Docket No. 12600

BEAIRD-POULAN, A DIVISION OF EMERSON ELECTRIC CO.

OSHRC Docket No. 12600

Occupational Safety and Health Review Commission

April 6, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Frank L. Pellegrini and William T. Weidle, Jr., for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: This case is before the Commission for review under 29 U.S.C. § 661(i). At issue is whether the Administrative Law Judge erred in finding the Respondent, Beaird-Poulan, A Division of Emerson Electric Co. ("Beaird"), in violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("the Act"). The judge ruled that Beaird failed to comply with § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1) (the general duty clause), and with three occupational safety standards, 29 C.F.R. § 1910.132(a) (personal protective equipment), 29 C.F.R. § 1910.242(a) (defective tools and equipment), and 29 C.F.R. § 1910.309(a) (electrical equipment). n1

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n1 Beaird petitioned the Commission for review of the judge's decision, and a direction for review was issued by former Commissioner Moran on June 30, 1976. The direction for review did not specify issues to be reviewed by the Commission. The issues stated above are those raised by Beaird's June 10, 1976 petition for discretionary review. Inasmuch as neither party has taken exception to any other parts of the judge's decision, and because there is no compelling public interest warranting Commission review of those items not specifically excepted to by the parties, they will not be considered by the Commission. See Champion Construction & Engineering Co. Inc., 78 OSAHRC , 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

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At its Shreveport, Louisiana plant Beaird is engaged in the manufacture of chain saws. It employs approximately 1000 persons. The plant was inspected by an authorized representative of the Secretary of Labor (compliance officer) on January 29 and February 3, 5 and 10, 1975, resulting in the issuance on February 13, 1975, of three citations that include the charges before us on review.

Citation number 2 alleges that Beaird violated the Act's general duty clause n2 in that,

The employer failed to furnish his employees, working in the heat treat aisle and sanding room area, employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees; in that on December 19, 1974, an employee was allowed to sand magnesium (which could cause fire and explosion hazards), and produce excessive sparks on the right sander located in the magnesium sanding room.

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n2 Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), commonly referred to as the general duty clause, 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;

[*3]

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The chain saws manufactured by Beaird are made from a magnesium base alloy. In the "clean-up room" Beaird's employees sand and grind chain saw handles, an operation that results in the accumulation of flammable magnesium dust. The evidence reveals that sparking is not an uncommon occurrence when sanding and grinding are performed. There are two sanding machines ("sanders") in the clean-up room, each provided with a vacuum intake vent connected to a central dust collection system ("Roto-Clone") for the purpose of removing magnesium dust generated by the sanding operation. In addition, excess magnesium dust that is not automatically removed by the intake vent accumulates in a collection pan located beneath the sander. It is not disputed that flash fires may occur when live sparks from a sander contact magnesium dust. Nor is it disputed that Beaird's Roto-Clone satisfies the requirements for magnesium dust collection in NFPA No. 48, Storage, Handling and Processing of Magnesium.

The issues to be resolved are whether the Secretary has established the existence of a "recognized hazard" at Beaird's [*4] workplace, the protective measures Beaird should have taken to protect its employees from the hazard, and the feasibility and likely utility of those measures -- all necessary elements of the Secretary's burden of proof in adjudications arising under § 5(a)(1) of the Act. National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Titanium Metals Corporation of America v. Usery, 579 F.2d 536 (9th Cir. 1978).

On the evening of December 19, 1974, employees Hawks and James were engaged in sanding machine parts on the sanders. Sparks ignited magnesium dust at employee James' sander and entered the vent. Flames shot out of employee Hawks' sander and traveled away from the clean-up room through the dust collection system on the other side of the wall, and into the "heat treating room." In the ensuing fire two employees were injured, one fatally.

According to both employees, James began producing larger than usual sparks shortly after starting the 3:30 p.m. - midnight shift. James turned off his machine and called over his set-up man or foreman, Lee. James testified that he told Lee the sparks were too big and it was getting dangerous. Lee instructed [*5] James to continue working and, if sparks became larger and caused a fire, to turn the machine off and close the vent door. James testified that Lee never informed him that he was sanding incorrectly and did not caution him about hazards associated with large sparks. Later during the shift the fire erupted.

Hawks, who resigned his position at Beaird's plant before the date of the hearing, testified that he had no prior machine experience and had received no safety instructions concerning the use of the sanders or associated fire hazards. However, Hawks stated that he had heard employees discuss the combustibility of magnesium, and when he started working at the plant in November 1974, foreman Lee had observed and instructed him as to the correct sanding technique.

James testified that he had never attended a safety program but had been told by the personnel manager that magnesium was dangerous. He stated that he normally generated more sparking during sanding operations than did other employees, perhaps because he applied more pressure or worked faster. Hawks also stated that James may have been applying greater pressure or working faster when he experienced large sparks. Hawks [*6] indicated that employees develop their own sanding techniques. He stated that employees were instructed to keep the dust pans clean, but that they used their own judgment about when to brush accumulated magnesium dust into the intake vent.

The testimony of the compliance officer focused on the dangers associated with working with magnesium. He acknowledged that Beaird's dust collecting system met recognized NFPA standards. In addition, he stated that sparking is not uncommon during sanding operations, and he indicated that the term "excessive sparking" in the citation referred to sparks that could cause ignition of surrounding magnesium particles.

The Secretary's industrial hygienist, Mr. John D. Schlitz, n3 was familiar with industrial practice in sanding magnesium, having been previously employed by Bendix Corporation as a senior safety engineer, industrial hygienist, health physicist and supervisor of healty safety. His testimony concentrated on the hazards of magnesium and his related experience at Bendix Corporation. Schlitz testified that Bendix had a training program for employees working with magnesium that included methods of handling magnesium and "emergency procedures." [*7] He indicated that when sparking occurred at sanders the standard practice was for the employee to stop the operation and call a foreman who would determine the source of the sparks. Means to eliminate the sparks would then be instituted. One method employed by Bendix was described as an interim water collection system that would extinguish the sparks before they entered the exhaust duct. Despite the initiation of precautions by Bendix, the witness acknowledged that there were serious fires. n4 Schlitz testifier that it is "standard practice and standard knowledge" that "magnesium always poses a potential of sparks and a fire," and that sparks must be controlled. Furthermore, he indicated that a single spark from a sanding wheel could ignite magnesium dust.

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n3 This witness was not tendered as an expert.

n4 It should be noted that unlike Bendix, Beaird used chrome-pickled metals. Dr. Busk testified that more sparks would be generated when sanding parts made of chrome-pickled magnesium. In addition NFPA No. 48 (Joint Exhibit No. 4) advises at § 325(h) that "special precautions should be taken" when grinding chrome-pickled magnesium surfaces.

[*8]

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Beaird's witness, Dr. Robert Busk, also not tendered as an expert, is an international magnesium consultant. He testified that Beaird's dust collection system was satisfactory for the extinguishment or containment of fires within the system, and that the production of sparks and small fires in the area of grinding operations are not uncommon. Busk stated that "[w]hen sparks are recognized as necessarily present, then the preventive measure is to limit the fire." n5

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n5 In response to a question on direct examination concerning the preventive measures industry generally recognizes as necessary "to prevent any fires produced from sparking," Dr. Busk stated that because there is a possibility of fire, "safety measures revolve completely around what you do with a fire if it happens."

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Based upon the record evidence, Judge Martin determined that Beaird was aware of the excessive sparking that could result in a fire hazard, and concluded that [*9] a recognized hazard existed at Beaird's workplace. He noted that Hawks and James were "relatively inexperienced employees" who had received "very little supervision," and that James was permitted by foreman Lee to continue sanding despite the employee's complaints regarding excessive sparks. Judge Martin found Beaird in violation of § 5(a)(1) of the Act "for failing to provide its employees with a place of employment free from a recognized hazard likely to cause death or serious physical harm."

The Secretary argues on review n6 that since some sparking and small fires are common with magnesium sanding, the recognized hazard posed by excessive sparking must be controlled primarily through rigorous employee training and supervision. The Secretary points to the testimony of its industrial hygienist regarding procedures at Bendix as establishing the feasibility and likely utility of at least one means of eliminating, or substantially reducing, the hazard. He states that it is obvious that foreman Lee could have and should have told James to stop sanding until the sparking was eliminated or its effects counteracted. The Secretary states that the hazard was "eminently foreseeable [*10] in that it was an obvious consequence of an inadequate safety program," and that "[t]he feasibility and utility of establishing such a program is beyond question, since it goes to the very essence of an employer's duty under the Act. National Realty, supra 489 F.2d at 1265-67 nn. 32, 37. Accord Secretary of Labor v. Butler Lime and Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975)."

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n6 The parties' briefs on review were filed in response to a briefing order issued by the Commission on September 2, 1977. The briefing order invited briefs on the following issue relating to the § 5(a)(1) charge: "(1) Whether Citation No. 2 should be vacated because the record fails to establish the steps respondent should have taken to avoid citation and the feasibility and likely utility of those measures."

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Beaird argues on review that "sparking of magnesium, . . . magnesium fires in the pan and fires in the duct and . . . collectors" are recognized by the industry, and that "[r]ecognized abatement measures are not devoted [*11] to eliminating of [sic] sparks or magnesium, but to controlling the magnitude of the fires . . . ." Beaird points out that its Roto-Clone system is recognized as satisfactory for this purpose. It also argues that proof of the presence of a dangerous substance at a worksite does not establish a § 5(a)(1) violation, unless this proof establishes that the manner and methods of controlling the danger were inadequate. n7 Therefore, Beaird claims that the judge erred in failing to consider the effectiveness of the Roto-Clone in determining whether a "recognized hazard" existed. Beaird states the issue to be "whether the Roto-Clone system was recognized as inadequate to accommodate 'excessive' sparks."

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n7 Beaird additionally argues that "[i]t is only when an employer fails to take any precautions against the effects of a dangerous substance about his workplace, that proof that the substance is dangerous and known to be so is proof that a 'recognized hazard' existed."

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Beaird notes that the installation of the Roto-Clone [*12] indicates the employer's recognition of the danger created by sparks in the presence of magnesium, but argues that the Secretary has failed to demonstrate what if any record evidence establishes the steps Beaird should have taken to avoid citation. It argues that on appeal the Secretary has presented a new theory of abatement -- training and supervision which might have abated the hazard -- suggestions too vague and speculative "to prove the abatability of the hazard by their implementation." n8

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n8 Beaird implies in its review brief that the Secretary's theory on review represents an impermissible shift in legal theory, and argues that "[s]ince the case was not tried on the theory of abatement by increased training, the Secretary also fails to demonstrate . . . the existence of any evidence establishing the . . . practicality (feasibility) of the proposed training program."

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In order to establish a violation of § 5(a)(1), the Secretary must prove:

1. that the employer failed to render its workplace "free" [*13] of a hazard which was

2. "recognized", and

3. causing or likely to cause death or serious physical harm to his employees.

National Realty and Construction Co., Inc. v. OSHRC, supra at 1265. The record must also demonstrate that there were feasible steps the employer could have taken to avoid citation. Id. at 1268.

The testimony of all witnesses appearing in this case and the exhibits introduced by the parties n9 support the finding that the fire and explosion hazard posed by the production of sparks in the presence of flammable magnesium dust was recognized by both Beaird and its industry. n10 The evidence also establishes that the hazard was likely to and in fact did cause death or serious physical harm to Beaird's employees. Whether the Roto-Clone system alone is adequate to protect against the hazard is relevant to whether the Respondent has discharged its duty under § 5(a)(1) of the Act to render its workplace "free" of the hazard by taking reasonable steps to protect its employees. It is not, as Beaird argues, determinative of whether a hazard exists in the first instance. A recognized hazard is not defined in terms of the absence of appropriate abatement [*14] measures. A recognized hazard is a condition or practice in the workplace that is known by the industry in general or by the employer in particular to be hazardous, see Empire Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); National Realty & Construction Co., Inc. v. OSHRC, supra at 1265 n. 32, that gives rise to an employer's abatement responsibilities under the Act. The evidence in this case clearly establishes that the production of sparks in the presence of flammable magnesium dust is a recognized hazard. n11 Having established the existence of a recognized hazard, the remaining question is whether the Secretary has shown that Beaird could have taken reasonable steps to protect its employees and thereby avoid citation.

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n9 Joint Exhibit No. 4 - NFPA No. 48, Storage, Handling and Processing of Magnesium, 1974; Complainant's Exhibit No. 3 - National Safety Council Data Sheet 426, Magnesium, (1956); Respondent's Exhibit No. 3 - Nash, Dust Collector, Maintenance 'Musts' for Grinding Magnesium, WESTERN METALS (Dec. 1952).

n10 See Titanium Metals Corp. of America v. Usery, supra at 541, where, based on the National Fire Code, Titanium's previous experience with fires, employee complaints and Titanium's safety program, the court found that,

Here, there can be no doubt on this record that the fire hazard posed by titanium generally and by the accumulation of dust and fines in particular was recognized both throughout the industry and by petitioner itself.

See also Noble Drilling Corporation, 78 OSAHRC 96/C12, 6 BNA OSHC 2108, 1978 CCH OSHD P23,157 (No. 15405, 1978), and U.S. Pipe and Foundry Co., 78 OSARHC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD P22,514 (No. 11739, 1978), where the employer's own safety measures indicated their awareness of the existence of a recognized hazard.

n11 The charge in this case unfortunately "overemphasized a single incident rather than directly indicting the adequacy of . . . [the employer's] safety precautions . . .," National Realty & Construction Co., Inc. v. OSHRC, supra at 1264, by focusing on the events of December 19, 1974, and the "excessive sparks" produced by employee James. However, it is the general hazard, not the cause of a particular accident, that is relevant in determining the existence of a recognized hazard. See Brennan v. OSHRC & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974); Boeing Company, Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977). Contrary to Beaird's assertion in its brief on review, the testimony of the witnesses focused on the fire hazards associated with sanding magnesium. The testimony was not restricted solely to the danger of excessive sparking. Furthermore, the citation stated that sanding magnesium "could cause fire and explosion hazards." The hazard was not described in terms of excessive spark production. The record is replete with evidence introduced by both parties that less than an excessive amount of sparks, indeed even a single spark, could ignite magnesium dust and that the possibility of fires is always present during magnesium sanding operations. The elimination of only "excessive" sparking will not eliminate the workplace hazard. Although it is arguable that the pleadings in this case did not squarely raise the issue of the inherently hazardous nature of the sanding operation, as opposed to the hazard created by excessive sparking, the issue was fully litigated by the parties and may be decided. National Realty & Construction Co. v. OSHRC, supra at 1264.

[*15]

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Beaird's argument that its Roto-Clone was sufficient under existing industry practice to protect against the hazard is rejected. Compliance with the Act may require methods of protection of a higher standard than industry practice. Continental Oil Company, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978); Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975), appeal withdrawn, No. 75-2493 (6th Cir. June 4, 1976). As the court in National Realty & Construction Co., Inc. v. OSHRC, supra, recognized, "[t]he question is whether a precaution is recognized by safety experts as feasible, not whether the precaution's use has become customary." 489 F.2d at 1266 n. 37. Furthermore, the evidentiary record does not support Beaird's assertion that industry practice is to rely exclusively on the Roto-Clone to protect against the workplace hazard involved in this case.

The Secretary's exhibit C-3, National Safety Council Data Sheet 426, Magnesium (1956), introduced by the Secretary without objection from Beaird, states [*16] the following:

Fire Protection

91. Despite rigid control of molten or finely divided magnesium alloys, fires may occur. The control and proper extinguishment of these fires is a procedure which should be thoroughly understood. All employees should be given instruction in methods of preventing and extinguishing magnesium fires, and selected members of each shift should receive intensive training as special fire fighting crews to assist the regular fire department or the municipal fire department.

In addition, the Respondent's Exhibit R-3, an article entitled "Dust Collector, Maintenance 'Musts' for Grinding Magnesium," published in WESTERN METALS (Dec. 1952), and reprinted by Dow Chemical Company, states the following:

Although an ounce of prevention is worth a pound of cure in control, nevertheless fires may occur. The control and proper extinguishment of these fires is a point which should be thoroughly understood by all personnel concerned.

* * *

The ease of ignition of magnesium depends to a large extent upon the size and shape of the material as well as the size or intensity of the source of ignition . . .

* * *

A safety education program that will make for the greatest [*17] safety in the plant might be divided in the following steps:

(1) Make certain that all workmen are kept well trained in proper working methods and safe handling technique for magnesium.

(2) Notify city and plant fire departments and plant workmen of proper recommendations for handling magnestium fires, should they occur.

(3) Educate firemen and workmen through supervised demonstrations which will teach proper fire prevention and extinguishing, and which will likewise serve to accustom them to magnesium fires.

* * *

Any fire hazard connected with magnesium is easy to control provided the proper precautions have been taken and personnel advised of safety methods.

It is clear on this record that Beaird's efforts to train its employees fell far short of these reasonable abatement techniques recommended by various safety authorities. The evidence establishes that neither Hawks nor James received safety training with respect to the hazards associated with their work. In addition, James was permitted by his supervisor to continue sanding despite his complaint regarding dangerous levels of sparking. Since the "size or intensity of the source of ignition" affects "[t]he ease of ignition [*18] of magnesium," Lee's failure to respond to James' complaint constituted clearly inadequate supervision. n12 In addition, increased sparking resulting from the use of chrome-pickled magnesium surfaces warranted special precautions. n13 Finally, the uncertainty involving the precise conditions necessary to cause ignition "arguably imposes an even greater duty on . . . [the employer], faced with the obligation of taking feasible measures to assure the safety of its employees, to err, if at all, on the side of greater, not lesser, caution." Titanium Metals Corp. of America v. Usery, supra at 543.

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n12 We reject Beaird's assertion that a theory of liability based on inadequate training and supervision is an impermissible shift of legal theory. That "an employee was allowed to sand magnesium . . . and produce excessive sparking" is the conduct alleged in the citation and complaint to have been violative of the general duty clause. This charge necessarily raises the issue of inadequate supervision. See National Realty & Construction Co., Inc. v. OSHRC, supra. Furthermore, Hawks and James were questioned about safety instruction without objection from Beaird, the Secretary's industrial hygienist discussed safety training, and Exhibits C-3 and R-3 were introduced without objection or specific limitation. It is concluded that Beaird had fair notice of the issues, and its failure to object to the testimonial evidence indicates that Beaird understood that the evidence was relevant to the charge against it. See Barker Brothers, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD P22,488 (No. 12964, 1978); Broadway Warehouses, Inc., 77 OSAHRC 10/D4, 4 BNA OSHC 1956, 1976-77 CCH OSHD P21,467 (No. 10560, 1977).

n13 See note 4 supra.

[*19]

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Considering the record as a whole, we conclude that Beaird's complete reliance on the Roto-Clone to protect its employees is inadequate to satisfy its responsibility to its employees under the general duty clause. The record establishes that enforcement by Beaird of a safety program designed to train employees in the prevention, control and extinguishment of spark-induced magnesium fires, and supervision aimed at preventing fires, along with continued use of the Roto-Clone, are "demonstrably feasible measures [that] would have reduced the likelihood" that employees would be exposed to fire and explosion hazards in their place of employment. National Realty & Construction Co., Inc. v. OSHRC, supra at 1267. The judge's disposition is affirmed.

III

29 C.F.R. § 1910.132(a)

Item 2 of Citation number 1 alleges that protective aprons worn by employees engaged in sanding and buffing operations were not maintained in a "sanitary and reliable condition," in violation of the personal protective equipment requirements of 29 C.F.R. § 1910.132(a). n14 Specifically, it is alleged that the aprons "were [*20] not kept clean enough of magnesium to consider them reliable."

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n14 § 1910.132 General requirements.

(a) Application. 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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At the hearing, the evidence relating to this item was conflicting. The compliance officer testified that he observed one employee who was not wearing an apron n15 and several employees who were wearing aprons that were stained with oil and magnesium dust. The compliance officer considered the condition of the aprons to constitute a fire hazard. [*21] Schlitz, the Secretary's industrial hygienist, also testified that an accumulation of magnesium dust on employee aprons could create a fire hazard. Former employee Hawks testified that, at the beginning of each shift, he picked up an apron wherever he could find one. According to Hawks, employees working the previous shift would leave their aprons on the counter or on the sander. He testified that the aprons were old and dirty, and that he was never told how to keep his apron clean or how often to clean it. He indicated that he cleaned his apron with an air hose. Hawks testified to being unaware of any company policy requiring employees to obtain clean aprons daily. Employee James stated that he was told by foreman Lee to "spray it [apron] down" to clean off magnesium dust.

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n15 The compliance officer testified that he was informed by the employee who was not wearing an apron that his apron had been loaned to another employee "whose apron has become past the point where he wanted to wear it."

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Employee Watkins, [*22] who worked in the clean-up room, testified that he secured a clean, fire-retardant apron daily from the tool crib and cleaned it with air whenever it became visibly soiled with dust. He stated that company policy required clean aprons to be worn "any time you work with magnesium." n16 Beaird's safety manager also testified that company policy required employees to obtain clean aprons at the tool crib at the beginning of each shift and to return them at the end of the shift. n17

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n16 Judge Martin noted that Watkins did not work with the sanding or buffing equipment until after the inspection in this case.

n17 The evidence relating to Beaird's company policy appears to raise the issue of unpreventable employee misconduct. However, this affirmative defense will be sustained only when it is shown that an employee's conduct was a departure from a uniformly and effectively enforced workrule. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978); B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). Beaird's burden in this regard is not sustained by the record.

[*23]

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In his decision, Judge Martin set forth the testimony of the witnesses and concluded that a preponderance of the reliable and probative evidence supports the § 1910.132(a) allegation. On review, Beaird has resubmitted its brief filed with the judge and asks the Commission to consider the same arguments it presented before the judge regarding the sufficiency of the evidence. Having reviewed the entire record, we affirm the judge's disposition of this item inasmuch as his weighing of the evidence was based on credibility determinations and his finding of a violation is supported by the record. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).

29 C.F.R. § 1910.242(a)

Item 4 of Citation number 1 alleges that Beaird failed to comply with the requirements of 29 C.F.R. § 1910.242(a) n18 because spark producing equipment, specifically a hoe, shovel and wheel-barrow, was used to clean magnesium dust and sludge from the duct collector. It is not disputed that spark-producing tools were used in the presence of magnesium dust and sludge. In [*24] addition, the evidence establishes that the use of spark producing tools around magnesium dust is hazardous. The issue to be resolved is whether the cited standard is applicable to the allegedly hazardous condition. n19

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n18 § 1910.242. Hand and portable powered tools and equipment, general.

(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.

n19 The briefing order issued by the Commission on September 2, 1977 (see note 6 supra) invited briefs on the following issue: "(2) Whether item 4, Citation No. 1 should be vacated because 29 C.F.R. § 1910.242(a) does not apply to the alleged violation."

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Beaird argued before the judge and reiterates its contention on review that the cited standard does not prohibit the allegedly violative condition. Beaird argues that the Commission has limited the application of § 1910.242(a) to tools that are mechanically defective and therefore [*25] capable of causing injury. Furthermore, Beaird asserts that the standard has not been applied to mechanically intact tools that are used for other than their originally intended purpose. The Respondent relies on Mountain States Telephone and Telegraph Co., 73 OSAHRC 1/A9, 1 BNA OSHC 1077, 1971-73 CCH OSHD P15,365 (No. 355, 1973) (short circuit in a hand tool); Irvington-Moore, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd on other grounds, 556 F.2d 431 (9th Cir. 1977) (hand tool with a mushroomed head).

Judge Martin rejected Beaird's argument. He stated that, "it is not deemed reasonable to believe that the drafters of this standard intended to rule out the use to which tools may be put when deciding whether tools are in a safe condition." He noted that in Mountain States the employer was unaware of the unsafe condition of the tool, whereas Beaird knew or should have known that the use of spark-producing tools in the presence of magnesium dust is hazardous. On the basis of this rationale, the Secretary argues in support of the judge's decision.

We disagree with the Secretary's position. In interpreting regulations, one [*26] must look at the plain meaning of the words. See Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir. 1977); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978). The cited standard clearly and unambiguiously applies to defective cools. There is no indication within the standard that it applies to the appropriate tools to be used under particular circumstances.

In his brief on review, the Secretary acknowledges that "the gravamen of respondent's violation lies not in the fact that the sparking tools provided were in themselves defective but rather that their required use in cleaning a magnesium dust collection system rendered them unsafe in the context of the work being performed." Inasmuch as we have concluded that the cited standard relates to the condition of tools, not to their use, this item is vacated. n20

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n20 It should be noted that a similar hazardous practice, involving the use of spark-producing tools in the presence of highly flammable titanium dust and fines, was part of the employer conduct found to be violative of the Act's general duty clause in Titanium Metals Corp. of America v. Usery, supra. Our ruling should not be construed as condoning what appears on the record to be a hazardous practice. We have concluded only that the legal theory under which the Secretary proceeded is inapposite to the cited hazardous condition and that an amendment under Fed. R. Civ. P. 15(b) would be inappropriate.

[*27]

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29 C.F.R. § 1910.309(a)

Item 5 of Citation number 1 alleges a nonserious violation of § 502-13(b), NFPA 70-1971, incorporated by reference in § 1910.309(a), n21 in that Beaird failed to provide Class II, Division 2 electrical receptacles and attachment plugs for the overhead fans in its sanding room. Judge Martin affirmed this charge, relying on the compliance officer's uncontradicted testimony that the receptacles and plugs were a standard type that could produce an electrical arc or spark when unplugged, thereby presenting the danger of igniting magnesium dust in the ambient air.

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n21 The relevant standards provide as follows:

§ 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

Articles
500	Hazardous Locations.
501	Class I Installations
	(Hazardous Locations).
502	Class II Installations
	(Hazardous Locations).

502-13. Receptacles and Attachment Plugs.

* * *

(b) Class II, Division 2. In Class II, Division 2 locations, receptacles and attachment plugs shall be of the type providing for connection to the grounding conductor of the flexible cord and shall be so designed that connection to the supply circuit cannot be made or broken while live parts are exposed.

[*28]

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Beaird argues that the evidence does not establish the presence of a hazard. It submits that the Secretary has not sustained his burden of proof because there is no evidence to establish whether the fans were "plugged or unplugged" or whether there was any current in the line. Beaird also argues that the Secretary's burden has not been sustained because there is no evidence other than the compliance officer's uncorroborated testimony that the cited electrical plugs did not comply with § 1910.309(a).

We find Beaird's arguments without record support. The compliance officer testified that the cited receptacles are of the standard three-prong type. This testimony was uncontradicted. He further testified that Class II, Division 2 receptacles, as required by § 502-13(b) of the National Electrical Code, should have been used in order to prevent the possible ignition of magnesium dust by an electrical arc from a standard receptacle. n22 This testimony was corroborated by the Secretary's industrial hygienist. Furthermore, photographic exhibits C-1 and C-2 reveal that the lights were on in the cited work [*29] area and the fans were plugged in. Accordingly, the judge's findings and conclusions with respect to this item are affirmed.

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n22 The compliance officer described a Class II, Division 2 receptacle and plug as a unit that requires the plug to be twisted before contact is made or broken so that the arc will be cooled or broken before the plug is pulled from the receptacle.

NEC, Article 500-5(b) defines Class II, Division 2 locations as follows:

Locations in which combustible dust will not normally be in suspension in the air, or will not be likely to be thrown into suspension by the normal operation of equipment or apparatus, in quantities sufficient to produce explosive or ignitible mixtures, but (1) where deposits or accumulations of such dust may be sufficient to interfere with the safe dissipation of heat from electrical equipment or apparatus, or (2) where such deposits or accumulations of dust on, in or in the vicinity of electrical equipment might be ignited by arcs, sparks or burning material from such equipment.

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After considering the penalty assessment criteria set forth in section 17(j) of the Act, 29 U.S.C. § 661(i), n23 Judge Martin assessed penalties of $600 for the § 5(a)(1) violation and $50 each for the nonserious violations. The judge properly considered the statutory criteria and his penalty assessments for the violations affirmed are appropriate.

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n23 Section 17(j) provides the following:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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It is ORDERED that Citation No. 1, items 2 and 5, and Citation No. 2, as well as the penalties assessed by the judge for these violations, are affirmed. Citation No. 1, item 4 and the assessed penalty are vacated.