therefore intended the same definitions to apply to both.
Complainant, on the other hand, points out that the source of § 108, NFPA No. 34-1966, defines combustible liquid as any liquid with a flashpoint above 140 degrees F. This would, of course, include Houghto-Quench K. Complainant argues that, in the absence of a specific definition in § 108, reference should be had to the source standard for the proper definition. Complainant further argues that this view is supported by the note in § 106(a)(18), quoted supra, which he claims shows a specific intent to limit the exclusion of liquids with a flashpoint over 200 degrees F. to that section.
We have carefully considered these arguments. We think that an examination of the history and provisions of [*12] the standards establishes that Complainant, when he promulgated the standards, intended the definition in § 106 to also apply to § 108.
Both sections (along with § 107), were promulgated by Complainant at the same time. n11 Both were derived from NFPA standards which contained the same definitions of flammable and combustible liquids. In promulgating § 106, Complainant in effect modified the definition of the NFPA source standard by providing that the section should not apply to the class of liquids with flashpoints over 200 degrees F. Section 106 thus, to this extent, imposes a less stringent requirement than the national consensus standard on which it is based. In promulgating occupational safety and health standards, Complainant was only authorized to deviate from a national consensus standard if he determined that "the rule as adopted will better effectuate the purpose of this Act than the national consensus standard." n12 We may thus infer that, at the time Complainant promulgated both § 106 and § 108, he gave careful consideration to the classes of substances which should be regulated.
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n11 See footnote 8, supra.
n12 29 U.S.C. § 655(b)(8).
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Had Complainant intended that different definitions should apply to § 106 and § 108 he could have adopted the definition applicable to § 108 he now claims should apply. He did not do so. Instead, he did not adopt a definition in § 108 itself. Furthermore, since he included in § 108 other definitions from the NFPA source standard, we cannot assume that his failure to adopt its definition of flammable or combustible liquid was inadvertent or that he intended that recourse should be had to the NFPA standard for applicable definitions. The most reasonable conclusion is that he did not adopt a definition in § 108 because he had adopted a definition in § 106 that he also intended should apply to § 108. This conclusion is supported by the fact that he recognized a relationship between the two sections by providing, in § 108(d), that some of the provisions of § 106 should apply to flammable and combustible liquids used in dip tanks.
The note in § 106(a)(18) does not suggest a contrary conclusion. The note adds nothing to the remainder of the definition. It merely states that liquids not regulated by [*14] § 106 may be considered combustible for other purposes. It does not mean that they must be so considered, or that another definition necessarily applies to § 108. n13
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n13 That no significance should be attached to the note is supported by the fact that it was later deleted by Complainant in a revision of the standard he described as non-substantive. 38 Fed. Reg. 27048 (Sept. 28, 1973).
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Furthermore, a consideration of the purpose of the cited standard, as well as the other standards found in § 106 and § 108, suggests that the standard is not applicable to the facts of this case. Section 106 is directed at the handling, storage, and use of flammable and combustible liquids. n14 Its requirements are intended to protect against fire and explosion hazards. The exclusion from its requirements of liquids with flashpoints above 200 degrees F. means that there are no restrictions on the storage of such liquids. Thus, if tanks such as are contained in Sunbeam's integral quench chambers were used simply to store Houghto-Quench [*15] K, they would not be required to have drains, nor would any other precautions against fire or explosion be required.
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n14 Section 106(j).
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As noted above, however, the hazard against which § 108(c)(3)(i) is directed is the possibility that combustible liquids will feed a fire if they are not removed from the site. This hazard is not increased by the fact that the liquid is used in a dipping operation rather than simply being stored. n15 Thus, to hold that the standard applies to the tanks in issue would produce the result that a liquid not restricted while it is stored is restricted when it is used, even though use creates no additional hazard than storage. We will not impute to Complainant the intention to create such an anomalous result. Instead, the standards should be read so as to harmonize the various provisions, and efectuate their purpose. See Adams and Mulberry Corporation, 17 OSAHRC 410, NBA 3 OSHC 1077, CCH OSHD para. 17,099 (1975).
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n15 Complainant suggests that since the parts being dipped are heated, they could ignite the surface of the liquid, creating an additional hazard. The record shows, however, that ignition is not possible because of the absence of oxygen from the chambers. But regardless, Complainant's interpretation would have the standard apply even if the parts being dipped are not heated, and if no additional hazard exists. Furthermore, the heated parts are at most a source of ignition, and the liquid could be stored pursuant to § 106 without taking any of the precautions against sources of ignition required by that section. See, e.g. § 106(e)(6)(i).
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Accordingly, item 25 of the citation is affirmed and a penalty of $30 is assessed. Item 36 is vacated. It is so ORDERED.
CONCURBY: CLEARY; MORAN (In Part)
CONCUR:
CLEARY, Commissioner, CONCURRING:
I concur in the lead opinion in the disposition of the citation regarding the use of safety shoes and the reasons therefor. I also concur in the disposition of the alleged noncompliance with the standard at 29 CFR § 1910.108(c)(1)(iii), but for different reasons. [*17] I do not agree with the lead opinion's conclusion that the Secretary modified the definition of the source standard so that the standard as adopted imposes a less stringent requirement than the national consensus standard on which it is based. This suggests action under section 6(a) of the Act that exceeds the power of the Secretary thereunder.
I concur in vacating the citation, however, because I hold that respondent's quench chambers are not "dip tanks" as contemplated by the standard.
Respondent's expert witness, with 26 years' experience in industrial furnaces, testified that the vessels in question are customarily called "atmosphere chambers" or "quenching chambers" as opposed to "dip tanks." This witness further testified that a routine dip, or quench, tank is an open tank into which work is literally dipped. I accept the distinction in this case since the purpose of the standard is to reduce fire and explosion hazards incidental to dipping operations.
Moreover, the standard is designed to empty and drain away the flammable contents of a dip tank in the event of a fire so as to diminish the amount of fuel available, thus making the fire easy to extinguish.
The Judge [*18] relied upon the opinion of respondent's expert witness. This witness testified that if a fire occurred in the tank during operation and the oil were drained out, negative pressure would be created allowing air to enter the chamber, and thus creating an explosive air-gas mixture more hazardous than a fire. Clearly, this is a situation not contemplated by the standard.
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
Judge Goldstein correctly decided all matters at issue in this case. My colleagues affirm his disposition of the charge framed under 29 C.F.R. § 1910.108(c)(3)(i). I concur for the reasons given by Judge Goldstein, whose decision is attached hereto as Appendix A.
I dissent, however, from the reversal of the Judge's findings on the 29 C.F.R. § 1910.132(a) charge. The Judge properly vacated this charge on the evidence. That disposition should be sustained for reasons assigned therein as well as the case law which has developed subsequent to Judge Goldstein's decision. n16
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[*19]
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Furthermore, as I explained in Secretary v. Chief Freight Lines, Inc., n17 the § 1910.132(a) standard was improperly promulgated and is therefore invalid and unenforceable. Consequently, it is improper to sustain any violation thereunder until such time as the Secretary of Labor properly promulgates the standard in accordance with 29 U.S.C. § 655(b).
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APPENDIX A
DECISION
This matter arises under Section 10(c) of the Occupational Safety and Health Act of 1970, and involves the application of Section 5(a)(2) of this law and of regulations promulgated thereunder relating to protective clothing and dip tanks.
After an inspection of a work site of Sunbeam Corporation (sometimes hereinafter referred to as the Company or the Respondent) the Occupational Safety and Health Administration issued to it a Citation for Non-Serious Violation, consisting of forty Items, together [*20] with a Notice of Proposed Penalties. After the Company contested the enforcement action with respect to Item Numbers 25 and 36 of the Citation, and a Complaint and Answer were filed by the parties with this Commission, a hearing was held in Chicago, Illinois on November 20, 21, 1973.
Item 25 of the Citation alleged that the Respondent
Failed to provide personal protective equipment which is of a safe design and construction for the work to be performed. For example: No protective footwear for personnel in Die Cast area.
in violation of the standard found at 29 CFR 1910.132(c) which provides as follows:
"Protective equipment, including personal protective equipment for . . . extremities . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact."
Item 36 of the Citation charged the Respondent with a
"Failure to provide drain facilities on quench tanks in accordance with 29 CFR 1910.108(c)(3)(i). For example: No bottom drains for quench tanks - Heat Treat [*21] Dept.
in violation of the standard found at 29 CFR 1910.108(h)(1)(vii).
The two standards mentioned in Item 36 are copied below:
29 CFR 1910.108(c)(i)
Dip tanks over 500 gallons in liquid capacity shall be equipped with bottom drains automatically and manually arranged to quickly drain the tank in the event of fire, unless the viscosity of the liquid at normal atmospheric temperature makes this impractical. Manual operation shall be from a safely accessible location. Where gravity flow is not practicable, automatic pumps shall be required.
29 CFR 1910.108(h)(1)(vii)
Drain facilities from the bottom of the tank may be combined with the oil circulating system or arranged independently to drain the oil to a safe location. The drain valve shall be operated automatically with approved heat actuated devices or manually, and if the latter, the valve shall be operated from a safe distance.
The evidence at the hearing disclosed that during the investigation of the Company die cast area the Compliance Officer noted some employees were carrying parts with jagged edges while wearing ordinary shoes. The inspector felt this was a hazardous condition in that the equipment could be dropped [*22] with resultant foot injuries. In the opinion of the Compliance Officer there was a violation of the regulation relating to protective equipment when the Respondent permitted its employees to work in this particular department without hard toe footwear.
The Respondent was of a contrary view. Its records establish that during a two year period preceding the inspection there were but two toe injuries, and there was no evidence to the effect that any special shoe would have avoided these mishaps. No work time was lost as a result of these injuries. Its safety director added that there were no foot injuries in the year preceding the hearing. When he thought foot protection was of value, it was furnished the employees. Thus, leggings or spats were worn by workers in the die cast department to avoid injuries to the legs and feet. If he thought special protective shoes were required he would have insisted upon their use, but he did not believe they were necessary in this department.
Nevertheless in support of the position that safety shoes should have been required, the Complainant cites the cases of Secretary of Labor v. Modern Automotive Service, Inc., OSHRC Docket No. [*23]
The evidence in the Modern Automotive Service case disclosed that the Company had a five year history of toe injuries, some of which mishaps resulted in lost time. Also the Company director of safety admitted that toe protection would have prevented the injuries suffered by its employees. In the Ryder matter, in addition to injuries from falling parts, there was also the danger of wheel carts and tow motors running over the feet of employees. Also its employees were permitted to wear all types of shoes, including slippers or loafers. In that case there was an average of two accidents a year with approximately eight days' time lost each year.
The case at bar of course differs from the two cases advanced by the Complainant in that the Respondent's safety director was of the opinion that protective shoes were not necessary; that there was no time lost due to such slight injuries; that employees were not permitted to wear canvas or soft toe shoes; and that there was no motorized equipment to roll over the feet of employees. It may be added that the employees did not advance the matter of [*24] safety footwear at their union meetings, perhaps some indication of their view of the hazards involved. On these factors, it is concluded that the Respondent did not violate the standard relating to protective footwear.
With respect to Item 36, the evidence is uncontradicted that there were no drain facilities on the Respondent's quench tanks located in the heat treatment department. While the Company advanced a number of reasons for the inapplicability of the regulation to its operations, the main objections were that the quench tanks of its controlled atmosphere furnaces were not dip tanks within the meaning of the regulation, and that the literal application of the standard would diminish rather than enhance the safety of the place of employment.
The Complainant's Compliance Officer was of the opinion that the alleged violation was a serious hazard because the oil could not drain away from the tanks in case of fire. At the hearing, however, the Respondent called upon the chief process engineer of its subsidiary which manufactured the furnaces in question to explain the operation in detail. This expert worked for many years in the design, installation and operation of integral [*25] quench chambers and personally inspected the furnaces involved in this proceeding. The work process involves the loading of materials into the furnace heating chamber where it is heated to a certain temperature and then reloaded into the quenching chamber for rapid cooling. This witness distinguished the furnace enclosed quench tank from the routine dip tank arrangement contemplated by the regulation where there is an open dip tank in the middle of the floor and where the work is lowered into it by a crane. In his opinion if there were a fire in the furnace quench tank and the oil drained away, air would replace the vacuum and an explosion was a possibility. He added that there was no hazard of spreading fire because the flames would be smothered within the furnace. Accordingly the engineer concluded that strict compliance with the literal wording of the regulation or standard would result in an increased hazard of employment.
This Commission has recognized that a literal application of a standard may sometimes pose a greater hazard than a prevailing work routine. arose as to whether an employer has a duty to comply with a standard under Section 5(a)(2) of the Act if compliance diminished rather than enhanced the safety of employees. It was there held that the Act must be construed in the light of its essential purpose to assure that so far as possible every working man and woman safe and healthful working conditions, and employers should not be required to comply with a standard so sedulously as to follow a course of conduct that is shown by the weight of the evidence to be less safe than an existing work practice. The Commission then went on to hold that an exception to the requirements must be implied to permit a condition of greater safety or health to prevail in the workplace than is possible under a standard that has general application.
The same result should be applicable in the current case. So far as appears there has been no danger from fire under the present manner of operation; at least there is no testimony to the effect that any fire either started or was aggravated from the Respondent's manufacturing process. In addition expert testimony envisions the possibility of an explosion if drain facilities were installed and utilized. [*27] It would be unwise therefore to insist upon a literal application of the standard and to introduce the possibility of explosion or the danger of fire. Accordingly, it is concluded that the failure to provide drain facilities on its quench tanks did not result in the Respondent's violation of the standard in issue.
Based upon the record in this case, it is ordered that Items 25 and 36, and the penalties proposed therefor, be VACATED.
Sidney J. Goldstein, Judge, OSHRC
Dated: APR 29 1974