CARGILL, INC., NUTRENA FEED DIV.

OSHRC Docket No. 78-5707

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Robert L. Hobbins and Barbara M. Moffett, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Alan M. Wienman is before us for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Cargill, Inc., Nutrena Feed Division ("Cargill") was charged with two violations of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n1 the "general duty clause." Judge Wienman vacated both items on the ground that the Secretary of Labor had failed to carry his burden of proof. Commissioner Cottine granted the Secretary's petition for review and directed review of two issues:

1. Whether the ALJ erred in vacating the alleged violation of 5(a)(1) on the grounds that the Secretary had failed to prove the existence of a recognized hazard and feasible means of abatement.

2. Whether the ALJ erred in vacating item 3(c) of the citation, alleging a violation of 5(a)(1), on the ground that NFPA Standards "are not acceptable proof [*2] of industry recognition of a hazard."

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n1 Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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For the reasons that follow we affirm the judge's decision as to one item and reverse and remand as to the other.

I

Cargill operates a grain elevator and feed mill where grain and commodities are processed into animal feed. The elevator was built in 1959, the feed mill in 1965, and both were acquired by Cargill in 1967. Both the grain elevator and the feed mill contain vertical conveyors called "legs," which consist of flexible belts equipped with buckets that pull grain and other materials from one level to another. The belts are enclosed in shafts composed partly of sheet metal and partly of concrete.

Grain and commodities are delivered to Cargill by truck and train and off-loaded into [*3] receiving pits which are covered by steel grates. The grates over the grain pits form openings of about two inches by twelve inches, and the grates over the commodity pits form openings of about two-and-one-half inches by nine inches. The grain and commodities are transported from the pits by screw conveyors which have a tolerance of about three-eighths of an inch.

In November 1978 this facility was cited for several violations of the Act, including the two items at issue here, item 3(b) and item 3(c). The gravamen of item 3(b) is that those legs which were used by Cargill to transport grain present hazards of secondary grain dust fire and explosion because the legs are not equipped with explosion relief venting. As the Secretary explained at the hearing, the presence of explosion relief venting in the cited legs would not prevent a grain dust fire or explosion in the first instance, but it would prevent secondary fires and explosions. Secondary grain dust fires and explosions occur when an initial dust explosion in a confined space creates pressure waves which raise additional dust into suspension, leading to a series of explosions of increasing intensity. As a means of abatement, [*4] the Secretary suggested that Cargill extend the sheet metal casings at the top of the legs directly up through the roofs of the two buildings so that in the event of a grain dust explosion, the resulting pressure waves could move up and out of the leg without causing secondary explosions and fires.

Item 3(c) alleged that Cargill's receiving pits should have been equipped with permanent magnets, approved electromagnets, or specific gravity separators or screens capable of preventing entry of tramp metal into the processing system. "Tramp metal" is ferrous material which accidentally gets mixed in with the grain and commodities as they are transported from the farm to various processors. The gravamen of this charge is that the tramp metal can, as a result of frictional contact with Cargill's metal processing machinery, give off sparks. The Secretary alleges that these sparks could provide the ignition source for grain dust fires or explosions.

Judge Wienman vacated both items on the ground that the Secretary had failed to prove the existence of a recognized hazard or a feasible means of abatement. He also ruled that the National Fire Protection Association Standard 61B (NFPA 61B"), [*5] "Grain Elevators Bulk Handling Facilities," is not "acceptable proof" of industry recognition of a hazard.

II

The first question to be resolved with respect to item 3(b), "failure to provide explosion relief venting in grain transport legs," is whether the judge erred in ruling that the Secretary had failed to establish a recognized hazard. Recognition of the hazard, either by the employer or the employer's industry, is an element of the Secretary's prima facie case in proving a violation of the general duty clause. See Continental Oil Co. v. OSHRC, 630 F.2d 446 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (1981); Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/ D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir. 1978).

Judge Wienman defined the hazard in item 3(b) as the "absence of explosion relief venting." Based on that characterization of the hazard, he concluded that the record lacked sufficient evidence to show recognition of the hazard. However, we have held that a recognized hazard is not to be defined in terms of the absence of appropriate [*6] abatement measures. Beaird-Poulan, A Division of Emerson Electric Co., supra. The hazard identified by item 3(b) is the hazard of secondary grain dust explosions and fires in confined spaces such as elevator legs.

The record is replete with evidence both of Cargill's and of the grain handling industry's recognition of this hazard. To single out but some of this evidence, we take especial note that Cargill's own assistant manager testified that he is a member of the Static Metal Sparking Committee of the Explosion Research Council of the National Grain and Feed Association and that one of the Committee's objectives is "to discover more about how a leg must be vented or how it can be vented safely." He described a number of experiments then being conducted regarding explosion relief for elevator legs and said he agreed with the Secretary's expert witness that the leg is the most hazardous area in a grain elevator and that adequate venting would substantially reduce the severity of grain dust explosions. In addition, the Secretary introduced into evidence a Literature Survey of Dust Explosions in Grain Handling Facilities: Causes and Preventions prepared by the Energy [*7] and Mineral Resources Research Institute of Iowa State University. This survey states, in pertinent part,

Usually the initial explosion is followed in close succession by one or more secondary explosions of much greater magnitude. The secondary explosions are presumably caused by suspension of dust, which has accumulated in other areas of the plant, by the initial or subsequent shock waves. . . . [T]here are areas during operation of a typical grain elevator where the formation of critical dust concentrations is almost inevitable. This is particularly true of the elevator legs which contain the bucket elevators which carry the grain to the head house at the top of the bins or silos.

The Secretary also entered into evidence a publication of the Farmland Insurance Company, which contains an article, "Explosion Vent Prevents Major Loss," describing an elevator leg grain dust explosion in which damage was minimized by an explosion relief vent. n2 Accordingly, we conclude that the Secretary has established both industry and employer recognition of the hazard.

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n2 It is to be noted that although much of this evidence focuses on the feasibility of explosion relief venting, as well as on the capacity of grain dust to burn and explode, it was received into evidence and is being considered here for the limited purpose of determining recognition of the hazard, and not for the purpose of determining feasibility of abatement.

[*8]

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The second question to be resolved with respect to item 3(b) is whether the Secretary established feasiibility of abatement. "A violation of the general duty clause cannot be sustained unless the Secretary is able (1) to establish the type of employer conduct necessary to avoid citation under similar circumstances and (b) to demonstrate the feasibility and likely utility of such conduct." Williams Enterprises, Inc., 79 OSAHRC 24/ A2, 4 BNA OSHC 1663, 1666, 1976-77 CCH OSHD P21,071 at 25,361 (No. 4533, 1976); see also National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC 45/ A2, 9 BNA OSHC 1681, 1981 CCH OSHD P25,363 (No. 76-450, 1981).

The Secretary suggested, through expert testimony, that Cargill abate the hazard by extending the sheet metal leg casings directly up through the grain elevator and feed mill roofs. The resultant roof-top vents should, according to the Secretary's expert, substantially reduce, if not eliminate, the number and intensity of secondary grain dust explosions in the event [*9] of an initial conflagration or deflagration. n3

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n3 The Commission has held that "[i]t is sufficient if [a] method [of abatement] materially reduces, even though it may not eliminate, the hazard." Whirlpool Corp., 79 OSAHRC 32/ A14, 7 BNA OSHC 1356, 1360, 1979 CCH OSHD P23,552 at 28,535 (No. 9224, 1979); see also Royal Logging Co., 79 OSAHRC 84/ A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981); Titanium Metals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978); National Realty, supra.

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In rebuttal, Cargill presented the uncontradicted testimony of its plant superintendent that it would be physically impossible to extend the leg casings through the two roofs without piercing structural beams which support the roofs. He stated that to sever these structural members would weaken the roofs.

We have stated that once the Secretary has specified a method of abatement which would reduce or eliminate the incidence of the hazard, the employer [*10] may rebut the feasibility of that method with evidence "showing or tending to show that use of the method or methods established by Complainant will cause consequences so adverse as to render their use infeasible." Royal Logging Co., supra note 3, 7 BNA OSHC at 1751, 1979 CCH OSHD at p. 28,997. Cargill's plant superintendent testified that to extend the leg casings in the manner suggested by the Secretary would seriously weaken the roofs in question because the casings would have to pierce overhead supporting structures. This testimony was neither challenged nor rebutted by the Secretary, and there is nothing in this record to cast his testimony into doubt.

The Secretary contends on review that this rebuttal testimony does not disprove the feasibility of the recommended abatement because Cargill did not show that the extensions could not be constructed so as to avoid the overhead beams. However, it was the Secretary who specified in the first instance a form of abatement that would require cutting holes in the roof directly over the legs and in the same size and shape as the cross sections of the legs. For the Secretary to suggest nor that extensions could have been installed [*11] in some way other than that proposed by the Secretary's expert at the hearing raises questions of fact for the first time on review. It is axiomatic that a reviewing tribunal should not decide a case on evidence not in the record, particularly where, as here the "facts" are by no means certain. See National Realty, supra; 4 AM. JUR. Appeal & Error 491 (1962).

The Secretary also points out that the judge made no finding of fact with respect to the question of whether direct vertical extensions would, indeed, weaken the roofs. However, it is the Commission, not the administrative law judge, who is the ultimate trier of fact. Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). We conclude, in the face of the Secretary's failure to offer any evidence to the contrary, that Cargill has proved that incisions into overhead supporting beams would seriously weaken if not cause the collapse of the roofs involved.

Accordingly, we affirm the judge's vacation of item 3(b) on the ground that Cargill proved infeasibility of the proposed means of abatement.

III

Whereas item 3(b) was directed at the hazards of fire and [*12] explosion which follow upon an initial deflagration or conflagration of grain dust in elevator legs, item 3(c), the tramp metal charge, was directed at the capacity of ferrous metal to provide the initial ignition source due to friction sparking. It was the Secretary's contention that tramp metal could act as the ignition source for fire and explosion by releasing friction sparks in its progress through the metallic grain handling equipment.

Judge Wienman vacated that item on the ground that the record lacked sufficient proof of recognition of the hazard or the utility of the means of abatement. However, Judge Wienman never actually defined the "recognized hazard" at issue under the tramp metal charge. In consequence it is not clear whether his references both to "recognized hazard" and to "utility of abatement" are to be taken as alternative grounds for vacation, or whether they reflect the judge's view of the hazard as lack of the recommended means of abatement, namely magnets and grating of the type described in the citation.

The hazard with which item 3(c) is concerned is the initial grain dust fire or explosion caused by tramp metal sparking. The judge's decision does not [*13] contain a finding as to whether the record shows, by a preponderance of the evidence, that either the grain handling industry or Cargill recognizes such a hazard. Accordingly, we remand the case on item 3(c) to the judge for an assessment of the evidence regarding this element of a general duty clause violation. In the event the judge determines that industry recognition of the hazard has been shown, then a determination as to the remaining elements of a general duty clause violation must be made.

IV

Judge Wienman ruled that NFPA 61B, "Grain Elevators Bulk Handling Facilites," is not "acceptable proof" of industry recognition of a hazard. NFPA 61B is a voluntary industry standard which has never been adopted as an OSHA standard and hence has neither the force nor effect of law. Judge Wienman concluded that this standard could not be used to establish industry recognition of a hazard because it applies only to facilities erected in 1973 or later and which are undergoing major replacement or alteration. Cargill's grain elevator and feed mill were constructed prior to 1973 and were not undergoing major renovation or replacement.

It is well established that voluntary industry [*14] standards are admissible and probative evidence of industry recognition of hazards. Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979); H-30, Inc. v. Marshall, 597 F.2d 234 (10th Cir. 1979); Titanium Metals Corp. of America v. Usery, supra note 3; Beaird-Poulan, A Division of Emerson Electric Co., supra; The Boeing Co., Wichita Division, 77 OSAHRC 188/ D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977); cf. Betten Processing Corp., 75 OSAHRC 43/ E2, 2 BNA OSHC 1724, 1974-75 CCH OSHD P19,481 (No. 2648, 1975) (ANSI standard used to show industry recognition of the hazard had been incorporated by reference into OSHA construction standards but had not been adopted in the general industry standards applicable to the Respondent's industry). The fact that this particular voluntary standard applies to facilities erected in 1973 or later and undergoing major replacement or renovation has no bearing on its relevance to industry awareness of certain hazards associated with grain dust and grain handling equipment. Accordingly, Judge Wienman's ruling that it is unacceptable proof of recognition is error.

Judge Wienman's vacation of item [*15] 3(b) is affirmed, for the reasons stated above. His vacation of item 3(c) is reversed and that item is remanded for disposition consistent with this opinion. SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, concurring in part and dissenting in part:

I concur with the majority's disposition of citation item 3(b), but I do not join in the majority's broad statement that a "hazard is not to be defined in terms of the absence of appropriate abatement measures." Concerning item 3(c), I dissent from the majority's decision to reverse the judge and remand the case. I would affirm the judge's decision to vacate citation item 3(c) on the grounds that the Secretary did not show recognition of the hazard or utility of the recommended means of abatement.

The majority correctly concludes with regard to item 3(b) that the Secretary established a recognized hazard of secondary grain dust explosions and fires in the confined spaces of the elevator legs at Cargill's facility. Insofar as the judge held to the contrary, he erred, but the error was harmless since, as the majority states, the judge correctly vacated the citation for failure of the Secretary to show a feasible method [*16] of abatement. In my view, it is sufficient to note that the judge committed harmless error, without reaching the issue of whether a hazard may be defined in terms of the absence of appropriate abatement.

As to item 3(c), Judge Wienman correctly described the hazard throughout his decision as "fires or explosions . . . attributed to tramp metal" and "tramp metal caus[ing] sparking and . . . an ignition source." The judge's description of the hazard is supported by the record and is indeed indistinguishable from the majority's own definition of the hazard. n4

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n4 The majority defines the hazard as "theinitial grain dust fire or explosion caused by tramp metal sparking."

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Consistent with the cases cited in the lead opinion, voluntary industry standards, such as NFPA 61B, are indicative of industry recognition of hazards but do not conclusively prove recognition absent other credible and probative evidence. See, e.g., Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979) (recognition shown by evidence [*17] of voluntary private standard, admission that voluntary standard represented industry consensus, and evidence that standard generally followed in industry). Although the judge erred to the extent that he suggested that voluntary industry standards should never be accorded any weight, his error was harmless. In addition to stating that NFPA 61B was not "acceptable proof" of recognition, Judge Wienman examined the evidence - independent of that relating to NFPA 61B - and concluded that the record was insufficient to show that the hazard was recognized. The judge's conclusion reflects his implicit credibility evaluation of the testimony and usually should not be disturbed on review. Kus-Tum Builders, Inc., 81 OSAHRC 97/ B2, 10 BNA OSHC 1128, 1981 CCH OSHD P25,738 (No. 76-2644, 1981). Accepting the judge's credibility determination, I conclude that the judge correctly held that the Secretary failed to show the hazard was recognized. n5 Accordingly, I would affirm the judge's vacation of item 3(c).

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n5 The record does not establish that Cargill, as distinguished from the industry, recognized the hazard.

[*18]

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Moreover, I would not disturb the judge's conclusion that the Secretary did not establish the utility of the proposed abatement measures. Neither party disputes on review the judge's determination that the magnets and screens, the recommended means of abatement, would not be useful. Since the propriety of the judge's determination regarding utility of abatement was not contested by the Secretary in his review petition nor directed for review by the Commission, the judge's conclusions on this issue are final. See Commission Rule 92(c), 29 C.F.R. 2200.92(c). Since a violation of section 5(a)(1) cannot be found unless the Secretary establishes the feasibility and utility of the recommended abatement, I dissent from the majority's decision to remand the case for further disposition.