Both the construction and general industry standards have identical requirements when it comes to storing oxygen cylinders and flammable gas cylinders.
Here is the construction industry requirement:
1926.350(a)(10) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.
and here is the general industry requirement:
1910.253(b)(4)(iii) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.
The issues in dispute are:
- the applicability of the cited standard (e.g. were the cylinders in “storage”), and
- whether the fire-barrier on the in-house made storage rack complied with the terms of the standard
For the reasons indicated below, the Court concludes the citation must be VACATED. This is a MUST READ for anyone who stores compressed gas cylinders, especially if they are oxygen and flammable gas cylinders. The ALJ does a nice job laying out the argument of when a cylinder is in “storage” and then does a nice job breaking down the fire-barrier requirements if the cylinders are not separated by 20′ or more.
This case arises from an inspection conducted by OSHA, which resulted in the issuance of one serious citation with a proposed penalty of $6,234.00 for allegedly violating the Occupational Safety and Health Act of 1970 (the “Act”). The citation charged a violation of 29 C.F.R. § 1926.350(a)(10), an OSHA construction industry standard related to gas welding and cutting. After the company timely contested the citation, the Secretary of Labor (the “Secretary”) initiated this enforcement proceeding before the Occupational Safety and Health Review Commission (the “Commission” or the “Court”) by filing a formal complaint charging the company with violating the Act and seeking an order affirming the citation and proposed penalty. The company filed an answer denying it violated the Act and a bench trial was held in Lexington, Kentucky.
BACKGROUND
On March 20, 2017, and OSHA Compliance Safety and Health Officer (CSHO) conducted an inspection at the VA Medical Center in Lexington, Kentucky. During this inspection, nine of the company’s employees were present at the center and engaged in “retro-fitting the Chiller Plant,” which involved “welding, cutting, and construction.” During her inspection, the CSHO discovered a cage built by the company with at least ten liquid petroleum cylinders in the left compartment and two oxygen cylinders in the right compartment. The two compartments were separated by two 1/8-inch steel barriers separated from each other by 2 inches of air. Both barriers were taller than 5 feet. A corrugated metal ceiling enclosed the roof of the cage, creating a gap between the ceiling and the barriers. Additionally, a small gap was present at the bottom of the right compartment. The purpose of these gaps was to mimic “chimney effect” utilized by the “Anthony cart,” a small 2-compartment cart that fits 2 cylinders divided by a metal barrier, which enables hot air to be pulled from the bottom of the cage and expelled from the top of the barriers in the event of a fire.
After interviewing the company’s employees, the CSHO determined the cage had been present for approximately six months and when the employees “need a cylinder, they’ll go to the cage and get the cylinder and bring it to where it’s needed.” The CSHO also testified the company’s employees passed through this area daily to reach the Chiller Plant where they were working. Although the CSHO testified the case “is accessed as needed throughout the day or throughout the week, depending on how much welding or torching is occurring on site,” she also testified they were “performing torching and welding activities on a daily basis.” As a result of her inspection, the CSHO recommended the issuance of a citation for a violation of section 1926.350(a)(10) for the conditions she observed relating to the storage of the oxygen cylinders.
The Secretary subsequently issued the instant citation to the company on May 2, 2017.
ANALYSIS
The Secretary has the burden of establishing the company violated the cited standard. “To establish a prima facie violation of the Act, the Secretary of Labor must show by a preponderance of the evidence that:
- the cited standard applies to the facts,
- the requirements of the standard were not met,
- employees had access to the hazardous condition, and
- the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence
Most of the facts of this case are not in controversy. The company was engaged in welding, cutting, and construction at the worksite where it had both oxygen cylinders and liquid petroleum cylinders.
The company’s employees retrieved the cylinders and passed through this area daily to reach the Chiller Plant where they were working. Access to the alleged violative conditions is established.
Actual knowledge is also shown since the company knew the barrier had not been tested and that oxygen and liquid petroleum cylinders were in storage. In addition, constructive knowledge is established by the location of the storage rack and cylinders in plain view. Therefore, the company knew or could have known of the alleged hazardous condition with the exercise of reasonable diligence.
Thus, the only issues in dispute are:
- the applicability of the cited standard and
- whether the barrier on the storage rack complied with the terms of the standard
Applicability of the cited standard
The cited construction standard mandates “[o]xygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.” 29 C.F.R. § 1926.350(a)(10).
The citation asserts the company violated the standard since employees were allegedly exposed to fire and explosion hazards when oxygen and liquid petroleum cylinders were not separated by a non-combustible barrier.
A condition precedent to the applicability of the cited standard is that the oxygen cylinders were “in storage.”
In a December 31, 1998, Standard Interpretations Letter, OSHA interpreted this “in storage” requirement as it relates to the cited construction standard, and indicated OSHA “consider[s] a cylinder to be in storage when it is reasonably anticipated that gas will not be drawn from the cylinder within 24 hours (overnight hours included). At that point the storage requirements must be met.” (Standard Interpretations Letter, dated December 31, 1998.) NOTE: here is the link to the GI LOI on this matter
“In contrast, if it is reasonably anticipated that gas will be drawn from the cylinder during the next 24 hours, the cylinder is not considered to be in storage and the §1926.350(a)(10) storage requirements do not apply.” “Whether it is ‘reasonably anticipated’ that gas will be drawn within 24 hours is based on whether specific welding or cutting work is planned for that period and the number of gas cylinders expected to be required to do that work.”
As indicated supra, the record shows the company was performing torching and welding activities on a daily basis and the cage was accessed as needed throughout the day. Therefore, it was reasonably anticipated that gas would be drawn from the cylinder during the next 24 hours, and therefore, the cylinders were NOT (emphasis added by me) considered to be in storage. Thus, the section 1926.350(a)(10) storage requirements did NOT apply.
Further, although an agency’s interpretation of its own regulation is entitled to substantial deference so long as it is reasonable, Martin, 499 U.S. 144, in this case the Secretary has not produced any evidence regarding the company’s intended use of the cylinders within the relevant twenty-four hour period. The Commission has held that based on “the evidence as a whole,” cylinders were not “in storage” under section 1926.350(j) where “it is unclear when the cited cylinders were last used or when they were to be used next.” The Court’s holding, supra, is consistent with the Commission’s holding in Andrew Catapano Enterprises, Inc., id., since, based on the evidence as a whole, it is unclear when the cited cylinders were last used or when they were to be used next.
Therefore, the Secretary has not established the cited standard applied to the facts.
Barrier on the storage rack complied with the terms of the standard
Even assuming the Secretary established the cylinders were “in storage,” he failed to prove the barrier on the cage did not comply with the terms of the standard. As indicated supra, the company had two options to comply with the cited standard and the company chose the latter option:
to separate the oxygen and liquid petroleum cylinders by a noncombustible barrier at least 5 feet high with a fire resistance rating of at least ½ hour
The parties do not dispute the barrier between the oxygen and liquid petroleum cylinders was made of noncombustible steel, and that it exceeded the 5-foot tall requirement.
The Safety Director testified their cylinder cart was premised on the engineered steel fire barriers patented by Anthony Welded Products (“Anthony cart”). In a January 23, 2004, Standard Interpretations Letter, the Secretary noted that while OSHA did not have the background technical information regarding the design and testing of the Anthony cart, “as long as the barrier is at least 5 feet high, meets the ½-hour fire resistance rating and is designed to prevent the spread of the fire from one cylinder to another, employers using the product would meet the requirements of §1926.350(a)(10).”
The Secretary argues “the record contains no indication that the steel barriers fabricated by [the company] are so specifically engineered.” The Secretary’s assertion is true, since the Secretary failed to test the barrier to determine its fire resistance rating, and, as he is well aware, he had the burden to prove the company’s barriers did not comply with the terms of the cited standard. Nonetheless, the Secretary contends he did not need to test the barrier because OSHA’s “interpretative guidance” provides that a ½-inch thick solid steel barrier would not provide at least ½-hour fire resistance. Thus, the Secretary argues the ¼-inch barrier used by the company did not provide the appropriate fire resistance. The Court finds no merit in this argument.
The Secretary relies on an unpublished, June 30, 2006, internal memorandum from OSHA’s Director of Enforcement Programs to an OSHA regional administrator, addressing a general industry standard, section 1910.253(b)(4)(iii). The internal memorandum indicates “a solid mild steel plate barrier, ½-inch thick, would fail to meet the fire-resistance rating for ½-hour[.]” This unpublished internal memorandum in turn references a July 5, 1982 unpublished internal memorandum addressing yet another general industry standard, section 1910.252(a)(2)(iv)(c), which opines “a ½ inch mild steel plate barrier does not meet the intent of standards 29 CFR 1910.252(a)(2) (iv) (e)[.]”.
Assuming the Secretary gave adequate notice to regulated parties, including the company, of the unpublished internal memorandum, the Court nonetheless concludes they are not reliable for at least two reasons.
First, the Secretary failed to establish the opinions were based on sufficient facts or data, were the product of reliable principles and method, or that the principles and methods were reliably applied to the facts of this case.
Second, in addressing the cited construction standard, 1926.350(a)(10), the Secretary acknowledged in a March 4, 2004, Standard Interpretations Letter that the “term ‘fire-resistance rating’ has traditionally been used in the industry to refer to a time period of fire-resistance determined in accordance with a viable testing
protocol.”
As the Secretary acknowledged in that interpretive letter, “We are not aware of any industry consensus standards designed to assess fire-resistance of barriers in vehicles.” “A fire-resistance testing protocol for a barrier in a vehicle designed by a registered professional engineer familiar with fire-resistance testing would be acceptable. Similarly, a testing protocol developed by a Nationally Recognized Testing Laboratory would also be acceptable.”
The internal memoranda do not indicate the opinions were based upon testing protocol designed by a registered professional engineer familiar with fire-resistance testing or a testing protocol developed by a Nationally Recognized Testing Laboratory. Therefore, the Court does not find them reliable.
Thus, the Court concludes the Secretary also failed to prove the barrier in this case violated the fire-resistance rating requirements of the cited construction standard.
Thus, for the foregoing reasons, the Court concludes the Secretary failed to prove a violation of the cited construction standard. Accordingly, IT IS HEREBY ORDERED THAT the citation is VACATED and no civil penalty is imposed.
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