BF Goodrich Hilton Davis, Inc.

00-1401





APPEARANCES


Michelle M. DeBaltzo, Esq.	Kenneth B. Stark, Esq.		Robert W. Lowrey, Esq.
Office of the Solicitor		Duvin, Cahn & Hutton	       UFCW Assistant General Counsel
U. S. Department of Labor	Cleveland, Ohio			ICWUC Local 342C
Cleveland, OH        			For Respondent		Akron, Ohio
	For Complainant							For Employees

Before: Administrative Law Judge Ken S. Welsch



*DECISION AND ORDER*

BF Goodrich Hilton Davis, Inc. (BFG), manufactures pigments and dies at
a plant in Cincinnati, Ohio. As part of the manufacturing process, large
dryers are used to dry wet chemical compounds to a powder. When changing
the chemical compounds or performing preventive maintenance, the dryers
are cleaned inside in a "boilout process" by repeatedly heating a
solution of corrosive soap and water. On June 12, 2000, an employee was
burned over 47% of his body when he emptied the boilout from Conaform
Dryer #731D. After an inspection by the Occupational Safety and Health
Administration (OSHA), BFG received a serious citation on June 28, 2000.
BFG timely contested the citation.

The serious citation alleges, among other violations,^(1) <#N_1_> that
BFG violated 29 C.F.R. § 1910.132(a) (item 1) by failing to provide
employees with personal protective equipment (PPE) to prevent thermal
and chemical burns when emptying Conaform Dryer #731D during the boilout
process or when dispensing soap #5143 into a bucket and emptying it into
the dryer; 29 C.F.R. § 1910.132(d)(1) (item 2) by failing to make an
adequate hazard assessment of the boilout process; 29 C.F.R. §
1910.133(a)(1) (item 3) by failing to ensure that employees used
appropriate eye and face protection when dispensing soap #5143 into a
bucket and emptying it into the dryer; 29 C.F.R. § 1910.147(c)(4)(ii)
(item 4) by failing to identify on dryer #731D the pneumatic energy
sources and the potential for high pressure release in its energy
control procedures; and 29 C.F.R. § 1910.1200(h)(3)(iii) (item 7) by
failing to ensure that employees' training included safe work practices
and PPE when performing a boilout on dryer #731D. The proposed total
penalty for the items at issue is $17,225.

The hearing in this case was held February 5 - 6 and March 8 - 9, 2001,
in Cincinnati, Ohio. The International Chemical Workers Union Council,
United Food and Commercial Workers, Local 342C, was designated party
status. The parties stipulated jurisdiction and coverage (Exh. J-1;
Tr. 6). The parties filed post-hearing briefs.

BFG denies the violations and asserts compliance with the standards. BFG
asserts that operators of dryer #731D wear appropriate PPE as required
by the Material Safety Data Sheet (MSDS) for soap #5143. BFG disputes
that the mixture of soap and water constitutes a hazardous chemical.
Also, BFG alleges that the accident on June 12, 2000, was unforseen.

For the reasons discussed, the alleged violation identified in item 1 is
affirmed. The remaining alleged violations are vacated or withdrawn by
the Secretary.



/The Accident/

BFG, a large corporation, operates a chemical processing plant in
Cincinnati, Ohio, which manufactures color pigments and dies. The plant
facilities consist of several buildings. The plant operates three shifts
(Complaint and Answer; Tr. 219, 222).

In Building #41, large dryers, including dryer #731D,^(2) <#N_2_> are
used to dry product into a powder (Tr. 316, 418). One employee operates
the dryers per shift (Tr. 222). The #731D dryer has a capacity of 100
cubic feet (748 gallons). The dryer is heart-shaped and is loaded from
the second floor of the building. After the dryer is filled with wet
product and sealed, the dryer rotates on an axle. Steam heat is used to
heat the jacket around the dryer, which in turn heats the product. When
the drying cycle is complete, the dryer's contents are emptied through
an 18-inch butterfly valve into drums on the first floor (Exhs. C-1,
R-3, R-7; Tr. 221, 410, 417-419).

The area on the first floor where the dryer's contents are emptied is
surrounded by a fence or cage to prevent employees from entering the
area while the dryer rotates (Tr. 652-653). To empty the contents of the
#731D dryer,^(3) <#N_3_> the operator enters the cage to air activate an
18-inch butterfly valve on the bottom of the dryer. The operator
connects an air line to the butterfly valve. The air line valve is
mounted on a wall approximately 5 to 10 feet from the butterfly valve.
When air is applied, the butterfly valve opens and the dryer's contents
are discharged. When discharging the contents of #731D dryer, the
employee stands inside the cage, 3 to 10 feet from the butterfly valve
(Exh. C-1; Tr. 259-260, 315, 420-421, 517-518, 587).

When performing preventive maintenance or changing product, the dryers
are first cleaned inside through a "boilout process." The boilout
decontaminates the inside of the dryer (Tr. 48-49, 276). To initiate a
boilout, the dryer is rotated so that the 18-inch butterfly valve faces
up toward the second floor. The operator removes the "solids bowl" and
opens the vent line. He then takes a 5-gallon bucket to the soap #5143
storage tank on the first floor and fills the bucket (Tr. 181, 243, 245,
365, 413-414, 455, 463, 487-488, 545).

The MSDS for soap #5143 identifies the soap as corrosive with a pH of 14
(Exh. C-2). The MSDS specifies the use of safety glasses and neoprene
gloves. There is no dispute that operators wore safety glasses and
neoprene gloves while handling soap #5143 (Exh. J-1; Tr. 165).

After filling the bucket with soap #5143, the operator takes the bucket
to the second floor and empties the soap through the open butterfly
valve into the dryer. The dryer is also filled with approximately 250
gallons of water. The butterfly valve is then closed, steam heat is
applied to the dryer's jacket and the dryer is rotated for 45 minutes to
an hour. The temperature inside the dryer reaches as high as 116 degrees
Celsius(C)^(4) <#N_4_> (Exh. R-4; Tr. 45, 72-73, 243, 464).

After completing the heat cycle, the dryer is rotated so that the
butterfly valve is pointed down towards the first floor. The air line is
attached to the butterfly valve and the soap and water mixture is
emptied into the drains in the floor (Tr. 134, 259, 374, 656). The
boilout process is repeated four times. The fourth boilout is generally
only water (Tr. 378, 381).

On June 12, 2000, employees performed four boilouts on the #731D dryer
as part of preventive maintenance. The first boilout started at the end
of the first shift by operator Fredrick Marshall at approximately 2:30
p.m. This was Marshall's first boilout on the #731D dryer, although he
had performed boilouts on other dryers. When he completed his shift at
3:00 p.m., Marshall had not emptied the contents from the first boilout
(Exh. J-1; Tr. 242, 253-254, 256, 819).

The second shift operator Tom Theademan emptied the first boilout,
completed the second and third boilouts, and filled the dryer for the
fourth boilout when his shift ended at 11:00 p.m. When the boilouts were
emptied, the temperature of the contents was 96 degrees C for the first
boilout, 85 degrees C for the second boilout, and 80 degrees C for the
third boilout (Exh. J-1; Tr. 368, 374, 376, 378, 425-426).

When third shift operator Roy Morgan started his shift, the temperature
of the fourth boilout was approximately 105 degrees C. At 11:30 p.m.,
Morgan emptied the fourth boilout. The temperature of the contents was
approximately 116 degrees C (240.8 degrees Fahrenheit). After connecting
the air line to the butterfly valve and stepping onto a stool inside the
cage, Morgan remembers only screaming for help. He received burns on 47%
of his body when the boilout's contents splashed on him under high
pressure. Morgan was unconscious for eight days. Although still employed
by BFG, Morgan has not returned to work (Exhs. J-1, R-4, U-4; Tr. 454,
456, 478).

On June 16, 2000, OSHA industrial hygienist (IH) Deborah Wallace and
supervisor Dick Gilgrist initiated a formal complaint inspection of
BFG's boilout process on the #731D dryer (Tr. 35). Wallace interviewed
employees and supervisors. She personally did not observe the boilout
process. Also, there was no analysis of the soap and water solution
inside the dryer during a boilout (Tr. 223-224). Based on OSHA's
inspection, a serious citation was issued to BFG.



//

/Discussion/

//

The Secretary has the burden of proving a violation.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employee access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).



/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

BFG does not dispute the application of the standards for PPE, lockout
and hazard communication to its boilout process on the #731D dryer. BFG
asserts that it complied with the cited standards. Also, BFG does not
deny that it knew of the boilout process and that its operators were
exposed employees. BFG does not assert employee misconduct as a defense.

Item 1 - Alleged violation of § 1910.132(a)

The citation alleges that BFG failed to ensure PPE was used to protect
operators from thermal and chemical burns when transporting the 5-gallon
bucket of soap #5143 to the #731D dryer or when emptying the contents of
the dryer after the boilout. Section 1910.132(a) 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.



Section 1910.132(a) requires PPE when an employer has actual knowledge
of a hazard requiring the use of PPE or a reasonable person familiar
with the situation, including any facts unique to the particular
industry, would recognize a hazard warranting the use of such PPE.
/Armour Food Co/., 14 BNA OSHC 1817, 1820 (No 86-247, 1990). The
standard's focus is on the recognition of a hazard, not the need for
particular PPE. /Lukens Steel Co/., 10 BNA OSHC 1115, 1123 (No. 76-1053,
1981).

The Secretary argues that the PPE (rubber gloves, safety glasses) worn
by employees was inadequate for dispensing soap #5143 into the dryer and
when emptying the dryer's contents after the boilout. The alleged hazard
involves thermal (boiling water) and chemical (corrosive soap) burns
caused by possible splashing. On June 12, 2000, third shift operator Roy
Morgan suffered second and third degree burns when the contents splashed
on him while emptying the boilout (Tr. 478). His burns were on his back,
arms, buttocks and legs (Tr. 478). The Secretary cites /Gulf Oil
Co.-U.S./, 10 BNA OSHC 1025, 1026 (No. 76-6736B, 1981) (affirming a §
1910.132(a) violation by requiring face shields and slicker suits to
protect employees from splashing while transferring sulfuric acid from a
supply tank to a storage tank. The Commission rejected the employer's
argument that the activities did not require more protective equipment
than goggles and gloves).



Dispensing Soap #5143

To initiate the boilout, employees dispensed soap #5143 from a large
plastic holding tank on the first floor into a 5-gallon bucket, carried
the bucket to the second floor, and emptied the soap into the dryer (Tr.
245). First shift operator Marshall stated that after obtaining the
soap, he carried the bucket approximately 50 yards from the tank to the
dryer (Tr. 247-248). Second shift operator Theademan testified that he
put a lid on the bucket, put the bucket on an elevator, and then carried
the bucket approximately 50 feet to the dryer (Tr. 370). Third shift
operator Morgan testified that he carried the bucket of soap
approximately 40 feet to an elevator and another 40 feet from the
elevator to the dryer (Tr. 463-464).

Soap #5143, used in the boilout, is a "thin liquid" with a pH level of
14. The MSDS describes the soap as corrosive to the eyes and skin (Exh.
C-2). The MSDS identifies safety glasses and neoprene gloves as
appropriate PPE. The recommended first aid measures for physical contact
with the soap include dilution or flushing with water.

BFG agrees that soap #5143 is classified as a hazardous chemical (Tr.
22, 848). BFG's safety and health manager Bryan Haywood describes the
soap as a caustic and recognizes that it could cause chemical burns (Tr.
849-850). Second shift operator Theademan knew that the soap was "highly
caustic" (Tr. 382). Chemical operator Carl Hager testified to an
incident after June 12, 2000, when an employee while cleaning the floor
received blisters on his feet when soap #5143 splashed into his boots
(Tr. 538).

The Secretary acknowledges that BFG required employees to wear safety
glasses and rubber gloves when dispensing the soap to the dryer (Exh.
J-1). The Secretary argues that the employees should have additionally
worn face shields and rubber aprons when dispensing the bucket of soap
#5143 to dryer #731D (Secretary's Brief, p.12). CO Wallace testified
that the MSDS for soap #5143 is contradictory because, in her opinion,
compliance with the MSDS does not fully protect an employee. The soap
could still get on the employee's skin or eyes despite the glasses and
gloves (Tr. 110-111, 120-122).

The record in this case fails to demonstrate that dispensing and
carrying the soap in a bucket requires PPE beyond the safety glasses and
rubber gloves recommended by the MSDS. There is no showing of a splash
hazard in dispensing the soap from the tank, carrying the soap to the
dryer, or emptying the soap into the dryer. A splash hazard may not be
assumed. No employees testified to any incidents of splashing. One
employee (Theademan) testified that a lid was placed on the bucket (Tr.
370). It is not shown that employees were exposed to reasonable
probability of injury that could be prevented by wearing the additional
PPE./Atlantic Battery Co/., 16 BNA OSHC at 2154. The Secretary must show
more than a possibility of a hazard, she must prove a significant risk
of harm due to splashing, requiring PPE. /Anoplate Corp/., 12 BNA OSHC
1678, 1681-1682 (No. 80-4109, 1986).

The MSDS recommends only safety glasses and neoprene gloves for eye and
skin protection (Exh. C-2). The employees wore the MSDS recommended PPE.
The Secretary did not show that the operators' handling of the soap was
beyond or contrary to the handling contemplated by the MSDS. The
potential splash hazard described by the Secretary is the type of splash
hazard contemplated by the soap manufacturer's MSDS in recommending
safety glasses and rubber gloves. IH Wallace's testimony regarding the
MSDS is not given weight. She did not contact the soap manufacturer. She
never observed employees dispensing the soap to the dryer. The rubber
gloves and safety glasses as required by the MSDS were not shown to be
inadequate.

There is no evidence that employees had previously been injured while
dispensing or carrying the soap to the dryer. The absence of injuries
over the approximate 9 years of performing boilouts is some evidence
that the additional PPE recommended by the Secretary is not required.
/ConAgra Flour Milling Co/., 16 BNA OSHC 1137, 1142 (No. 88-1250, 1993).
The burn injuries received by Morgan on June 12, 2000, were not from
carrying the soap. The other incident after Morgan's accident involved
the soap splashing into an employee's shoes while he was cleaning the
floor.



Emptying the Boilout

After completing the boilout, an employee stood within 10 feet of the
18-inch butterfly valve when the contents of the dryer (approximately 5
gallons of soap #5143 and 250 gallons of water) were emptied onto the
floor (Tr. 46, 260, 518-519). The employee was inside the cage around
dryer #731D. BFG's Department Operating Procedure (DOP) for dryer
"Cleanout Procedures" dated 1993, prepared by Hilton Davis Chemical
prior to its merger with BFG, instructed employees to cool the boilout
contents to 50 degrees C. It also states "[S]lowly and carefully drain
the dryer to the sewer. Keep clear of the draining water and its path to
prevent from being splashed by the hot boilout" (Exh. C-6).

Despite the DOP, employees' testimony and the BFG temperature graph
maintained on the dryer shows that the contents were emptied at
temperatures higher than 50 degrees C. On June 12, 2000, the contents of
the four boilouts were emptied at temperatures between 80 and 116
degrees C (Exh. R-4; Tr. 374, 376, 378, 381, 391, 466).

When emptying the boilout, the parties stipulated that employees at a
minimum wore cotton uniforms, safety glasses, safety shoes and hard hats
(Exh. J-1). Additionally, employees testified that they wore rubber
gloves. The Secretary argues that the employees should have also worn
face shields and rubber aprons when emptying the boilout from dryer
#731D (Secretary's Brief, p.12).

The record establishes the need for additional PPE when emptying the
boilout contents. Morgan testified that he previously had emptied the
dryer at temperatures in excess of 100 degrees C, which is above the
boiling point. Morgan's testimony was not contradicted. Emptying boiling
water is a hazard. BFG should have known of the hazard. Temperature
graphs from the boilouts were available, and a supervisor was present.
Section 1910.132(a) requires appropriate PPE for the hazard. Safety
glasses and rubber gloves would not protect exposed skin from boiling
water, particularly from unexpected pressurization^(5) <#N_5_> (BFG
Brief, p. 10).

A serious violation of § 1910.132(a) is established. In determining
whether a violation is serious, the issue is not whether an accident is
likely to occur; it is rather, whether the result would likely be death
or serious harm if an accident should occur. /Whiting-Turner Contracting
Co.,/ 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989). The burn injuries to
Morgan show the serious nature of the condition.



Item 2 - Alleged Violation of § 1910.132(d)(1)

The citation alleges that the hazard assessment was not adequate to
protect employees from burns during the boilout procedure on the #731D
dryer. Section 1910.132(d)(1) provides, in part:

The employer shall assess the workplace to determine if hazards are
present, or likely to be present, which necessitate the use of personal
protective equipment (PPE).



As stated, the PPE requirement of § 1910.132(a) applies whenever it is
necessary by the hazards of processes encountered in the workplace
capable of causing injury. Section 1910.132(d)(1) requires an employer
to assess the workplace to determine if such hazards are present which
necessitate the use of PPE. /Topco/, /Inc.,/ 18 BNA OSHC 1746, 1750 (No.
97-0299, 1999) (ALJ). The hazard assessment identifies the specific job
task hazards which require appropriate PPE.

There is no dispute that BFG had made an assessment of the boilout
process (Tr. 165). BFG's Department Operating Procedure (DOP) for dryer
"Cleanout Procedures" is a hazard assessment (Exh. C-6).

The issue is whether this assessment was adequate. IH Wallace testified
that the BFG hazard assessment was inadequate because it only required
employees to wear hard hats, safety glasses, and steel toed shoes during
boilout (Exh. J-1). Employees testified that they wear rubber gloves.
The MSDS for soap #5143 recommends rubber gloves and safety glasses as
appropriate PPE. The Secretary argues that employees should have
additionally worn face shields and rubber aprons.

BFG's written boilout procedure (DOP) specifically applies to the #731D
dryer. It is a hazard assessment. The procedure advises operators to
position the butterfly valve away from them and to cool the dryer
contents to below 50 degrees C. The DOP also recognizes that the dryer
could become pressurized during a boilout if the vent was not open or
the vent line was plugged. If done in accordance with the DOP, there is
no showing of a hazard requiring PPE in addition to the safety glasses
and rubber gloves required by the soap manufacturer.

The Secretary argues that employees were not trained and did not follow
the DOP. However, the lack of safety training or the failure by
operators to follow the written procedure does not establish the lack of
a hazard assessment or that the assessment was inadequate. The Secretary
concedes that a hazard assessment was made.

The Secretary's complaint involves the adequacy of the PPE, not the lack
of a hazard assessment. The citation was issued because employees were
not wearing the PPE that the Secretary believed should be worn. The
Secretary's disagreement with the result of an employer's hazard
assessment is not a basis for a finding that no assessment was
conducted. /Drexel Chemical Company/, 17 BNA OSHC 1908, 1910 (No.
94-1460, 1997) (deficiencies in written confined space program do not
establish failure to conduct initial evaluation). According to the DOP,
employees were instructed to cool the boilout to 50 degrees C and direct
the contents away from their position. If followed, there is no evidence
of a hazard requiring additional PPE.

A violation of § 1910.132(d) is not established.



Item 3 - Alleged Violation of § 1910.133(a)(1)

The citation alleges that BFG failed to ensure that employees used
appropriate eye or face protection when dispensing the soap #5143 into a
bucket and emptying the bucket into the #731D dryer.^(6) <#N_6_> Section
1910.133(a)(1) provides:

The employer shall ensure that each affected employee uses appropriate
eye or face protection when exposed to eye or face hazards from flying
particles, molten metal, liquid chemicals, acids or caustic liquids,
chemical gases or vapors, or potentially injurious light radiation.



The standard requires PPE for the eyes and face when there is a
reasonable probability of injury that could be prevented. BFG agrees
that the soap #5143 is a hazardous chemical (Tr. 22, 848). The MSDS
shows that the soap is corrosive and has a pH of 14 (Exh. C-2). Safety
manager Haywood agrees that the soap can cause chemical burns (Tr.
849-850).

The record, however, fails to establish a violation. Although soap #5143
is caustic, employees wore safety glasses and rubber gloves as required
by the soap's MSDS. There is no showing that an operator was ever
splashed with soap #5143 when dispensing it to the dryer. After the
bucket is filled, a lid is placed on the bucket. During this dispensing
of the soap, splashing on the face or eyes is not reasonably
anticipated. The record fails to show that there was a reasonable
probability of injury to eyes or face when only safety glasses are used.
BFG's compliance with the MSDS's PPE recommendations complies with the
PPE requirements of § 1910.133(a)(1). The record does not disclose
previous injuries or near misses of injury to eyes or face from handling
soap #5143. The Secretary's burden includes showing a significant risk
of harm or reasonable probability of injury to eyes and face. /Atlantic
Battery Co/., /supra/, at 2153. Also, the cited standard duplicates the
violation of § 1910.132(a) (item 1).

A violation of § 1910.133(a)(1) is not established.



Item 4 - Alleged Violation of § 1910.147(c)(4)(ii)

The citation alleges that BFG's energy control procedures did not
identify pneumatic energy sources and the potential for high pressure
release from dryer #731D. Section 1910.147(c)(4)(ii) provides, in part:

The [energy control] procedures shall clearly and specifically outline
the scope, purpose, authorization, rules, and techniques to be utilized
for the control of hazardous energy, and the means to enforce
compliance, including, but not limited to, the following:



(A) A specific statement of the intended use of the procedure;

(B) Specific procedural steps for shutting down, isolating, blocking and
securing machines or equipment to control hazardous energy;

(C) Specific procedural steps for the placement, removal and transfer of
lockout devices or tagout devices and the responsibility for them; and

(D) Specific requirements for testing a machine or equipment to
determine and verify the effectiveness of lockout devices, tagout
devices, and other energy control measures.



The energy control procedures required under § 1910.147(c)(4) as part of
OSHA's lockout/tagout standards are to be developed and utilized by
employers for the control of "potentially hazardous energy when
employees are engaged" in servicing and maintenance activities. The
purpose of an energy control procedure is:

to ensure that before any employee performs any servicing or maintenance
on a machine or equipment where the unexpected energizing, start up or
release of stored energy could occur and cause injury, the machine or
equipment shall be isolated from the energy source, and rendered
inoperative./See /§ 1910.147(c).



The lockout/tagout standards establish "minimum performance requirements
for the control of such hazardous energy." /See/ § 1910.147(a). Since
the lockout procedure is to guide an employee through the lockout
process, general, non-machine specific procedures are unacceptable.
/Drexel Chemical Co.,/ /supra,/ at 1913.

There is no dispute that the dryer operator is within 10 feet of the
butterfly valve on the #731D dryer when the contents of the boilout are
discharged onto the floor. Morgan was badly burned from the splashing
contents when he opened the valve. The Secretary asserts that BFG's
lockout program fails to identify the pneumatic energy source (air to
activate the dryer's butterfly valve) or the stored energy source
(pressurization inside the dryer) as sources of unexpected energy (Tr.
702-703, 706, 727). The Secretary's expert witness James Washam
identified three sources of energy during a boilout in the dryer:
electrical, pneumatic, and stored (Tr. 714, 797).

BFG argues that the § 1910.147 lockout standards do not apply to the
#731D dryer's boilout process (Exh. R-6). BFG initiates lockout
procedures only after the boilout is completed and employees enter the
dryer to perform maintenance work inside the dryer. Safety manager
Haywood characterized the boilout as "preparatory work, getting ready to
get the equipment to zero energy, decontaminating the equipment of any
stored or contamination type energy" (Tr. 815). He considered the
boilout analogous to "flushing" or "purging and recovery" of the dryer
prior to performing a maintenance operation (Tr. 815). According to BFG,
the maintenance on dryer #731D was performed on June 13 after the
boilout was completed (Tr. 862-863).

BFG's written lockout procedure uses a permit lockout system (Exhs.
C-10, R-2). Employees lock out the electrical energy source to the #731D
dryer prior to emptying the dryer to prevent the dryer from engaging
while the operator is inside the cage (Tr. 330-332, 662-663, 704). The
purpose of the boilout is to clean the inside of the dryer. "Cleaning"
is a specific activity within the definition of "servicing and/or
maintenance." /See/ § 1910.147(b). Also, the standard applies when
service and maintenance requires an employee to place any part of his
body "where an associated danger zone exists during a machine operating
cycle." /See/ § 1910.147(a)(2)(ii)(B). The dryer operator is inside the
protective cage in order to engage the butterfly valve. Morgan was
inside the cage standing on a stool adjacent to the dryer when the
accident occurred (Tr. 505-506). He was less than 10 feet from the
discharge (Tr. 518-519). The lockout standards at § 1910.147 apply to
BFG's boilout process on the #731D dryer.

An energy source can be "any source of electrical, mechanical,
hydraulic, pneumatic, chemical, thermal or other energy." /See /§
1910.147(b).^(7) <#N_7_> The issue is whether BFG's lockout process
involves pneumatic or stored energy sources that need to be locked out
(Tr. 793).



Pneumatic Energy

An air line triggers the butterfly valve to open. The Secretary argues
that the air line to the butterfly valve was a source of hazardous
pneumatic energy. However, the Secretary's expert Washam agreed that
"the pneumatic source isn't the hazard you're trying to deal with" (Tr.
801). Rather, the air to the valve controls whatever energy may be
within the dryer (Tr. 800).

The air line used to activate the butterfly valve is not the source of
hazardous energy. The air is merely the means by which the contents of
the dryer are emptied. The use of the air line involves intentional
actions, not unexpected energy. There is no opportunity shown for
unexpected release of pneumatic energy. /General Motors Corp., Delco
Chassis Div/., 17 BNA OSHC 1217, 1219 (Nos. 91-2973, 91-3116, 91-3117,
1995), /aff'd./ 17 BNA OSHC 1673 (6th Cir. 1996)(standard inapplicable
when there is sufficient notice of energization). The activation of air
was not an unexpected release of energy which required locking out. The
lockout standard does not apply to all energy sources, only hazardous
energy. The butterfly valve has to be opened to allow the discharge (Tr.
281, 586). Air was not the source of hazardous energy.



Stored Energy

The accident on June 12, 2000, may have resulted from a high pressure
release of the contents of the boilout. BFG speculates that Morgan's
injuries resulted from the unexpected pressurization when the vent which
prevents pressurization became clogged (BFG Brief, p. 10; Tr. 324-325).
The boilout contents at the time of Morgan's activation of the butterfly
valve was 116 degrees C. He was inside the cage standing on a stool
adjacent to the dryer (Tr. 505-506). The record fails to show previous
incidents of dryer pressurization during a boilout^(8) <#N_8_> (Tr.
821-822).

BFG's DOP Cleanout Procedure instructs employees to open the vent on the
dryer to avoid pressurization, and cool the dryer to 50 degrees C (Exh.
C-6, §§1.15, 1.17, 1.23). The procedure recognizes the potential for
pressurization during a boilout and outlines the rules and techniques to
use to control stored energy. Safety manager Haywood testified that
there was no potential for pressurization if the DOP procedures for
clearing the vent and cooling the boilout to 50 degrees C before
emptying are followed (Tr. 822). His testimony was uncontradicted.

BFG was cited for not addressing the potential for stored energy. It was
not cited for lack of employee training or not complying with its
procedures. The potential for stored energy is addressed in BFG's energy
control procedures.

A violation of § 1910.147(c)(4)(ii) is not established.



Item 7 - Alleged Violation of § 1910.1200(h)(3)(iii)

The citation alleges that BFG failed to ensure that employees' training
include the safe work practices and PPE to be used when performing a
boilout on dryer #731D. Section 1910.1200(h)(3)(iii) provides that
employee training include:

(iii) The measures employees can take to protect themselves from these
hazards, including specific procedures the employer has implemented to
protect employees from exposure to hazardous chemicals, such as
appropriate work practices, emergency procedures, and personal
protective equipment to be used.



The purpose of the hazard communication standard is to ensure that
information concerning chemical hazards is transmitted to employees
through a comprehensive program. /See /§ 1910.1200(a). The standard
"applies to any chemical which is known to be present in the workplace
in such matter that employees may be exposed under normal conditions of
use or in a foreseeable emergency."/See/ § 1910.1200(b)(2). An
employer's training must include the measures an employee takes to
protect himself from the physical and health exposure to hazardous
chemicals in the workplace. /ARA Living Centers of Texas, Inc./, 15 BNA
OSHC 1417, 1418 (No. 89-1894, 1991).

The boilout process on dryer #731D involves a mixture of water and soap
#5143 (Exh. J-1). A "chemical" is "any element, chemical compound or
mixture of elements and/or compounds." /See/ § 1910.1200(c). Both water
and soap are chemicals. A hazardous chemical, however, is "any chemical
which is a physical or a health hazard." It is undisputed that the soap
#5143 is a hazardous chemical (Tr. 22, 848).

The issue is whether the mixture of soap and water in the boilout
constitutes a hazardous chemical. BFG argues that the contents of a
boilout do not constitute a hazardous chemical because the soap is
diluted by 250 gallons of water.

Unlike the hazard determinations required by OSHA of chemical
manufacturers and importers under § 1910.1200(d)(1), employers are not
required to make such determinations unless they decide not to rely on
the evaluation performed by the chemical manufacturer or importer. /See/
§ 1910.1200(d)(1). Neither the Secretary nor BFG have tested or analyzed
the boilout contents (Tr. 143).

OSHA defines a mixture as "any combination of two or more chemicals if
the combination is not, in whole or in part, the result of a chemical
reaction." /See/ § 1910.1200(c). When a mixture is involved, and an
employer has not tested it to determine if it is a hazard, the "mixture
shall be assumed to present the same health hazards as do the components
which comprise one percent (by weight or volume) or greater of the
mixture. . . ." /See/ § 1910.1200(d)(5)(ii).

Soap #5143 is a mixture, according to the MSDS, containing potassium
hydroxide, proprietary surfactant blend, sodium hydroxide and water
(Exh. C-2). Because potassium hydroxide and sodium hydroxide constitute
as much as 5% of the soap, soap #5143 is admittedly a hazardous chemical
(BFG Brief, p. 19; Tr. 22, 848). It has a pH level of 14 and is
corrosive to the skin and eyes (Exh. C-2). It admittedly can cause
chemical burns (Tr. 849-850).

During a normal boilout, the dryer contains approximately 250 gallons of
water and 5 gallons of soap #5143 (Exh. J-1;Tr. 365, 369, 375). The
Secretary argues that the boilout mixture was comprised of 2% (5/255) of
soap and thus, a hazardous chemical requiring employee training under §
1910.1200(h)(3)(iii) (Tr. 72, 143).

The record, however, fails to establish that the hazardous components of
a boilout comprised 1% or more of the boilout mixture. The potassium
hydroxide and sodium hydroxide, the hazardous components within the
soap, are at most only 5% of the soap. More than 90% of the soap is
water. The boilout contained not more than 5 gallons of soap to which
approximately 250 gallons of water was added. The boilout mixture
contained at most 0.1% sodium hydroxide and 0.1% potassium hydroxide
(Tr. 151). Therefore, the boilout mixture does not constitute a
hazardous chemical.

The Secretary's interpretation is unreasonable. There is no dispute that
a mixture containing 0.5% sodium hydroxide and 99.5% water is not a
hazardous chemical (Tr. 155). IH Wallace agreed that there is only 0.1%
of potassium hydroxide and sodium hydroxide in 5 gallons of soap #5143
and 250 gallons of water (Tr. 150-151). In drafting an MSDS for soap
#5143 and water mixture, the MSDS would not list "soap #5143" as the
hazardous ingredient. An MSDS identifies only the chemical and common
names of all ingredients which comprise 1% or greater of the
composition. /See /§ 1910.1200(g)(2)(i)(C)(1). The MSDS would not need
to list any chemicals if they comprise less than 1% of the mixture.
Under the Secretary's interpretation, two identical mixtures would be
treated differently if one was created by adding floor soap while the
other was created by adding sodium hydroxide and potassium hydroxide to
water.

The record also fails to show that employees were not trained in
appropriate PPE for handling corrosives (Tr. 184-185). The hazard
communication standard requires an employer to advise employees of the
precautions to prevent exposure to hazardous chemicals. The MSDS for
soap requires safety glasses and rubber gloves. Employees wore safety
glasses and rubber gloves.

A violation of § 1910.1200(h)(3)(iii) is not established.





Penalty Consideration

The Commission is the final arbiter of penalties in contested cases. In
determining an appropriate penalty, the Commission is required to
consider the size of the employer's business, history of previous
violations, the employer's good faith, and the gravity of the violation.
Gravity, which is the principal factor considered, depends upon the
number of employees exposed, the duration of the exposure, the
precautions taken against injury and the likelihood that an injury would
result. /J. A. Jones Construction Co.,/ 15 BNA OSHC 2201, 2214 (No.
87-2059, 1993).

BFG is a large employer and not entitled to credit for size. Also, BFG
is not given credit for history because it received serious citations in
the preceding three years (Exh. C-7; Tr. 98). BFG is given credit for
good faith based on having good safety programs.

A penalty of $2,000 is reasonable for violation of § 1910.132(a) (item
1). Appropriate PPE was not addressed by BFG when dispensing the boiling
contents of a boilout. The uncontradicted testimony of Morgan shows that
he regularly emptied the boilout at temperatures above 100 degrees C. He
stood within 10 feet of the boiling contents emptying onto the floor.
Other employees also did not comply with the DOP.



**

*FINDINGS OF FACT AND*

**

**

*CONCLUSIONS OF LAW*



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



*ORDER*

**

Based upon the foregoing decision, it is ORDERED that:

1. Item 1, alleged violation of § 1910.132(a), is affirmed as serious
and a penalty of $2,000 is assessed.

2. Item 2, alleged violation of § 1910.132(d)(1), is vacated.

3. Item 3, alleged violation of § 1910.133(a)(1), is vacated.

4. Item 4, alleged violation of § 1910.147(c)(4)(ii), is vacated.

5. Item 5, alleged violation of § 1910.147(d)(3), is withdrawn by the
Secretary.

6. Item 6, alleged violation of § 1910.147(d)(4)(i), is withdrawn by the
Secretary.

7. Item 7, alleged violation of § 1910.1200(h)(3)(iii), is vacated.





/S/

KEN S. WELSCH

Judge

Date: November 26, 2001





1. At the hearing, the Secretary withdrew item 5, alleged violation of
29 C.F.R. § 1910.147(d)(3), and item 6, alleged violation of 29 C.F.R. §
1910.147(d)(4)(i) (Tr. 7-8).

2. In addition to the #731D dryer, operators are responsible for the
#718 dryer and #720 dryer (Tr. 239, 406, 454). All dryers perform the
same function, /i.e./, drying product by removing methanol (Tr. 413, 655).

3. Unlike the #731D dryer, the other dryers (# 718 and #720) are "more
automated and they're controlled from a panel board opening the
butterfly valve" (Tr. 406). The operator does not need to physically
contact the butterfly valve. The operator stands at a panel board
outside the cage, approximately 25 feet from the discharge area (Tr.
257-258, 406, 517-518, 656).

4. BFG keeps a temperature graph at the dryer (Exh. R-4). Water boils at
100 degrees C (212 degrees Fahrenheit) (Exh. J-1). The boiling point of
soap #5143 is greater than 100 degrees C (Exh. C-2; Exh. J-1).

5. BFG believes that the vent which prevents pressurization became
clogged (Tr. 324-325).

6. This citation item does not allege a hazard when emptying the
contents of the dryer. If it did, the record fails to show that the
dryer contents of 250 gallons of water and 5 gallons of soap constituted
"acids or caustic liquids" as required by § 1910.133(a)(1). No analysis
was made of the boilout contents.

7. BFG does not assert entitlement to the exceptions to the lockout
requirements at § 1910.147, nor do they apply. /Drexel Chemical Co.,
supra,/ at 1913-1914 (the exception in § 1910.147 did not apply where
/inter alia/ there was a potential for stored energy and not all
equipment had a single energy source).

8. Maintenance mechanic Towner testified that pressure build-ups have
occurred in the #731D dryer during production and at least one time
prior to the June 12 accident during a boilout (Tr. 978-979).