Cooper Tire & Rubber Company

Read the official release (oshrc.gov)

Plain-English summary

OSHA cited Cooper Tire over alleged carbon-black dust hazards at its Tupelo tire plant. After withdrawals and a partial settlement, the judge vacated the remaining general duty, hazardous-location, and housekeeping items because the Secretary did not prove the cited combustible-dust conditions. While review was pending, the parties submitted a settlement agreement and a joint motion to dismiss, and the Secretary withdrew the review petition. The Commission approved the settlement and dismissed the case; the published order does not state the settlement's penalty terms.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.307(c)(2); 29 C.F.R. § 1910.22(a)(1); 29 C.F.R. § 1910.22(a)(2)
• Outcome: Settlement agreement approved and case dismissed after withdrawal of the petition for review.
• Key point: A Commission case may end by approved settlement and dismissal after an ALJ decision has been directed for review.

Full text (OSHRC public release)

Cooper Tire & Rubber Company, Docket No. 11-1588

Walter, J. David
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Walter, J. David
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2018-08-03T15:56:00Z
2018-08-03T15:56:00Z
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EN-US
X-NONE
X-NONE

United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120
20th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No. 11-1588

COOPER TIRE & RUBBER COMPANY,

Respondent.

FINAL
ORDER

The parties have submitted a settlement
agreement for approval in this case pursuant to Commission Rule 100, 29 C.F.R.
§ 2200.100, and a joint motion to dismiss. Having examined the agreement and
noted the absence of any objection to the posted agreement by any affected
employee pursuant to Commission Rule 7(g), 29 C.F.R. § 2200.7(g), the
Commission approves the agreement. The Secretary has withdrawn his petition for
discretionary review. Since no one has objected to this withdrawal and the
parties seek dismissal of the case, the case is hereby DISMISSED.

SO
ORDERED.

BY
DIRECTION OF THE COMMISSION

Dated: January 7,
2016                              /s/                                                              

John
X. Cerveny

Executive
Secretary

UNITED
STATES OF AMERICA

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, United States
Department of Labor,

Complainant,

v.

OSHRC
DOCKET No. 11-1588

COOPER TIRE & RUBBER COMPANY,

Respondent.

DECISION
AND ORDER

COUNSEL: M.
Patricia Smith, Solicitor of Labor, Stanley E. Keen, Regional Solicitor, Christopher
D. Helms, Counsel, Angela F. Donaldson, Senior Trial Attorney, Rolesia B.
Dancy, Senior Trial Attorney, for Complainant.

Jonathan L.
Snare, Esq., Jason Mills, Esq., Dennis J. Morikawa, Esq., Emily Bieber, Esq.,
Brandon J. Brigham, Esq., Morgan, Lewis & Bockius LLP, for Respondent.

JUDGE: John
B. Gatto.

INTRODUCTION

The
above-styled action was tried before the Court pursuant to a complaint filed by
Thomas E. Perez, Secretary of Labor, United States Department of Labor (the
Secretary), against Cooper Tire & Rubber Company (Cooper Tire) under
Commission Rule 34(a), “to affirm the Citations and Notifications of Penalty” issued to
Cooper Tire on June 3, 2011, pursuant to section 10(c) of the Occupational
Safety and Health Act of 1970 (the Act) “and the Safety and Health Regulations promulgated thereunder.” (Compl. p. 1.) The Commission has jurisdiction of this action pursuant
to section 10(c) of the Act. The Secretary’s complaint incorporated four citations issued to Cooper
Tire under the Act by the Jackson Mississippi Area Director of the Department’s
Occupational Safety and Health Administration (OSHA), which alleged eleven serious violations, two willful violations,
one repeat violation, and two non-serious violations, and proposed penalties
totaling $203,900.00. (Compl. Exs. A - D.)

Cooper
Tire, the second largest tire manufacturer in the United States, operates a
facility in Tupelo, Mississippi (Tupelo Plant), where it manufactures
automobile and truck tires. Cooper Tire has two other domestic manufacturing
facilities in Findlay, Ohio and Texarkana, Arkansas and employs more than
10,000 employees worldwide, including 2000 employees at its Tupelo Plant.  (Resp’t’s Post-Hr’g Br. n. 1.) The citations were issued under
OSHA’s Combustible Dust National Emphasis Program (NEP) and related to the accumulation and handling of carbon black
dust at the Tupelo Plant, which, according to the
Secretary, was combustible and exposed Cooper Tire’s employees to
fire and explosion hazards. ( See Compl’t’s Post-Hr’g Br., p. 1.)

The citations resulted from an inspection of
the Tupelo Plant between December 7, 2010, and December 16, 2010, by Henry
Rust, OSHA’s Compliance Safety and Health Officer and the K st values
reported on a dust sample collected by Rust (Rust sample), which was analyzed
at OSHA’s Salt Lake Technical Center (SLTC) in Sandy, Utah, and purportedly
showed that the Rust sample was “explosible.” According to the Secretary, the K st
index reflects the impact of a dust explosion in bar meters per second and
measures the potential force of an explosion and that registering on the K st
index meant the dust was explosive. (Tr. 532; C-21, p. 2.) Cooper Tire counters
that the Secretary has “failed to establish that a carbon black explosion
hazard existed at the Tupelo Plant[.]” (Resp’t’s Post-Hr’g Br., p. 178.)

Based upon pretrial amendments to, and withdrawals of, some
of the original citations, as well as a partial settlement reached after
trial, most of the issues in this case have been resolved. Still pending before the Court are three
disputed issues with proposed penalties totaling $147,000.00. The first issue
involves the Secretary’s allegation in amended Citation Number 2, Item 1 that
Cooper Tire committed a willful violation of section 5(a)(1) of the Act, known as the “General Duty
Clause.” ( See Compl’t’s Unopposed Mot. Am.; Order Granting Compl’t’s
Unopposed Mot. Am.) The second willful issue still unresolved is the
Secretary’s assertion in Citation Number 2, Item 2, which alleges that Cooper
Tire committed a willful violation of 29 C.F.R. § 1910.307(c)(2), the Hazardous
(classified) Locations Standard. ( See Compl. Ex. B, Cit., p. 17.) The
last issue involves the Secretary’s allegations in Citation Number 1, Items 2a
and 2b that Cooper Tire committed two serious violations of 29 C.F.R. §
1910.22(a), the General Housekeeping Standard. ( See Compl. Ex. A, Cit.,
pp. 7-8.)

Thus, as indicated supra , after the conclusion of
discovery and prior to trial, the Secretary withdrew all alleged violations
that addressed “pure” or “virgin” carbon black. (Resp’t’s Post-Hr’g Br., p. 2.)
According to Cooper Tire, the case “dramatically changed its focus during the
expansive three-year enforcement effort by OSHA from one covering virtually all
aspects of the tire manufacturing process in which Cooper Tire transported,
received, stored, and conveyed carbon black, to focusing only on the mixing
process of pure carbon black and other substances as it entered the ‘master
mixture’ phase of production.” (Resp’t’s Post-Hr’g Br., p. 3.) However, “the
Secretary refused to withdraw alleged instances related to carbon black mixtures,’ while, at the same time, declining to identify either the specific substances (volatives and sensitizers) or amounts of such substances, which, when added to thevirgin’ carbon black, allegedly created a carbon black
[fire]/explosion hazard at the Tupelo Plant.” ( Id. ) “The Secretary’s
theory of this case has therefore morphed from one in which the alleged hazard
was working with ‘carbon black’ to one involving a discrete but undefined
‘carbon black mixture,’ the relative hazards of which were subject to
conflicting expert testimony at trial.” ( Id. )

After more than three years of litigation,
including extensive discovery spanning more than two years, with hundreds of
interrogatories and document requests, and twenty-one depositions, the case
proceeded to a bench trial on December 2, 2013, which lasted almost two weeks
with seventeen witnesses testifying over the course of the trial. Nine were current or former
employees of Cooper Tire, four were OSHA representatives, two were from
consulting companies engaged by Cooper Tire, and two were the respective
experts for the Secretary and Cooper Tire. (Resp’t’s Post-Hr’g Br., p. 1.)

Pursuant to Fed. R. Civ. P. 52(a), after
hearing and carefully considering all the evidence and the arguments of
counsel, the Court issues this Decision and Order as its findings of fact and
conclusions of law. If any finding is in truth a conclusion of law, or if any
conclusion stated is in truth a finding of fact, it shall be deemed so. The
Court holds that for the reasons indicated  infra , the remaining
citations and proposed penalties are  VACATED .

PROCEDURAL ISSUE

A procedural issue arose during the course
of the trial regarding the admissibility of certain lay testimony of John Rima,
which the Court will address before turning to the merits of the case. Cooper Tire filed a
post-trial motion to strike Rima’s opinion testimony and legal conclusions,
which, not surprisingly, was opposed by the Secretary. For the reasons indicated infra ,
Cooper Tire’s motion to strike is GRANTED and the Court STRIKES
from the record Rima’s impermissible opinion testimony, which rested on his
scientific, technical, or specialized knowledge, and his impermissible legal
conclusions

Rima, a supervisory chemist at the SLTC, was identified by
the Secretary as lay witness in his pretrial statement. (Compl’t’s Pre-Hr’g
Statmnt, p. 12.) Although he was a key witness of the Secretary against Cooper
Tire, the Secretary did not attempt to qualify Rima as an expert witness under
Rule 702 of the Federal Rules of Evidence. At trial, Cooper Tire repeatedly
objected to portions of Rima’s testimony arguing that they were impermissible
expert opinions since Rima had not been proffered or qualified as an expert.

Cooper Tire argues that Rima’s testimony should be stricken
because the Secretary “sought to evade the stringent requirements of Federal
Rule of Civil Procedure 26 and Federal Rule of Evidence 702 by proffering Rima
as a lay witness and then eliciting testimony regarding his ‘expert’ opinions
without providing any of the disclosures required by these rules” or providing
“the bases for them.” (Resp’t’s Mot. Strike, p. 3.) Thus, Cooper Tire argues
that it “never had the opportunity to evaluate, investigate, or perhaps
challenge Mr. Rima’s opinions prior to [trial].” ( Id. ) Cooper Tire also
argues that the Court should strike Rima’s testimony “because he did not base
his opinions on personal knowledge as required by Federal Rules of Evidence 602
and 701” and because he “offered legal opinions totally outside the scope of
his role as a fact witness.” ( Id. , pp. 1-2, 5.)

In response, the Secretary argues that Cooper Tire did not
timely object to the majority of the opinions that it seeks to strike and,
thus, waived objection since “a timely objection is necessary to bring to the
trial court’s attention alleged errors in the conduct of the trial.” (Compl’t’s
Resp. Resp’t’s Mot. Strike, p. 3) (citing Jenkins v. General Motors Corp. ,
446 F.2d 377, 383 (5th Cir. 1971)). The Secretary also asserts that Cooper Tire
“primarily seeks to strike opinions with which it disagrees, for which it had
opportunity to cross-examine and/or present rebuttal.” ( Id. , p. 1.) The
Secretary also claims that Rima “provided testimony based on his personal
perception, knowledge and experiences,” which, according to the Secretary, “is
permissible under Rule 701 of the Federal Rules of Evidence.” ( Id. )

The Court finds no merit in the Secretary’s arguments.
First, the Court does not agree with the Secretary that Cooper Tire waived its
right to object to Rima’s opinion testimony since Cooper Tire repeatedly
objected throughout the course of Rima’s testimony at trial. The Court
recognizes that “[o]bjections to the admission of evidence must be of such a
specific character as to indicate distinctly the grounds upon which the party
relies, so as to give the other side full opportunity to obviate them at the
time, if under any circumstances, that can be done .” (Emphasis added.) Jenkins ,
446 F.2d 377 at 383 (citing Noonan v. Caledonia Gold Mining Co. , 121
U.S. 393, 400 (1887). Here, however, the Court concludes that Cooper Tire
clearly and distinctly indicated the grounds upon which it relied in making the
objections. Further, Rule 103 of the Federal Rule of Evidence provides that
“[o]nce the court rules definitively on the record — either before or at trial
— a party need not renew an objection or offer of proof to preserve a claim of
error for appeal.”

More importantly, the Secretary could not have
eliminated the grounds for objection under any circumstances since he
failed to designate Rima as an expert in his pretrial statement and a party who
fails to disclose an expert may not present that individual’s testimony at
trial. See, e.g. , Greenleaf Motor Express , Inc., 21 BNA OSHC
1872, 1877 (No. 03-1305, 2007) ( aff’g Judge’s granting of Secretary's
motion to exclude Greenleaf's proffered expert testimony based upon untimely
disclosure of proposed expert); see also Jersey Steel Erectors ,
16 BNA OSHC 1162, 1165-66 (No. 90-1307, 1993) (upholding judge's sanction excluding
evidence not revealed in pre-trial submissions), aff'd , 19 F.3d 643 (3d
Cir. 1994).

As indicated infra , the Court also does not agree
with the Secretary that Rima’s opinion testimony was permissible under Rule 701
since it was based on scientific, technical, or other specialized knowledge
within the scope of Rule 702. Further, “[i]f the witness is relying solely or
primarily on experience, then the witness must explain how that experience
leads to the conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the facts.” Fed. R.
Evid. 702 Notes of Advisory Committee on 2000 amendments. Here, the Secretary did not meet that burden
since Rima did not sufficiently explain how his experience led to the
conclusion reached, why that experience was a sufficient basis for his
opinions, and how that experience was reliably applied to the facts.

Rima’s Opinion Testimony

An examination of Rima’s disputed testimony “reveals that
much of it was merely descriptive and summarized the factual information and
documents gathered throughout the investigation [ ] and thus constituted
permissible lay testimony.” United States v. Cooks , 589 F.3d 173, 180 (5th Cir. 2009). Nonetheless, the Court
agrees with Cooper Tire that significant portions of Rima’s testimony included
inadmissible lay opinion testimony since it clearly required scientific,
technical, or other specialized knowledge within the scope of Rule 702. As
Cooper Tire argues in its motion to strike, and the Court agrees, little doubt
exists that Rima’s technical opinions resulted from reasoning “which can only
be mastered by specialists in his field.” ( See Mot. Strike, p. 12.)

In its motion to strike, Cooper Tire argues
that “[p]eer-reviewed scientific studies have identified the phenomenon
of ‘overdriving’ since low volatility carbon dusts – such as
carbon black – can return false positives for explosibility when tested in
chambers other than the standard 1-m 3 (1000-liter) vessel.” (Mot.
Strike, p. 3.)  Therefore, Cooper Tire argues that “whether the test
method OSHA used on the [Rust] sample can return a false positive is an
important issue.” ( Id. )

Rima testified that “overdriving is in layman’s terms, a
false positive result. What that generally means is that when the dust
test is performed, the dust burns while the igniter flame is present, but as
the igniter flame dies out, so does the burning of the dust.” (Tr.
598.)  He stated:

In my
opinion it’s virtually impossible to overdrive a sample in the standard
configuration Hartman chamber. The gold standard, if you will, Kst type
dust testing, is the cubic meter chamber, which the recommended minimum
ignition energy is 10,000 joules, which means that you’re providing ten joules
per liter of test chamber volume. If we were to run our Hartman chamber at
maximum energy level for the steel chamber test, the maximum energy we can put
in is 2.4 joules. So, being as that test chamber is slightly larger than the
liter we're putting in, at most, a quarter of the energy of what is
considered to be the gold standard energy level for testing. … In our facility,
we use a tenth of that energy, so we're using 240 millijoules or .24 joules of
energy.

(Tr . 598-99.) Rima conceded, however, he had “no
direct knowledge as to the amount of energy given out with that ignition
source.” (Tr . 599, 683-84.) He also was “not aware of the volatile
analysis performed on [the Rust] sample” but opined that “the volatile contents
analysis have [no] relevance [in] assessing the combustibility.” (Tr .
603-605.)

Rima also testified regarding his familiarity with OSHA’s
NEP and identified a number of different combustibility tests that may be run
at the SLTC, including the MIT, MIE, and MEC, which, he stated were “virtually never
run.” (Tr. 604-05.) Although this testimony was permissible factual testimony,
when Rima was asked if he was aware of any information important to assessing
the combustibility of the dust that would be missing without running an MIE,
MEC, or MIT, he opined that “[f]or OSHA compliance work, there is
no information missing.” (Tr . 605-06.)

When asked if there were any other means of identifying
whether dust would be present in sufficient concentrations to pose fire and
explosion hazards, Rima opined that “[t]he traditional way to determine if
enough dust is present in the work place to present a hazard would be for the
compliance officer to make observations and take measurements for the dust that
has accumulated at various places in the facility.” (Tr . 606.) “They may
also want to acquire a dust sample from inside a dust collector or other type
of dust handling equipment to determine if the dust in that particular
equipment is going to present a hazard. . . . It has been my experience in
dealing with a large number of dust explosion cases that the highest
probability of an explosion in a workplace is going to involve a dust
collector.” (Emphasis added.) ( Id. )

When asked if he had an understanding of what the Kst value or number 22.22 represents, Rima opined that the “K st
value of greater than zero to 200 is an ST-1 which is listed as a weak
explosion, and then there is an ST-2 and ST-3. I'm not sure if there's an ST-4.
But, anyway, it's an ST-1 showing a weak explosion and that has to do with
because of the range from zero to 200.” (Tr . 154.) Rima also testified
that the ASTM is “moving away from the K st as a
determining factor. They're moving to the pressure ratio. . . . In fact, they
pretty much have.” (Tr . 633.) Rima also testified as to what the
pressure ratio measures and opined that “[t]echnically, that pressure ratio
tells you that when this sample exploded in the test chamber, it produced 6.41
times atmospheric pressures. So, it increased what our normal air pressure is
6.14 times, and that’s pretty impressive.” ( Id. ) In Rima’s opinion, SLTC
designed its test protocols to avoid the chance of a false positive result,
even if the result is a possible false negative. (Tr. 617.)

When asked what a “Class II” dust finding was, Rima opined
that it was “a subset of combustible dust” that is “readily ignitable by an
electrical spark, that it provides sufficient violence in its explosion to
create a hazard and that it meets the general criteria of a combustible dust.”
(Tr. 607.) Rima also opined that a Class II or hazardous classified location
within a facility is one that “has the presence of enough Class II dust that an
explosion or [fire] could take place. . . . The issue in that area becomes one
of using electrical installation that is designed for a classified location is
the correct class and division.” (Tr. 608.)

When asked if there were typical electrical voltage ranges
found in industrial settings, Rima opined that it is “possible to determine at
least to some extent what the voltage is at a particular location by looking at,
for instance, the outlets. Outlets are specific to types of voltages that are
available.” (Tr . 608.) “If you look at such things as electrical motors,
they indicate what voltage they are designed to be operated at.” (Tr . 608.)
When asked what voltages he was aware of in the industrial setting, Rima
responded, “Control voltages, I've seen as low as five volts, and I'm aware of
voltages as high a 480 volts in industrial settings.” (Tr . 609.)

Significantly, when asked “as a supervisor who reviewed the
test data here and the test results, what opinion do you hold, if any, about
the combustibility of the dust in that sample,” Rima opined that “this dust
presents a significant explosion hazard, [] the explosion severity of 1.37 is
significantly higher than the .5 minimum that is required to show that the dust
is a Class II dust,” and that “the Hartman K st and pressure ratio
numbers [] are significant for our test protocol numbers as far as the violence
of a dust explosion or explosion potential.” (Tr. 609-11). “So, this dust is
closing in on three times the level needed to show the minimum level to show
that dust is Class II. So, this dust is very definitely a Class II dust.” (Tr .
633.)

Rust also testified that the ductwork posed a fire and/or
explosion hazard because the dust collector and the ductwork were both
contained areas, combustible dust was at times suspended in the areas, and
combustible dust that caught on fire would create a pressure build-up
sufficient to cause an explosion, or a ball of fire could travel out of any
openings in the system. (Tr. 198-99, 347-50.) Rust opined that the elements of
both the “fire triangle” and “explosion pentagon” were met even though he had
no personal knowledge of Cooper Tire, the materials it used, or its facility. (Tr.
347-350, 610-611.) When asked if he had ever been involved in conducting hazard
assessments at employers' job sites to determine whether they have any type of
hazard, Rima admitted, only in “a second person context” since his “experience
in that regard [was] reviewing photos and other information provided by
compliance officers to [him]” and that he had “never been on a workplace job
site” to undertake an analysis “about the nature of the materials they may
handle, which may or may not be combustible dust.” (Tr . 620.)

As to the Secretary’s proposed feasible
and useful abatement method to correct the alleged combustible dust fire and
explosion hazards, according to Rust, Cooper Tire had allocated money for the
relief panels and “went to the manufacturer to obtain these panels.” (Tr. 204,
206.) Thus, Rima opined “so it's very feasible, and this equipment is very
common ... it’s very feasible and economical.” (Tr. 204.)

Analysis of Rima’s Opinion Testimony

Rule 701 of the Federal Rules of Evidence provides that
“[i]f a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702 .” Fed. R. Evid.

701. (Emphasis added.) Thus, Rule 701(c) is intended “to eliminate the risk
     that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient
     of proffering an expert in lay witness clothing.” Fed. R. Evid. 701 Notes of
     Advisory Committee on 2000 amendments. “[T]he admissibility of all expert
     testimony is governed by the principles of Rule 104(a). Under that Rule, the
     proponent has the burden of establishing that the pertinent admissibility
     requirements are met by a preponderance of the evidence. See Bourjaily v.
     United States , 483 U.S. 171 (1987).” Id.

In Kaspar Electroplating Corp. , 16
BNA 1517, 1519 (No. 90–2866, 1993) (citing Harrington Constr. Corp. , 4
BNA OSHC 1471, 1472 (No. 9809, 1976), the Commission held that opinion
testimony by an OSHA compliance officer may be admissible as non-expert
testimony if it is “helpful in the resolution of a material issue and is based
on his personal knowledge.” However, in Harrington , the Commission noted
it was applying Rule 701 of the Federal Rule of Evidences, which became
effective prior to its holding in that case, “as a subsequent restatement of
the best learning and more modern case law.” Harrington Constr. Corp. , 4
BNA OSHC at 1473 n. 3. Significantly, however, Harrington referenced the
language of Rule 701 as it existed in 1975 , which did not include
the 2000 amendment adding subsection (c), i.e. , if a witness is not
testifying as an expert, testimony in the form of an opinion is limited to one
that is “ not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702 .” Therefore, the Commission’s precedent must
be read in pari materia with the 2000 amendment to Rule 701 adding
subsection (c). Even in Kaspar , however, the Commission held that
“Commission judges should not admit opinion testimony by a compliance officer
on a subject about which only an expert may testify, unless the compliance
officer has been shown qualified as an expert in that area.” Kaspar
Electroplating Corp. , 16 BNA 1517, 1519.

This comports with the Fifth Circuit, which has reiterated
that “a lay witness may not give an opinion that requires scientific, technical
or other specialized knowledge within the scope of Rule 702.” United States
v. El-Mezain , 664 F.3d 467, 511 (5 th Cir. 2011). See also ,
United States v. McMillan , 600 F.3d 434, 456 (5th Cir. 2010) (“A witness
who provides only lay testimony may give limited opinions that are based on the
witness's perception and that are helpful in understanding the testimony or in
determining a fact in issue, but the witness may not opine based on
scientific, technical, or other specialized knowledge .”). (Emphasis added.)

Therefore, “ any part of a witness’s opinion that
rests on scientific, technical, or specialized knowledge must be determined by
reference to Rule 702, not Rule 701.” (Emphasis in original.) United States
v. Breland , 366 F. App'x 548, 552 (5th Cir. 2010) (citation omitted). The
Court notes, however, that Rule 701 “does not distinguish between expert and
lay witnesses, but rather between expert and lay testimony. ”
(Emphasis in original.) Id. In adopting the 2000 amendment to Rule 701,
the Advisory Committee stated that the distinction between lay and expert
testimony is that lay testimony “results from a process of reasoning familiar
in everyday life,” while expert testimony “results from a process of reasoning
which can be mastered only by specialists in the field.” Id.

The Fifth Circuit has adopted this distinction.
Accordingly, this Court must distinguish a process of reasoning “familiar in
everyday life” from that “which can only be mastered by experts in the field.” United
States v. Diaz , 420 F. App'x 456, 464 (5th Cir. 2011) (citing United
States v. Caldwell, 586 F.3d 338, 348 (5th Cir.2009)). To determine whether
a lay opinion constitutes expert testimony, the Fifth Circuit has noted that
“the trend in the circuits seems to be whether the testimony falls within the
realm of knowledge of the average lay person.” Id. See, e.g., United
States v. Garcia, 413 F.3d 201, 215–16 (2d Cir. 2005). Here, Rima’s
testimony included testimony that clearly did not fall within the realm of
knowledge of the average lay person. Therefore, the Secretary was required to
satisfy the requirements of Rule 701 and impermissibly attempted to evade the
reliability requirements set forth in Rule 702 by proffering these experts “in
lay witness clothing.”

The Court recognizes that testimony need not be excluded as
improper lay opinion, even if some specialized knowledge was required, “if it
was based on first-hand observations in a specific investigation.” United
States v. Akins, 746 F.3d 590, 599 (5 th Cir. 2014) (citing El-Mezain,
664 F.3d at 514). The Secretary argues that Rima’s opinions were admissible
since they were based on his “personal perception,” his “past experiences
performing analysis and supervising,” and his “personal knowledge and
experience,” and because his testimony “did not involve application of
scientific expertise but, rather, personal understanding of the components of
his own laboratory.” (Compl’t’s Resp. Resp’t’s Mot. Strike, pp. 4, 5.) The
Court finds no merit in the Secretary’s position.

Rule 602 of the Federal Rules of Evidence mandates that
except for a witness’s expert testimony under Rule 703, “[a] witness may
testify to a matter only if evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter.”
(Emphasis added). Fed. R. Evid. 602. Here, Rima was not involved in the inspection of the Tupelo
Plant that led to the citations at issue in this case and admitted that he had
never been on a workplace job site to undertake an analysis about the nature of
the materials handled to determine if the materials were combustible dust. He
was also not involved in the actual SLTC testing of the Rust sample and
admitted that he had no direct knowledge as to the amount of energy given out
with the ignition source. He was also not aware of any volatile analysis
performed on the Rust sample.

Therefore, Rima’s opinions were not “based on first-hand
observations in a specific investigation” but rather, were based on his
knowledge of testing apparatuses, testing methods, and the technical properties
of combustible dust, none of which are within the realm of knowledge of the
average lay person. Therefore, the Court concludes that Rima’s lay opinion
testimony, supra , unquestionably fell within the scope of Rule 702.
Further, although the Akins Court permitted lay opinions that required
only some specialized knowledge, Rima’s lay opinions were based upon his
extensive specialized knowledge gained from his experience working for
thirty-five years as a technician, an analytical chemist, and as a supervisory chemist.
Rima’s testimony did not result “from a process of reasoning familiar in
everyday life” but rather, was based upon his “scientific, technical or other
specialized knowledge” that “result[ed] from a process of reasoning which can
be mastered only by specialists in the field.”

The Court also finds no merit in the Secretary’s argument
that Rima’s testimony in his capacity as a “supervisor” somehow “cured” the
Rule 701 violation; it was still impermissible lay opinion testimony that was
not based on his first-hand observations in a specific investigation but
rather, were based on his scientific, technical, and specialized knowledge
within the scope of Rule 702. As the Advisory Notes indicate, “[t]here is no
more certain test for determining when experts may be used than the common
sense inquiry whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved
in the dispute.” Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952).
Applying that test in the present case, it is clear that common sense dictates
that the untrained layman would not be qualified to determine
intelligently and to the best possible degree these particular issues without
enlightenment from those having a specialized understanding of the subjects
involved in this dispute.

The Fifth Circuit has held that “[i]f a witness is called
upon to provide an expert opinion because the witness’s specialized knowledge
may assist the [court’s] understanding of the issues, the [ ] court is required
by its gatekeeping role to ensure that the expert is properly qualified and
that the testimony is reliable.” McMillan , 600 F.3d at 456. As the
gatekeeper, it is ultimately the Court’s responsibility to channel testimony
that is actually expert testimony to Rule 702, even where a timely objection is
not made. See, e.g. , Daubert v. Merrell Dow Pharm., Inc. , 509
U.S. 579, 589 (1993) (finding that judge serves as a “gatekeeper” to “ensure
that any and all scientific testimony or evidence admitted is not only
relevant, but reliable”); Kumho Tire Co. v. Carmichael , 526 U.S. 137,
149 (1999) (extending the court's gatekeeper function to all expert testimony).

Cooper Tire also argued that Rima
“presented opinion testimony on the ultimate dispute at issue –whether the dust
at Cooper Tire’s facilities posed an explosion of deflagration hazard.”
(Resp’t’s Mot. Strike, p. 7) ( citing Tr. 610-11). Thus, Cooper Tire
argues that “[w]ithout having ever visited Cooper Tire’s facility, without
knowing what materials Cooper Tire uses in its mixing department, without
knowing whether the [Rust] sample . . . was representative of other dust at
Cooper Tire’s Tupelo facility, and without even knowing whether a competent
ignition source existed at Cooper Tire’s facility to ignite a dust cloud, Mr.
Rima testified that his opinion is that this dust presents a significant explosion hazard.’” ( Id. ; citing Tr. 611.) In response, the Secretary argues that “[i]t is well established that Fed.R.Evid. 704 permits a
witness to express an opinion as to an ultimate issue that must be decided by
the trier of fact.’ United States v. Gold , 743 F.2d 800, 817 (11th Cir.
1984) (citing United States v. Miller, 600 F.2d 498, 500 (5th Cir.), cert.
denied, 444 U.S. 955, 100 S.Ct. 434 (1979).” (Compl’t’s Resp. Resp’t’s
Mot. Strike, p. 9.)

The Court agrees with Cooper Tire and
finds no merit in the Secretary’ argument since both Gold and Miller ,
decided before the 2000 amendment to Rule 704 adding subsection (c), have been
superseded by that amendment, i.e. , that if a witness is not testifying
as an expert, testimony in the form of an opinion is limited to one that is “ not
based on scientific, technical, or other specialized knowledge within the scope
of Rule 702 .” See, e.g. , United States v. White , 492 F.3d
380, 404 (6th Cir. 2007) (although somewhat instructive factually, these cases
do not consider whether the challenged testimony more properly fell within the
ambit of Rule 702).

Further, although Rule 704 provides that
“[a]n opinion is not objectionable just because it embraces an ultimate
issue[,]” Fed. R. Evid.
704, this exception applies
to ultimate questions of fact , not ultimate questions of law . In Erickson
Air-Crane, Inc. , 2012 WL 762001, at *5 n.7 (No. 07-0645, 2012), the
Commission held that the Judge “was correct in refusing to allow [expert]
testimony because it pertained only to legal conclusions.” See also , J.C.
Watson Co. , 22 BNA OSHC 1235, 1238n.3, (Nos. 05-175 & 05-0176, 2008)
(determining the judge properly refused to permit expert testimony concerning
conclusions of law). See also , Greenleaf Motor Express Inc. , 21
BNA OSHC 1872, 1876-77 (No. 03-1305, 2007) (upholding judge's exclusion of
expert whose proffered testimony did not “address any factual issue that
required scientific or technical expertise to understand”). This comports with
cases in the Fifth, Sixth, and District of Columbia Circuits, which have
similar holdings.

The Fifth Circuit has held that it is “generally prohibited
for a lay witness to interpret statutes and to give legal opinions.” United
States v. El-Mezain , 664 F.3d at 511 (citing United States v. Griffin,
324 F.3d 330, 347-48 (5th Cir. 2003)). Even “an expert may [not] render
conclusions of law” (citations omitted). Goodman v. Harris Cnty. , 571
F.3d 388, 399 (5th Cir. 2009). Likewise, in Killion v. KeHE Distributors,
LLC , 761 F.3d 574, 593 (6th Cir. 2014), the Sixth Circuit held that the
district court did not abuse its discretion when it determined that although an
expert’s report contained permissible conclusions embracing the ultimate issue,
it also contained impermissible legal conclusions. The District of Columbia
Circuit has also held that “[t]he duty to issue [legal] conclusions devolve
[sic] on the courts and lay legal conclusions are inadmissible in evidence”)
(citations omitted). Christiansen v. National Savs. & Trust Co., 683
F.2d 520, 529 (D.C.Cir.1982); see also Burkhart v. Washington Metro. Area
Trans. Auth ., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997) (finding error when
the trial court permitted Burkhart's expert to testify regarding impermissible
legal conclusions rather than permissible factual opinions).

EXPERT WITNESSES

The Secretary’s Expert

Dr. Robert G. Zalosh received a Ph.D. in
mechanical engineering from Northeastern University in 1970. (C-35). Since
1998, he has provided consultation on fire and explosion hazards and
appropriate measures in industrial facilities. From 1990 to 2006, Dr. Zalosh
taught Fire Protection Engineering at Worcester Polytechnic Institute in
Worcester, Massachusetts where he is now a Professor Emeritus. ( Id. ) He
is a member of the National Fire Protection Association (NFPA), which produced
the industry standards at issue in this proceeding, and has published handbook
chapters on their behalf. ( Id. ) Dr. Zalosh sits on NFPA’s Explosion
Protection Committee, Gas Process Safety Committee, and Combustible Metals
Committee. ( Id. ) Dr. Zalosh qualified to testify as an expert regarding
“combustible dust analyses, including investigations of combustible dust
[fires] and explosions, and identifying suitable safety devices for protection
against such hazards.” (Tr. 977.)

Cooper Tire’s Expert

Dr. Timothy Meyers received a Ph.D. in
Chemical Engineering from the University of California, Berkeley, in 1999.
(R-41 App’x. A.) He is a principal engineer for Exponent, a business providing
consultation in failure analysis, and provides consultation for Exponent’s
thermal sciences practice. ( Id. ) Prior to joining Exponent, Dr. Meyers
was a Graduate Student Researcher at the University of California, Berkeley,
and Lawrence Berkeley National Laboratory. ( Id. ) Dr. Myers applies
chemical engineering principles to analyze industrial processes and to
investigate and prevent incidents involving chemical releases, fires, and
explosions. His investigations have included incidents involving chemical and
industrial facilities, the warehousing and transport of hazardous chemicals,
commercial and residential structures, consumer products, and burn injuries.
Dr. Myers has investigated incidents involving combustion equipment ranging
from hand held torches fueled by propane, to residential heating systems fueled
by natural gas or oil, to industrial boilers fueled by coal. ( Id. ) He
has conducted engineering analysis and experimental testing involving chemical
reactions, heat and mass transfer, fluid mechanics, thermodynamics, fires, and
dust and gas explosions. ( Id. )

Dr. Myers has investigated several catastrophic
dust explosions that have occurred throughout North America. His work in these
investigations has included determining the origin and cause of the explosions,
experimentally measuring the dust explosion properties of materials, modeling
explosion dynamics, and determining compliance of the facility with current and
historical regulations, codes, and guidelines for the prevention of dust
explosions. Dr. Myers audits new and existing facilities for dust explosion
hazards, and assists clients in developing approaches to mitigate dust
explosion hazards, including assistance with OSHA’s NEP. ( Id. ) Dr.
Meyers “is a principal member of six NFPA technical committees responsible for
standards related to the prevention and mitigation of dust fires and explosions.
( Id. ) Dr. Myers is the vice-chairman of the ASTM committee responsible
for the development of standards to determine the thermal stability of liquid
and solids and the ignition and flammability properties of gases, vapors, and
dusts clouds. ( Id. ) Dr. Meyers qualified to testify as an expert in
“combustible dust and whether materials are combustible dust, including the
fire explosion hazards in that regard.” (Tr. 1683.)

With regard to their credibility, both witnesses had
impressive credentials and their testimony at trial was cogent and instructive.
However, due to a lack of data at times, Dr. Zalosh presumed facts that were
not established ( e.g. , the composition of the dust mixture located in
the ductwork and dust collectors during the OSHA inspection). Further, Dr.
Zalosh sometimes relied on Rima’s testimony as the basis for his opinions. In
addition, Dr. Zalosh referenced the 2006 version of NFPA 654 in his opinions
related to Paragraphs 7.13.1.5 and 7.1.4.2 of NFPA 654, even though the 2000
version of Chapter 7.3 of NFPA 654 was the version cited in Amended Citation
Number 2, Item 1. ( See Compl’t’s’ Unopposed Mot. Am. Compl. And Cit. 2,
Item 1, pp. 2-3; Order Granting Compl’t’s Unopposed Mot. Am.; C-36, p. 15.) In
those instances, Dr. Zalosh’s opinions were accorded little weight.

BACKGROUND

Carbon Black

According to the Fire Protection
Handbook of the National Fire Protection Association (NFPA), “Carbon black
is manufactured by the decomposition of acetylene, by incomplete combustion of
natural gas or a mixture of natural gas and a liquid hydrocarbon, or by
cracking hydrocarbon vapor in the absence of air.” (R-1, p. 4.) In its Carbon
Black User’s Guide, the International Carbon Black Association (ICBA)
states,

[Carbon
black’s] physical appearance is that of a black, finely divided pellet or
powder. Its use in tires, rubber and plastic products, printing inks and
coatings is related to properties of specific surface area, particle size and
structure, conductivity and color. Carbon black is also in the top 50
industrial chemicals manufactured worldwide, based on annual tonnage. Current
worldwide production is about 18 billion pounds per year [8.1 million metric
tons]. Approximately 90% of carbon black is used in rubber applications, 9% as
a pigment, and the remaining 1% as an essential ingredient in hundreds of
diverse applications.

(R-1, p. 5.) Dr. Meyers testified that carbon black “isn’t a new
chemical that [the tire industry] just recently started using. It’s something
that’s used in very large quantities, and the tire industry is a major user of
carbon black.” (Tr. 1847.)

The Tupelo Plant

As part of the tire manufacturing process at the Tupelo
Plant, rubber is compounded with different ingredients to yield the desired
performance requirements for components of specific tires. To make tires,
Cooper Tire uses various materials, like natural rubber, oil, and carbon black.
(Resp’t’s Proposed Findings of Fact, p. 1; Tr. 458, 1385-86, 1736-37; see
also R-41, p. 2, § 1.1.) The Tupelo Plant proceeds sequentially through
several departments: the Raw Materials Department, the Mixing Department, the
Material Prep Area, the First and Second Stage Tire Rooms, the Curing Area, and
the Finishing Department. (Tr. 896-898.) The Mixing Department consists of a
first floor, a second floor, and a mezzanine between the two floors. The Mixing
Department covers approximately 2,400 square feet. The Banbury Mixers take up
approximately one-third of the Mixing Department space. (Tr. 113-14.) Banbury
Mixers 2, 3, and 4 begin on the second floor of the Mixing Department and
extend through the mezzanine to the first floor.

Cooper Tire receives pure, or virgin, carbon black at the
rail or truck unloading area of the facility and stores it in silos. Cooper
Tire then transports the carbon black to the day bins on the roof of the
facility. (Tr. 39.) Under the day bins, employees feed the carbon black to
scales where they weigh it before feeding it into the Banbury Mixers, which are
large industrial internal batch mixers. (Tr. 13, 39.) The materials are mixed
together in a Banbury Mixer, which creates a sheet of rubber called a “slab.”
(Resp’t’s Proposed Findings of Fact., p. 1; Tr. 1384-1386.) This is the “master
mixture” phase, and it occurs in Mixers 3 and 4. ( Id. ; Tr. 1387-1389,
1737-1738.) The materials used in Mixers 3 and 4 “are significantly different”
than those used during the final phase. ( Id. ; Tr. 1387-89.) The slab is
then transferred to the final mixer, Mixers 2, where other chemicals are added
based on specific formulas being used. ( Id. ) The principal component of
the dust described in OSHA’s Citation is carbon black, which was the material
used in Mixers 3 and 4; other compounds were not added until the next stage of
the process at Mixer 2. ( Id. ; C-43; R-48.)

The Tupelo Plant has extensive dust collection systems
connected to its processing equipment, and routine housekeeping was performed
on a regular schedule. (Tr. 173, 1261-63, 1389-90, 1400-01.) The dust
collectors are located on the roof of the Mixing Department and collect dust
generated during the manufacturing process from the loading or charging area
(where carbon black and other ingredients are added to the Banbury Mixers), the
weighing area, and the mezzanine. (C-12, p. 2; C-64, p. 2; Tr. 115, 118-19.) If
the dust collection system stops functioning, the mixing process would
automatically shut down. (Tr. 1392-94.) A contractor—Hydrovac—performed
comprehensive cleaning of the Tupelo Plant on a quarterly basis. (Tr. 173, 1261-63,
1260-61.) A portable industrial vacuum was also used to address lower-level
cleaning issues. (Tr. 1400-02.) Automatic and manual fire suppression systems
were in place and operational at the Tupelo Plant. (Tr. 1390-91.) Cooper Tire
contracted out maintenance of the Mixing Department equipment to JESCO, a
third-party onsite contractor. JESCO’s maintenance manager reported to Brian
Weibel. (Tr. 43-44, 84.)

OSHA’s Inspection and Laboratory Analysis

At some point, OSHA inspected Cooper Tire’s Findlay, Ohio,
facility and based on those findings, OSHA’s Jackson, Mississippi area office
received instructions to inspect the Tupelo Plant’s Mixing Department. (Tr.
107, 109.) Thus, on December 7, 2010, Rust opened an inspection at the Tupelo
Plant and was accompanied by OSHA Industrial Hygienist Margo Westmoreland, who
was charged with conducting a health inspection, and two representatives from
Cooper Tire, Chris Colburn and John Swartzenruber. (Tr. 107, 110.) Rust interviewed Cooper Tire
representatives and took photographs. (Tr. 113.) Rust also learned that Cooper
Tire had hired an outside contractor, Hydrovac, to clean the Mixing Department
periodically and that Hydrovac had last cleaned the Tupelo Plant in June 2010,
approximately six months before the OSHA inspection. (Tr. 159.)

While inspecting the Tupelo Plant, Rust observed that dust
had accumulated on some of the electrical equipment and the superstructure of
the mezzanine, including overhead beams, and thereafter photographed the
mezzanine area, including the overhead beams, pipes and flexible hoses, an
electrical junction box, motor enclosures, and motor cooling fans. (Tr. 135-40;
see also C-17; C-18; C-19.) Rust also observed dust accumulations of
three to four inches thick on the metal flange of the superstructure, near the
five to six-inch accumulation, which he measured using his “six-inch scale.”
(Tr. 143, 146.)

Rust collected only one dust sample (Rust sample) from “the
superstructure. That's the beams, the metal beams above the mezzanine floor.
That's about around seven foot. I could reach it from the floor… [but] I got
closer on the ladder” (Tr. 302-03.) Rust selected that precise area because
that “was where most of the dust was collected or accumulated, and it was
easier to get to.” ( Id. 303.) He placed the scoops of dust in a
one-liter plastic bottle and shipped the sample to the SLTC and requested the
SLTC to analyze the material for Class II dust. (Tr. 150-152.)

Steven Eugene Anderson was the analytical chemist for the
SLTC that conducted the testing on the Rust sample. Since Rust initially asked the SLTC to
analyze the material for Class II dust, Anderson conducted a Class II dust
explosibility screening test on the Rust sample in a Hartmann 1.2 liter testing
chamber and issued a lab report indicating that the Rust sample was a “Class II
dust” with an explosion severity of 1.37. (Tr. 485.) Following SLTC testing
protocol, Anderson ran a validation test and obtained an explosion severity
result of 2.26 and reported the lower of the two values. (Tr. 494.)

Anderson testified that Rust subsequently requested a K st
test of the Rust sample and that “[Rima] made the decision to, rather than
testing it for K st , we reported a K st based on the values
that were determined in the Class II test.” (Tr. 495.) Thus, after Rust
requested that the SLTC conduct a K st test, Anderson issued a
supplemental K st report without running a separate K st test,
instead basing his report on the values he extrapolated from the Class II test.
( Id. ) The supplemental K st report indicates that the Rust
sample was “a Class II Dust,” which indicated that the Explosion Severity was
1.37, also included a comment that it was obtained in a 1.2 liter Hartmann
vessel. (Tr. 495, 529.) Anderson opined that this value was a “positive” Class
II dust finding because “if the explosion severity is greater than .5, it is
considered a Class II dust.” ( Id. ) Anderson further opined that the
positive Class II test result here was not a false positive, because “[t]he
source of the spark is so small in my experience, I just don't see how you
could ever get a false positive using the Hartman.” (Tr. 491.)

Since Anderson was also identified by the Secretary as lay
witnesses in his pretrial statement, (Compl’t’s Pre-Hr’g Statmnt, p. 12), and
like Rima, the Secretary did not attempt to qualify Anderson as expert
witnesses under Rule 702, the Court gives little weight to Anderson’s
impermissible opinion that this value was a “positive” Class II dust finding
because “if the explosion severity is greater than .5, it is considered a Class
II dust” and that the positive Class II test result was not a false positive,
which clearly rested on his scientific, technical, or specialized knowledge.
The Court also takes judicial notice that in Vitakraft Sunseed, Inc. ,
2014 WL 5794302, at *3 (No. 12-1811, 2014) (ALJ), which went to trial shortly
after the present case, the Secretary did qualify Anderson as an expert
witness “in testing of combustible dusts, analysis of those test results, and
in determining the combustible and explosive nature of dusts.”

Imperial Sugar Company Dust Explosion

This proceeding is best understood against
the backdrop of the tragic Imperial Sugar Company dust explosion in 2008 at its
sugar refinery in Port Wentworth, Georgia, northwest of Savannah. The explosion
and resulting fires killed 14 people and injured 36 others. The significance of
the Imperial Sugar Company dust explosion to this proceeding is undisputed.
Witnesses for both parties referred to that event repeatedly throughout the
trial. ( See, e.g. , Tr. 66, 135, 155, 289-93, 391, 404-08, 452-53, 776,
864, 899, 902, 1679, and 1749.) However, neither party adduced an authoritative
account of the relevant facts of that event or its historical context. In order
to present a more detailed background, the Court sua sponte takes
judicial notice of two related investigative reports issued by the U.S.
Chemical Safety Board (CSB). The first report is Investigative
Report: Combustible Dust Hazard Study , Report No. 2006-H-1 issued on
November 15, 2006 (2006 CBS Report), and the second report is Investigation
Report: Sugar Dust Explosion and Fire, Report No. 2008-05-1-GA issued on
September 24, 2009 (2009 CBS Report).

On November 15, 2006, the CSB completed a
Combustible Dust Study and issued its 2006 CBS Report, which identified at
least 281 combustible dust fires and explosions in general industry between
1980 and 2005, which cause at least 119 fatalities and 718 injuries in the
United States. (2006 CBS Report, p. 4.) Based on these findings, the CSB
recommended that “OSHA issue a comprehensive combustible dust standard for
general industry that addresses hazard assessment, engineering controls,
housekeeping, and worker training.” ( Id. , p. 3.) The CSB also
recommended that “[t]he OSHA standard should be based on the “well-recognized”
NFPA voluntary consensus standards.” ( Id. )

On February 7, 2008, the catastrophic
explosion occurred at the Imperial Sugar Company. The CBS extensively
investigated the explosion and issued its 2009 CBS Report, which concluded that
a sugar dust explosion occurred in the enclosed steel conveyor belt under the
granulated sugar storage silos, followed by massive secondary dust explosions
throughout the refinery. The CSB’s description of the event is harrowing:

At about 7:15 p.m. on February 7, 2008, a sugar dust explosion
occurred in the enclosed steel conveyor belt under the granulated sugar storage
silos at the Imperial Sugar Company sugar manufacturing facility in Port
Wentworth, Georgia. Seconds later, massive secondary dust explosions propagated
throughout the entire granulated and powdered sugar packing buildings, bulk
sugar loading buildings, and parts of the raw sugar refinery. Three-inch thick
concrete floors heaved and buckled from the explosive force of the secondary
dust explosions as they moved through the four-story building on the south and
east sides of the silos. The wooden plank roof on the palletizer building was
shattered and blown into the bulk sugar railcar loading area. Security cameras
located at businesses to the north, south, and west of the facility captured
the sudden, violent fireball eruptions out of the penthouse1on top of the
silos, the west bucket elevator structure, and surrounding buildings.

When Garden City and Port Wentworth fire department personnel
arrived minutes later they were confronted with dense smoke, intense heat,
ruptured fire water mains, and large amounts of debris strewn around the fully
involved burning buildings. Workers at the facility had already started search
and rescue efforts and injured workers were being triaged at the main gate
guardhouse.

Eight
workers died at the scene, including four who were trapped by falling debris
and collapsing floors. Two of these fatally injured workers had reportedly
reentered the building to attempt to rescue their co-workers, but failed to
safely escape. Nineteen of the 36 workers transported to Savannah Memorial
Hospital who were severely burned were transported to the Joseph M. Still Burn
Center in Augusta, Georgia, where six eventually succumbed to injuries,
bringing the total fatalities to 14 workers—the last burn victim died at the
burn center six months after the incident.

Thirty
six injured workers ultimately survived including some with permanent, life
altering conditions. Approximately 85 other workers at the facility at the time
of the incident were uninjured.

The
major fires in the buildings were extinguished the next day, but small fires
continued burning for many days. The granulated sugar fires in the 105-foot
tall silos continued to smolder for more than 7 days before being extinguished
by a commercial industrial firefighting company. The packing buildings,
granulated sugar silos, and palletizer room were destroyed. The bulk sugar
loading area and parts of the refinery were severely damaged by the explosion
and fires.

(2009 CBS Report, pp. 3-4.) In the 2009 CBS Report ,
the CSB again recommended that OSHA “[p]roceed expeditiously, consistent with
the [CSB’s] November, 2006 recommendation and OSHA’s announced intention to
conduct rulemaking, to promulgate a comprehensive standard to reduce or
eliminate hazards from fire and explosion from combustible powders and dust.” ( Id. ,
p. 69.)

OSHA’s Guidelines for the Inspection

Approximately five months before the Imperial Sugar Company
dust explosion, OSHA initiated its NEP, which targeted industries where
combustible dust could be present in the workplace. However, as a direct
consequence of the Imperial explosion, on March 11, 2008, OSHA cancelled and
replaced its original NEP. (C-20.) The Executive Summary of the NEP
indicates that OSHA reissued the NEP “to increase its enforcement activities
and to focus on specific industry groups that have experienced either frequent
combustible dust incidents or combustible dust incidents with catastrophic
consequences.” (C-20, p. 3.) “As a result of a recent catastrophic accident
involving a combustible dust explosion at a sugar refinery, OSHA has decided to
intensify its focus on this hazard.” ( Id. )

OSHA conducted the instant inspection under the auspices of
the NEP, which applied “OSHA-wide” and “contains policies and procedures for
inspecting workplaces that handle combustible dusts that are likely to cause
dust conflagrations, other fires, or explosions.” (C-20, p. 1.) The NEP defines
combustible dust as a “combustible particulate solid that present a fire or
deflagration hazard when suspended in air or some other oxidizing medium over a
range of concentrations, regardless of particle size or shape.” (C-20, p. 10.)
“These dusts include, but are not limited to . . . [c]oal and other carbon
dusts[.]” ( Id. , p. 1.) “Industries that handle combustible dusts
include, but are not limited to . . . [t]ire and rubber manufacturing
plants[.]” ( Id. , p. 6.) The NEP indicated that “[f]or workplaces not
covered by 1910.272, [ ]
but where combustible dust hazards exist within dust control systems or other
containers, citations under section 5(a)(1) of the OSH Act (the General Duty
Clause) may generally be issued for . . . fire, or explosion hazards.” ( Id. ,
p. 3.)

The NEP instructs personnel that when conducting an
inspection, “National Fire Protection Association (NFPA) standards (listed in
Appendix A of this directive) should be consulted to obtain evidence of hazard
recognition and feasible abatement methods.” (C-20, p. 3.) Appendix A of the
NEP lists thirteen “NFPA Publications Relevant to Combustible Dust Hazard
Controls.” ( Id. , p. 29.) Of crucial importance to this case is NFPA 654,
Standard for Prevention of Fire and Dust Explosions from the Manufacturing,
Processing, and Handling of Combustible Particulate Solids (2006 Edition),
which was cited in the abatement portion of Amended Citation Number 2, Item 1
(one feasible and useful abatement method to correct these hazards is to follow
the requirements found in NFPA 654-2006, Chapter 7.13). (Compl’t’s Unopposed
Mot. Am., p. 3; Order Granting Compl’t’s Unopposed Mot. Am; see also C-42.)

NFPA 654 provides in section 1.1.1 that it applies to “all
phases of manufacturing, processing, blending, pneumatic conveying,
repackaging, and handling of combustible particulate solids or hybrid mixtures,
regardless of concentration or particle size, where the materials present a
fire or explosion hazard.” (C-42, p. 8). NFPA 654 also defines combustible dust
as a “combustible particulate solid that presents a fire or deflagration hazard
when suspended in air or some other oxidizing medium over a range of
concentrations, regardless of particle size or shape.” ( Id. , p. 10.)
Section 1.5 of NFPA 654 indicates that these provisions “reflect a consensus of
what is necessary to provide an acceptable degree of protection from the
hazards addressed in this standard at the time the standard was issued.” (C-42,
p. 8). According to Rust, NFPA 654 applied to the Tupelo Plant since it handled
combustible dust in its manufacturing process. (Tr. 202).

Anderson testified that he roughly
followed the testing process in ASTM E789. (Tr. 536-537.) This test
method covers the determination of the ignition of a dust dispersed in air,
within a closed [Hartmann] vessel, but it does not provide a definitive
determination of the flammability of a dust. ( See R-68, p. 1.)
Significantly, however, section 5.1 of ASTM E789 provides a limitation that
“[t]he values determined by this test method are specific to the material
tested and equipment and procedure used and are not to be considered inherent,
fundamental properties.” ( Id. ) “The size and shape of the vessel have a
direct bearing on the data obtained. Extrapolation to vessels having a
different volume and shape should not be made .” (Emphasis added.) ( Id. )

Despite the ASTM admonition that
extrapolation was not appropriate, Anderson did exactly that when he
extrapolated the K st value from the data from the Class II test, which
was obtained in a 1.2 liter Hartmann vessel, even though Appendix E protocol
instructs that the K st test should be conducted in a 20-liter
vessel. (C-20, p. 38.) Further, Anderson admitted that the ASTM limitation
meant that the Class II test data was limited, based on the specific vessel
used. (Tr. 538.)

ANALYSIS

As indicated supra , still pending before the Court
are three disputed issues, which involve the Secretary’s allegation in Amended
Citation Number 2, Item 1 that Cooper Tire committed a willful violation of section 5(a)(1) of the Act, the
“General Duty Clause,” the Secretary’s assertion in Citation Number 2, Item 2
that Cooper Tire willfully violated 29 C.F.R. § 1910.307(c)(2), the Hazardous
(classified) Locations Standard, and the Secretary’s allegations in Citation
Number 1, Items 2a and 2b that Cooper Tire committed serious violations of 29 C.F.R. § 1910.22(a), the
General Housekeeping Standard.

For ease of discussion, the Court first collectively
analyze the two alleged willful violations since they both involve similar
alleged hazards. Thereafter, the Court will analyze the alleged serious
citation, which does not assert a specific hazard.

Amended Citation Number 2, Item 1

Alleged Willful Violation of Section 5(a)(1)

Section 5(a)(1) of the Act, the “General Duty Clause,”
requires that Cooper Tire “furnish to each of [its] 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.” 29 U.S.C.
§ 654(a)(1). To prove a violation of the General Duty Clause, “the Secretary
must show that: (1) a condition or activity in the workplace presented a
hazard; (2) the employer or its industry recognized the hazard; (3) the hazard
was likely to cause death or serious physical harm; and (4) a feasible means
existed to eliminate or materially reduce the hazard.” CSA Equipment
Company, LLC, 24 BNA OSHC 1476n. 1 (No. 12-1287, 2014) (citing Pegasus
Tower, 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005)). Thus, in a section
5(a)(1) case “the Secretary must show, among other things, the existence of the
hazard, recognition of the hazard by the employer or the industry in general,
and worker exposure to the hazard.” Bunge Corp. v. Sec'y of Labor , 638
F.2d 831, 835 (5th Cir. 1981).

In addition, “the Secretary must prove that the employer
knew or, with the exercise of reasonable diligence, should have known of the
conditions constituting the violation.” S. Pan Servs. Co. , 2014 WL
7338403, at *7 (No. 08-0866, 2014) (citing Contour Erection & Siding
Sys., Inc ., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007); see also Otis
Elevator, 21 BNA OSHC 2205, 2208 (No. 03-1344, 2007) (citing Active Oil
Serv. Inc. , 21 BNA OSHC 1184, 1186 (No. 00-0553, 2005); Danis Shook
Joint Venture XXV , 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001), aff'd ,
319 F.3d 805 (6th Cir. 2003)). Thus, as part of his burden, the Secretary “must
define the cited hazard in a manner that gives the employer fair notice of its
obligations under the Act by specifying conditions or practices over which the
employer can reasonably be expected to exercise control.” Otis Elevator, 21
BNA OSHC at 2208.

In Amended Citation Number 2, Item 1, the Secretary asserts
that Cooper Tire committed a willful violation of section 5(a)(1) of the Act,
the “General Duty Clause,” because it “did not furnish employment and a place
of employment which were free from recognized hazards that were. causing or
likely to cause death or serious physical harm to employees in that employees
were exposed to Class II combustible dust explosion hazards because the carbon
black dust handling systems were not equipped with safety devices[.]” It
appears that the Secretary had difficulty in separating the hazards he alleged
(“employees were exposed to Class II combustible dust explosion hazards” and
“employees were exposed to combustible dust fire and explosion hazards”) from
the feasible means of abatement he identified (equip the carbon black dust
handling systems with safety devices and protect the duct work system with
deflagration and explosion protection).

“A workplace hazard cannot be defined in terms of a
particular abatement method.” Otis Elevator, 21 BNA OSHC at 2208.
Rather, the hazard must be defined “in terms of the physical agents that could
injure employees rather than the means of abatement.” Arcadian Corporation, 20
BNA OSHC 2001, 2009 (No. 93-0628, 2004), quoting Chevron Oil Co .,
11 BNA OSHC 1329, 1331n. 6 (No. 10799, 1983). Nevertheless, while this alleged
violation verges on defining the hazard in terms of the means of abatement, the
Court concludes that the Secretary met his burden in defining the hazard in
terms of the physical agents that could injure employees.

The Secretary argues in his post-trial brief that Cooper
Tire “has suggested that different carbon black dust samples from its Mixing
Department can result in less explosive mixtures, but [Cooper Tire] has
not shown that it will always result in a non-explosive dust mixture.”
(Emphasis in original.) (Compl’t’s Post-Hr’g Br., p. 75.) However, as indicated
supra , it is the Secretary that has the burden of proof in this case to
establish that the hazard existed. Therefore, Cooper Tire is not required to
prove that the carbon black dust in its Mixing Department “will always result
in a non-explosive dust mixture.”

The Secretary’s Amended Citation 2, Item 1 alleges that
“[o]n or about December 7-8, 2010 on the 2nd floor of the mixing department,
employees were exposed to combustible dust fire and explosion hazards
due to [Cooper Tire’s] failure to protect the duct work system . . . with
deflagration and explosion protection.” (Emphasis added.) (Compl’t’s’ Unopposed
Mot. Am. Compl. and Cit. 2, Item 1, pp. 2-3; Order Granting Compl’t’s Unopposed
Mot. Am.) However, in his post-trial brief, the Secretary uses the conjunctive-disjunctive phrase “and/or” and asserts that Cooper Tire violated the Act “by failing to ensure its
employees were protected from fire and/or explosion hazards associated
with the ductwork[.]” (Emphasis added) (Compl’t’s Post-Hr’g Br., p. 1). The
Secretary’s use of the conjunctive-disjunctive
phrase “and/or” mischaracterizes the actual
conjunction alleged, i.e., exposure to combustible dust fire and explosion
hazards.

In Mountain States Tel. & Tel. Co.
v. Pueblo of Santa Ana, 105 S. Ct. 2587, 2594 (1985), the Supreme Court
held that “[t]he two clauses of § 17 of the Pueblo Lands Act are joined by the
conjunctive ‘and.’ To us that means exactly what it says. … Two things are
required.” See also , Murray v. Carrier, 477 U.S. 478, 496 (1986)
(reiterating that “cause” and “prejudice” are in the conjunctive, and
petitioner must demonstrate both). Conversely, the word “or’ “is almost always
disjunctive, that is, the words it connects are to be given separate meanings.”
Loughrin v. United States , 134 S. Ct. 2384, 2390 (2014). “Canons of
construction ordinarily suggest that terms connected by a disjunctive be given
separate meanings, unless the context dictates otherwise; here it does not.” Reiter
v. Sonotone Corp. , 99 S. Ct. 2326, 2331 (1979). See also , Goleman
v. Wal-Mart Stores, Inc. , 170 F.3d 183 (5th Cir. 1999) (where the verdict
form provided only one line for “lost wages and/or lost earning capacity,” and
thus, the Fifth Circuit held that the “combination of the conjunctive “and” and
the disjunctive “or” suggested that the jury could award damages for either ).

Thus, as the Commission observed in The L.E. Myers Co., 12
BNA OSHC 1609 (No. 82–1137, 1986), rev'd on other grounds sub nom , Brock
v. L.E. Myers Co. , 818 F.2d 1270 (6th Cir.1987), “ it seems clear to us that the use of the word ‘and’ in
the standard as originally promulgated was in the conjunctive, and that a violation
could be established only upon proof of both (1) an exposure to a hazardous
condition requiring the use of personal protective equipment, and (2) the
failure to use this equipment when the need for its use is indicated elsewhere
in Part 1926.” The L.E. Myers Co., 12 BNA
OSHC 1613. On appeal sub nom , Brock v.
L.E. Myers Co. , the Sixth Circuit also concluded that “[a]lthough the
current version of the standard uses the disjunctive “or” with respect to these
separate clauses, its original version used the conjunctive “and” to
indicate that both conditions must be satisfied . . . . Therefore, our
analysis will proceed by taking as a given that a violation of both
parts of § 1926.28(a) must be proven.” (Emphasis added.) Brock v. L.E. Myers
Co., 818 F.2d at 1275. Thus, the Court concludes that since the Secretary
used the conjunction “and” in the Amended Citation 2, Item 1, he must prove
that Cooper Tire’s employees were exposed to both “combustible dust fire and
explosion hazards.”

Cooper Tire argues in its post-trial reply brief that the
Secretary, “for the first time – perhaps recognizing that he failed to prove
the requisite elements of an explosion hazard – presented an alternative carbon
black fire hazard’ theory allegedly stemming from a lack ofdeflagration and
explosion protection’ for the duct work servicing Mixers 3 & 4.” (Resp’t’s
Reply Br., p. 7) ( Citing Compl’t’s Post-Hr’g Br., pp. 75-76). Cooper
Tire argues that “[t]he Secretary’s belated attempt to recast the nature of the
hazard’ under the General Duty Clause violation is improper.” ( Id. ) According to Cooper Tire, “[t]he Secretary did not cite Cooper for, and has never litigated this matter under afire hazard’ theory.’” ( Id. ) The
Court finds no merit in Cooper Tire’s argument.

As indicated supra , Amended
Citation Number 2, Item 1 alleged in part that Cooper Tire’s employees were
exposed to both combustible dust fire and explosion hazards. Rust also
testified that “we know from some of the fires that occurred in the ductwork
system that a fire can-- could get into the ductwork because it has, I believe,
in the one report, and that fire then can be drawn on into the dust collection
system. It could also come back into the weighing area because there are no
controls to isolate that.” (Tr., pp. 189-90.) Further, Dr. Zalosh opined in his
report that “[t]he particular need for inlet duct isolation in this facility is
evident from the frequent fires near some of the dust pickup connections to the
dust collection ducting together with the frequent presence of operating
personnel near those pickup locations.” ( Id. , p. 15.) Dr. Zalosh also
opined in his report that “ Citation
1 Item 2 (a) is particularly serious because of
the Cooper fire hi sto ry of frequent fires in the mixing area just under and around the mezzanine. This history suggests that a flash fire endangering personnel in and
under the mezzanine should be anticipated if dust accumulations observed by the
OSHA Compliance Officer are
allowed to continue.” (C-36, pp. 15-16.) Thus, the Court concludes that Cooper
Tire had fair notice that the Secretary was pursuing both fire and
explosion hazard theories.

As indicated supra , the final
element in establishing a general duty clause violation is the Secretary’s showing
that the proposed abatement will “eliminate or materially reduce the hazard.” Cardinal
Operating Company , 11 BNA OSHC 1675 (No. 80-1500, 1983). “The proposed
method of abatement is judged by what a reasonable person familiar with the
conditions of the industry would have instituted.” Secretary v. Valley
Interior Systems, Inc. , 21 BNA OSHC 2224, 2231 (No. 06-1395, 2007). In his
post-trial brief, the Secretary asserts that in Amended Citation Number 2, Item
1 he “proposed that isolation devices, described in NFPA 654 Section 7.1.4, are
feasible to abate the hazards.” (Emphasis added.) (Compl’t’s Post-Hr’g Br., p.
90.) However, this assertion also mischaracterizes the actual language of
Amended Citation 2, Item 1, which references “NFPA 654- 2000 Chapter
7.1.4.” Thus, the 2000 version of NFPA 654 was the version cited in
Amended Citation Number 2, Item 1, which was not identified as a trial exhibit
( see Compl’t’s Ex. List Attach. Compl’t’s Pre-Hr’g Statement) and was not offered into
evidence at trial or otherwise designated as part of the record.

Importantly, there is no evidence before
the Court as to the contents
of the 2000 version of Chapter 7.1.4 of the NFPA 654 and t here is no evidence in the record that the 2000 and 2006
versions of Chapter 7.1.4 of the NFPA are substantially the same. As indicated supra ,
the NEP instructs OSHA personnel that when conducting an inspection, in order
to obtain evidence of hazard recognition and feasible abatement methods, the
NFPA standards listed in Appendix A of that directive should be consulted, and
Appendix A includes a reference to the 2006 version of NFPA 654, not the
2000 version. The
Court is of course limited to consideration of only the citation as written and
the evidence in the record in support thereof, and cannot consider the 2000 version
not in the record. As indicated supra , the Court may judicially notice a fact that is not subject
to reasonable dispute because it “can be accurately and readily determined from
sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid.
201(b)(2). Here, however, the Court cannot judicially notice the 2000 version
of NFPA 654 since its accuracy cannot be readily determined from its source by
the public.

Therefore, the Court concludes that any
reliance by the Secretary on the 2006 version of Chapter 7.1.4 of the
NFPA 654 in support of his assertion that there was a reasonable means of
abatement was misplaced since it was not the version cited in Amended Citation
Number 2, Item 1. Likewise, Dr. Zalosh opined in his report that NFPA 654- 2006
“explicitly requires such isolation devices as listed in paragraph 7.1.4.2”
and that the “chemical
isolation devices included as item (5) in NFPA 654- 2006 paragraph
7.1.4.2 were readily available and frequently used on dust collector inlet
ducts at other facilities long before the citation was issued.” (Emphasis
added.) (C-36, p. 15.) However, for the same reasons, supra , the Court
concludes that Dr. Zalosh’s reliance on the 2006 version of Chapter
7.1.4 of the NFPA 654 in support of his opinion that there was a reasonable
means of abatement was also misplaced.

Citation Number 2, Item 2

Alleged Willful Violation of Section 1910.307(c)(2)

The NEP indicates that in addition to citations under
section 5(a)(1), “[o]ther standards are applicable to the combustible dust
hazard. For example, if the workplace has a Class II location, then citations
under 29 CFR 1910.307 may be issued to those employers having electrical
equipment not meeting the standard's requirements.” (C-20, p. 3.) Section
5(a)(2) of the Act mandates that employers “ shall
comply with occupational safety and health standards promulgated under this
chapter.” 29 U.S.C. § 654(a)(2). The elements of proof for a violation of an
OSHA standard differ from the elements of proof for a General Duty Clause
violation.

With that in mind, in order to prove a violation of a cited
standard, “the Secretary must show by a preponderance of the evidence that (1)
the cited standard applies, (2) there was a failure to comply with the cited
standard, (3) employees had access to the violative condition, and (4) the
cited employer either knew or could have known of the condition with the
exercise of reasonable diligence.” Bardav, Inc., d/b/a Martha's Vineyard
Mobile Home Park , 24 BNA OSHC 2105, 2109 (No. 10-1055, 2014) (citation
omitted). However, “[w]hen the standard incorporates hazard as an element of
the violation, then the Secretary must show hazard in addition to condition or
practice . . . just like the general duty clause.” Bunge Corp. , 638 F.2d
at 835.

The Secretary alleged in Citation Number 2, Item 2 that
Cooper Tire violated 29 CFR section 1910.307(c)(2), the “Hazardous (classified)
Locations Standard,” by failing to ensure that its “[e]quipment, wiring
methods, and installations of equipment in hazardous (classified) locations
shall be intrinsically safe, approved for the hazardous (classified) location,
or safe for the hazardous (classified) location[.]” (Compl. Ex. B, Cit., p.
17.) More specifically, the Secretary alleged that:

(a) On or
about December 7, 2010, on the mezzanine, flexible cords running from an
electrical control box did not pass through box fittings that were approved for
Class II dust environment.

(b) On or
about December 7, 2010, on the mezzanine, the splice joining a flexible cord to
two heat tapes, was not approved for Class II environment.

(c) On or
about December 7, 2010, on the mezzanine, the electric lamp fixtures were not
approved for a Class II environment.

(d) On or
about December 7, 2010, on the mezzanine, conduit fittings that were missing
cover plates, were not approved for a Class II environment.

(e) On or
about December 7, 2010, on the mezzanine, the defective strain relief was not
approved for a Class II environment.

(f) On or
about December 7, 2010, on the 2 nd floor, the vacuum
cleaner/electric generator mounted on a portable cart, was not approved for a
Class II environment.

( Id. )

Section 1910.307(c) provides that “[e]quipment, wiring
methods, and installations of equipment in hazardous (classified) locations
shall be intrinsically safe, approved for the hazardous (classified) location,
or safe for the hazardous (classified) location.” 29 CFR § 1910.307(c). Further,
“[e]quipment shall be approved not only for the class of location, but also for
the ignitable or combustible properties of the specific gas, vapor, dust, or
fiber that will be present.” 29 CFR § 1910.307(c)(2)(i). The Hazardous
(Classified) Locations Standard creates distinct hazardous location
classifications, which are assigned to one of the designations “(A)” through
“(I).” 29 C.F.R. § 1910.307(a)(2)(i).

Designation “(F)” refers to a “Class II, Division 1”
location, which is defined as a location where “combustible dust is or may be
in suspension in the air under normal operating conditions, in quantities
sufficient to produce explosive or ignitable mixtures;” a location where
“mechanical failure or abnormal operation of machinery or equipment might cause
such explosive or ignitable mixtures to be produced, and might also provide a
source of ignition through simultaneous failure of electric equipment, through
operation of protection devices, or from other causes;” or a location in which
“combustible dusts of an electrically conductive nature may be present.” ( Id. )
Thus, “Class II” locations are those “that are hazardous because of the
presence of combustible dust.” 29 C.F.R. § 1910.399.

Therefore, since this standard incorporates hazard as an
element of the violation, meaning, in accordance with section 1910.399, the
cited locations were allegedly “hazardous
because of the presence of combustible dust,” the
Court concludes that the Secretary must show that the cited locations were
actually hazardous because of the presence of combustible dust, i.e., “the
Secretary must show hazard in addition to condition or practice.” Bunge
Corp. , 638 F.2d at 835.

In its post-trial brief Cooper Tire asserts, apparently as
an afterthought, that the Secretary cannot enforce section 5(a)(1) as cited in
Citation Number 2, Item 1 because a more specific standard, 29 C.F.R. §
1910.307, applied to the cited condition. (Resp’t’s Post-Hr’g Br., pp. 95-98.)
Cooper Tire also argues that the Secretary cannot enforce the General Duty
Clause as cited “because the hazards alleged by the Secretary in its § 1910.307
and General Duty Clause citations are one and the same” and that section
1910.307 “preempts any citation under the General Duty Clause.” (Resp’t’s
Post-Hr’g Br., p. 98.)

Under Commission precedent, preemption by a more
specifically applicable standard is an affirmative defense which the respondent
must raise in its answer. See Spirit Aerosystems, Inc., 10-1697,
2014 WL 7434582, at *14 n . 7 (04 National/Federal Dec. 24, 2014) (since Spirit neither raised
this issue as a defense in its answer nor sought to amend its answer to add it,
the argument was waived) ; Vicon Corp. , 10
BNA OSHC 1153, 1157 (No. 78-2923,1981) (describing a claim that a general
standard was preempted by a more specific standard as an affirmative defense); see
also Commission Rules 34(b)(3) and(4), 29 C.F.R. § 2200.34(b)(3) and (4).
Here, Cooper Tire neither raised this issue as a defense in its answer nor
sought to amend its answer to add it. Therefore, the Court finds that the
argument was waived. See Gen'l Motors Corp., Chevrolet Motor
Div. , 10 BNA OSHC 1293 (No. 76-5344,
1982).

At trial, both parties referred to the
elements necessary for a deflagration hazard to exist as the “fire triangle,”
consisting of (1) an oxidant (air), (2) an ignition source, and (3) fuel (the
Secretary contends the carbon black dust is the fuel). (Tr. 15-16, 347-49.)
Significantly, the NEP cautions compliance officers that “before a deflagration
can occur: (a) the dust has to be combustible[;] (b) the dust has to be
dispersed in air or another oxidant, and the concentration of this dispersed
dust is at or above the [MEC;] [and] (c) there is an ignition source, such as
an electrostatic discharge, spark, glowing ember, hot surface, friction heat,
or a flame that can ignite the dispersed combustible mixture that is at or
above the MEC.” (C-20, p. 15.)

The parties agreed that there are five
elements necessary for an explosion to occur, referred to as the “explosion
pentagon,” consists of the above three “fire triangle” criteria for a
deflagration plus a dust cloud (dispersion) at or above the MEC, and (5)
confinement. (Tr. 15-16, 346-49.) OSHA relied upon the explosion pentagon
outlined in the NEP and the experts agree that the explosion pentagon is the
framework to be used to determine the existence of an explosion hazard. (Tr.
348-50; 1685, 1698-02, 1773-74; C-20, p, 15; R-41, p. 9, R-67, p. 3.) The NEP
also lists the criteria that must be met before an explosion can occur,
combining the elements of a deflagration plus the requirement that the
“combustible mixture is dispersed within a confined enclosure (and the confined
enclosure does not contain sufficient deflagration venting capacity to safely
release the pressures) such as a vessel, storage bin, ductwork, room or
building.)” (C-20, p. 15.)

Similarly, section A.3.3.4 of Annex A to
NFPA 654 also indicates that a dust explosion requires (1) combustible dust;
(2) dust dispersion in air or other oxidant at or exceeding the MEC; (3)
ignition source such as an electrostatic discharge, an electric current arc, a
glowing ember, a hot surface, welding slag, frictional heat, or a flame; and
(4) confinement. ( See C-42, p. 24.)
Section A.3.3.16 also cautions that the MEC “is dependent on many factors, including
particulate size distribution, chemistry, moisture content, and shape. . . . Often,
the necessary MEC data can be obtained only by testing.” (Emphasis added.)
(C-42, p. 24.)

Thus, in order for an explosion hazard to
exist, such as the alleged carbon black dust explosion hazard cited by the
Secretary, all five criteria must be present. (Tr. 15; C-20,
p. 15.) The Secretary must establish through a preponderance of evidence the existence
of each of these elements to show the existence of a fire or explosion hazard. See
e.g. , Conagra, Inc. , 12 BNA OSHC 1357, 1360 (No. 84-0311, 1985)
(ALJ) (outlining the necessary elements to create a dust explosion); Foseco, Inc. , 10 BNA OSHC 1949, 1961 (No. 81-844,
1982) (ALJ) (listing the necessary elements to create a dust explosion); Luis
A. Ayala Colon, Inc. , 12 BNA OSHC 1533, 1537 (No. 84-624, 1985) (ALJ)
(explaining that “mere dust is not ignitable or explosive unless other
conditions are present such as correct air mixture, heat, time element ignition
source etc.”). Thus, it is undisputed that if a single element of the pentagon
is missing, an explosion is not possible. (Tr. 348-350; C-20, p. 15; R-41, p.
9; R- 67, p. 3.)

Hazard Analysis

Cooper Tires argues that “the Secretary failed to show that
such a hazard actually, rather than theoretically existed, because he failed to
establish that the following four (of the five) elements of an explosion were
present: (a) fuel, here, a combustible dust; (b) sufficient dispersion of the
dust [at or above] the [MEC]; (c) an ignition source; and (d) confinement.”
(Resp’t’s Post-Hr’g Br., pp. 23-24.) “With respect to establishing a combustible
dust, Cooper Tire argues that “the Secretary did not even take a sample of the
dust in the dust collectors or duct work, and thus, has no evidence a
combustible dust even existed there.” ( Id., p. 24.) With respect to
ignition, Cooper Tire argues that “the Secretary did no more than identify
theoretical ignition sources but there was no evidence that such ignition
sources were capable of igniting carbon black dust because the Secretary failed
to determine the [MIT or MIE] of the dust.” ( Id. ) With respect to
confinement, Cooper Tire argues that “the Secretary failed to present evidence
to establish that the enclosures – the dust collectors and duct work – could
not withstand a [fire] event, if one were to occur within it.” ( Id. )

As to the MEC requirement, Anderson did not perform an
analysis of the MEC of the Rust sample and Rust admitted, “I don’t know the MEC
of the dust sample.” (Tr. 15-16, 215, 346-49.) As indicated supra ,
OSHA’s NEP and NFPA 654 both emphasizes the centrality of establishing the MEC.
Thus, the NEP directs Compliance Officers, such as Rust, to ensure that all
elements of a fire or explosion are present prior to citing an employer for a
combustible dust hazard. (C-20 p. 15.) Although no measurements were taken to
determine the MEC or the particulate size distribution, chemistry, moisture
content, and shape of the dust in the dust collectors and duct work, the
Secretary nonetheless relies on the impermissible opinion testimony of Rust
that the dust was present in sufficient loose concentrations and thicknesses,
up to five and six inches thick, over enough surface area to create a hazard
due to its concentration if suspended. (Compl’t’s Post-Hr’g Br., p. 37; Tr.
210-14, 363, 402; C-20, p. 16).

According to Rust, the combustible dust had accumulated
over at least 5 percent of the mezzanine area, and possibly up to about 10
percent of the area considering the combustible dust accumulations on the
superstructure and pipes and calculated that, given the surface area covered by
combustible dust, the dust would reach a concentration of approximately 94.7
grams per cubic meter of the area, if the dust he observed was dispersed or
suspended. (Tr. 215). Thus, Rust opined that there was combustible dust in the
cited area that would reach concentrations exceeding the MEC and that ignition
sources were present. (Tr. 215, 366). As indicated supra , however, any
reliance by the Secretary on Rust’s opinion testimony was misplaced since he
was not qualified as an expert.

More importantly, the NEP indicates that “small amounts of
dust accumulations in isolated spots of the floor or other areas would not
normally be classified as a violation of the housekeeping requirement under
this NEP[.]” (C-20, p, 21.) Therefore, in “order to substantiate housekeeping
violations, [compliance officers] shall take representative
measurements. Thickness measurements must be made at several locations
within the sampling area.” (Emphasis added.) ( Id. ) Thus, the Court
concludes that since Rust failed to take representative measurements, i.e. ,
thickness measurements at several locations within the sampling area, any
analysis based upon the Rust sample was unreliable and the opinions based upon
that sample were accorded little weight. Therefore, the Court gives little weight to
Rust’s conclusion that combustible dust in the cited area would reach
concentrations exceeding the MEC and that ignition sources were therefore
present since he did not take representative measurements.

At trial, the Secretary’s expert, Dr. Zalosh
testified that he “was hypothesizing [about] a possible explosion in the dust
collector that [he] was concerned about, and the explosion, the flame and the
pressure wave, the pressure associated with that explosion traveling back down
through the ductwork towards the occupied areas.” (Tr. 998.) Similarly, Rust testified
that “[i]f a deflagration that occurs in the ductwork where the opening is
either going into or out of the system, you could have a -- you would have a
ball of fire, potentially a ball of fire that would be expelled from that
system.” (Tr. 198-99.)

However, in a book co-authored by the
Secretary’s own expert, Dr. Zalosh admitted that “[i]n the case of combustible
dust clouds, relevant explosibility tests include [MIT, MIE and MEC]” and
opined that the “ [r]esults of these tests . . . depend on chemical
composition as well as particle size, concentration, moisture level, and the
details of the test apparatus .” (Emphasis added.) (R-67, p. 72.) Thus,
Cooper Tire argues that “[o]nly after determining a dust’s [MIT, MIE and MEC]
would the Secretary have the scientific and factual information necessary to
determine if each element of the pentagon was present in the workplace.”
(Resp’t’s Post-Hr’g Br., p. 29; see also Tr. 348-50, 1698-02, 1773-74;
C-20; R-Ex. 41, p. 9; R-67, p. 3.) As further discussed infra , however,
the Secretary failed to evaluate, much less establish, the properties of carbon
black dust as it existed in the Tupelo Plant, and, instead, presumed that the
conditions cited created an explosion hazard.

As illustrated, supra , by OSHA’s
series of classifications, groups, and in some cases OSHA standards, not all
dusts capable of combustion create combustible dust hazards. The NEP states
that Class II “F” locations include atmospheres “containing combustible
carbonaceous dusts that have more than 8 percent total entrapped volatiles .
. . or that have been sensitized by other materials so that they present an
explosion hazard .” (Emphasis added.) (C-20. p. 9.) Likewise, OSHA issued a
Letter of Interpretation on November 23, 2004, which reiterated that under
certain conditions “carbon black presents no explosion hazard when the volatile
content is eight percent or less” but “in combination with any sensitizing
material would be considered a Class II, Division 1, Group F location .”
(Emphasis added.) (R-43.)

Even Amended Citation Number 2, Item 1
itself provides that “one feasible and useful abatement method to correct the
cited hazards is to follow the requirements found in NFPA 654-2006, Chapter
7.13” and section 7.13.1.3
therein indicates that
“[a]ir -material separators
shall be protected in accordance with 7.1.2.” In turn, section 7.1.2.1(5) provides that the design of
explosion protection for equipment should incorporate one or more of the
following methods of protection,” which includes “[d]ilution with a
noncombustible dust to render the mixture noncombustible .” (Emphasis
added.) (C-42, p. 14.)

Thus, even OSHA recognizes that the
volatile content of the dust mixture and the identity of other sensitizers are
significant in determining whether it is combustible. However, despite this
recognition, Anderson did not test, and the Secretary presented no evidence of,
the volatile content and identity of the sensitizing material in the Rust
sample. (Tr. 352.) Cooper Tire argues, and the Court agrees, that “knowing the
composition of the dust at issue is critical to establishing whether a dust
hazard exists.” (Resp’t’s Post-Hr’g Br., p. 29; see also Tr. 1685; R-41;
C-38.)

Significantly, regarding a question posed by the Court
concerning “how long it takes for the various dust particles to reach their
ignition temperature, i.e. , the minimum ignition temperature (MIT) that
will ignite a dust cloud, the Secretary’s own expert witness, Dr. Zalosh,
opined “ I think that's the key , along with some other factors to the
question of under what conditions does carbon black present a flash fire and
explosion hazard. So, to have a flash fire and explosion hazard, the particles
have to be heated up to their ignition temperature although there's still some
flame that creates the hazard.” (Emphasis added.) (Tr. 1065.) “[I]t's too
hard to give an absolute answer to that question without getting into the issue
of particle size in the presence of other materials. ” (Emphasis added.)
(Tr. 1066.)

Dr. Zalosh admitted that “there's mixtures of different
particle sizes, it's very difficult to give a simple answer to that question. And,
it's very much dependent on the presence of other small amounts of other
combustible materials that might be present, in this case, in the mezzanine .”
(Emphasis added.) (Tr. 1067.) “So, I think the test data is very important
. . . and I appreciate why people who have been around carbon black for long
periods of time and have seen what happens with large pellets, I appreciate why
they could have the impression that carbon black is not a flash fire hazard because
of the importance of all the particle sizes and other material effects .”
(Emphasis added.) ( Id. ) Despite these admissions, the Secretary
presented no evidence of test data that established the specific ignition
temperature or the particle size of the carbon black dust mixture at the Tupelo
Plant.

In Con Agra, Inc., d/b/a Pet Foods Co. ,
11 BNA OSHC 1126 (No. 81-2606, 1983) (ALJ), the Judge held that the Secretary
failed to carry his burden to show that dust created an explosion hazard.
Similar to the present case, the compliance officer in Con Agra ,
although unfamiliar with the particular product mix that was involved,
nonetheless opined that the extruder room was a “Class II, Division 2” based on
his review of the ingredients processed at two facilities, and from his
observations and photographs taken at one of the facilities. ( Id. at
1132-33.) The compliance officer also opined that a mixing room was a Class II,
Division 2, based upon a “minimal amount of dust in suspension and his
observation of dust accumulation on the surfaces at both locations.” ( Id.
at 1133.) Since no testing had been performed to determine the composition of
the dust, the Judge in Con Agra concluded that the Secretary’s case was
“based on nothing but sheer conjecture and speculation.” ( Id. at 1137.)
The Court finds the analysis in Con Agra persuasive. Here, as in Con
Agra , the Secretary performed no testing to determine the composition or
quantity of the carbon black dust mixture at the Tupelo Plant. Instead, like in
Con Agra , the Secretary again relied purely on speculation rather than
fact.

Nonetheless, the Secretary cites Titan Tire Corp. ,
19 BNA OSHC 1082 (No. 00-0012, 2000) in support of his contention that the carbon
black dust present at the Tupelo Plant was combustible. In Titan Tire , a
section 1910.307 violation was affirmed by the Judge in connection with a flash
fire that occurred in Titan Tire’s mixing department, where the mixer had been
out of service for three months prior to the incident. However, there were a
number of factors leading up to the ultimate malfunction and subsequent flash
fire at Titan Tire that were not present in the instant case. First, the
parties in Titan Tire stipulated to the characteristics and quantities
of the seven ingredients at issue in and around the mixer, five of which were
considered ignitable. However, in the case sub judice , there was no such
stipulation and the Secretary failed to present any evidence of the
characteristics and quantities of the ingredients in the carbon black dust
present at the Tupelo Plant at the time of the inspection. In addition, in Titan
Tire , the mixer had been repeatedly malfunctioning and the operators
continued to run the mixer when the ram and dust collector were inoperable, a
condition that did not exist in the present case. ( Id. at 1082-84.)
Further, although the Judge in Titan Tire assumed the flash fire was
caused by carbon black dust, numerous other combustible materials were
involved. The Court declines to make the same assumption in the present case
without evidence of the specific ignition temperature, particle size, volatile
content, and identity of the other sensitizers in the carbon black dust at the
Tupelo Plant.

Further, Dr. Meyers reviewed OSHA’s case file, Dr. Zalosh’s
report, and other relevant documents and concluded that although “[t]he
citations issued by OSHA are based on the assumption that carbon black is a
combustible dust,” the Rust sample was “not tested from specific areas cited by
OSHA to determine whether or not the material is a combustible dust and poses a
flash fire or explosion hazard.” (R-41, p. vii.) Rather, OSHA tested the single
Rust sample from “an area where rubber components, including oil and carbon
black were being mixed. Mr. Rust did not collect samples on the 1 st ,
2 nd , or 3 rd floors of the facility or from inside [the]
cited equipment.” ( Id. ) “OSHA has not performed analysis or further
testing to determine how the combustibility of that single sample relates to
actual conditions in the facility.” ( Id. )

Thus, Cooper Tire argues that “the Secretary ostensibly
depends upon a single sample of `unidentified dust’ taken from a single beam
that could ignite in a laboratory setting.” (Resp’t’s Post-Hr’g Br., p. 30; see
also Tr. 1245-49, 1491-93.) “Taking this speculation further, the Secretary
assumes –with no evidentiary basis –that the unidentified and unquantified dust
sample is representative of the dust in the duct work and dust collector
connected to mixers three and four.” ( Id. ) However, data collected by
Cooper Tire indicated that the composition and components of dust in the
facility was not uniform. (Tr. 1811-12; C-43.) The Court agrees.

As illustrated in American Phoenix, Inc. , 24 BNA
OSHC 2228, 2256 (No. 11-2969, 2014), the Secretary cannot assume that the dust
collected from an entirely separate location is somehow representative of the
conditions in another location involving other equipment. After the trial in
the present case, but prior to the filing of the parties’ post-trial briefs,
Judge Augustine issued his decision in American Phoenix , which became a
Final Order of the Commission. Although American Phoenix, Inc. is not
binding, Judge Augustine’s analysis is well-reasoned and instructive. The American
Phoenix decision is apposite to the central issues of the instant case and
both parties cite to it in their post-trial briefs and reply briefs.

American Phoenix, Inc. manufactures “soft rubber compounds
for large-scale, industrial companies, including all of the major North
American tire companies, retread companies, belting companies, tread
operations, and some automotive parts.” Am. Phoenix, Inc. , 24 BNA OSHC
at 2230. American Phoenix used a series of Banbury Mixers to manufacture its
products, which handled large, 1,200 pound batches of basic compounds, such as
polymers, oil, and Carbon Black. Each mixer was attached to a dedicated dust
collector. ( Id. ) OSHA conducted an inspection of American Phoenix’s
facility, focusing on the dust collectors. OSHA took seven dust samples—three
from the floor near dust collectors, two from dust collectors, and two from the
ductwork connected to dust collectors. OSHA sent the samples to the SLTC, where
they were tested for Class II explosibility (, and Pressure Ratio. The test
results indicated that all of the samples except one were combustible. ( Id.
at 2228 . )

As in the present case, in American Phoenix SLTC did
not test for MIE, MEC, or MIT. ( Id. at 2228 . ) Based on the
samples, the Secretary cited each of the dust collectors. However, as Judge
Augustine noted, “they were presumed to contain combustible fuel without
measurements being performed” notwithstanding that American Phoenix used “as
many as 50 different recipes, with each recipe containing varying amounts of
ingredients.” ( Id. at 2245 . ) Judge Augustine found that:

Although
some of the recipes contained similar ingredients, no evidence has been
proffered to show that the particular mix found in one dust collector would be
the same as another. Absent such evidence, the Court gives little weight to the
attempt of the Secretary to meet its burden of proof by arguing that dust
collected, but not tested, from one dust collector was interchangeable with
dust collected and tested from another dust collector.

( Id. ) Thus, Judge Augustine vacated portions of the
citation that alleged the existence of an explosion hazard, concluding that:

[T]he primary
problem for [the Secretary] is one of proof. The general duty clause requires
proof of the existence of a hazard. According to the agreed-upon criteria for a
dust explosion, [the Secretary] failed to prove a critical element to establish
the hazard—the MEC [citation omitted]. [The Secretary] could have inquired as
to the different rubber recipes and taken more representative samples. In this
case, it was not enough to show that combustible dust existed in the dust
collectors or that some of the elements for a dust explosion are present. In
the absence of a specific standard, which often presumes a hazard if certain
conditions are met, [the Secretary] is forced to cite based on the general duty
clause. See Bunge Corp. , 638 F.2d 831 (5th Cir. 1981). The general duty
clause, though, places a higher burden on [the Secretary] because he must prove
elements that are otherwise assumed when an employer is cited pursuant to a
specific standard under section 5(a)(2). In this case, [the Secretary] failed
to meet that burden.

( Id.
at 2249.)

The Secretary’s proof in the instant case is even more
lacking than in American Phoenix since in that case, OSHA obtained seven
samples and most of the samples were taken from the ductwork and dust
collectors. In the present case, however, Rust took only one sample and took no
samples from the cited ductwork. Dr. Meyers testified that he had concerns
regarding how representative a single dust sample taken from the mezzanine
superstructure could be for the entire facility: “There’s been a lot of
discussion about the combustibility of the dust in the dust collector or in the
ductwork sample. If you want to know the explosion hazard of that material,
that’s where you would collect the sample.” (Tr. 1764.)

Therefore, Cooper Tire disputes the relevance of the
analysis of the Rust sample to the cited conditions because “the Secretary
assumes—with no evidentiary basis—that the unidentified and unquantified dust
sample is representative of the dust in the ductwork and dust collector
connected to mixers three and four.” (Resp’t’s Post-Hr’g Br., p. 30.) The
Secretary counters with an argument regarding what the dust sample “likely”
indicates. “The [Rust] sample from the mezzanine superstructure near Mixers 3
and 4 is directly relevant to the dust mixtures that the dust collector system
for Mixers 3 and 4 are likely to handle and the fugitive dust likely
to be present on the mezzanine level surfaces and other Mixing Department
surfaces in the vicinity of Banbury Mixers 3 and 4, which extend from the
second floor, through the mezzanine, to the first floor.” (Emphasis added.)
(Compl’t’s Post-Hr’g Br., p. 73.)

Dr. Zalosh similarly presumed the contents of the dust in
all areas of the Mixing Department could be derived from the single sample
collected by Rust. “I do think Mr. Rust’s sample is closely related to the
predominant materials used in the Mixing Department, which are carbon black,
some oil residue, and maybe some others.” (Tr. 1147.) When asked if he knew the
MIE required to ignite the dust in the dust collector for Mixers 3 and 4, Dr.
Zalosh responded, “I presume that those materials could be in the dust collectors
for Mixers 3 and 4, and that that calculation for other materials could be
done. I haven’t done any additional calculations.” (Tr. 1188.) However, Rust
conceded at trial that, along with carbon black dust, the “dust is going to
come from the powders, the oils, whatever is put into the mixture itself.”
(Tr. 310.) Rust admitted that “we don’t
really know the composition. It probably is not carbon black, not in a pure
state that is a combustible dust, but it is a sample that I took and sent off
to the lab, and it’s listed as a combustible dust. I make reference to the carbon
black dust, but it’s a mixture.” (Tr. 150.)

Surprisingly, the Secretary argues that Cooper Tire’s
challenge to the composition of the Rust sample “has no bearing on whether the
material is a combustible dust” and that “regardless of composition, the dust
tested as an explosive, Class II dust [.] Moreover, [Cooper Tire] is, of
course, fully aware of the ingredients used in its Mixing Department.”
(Compl’t’s Post-Hr’g Br., pp. 71-72.) The Secretary also argues that
“[a]ccording to Material Safety Data Sheets (MSDS) for carbon black handled at
[Cooper Tire’s] Tupelo plant, carbon black was identified as an ST1’ dust, and arisk of dust explosion’ was identified with the warning `Do not create a
dust cloud by using a brush or compressed air.’ (C-13, pp. 3, 4).

The Court finds no merit in the Secretary’s arguments. Dr.
Zalosh testified the Rust sample was “the basis for determining that there’s a
combustible dust hazard.” (Tr. 1141.) Further, the MSDS for carbon black by
itself is not dispositive since the Secretary failed to present any evidence of
the other materials in Cooper Tire’s recipes, their proportional amounts, or
their MSDS. As the NEP states, it is not a Class II “F” location unless it
contains “combustible carbonaceous dusts that have more than 8 percent total
entrapped volatiles . . . or that have been sensitized by other materials so
that they present an explosion hazard. ( See C-20, p. 9; C-42, p. 14;
R-43.) “The literature and applicable guidance, including OSHA’s 2004 Letter of
Interpretation and NEP, all state that, in order for carbon black dust
to become a combustible dust hazard, it must be mixed with other sensitizing
material or volatiles in amounts in excess of 8% of the total” or “have been
sensitized by other materials so that they present an explosion hazard.”
(Resp’t’s Post-Hr’g Br., p. 33; C-20. p. 9; see also R-43.)

Thus, the Court agrees with Cooper Tire that since it is
the Secretary’s burden of proof with respect to the alleged violation, “it was
incumbent on the Secretary to establish that the dust at issue had sufficient
volatile content in order to be hazardous” or had been sensitized by other
materials so that they present an explosion hazard. (Resp’t’s Post-Hr’g Br., p.
113.) “These issues were both definable and measurable according to the
Secretary’s own witnesses. Yet, the Secretary made no attempt to determine the
carbon black dust’s volatile content or that it contained sensitizers
sufficient to cause it to be ignitable in tire-making production” ( Id. ).

Dr.
Zalosh also opined that the most serious hazard associated with Citation 2 Item
1 was the “lack of deflagration isolation devices in the dust collector inlet
ducting drawing dust from the two Banbury mixer charging areas.” (C-36, p. 15.)
According to Dr. Zalosh, “[t]he isolation device is designed to interrupt the
propagation of a flame and accompanying pressure rise before it can reach the
dust pickup locations where it can endanger personnel and ignite other
explosions and fires.” ( Id. ) Thus, Dr. Zalosh opined that the ducting
connecting Banbury mixer charging areas to the roof mounted dust collectors
“can indeed experience an explosion/deflagration that originates in the
collector or possibly in the Banbury itself” since the ducting did not have any
readily available explosion isolation devices to prevent this propagation, and
since such propagation would endanger personnel frequently situated near the
Banbury charging area inside the mixing department[.]” ( Id. , p. 16.)
However, the Court notes that Dr. Zalosh’s analysis again defined the hazard in
terms of the method of abatement, and as indicated supra , “[a] workplace
hazard cannot be defined in terms of a particular abatement method.” Otis
Elevator, 21 BNA OSHC at 2208.

Further, the Court credits Dr. Meyers’s disagreement with
Dr. Zalosh’s opinion, since there was “no evidence that the material handled by
these systems [was] explosible. Samples of material were initially not tested
from the specific areas cited.” (R-41, p. 43.) “The OSHA citations were
originally based on testing performed by OSHA at Tupelo on a single sample
taken by Mr. Rust in an area where rubber and carbon black were being mixed,
which would have been contaminated by other combustible materials.” ( Id. )
“That material is not expected to be representative of the material handled in
the cited equipment.” ( Id. ) Although “Dr. Zalosh expressed concern about
the lack of explosion isolation in ducts between Banbury mixers 3 and 4 and dust
collectors, Dr. Zalosh has not established that the material being transported
by this duct is a combustible dust or ignitable by ignition sources in the
facility.” ( Id. )

Dr. Meyers also credibly testified the ignition sources at
the Tupelo Plant were incapable of igniting carbon black dust. “Some of the
testing we've looked at here, some of the more traditional laboratory testing,
the references, we've talk about the MSDSs, we've talked about the high
ignition energy, the high ignition temperature, the difficulty of igniting
carbon black. So, most of the typical industrial ignition sources can't ignite
carbon black.” (Tr. 1811.) Even assuming, arguendo , that the SLC
laboratory conditions were comparable to conditions on the mezzanine, which
they were not, Cooper Tire argues, and the Court agrees, that “the Secretary
did not establish (1) what level of energy or minimum temperature would be
necessary in order to ignite carbon black in an industrial setting or (2) what
ignition sources were strong enough and in close-enough proximity to be a
plausible source of ignition.” (Resp’t’s Post-Hr’g Br., p. 113; see also Tr.380,
1791-92, 1793-98; R-61.)

The Secretary also claimed that the carbon black dust at
issue was allegedly conductive because carbon black, with a volatile content
above 8%, was classified as a Group F dust. ( See Compl’t’s Post-Hr’g
Br., pp. 11-12; Tr. 47-48, 50-51, 89.) However, since the Secretary failed to
test the Rust sample to determine whether it was conductive, Cooper Tire
argues, and the Court agrees, that this claim is unsupported by any objective
evidence. (Resp’t’s Post-Hr’g Br., p. 113.) Therefore, the Court agrees with
Cooper Tire that the single data point derived from the SLTC’s test of the Rust
sample, of unknown composition, was inadequate to establish that the Rust
sample was combustible. ( Id. )

Absence of Previous Incidents of Dust Explosion

It
is undisputed that there is no record of a carbon dust explosion incident
having occurred at any Cooper Tire facility or in the tire manufacturing
industry at large. Cooper Tire argues, that “neither Cooper Tire – in its
100-year history – nor the entire tire-making industry has ever experienced a
carbon black dust explosion.” (Resp’t’s Br., p. 6; see also Tr. 1739-40,
1766-68; R-41, pp. 8-9.) “This is in stark contrast to grain dust and sugar
dust, both of which have well-documented histories of explosions, and both of
which, not coincidentally, involve dusts that are highly ignitable (unlike
carbon black dust).” ( Id. ) However, generally, the absence of a history
of incidents is irrelevant to whether a violation exists. Monitor Constr., 16
BNA OSHC 1589n. 8 (No. 91-1807, 1994).

The issue in the present case, however, is not whether a
violation existed but whether there was even a hazard involved. The
Court of Appeals for the D.C. Circuit recently held that previous incidents of
explosion are a significant factor in determining whether a dust should be
classified as combustible, i.e. , classified as a hazard. In Nat'l
Oilseed Processors Ass'n v. Occupational Safety & Health Admin. , 769
F.3d 1173, 1179, 1183 (D.C. Cir. 2014), the D.C. Circuit held that OSHA’s
Standard Interpretation issued on December 27, 2013, the Classification of
Combustible Dusts under the Revised Hazard Communication Standard (2013
Guidance), informed employers how to determine whether dusts in their
workplaces were combustible. The D.C. Circuit found that the “2013 Guidance
advises that previous incidents of explosion will be the best indication of
a combustible dust hazard, but employers may use alternative classification
methods depending on the available information from laboratory testing,
published test results, or particle size, using either of two size standards.”
(Emphasis added.) Id. , 769 F.3d at 1184. Thus, the D.C. Circuit found,
in accordance with the 2013 Guidance’s directives, that prior incidents of
explosion are the best indication of whether a dust is combustible.
Id. ,
769 F.3d at 1183.

The Court finds the D.C. Circuit’s analysis in Nat'l
Oilseed Processors Ass'n persuasive. In the present case, in light of
the lack of persuasive laboratory test results establishing that the dust at
issue is combustible, the Court finds that the laboratory test results of the
Rust sample are inconclusive, particularly since the Secretary failed to
establish the MEC of the dust sample, which is one of the criteria for
establishing a fire hazard. Further, the Court concludes that the absence of
dust fire or explosion incidents at Cooper Tire’s facilities or at any other
tire manufacturing facilities involving carbon black dust is additional
evidence that the dust was not combustible.

In Cargill, Inc. , 1980 WL 10556 (No. 78-4071, 1980)
(ALJ), Judge Mitchell explained that “[s]ince the Secretary has alleged that
the locations covered by these two Items were Class II, Division 1 locations,
the Secretary must establish just that.” ( Id. at *13 . ) “[P]roof
by the Secretary that there was [dust] in the air, without any showing of the
extent of concentration of that dust, is not enough to establish the existence
of the violations described in these two Items as existing in Class II,
Division 1 locations. The Secretary must go further and prove that the
suspended [ ] dust was of such a concentration as to be an explosive mixture.
There is no such proof in this record.” ( Id. ) Although not binding in
this case, the Court finds the Cargill analysis instructive, and as Cargill
also illustrates, the Secretary must affirmatively demonstrate that the carbon
black dust mixture at the Tupelo Plant was in fact present in sufficient
quantities and concentration to be combustible.

Likewise, in Nat’l Coal Museum , 19 BNA OSHC 1748,
1761 (No. 99-2240, 2001) (ALJ), Commission Judge Welsch held that there was no
violation of section 1910.307 since “the record [did] not show the potential
for the suspension of coal dust in the tour area.” The Court notes that coal
dust, like carbon black, with volatile content above 8%, is generally
classified as a Group F dust, and that Group F dusts are considered
semi-conductive. ( See C-20; R-30; R-67.) In Nat’l Coal Museum ,
the violation was vacated because the Secretary failed to establish the
combustible level of coal dust and failed to show that it was potentially
explosive because of the unprotected light bulbs. Nat’l Coal Museum , 19
BNA OSHC at 1761-62. Although not binding in this case, Nat’l Coal Museum
also illustrates that, even where the dust at issue may be conductive, the
Secretary still must establish a hazard in order to sustain a section 1910.307
violation.

The
parties, for reasons best known to them, chose not to adduce evidence
establishing the ingredients of the Rust sample. However, the Secretary has the
burden of proof and he not only failed to adduce the composition of the Rust
sample, he failed to take a dust sample from the ductwork for Banbury Mixers 3
and 4 “to determine the identity, composition, or the quantity of dust in the
ductwork of Mixers 3 & 4 that existed at the time of the inspection.”
(Resp’t’s Reply Br., p. 2.) The Secretary contends the Rust sample taken from
the mezzanine superstructure is a logical stand-in for the dust that was
actually in the cited ductwork. (Compl’t’s Post-Hr’g Br., p. 73.) However,
even the Secretary’s expert, Dr. Zalosh, did not share his speculative
viewpoint, opining that “[s]ince there are a lot of materials used in the
Mixing Department, I don’t have a way of relating Mr. Rust’s samples to all the
other materials used in the Mixing Department.” (Tr. 1147.) He conceded, “I
have not tried to calculate the quantitative amount of material on the bags in
the dust collector.” (Tr. 1185.)

The Secretary’s witnesses insist that all they need to
establish a Class II location is to show the mere presence of a dust with an
explosion severity index above 0.5. (Tr. 205-06, 686-87, 1127.) While this may
be the expedient approach adopted by the SLTC Laboratory, it is neither
warranted by scientific data nor the applicable regulations. Such an analysis
completely ignores the plain language of the standard that, “locations . . .
are classified depending on the properties of the flammable vapors, liquids or
gases, or combustible dusts or fibers that may be present therein and the
likelihood that a flammable or combustible concentration or quantity is
present.” 29 C.F.R. § 1910.307(a).

Most importantly, as indicated supra , the Secretary
relied on the purported K st value to support his allegation that the
carbon black dust at the Tupelo Plant was combustible. However, despite the
ASTM admonition that extrapolation was not appropriate, Anderson did exactly
that when he extrapolated the K st value from the data obtained from
the Class II test, which was obtained in a 1.2 liter Hartmann vessel, even
though Appendix E protocol instructs that the K st test should be
conducted in a 20-liter vessel. Therefore, the Court concludes that the
reported K st value was not reliable.

Further, the Court credits Dr. Meyers’s expert testimony
regarding what a worksite where carbon black dust exceeded the MEC would
actually look like, which, the Court concludes, shows that the carbon black
dust conditions at the Tupelo Plant at the time of the inspection did not exceed
the MEC:

The MEC of
the carbon black is approximately 50 grams per cubic meter in a number of
different MSDSs. There are some rules of thumb about the concentration of dust
that the MEC is, like if you held your hand in front of you, you wouldn't be
able to see your hand at that concentration, or there's a 25-watt light bulb
two meters away, six feet away, you wouldn't be able to see the light bulb through
those concentrations of dust. So, those concentrations are much higher than
what you would have in a normal work place. People don't work in those
environments. That's not a concentration of dust out where people are working.
Unless there's some severe upset, OSHA has a permissible exposure level for
carbon black of 3.5 milligrams per cubic meter so that factors over 10,000
times lower than the MEC. So, the concentrations where the dust starts to be a
breathing hazard are much lower than concentrations for an explosion hazard.

(Tr. 1702-03.) Here, the record is void of any evidence
from Rust’s inspection that “if you held your hand in front of you, you
wouldn't be able to see your hand at that concentration, or there's a 25-watt
light bulb two meters away, six feet away, you wouldn't be able to see the
light bulb through those concentrations of dust.” Therefore, the Court
concludes that the Secretary failed to establish that the carbon black dust was
at or above the MEC. Thus, the Court agrees with Cooper Tire that “the
Secretary has utterly failed to establish the hazardous properties of the dust
or the likelihood that a flammable or combustible concentration or quantity was
present on the Mezzanine of Cooper Tire’s Tupelo facility.” (Resp’t’s Reply
Br., p. 117.)

Citation Number 1, Items 2a and 2b

Alleged Serious violations of Section 1910.22(a)(1)

(General Housekeeping Standard)

The general housekeeping standard provides in paragraphs
(1) and (2) that “[a] places of employment, passageways, storerooms, and
service rooms shall be kept clean and orderly and in a sanitary condition[,]”
and that “[t]he floor of every workroom shall be maintained in a clean and, so
far as possible, a dry condition.” 29 CFR § 1910.22(a)(1), (2). Further,
“[w]here wet processes are used, drainage shall be maintained, and false
floors, platforms, mats, or other dry standing places should be provided where
practicable.” 29 CFR § 1910.22(a)(2). The Commission has held that “the
housekeeping standard is not limited to tripping and falling hazards, but may
be applied to [a] significant accumulation of combustible dust.” Con Agra,
Inc. v. Occupational Safety and Health Review Comm’n, 672 F.2d 699, 702 (8 th
Cir. 1982), citing Bunge Corp. v. Secretary of Labor , 638 F.2d at 834,
which reached the same conclusion. See also , Phoenix Roofing, Inc. v.
Dole , 874 F.2d 1027, 1034 (5th Cir. 1989) (noting that Bunge Corp.
had considered a violation of housekeeping regulations that “presented the
hazard of a possible explosion”).

According to the NEP, “[i]n situations where the . . . lab
results indicate that the dust is combustible, and the combustible dust
accumulations . . . are extensive enough to pose a deflagration, explosion, or
other fire hazard, then citations under 29 CFR 1910.22 (housekeeping) . . . may
generally be issued.” (C-20, p. 3.) Further, if “the surface dust accumulations
(i.e., dust accumulations outside the dust collection system or other
containers, such as mixers) can create an explosion, deflagration or other fire
hazard, then citations for violations of 29 CFR 1910.22 (housekeeping) shall be
issued.” ( Id. , p. 20.) Thus, the NEP indicates that citations for
violations of 1910.22(a)(1) shall be issued when the levels of dust
accumulations “exist in places of employment (except floors of workrooms and
storage areas), passageways, and service rooms, in such depths that they can
present explosion . . . or other fire hazards .” (Emphasis added.) (C-20, p.
21.) The NEP also indicates that citations for 1910.22(a)(2) shall be issued
when the levels of dust accumulations “exist on the floors of workrooms in
such depths that they can present explosion . . . or other fire hazards .”
(Emphasis added.) ( Id. )

In Citation Number 1, Item 2a, the Secretary generally
alleged that Cooper Tire committed serious violations of the general industry
housekeeping standard, 29 C.F.R. § 1910.22(a)(1), because “[p]lace(s) of
employment were not kept clean and orderly, or in a sanitary condition[.]”
(Compl. Ex. A, Cit., p. 7.) More specifically, the Secretary asserted that on
or about December 7, 2010, “on the mezzanine by mixer number 4, the carbon
black dust measured 1/8 to 3/16 inches thick on electrical boxes and controls”
and “3 to 4 inches thick on the overhead superstructure and metal framework
where the dust sample was taken.” ( Id. ) The Secretary also alleged that
“[o]n the same metal structure within 6 feet of the dust sample, the carbon
dust was 5 to 6 inches deep.” ( Id. ) Further, the Secretary asserted that
on or about December 7, 2010, on the mezzanine “by mixer numbers 2 and 3, the
carbon black dust had covered the cooling fins on electrical motors and the
motor’s fan guard openings” and “at the mezzanine level, the pipes, conduits, and
ventilation pipes, the carbon black dust was 1/8 to 3/16 inches thick.” ( Id. )
In Citation Number 1, Item 2b, the Secretary alleged that Cooper Tire violated
29 C.F.R. § 1910.22(a)(2) because the “[f]loor(s) of workroom(s) were not
maintained, so far as possible, in a clean condition[.]” More specifically, the
Secretary asserted that on or about December 7, 2010, “by the roller dyne
extruder, the carbon black dust had accumulated from 5 to 6 inches thick around
the base of the extruder.” ( Id. , p. 8.)

At trial, when asked what the nature of the hazard cited
was in these two items, Rust stated that it was “based upon a hazard of
creating or being part of a fire hazard that burns because of the dust.” (Tr.
156.) He stated the accumulations of dust “could be a fire hazard . . .
material catching on fire and burning.” (Tr. 182). However, the NEP indicates
that it “should not be construed to interfere with the application of 1910.22
or other housekeeping standards to the uncleanliness of workplaces unrelated to
the combustible dust hazard.” (C-20, pp. 21-22.)

The Fifth Circuit held that “[t]he existence of a hazard is
not always an element [ ] of the Secretary's burden of proof for showing
violation of an OSHA standard.” Bunge Corp. , 638 F.2d at 835. “When the
violative element is only a condition, hazard is presumed, and the Secretary
need only show the existence of the violative condition and worker exposure to
the condition” since “the housekeeping regulation goes only to proscribed
conditions and does not address hazards.” ( Id. at 835, 836.) “The type
of hazard [ ] is irrelevant to whether some condition or practice
constitutes a violation of this regulation . . . the hazard is presumed and is
relevant only to whether the violation constitutes a `serious’ one.” ( Id.
at 834.) “ Condition is what gives rise to a
violation here.” ( Id. )

Here, notwithstanding Rust’s opinions that Citation Number
1, Items 2a and 2b were based upon a fire hazard, as indicated supra , no
specific hazard was alleged in the violative description of Item 2a or 2b,
i.e., the violative element alleged was only a condition. Therefore, the Court
concludes that the hazard is presumed and in order for the housekeeping
standard to apply in the present case, the Secretary is not required to prove that
the dust accumulation was actually a combustible dust hazard, but need only
prove that the proscribed condition or practice existed ( i.e. , that the
cited areas were not kept clean and orderly and in a sanitary condition … and
that the cited workroom floor was not maintained in a clean and, so far as
possible, a dry condition). Nonetheless, given Rust’s admission that the
alleged hazard was a fire hazard, the existence of a fire hazard is relevant to
whether the alleged housekeeping violation constituted a “serious” one. As
indicated supra , the Court has concluded that the Secretary failed to
establish any hazard and therefore, any alleged housekeeping violation, if
proven, was not “serious.”

As to the merits of the alleged
housekeeping violation, Rust testified that any accumulation of dust greater
than a 32 nd of an inch was a per se violation of the
Housekeeping Standard. (Tr. 183, 211-12, 214-16.) Likewise, Dr. Zalosh
testified that Cooper Tire failed to comply with the Housekeeping Standard
because it allegedly allowed accumulations of carbon black to exceed 1/32 nd
of an inch. (Tr. 1022-23.) Thus, Dr. Zalosh opined in his report that the
fugitive dust accumulations he saw in Rust’s inspection photographs and
described in Citation Number 1, Item 2(a) “represent a clear departure from the
NFPA 654 requirements in Section 8.2.1[.2] Fugitive Dust Control General
Housekeeping and in Section 6.2.3 Use of Separation to limit dust fire or
explosion hazards.” (C-36, p. 14.) “Paragraphs
6.2.3.1 and 6.2.3.2 define the hazardous area to be where dust accumulation
thicknesses exceed 1/32 Inch (0.8 mm) scaled up by the ratio of the
reference bulk density value (75 lb/ft 3 ) to the actual dust bulk density.”
(Emphasis added.) ( Id. )

Paragraph 8.2.1.2 of NFPA 654 indicates that “[r]egular
cleaning frequencies shall be established for walk, floors, and horizontal
surfaces, such as equipment, ducts, pipes, hoods, ledges, beams, and above
suspended ceilings and other concealed surfaces, to minimize dust accumulations
within operating areas of the facility.” (C-42, p. 19.) The NEP also references
Annex D of NFPA 654 and indicates that Annex D “contains guidance on dust layer
characterization and precautions. It indicates that immediate cleaning is
warranted whenever a dust layer of 1/32-inch thickness accumulates over a
surface area of at least 5% of the floor area of the facility or any given
room.” (C-20, p. 16.) It also indicates that
“[r]ough calculations show that the available surface area of bar joists is
approximately 5% of the floor area and the equivalent surface area for steel
beams can be as high as 10% .” ( Id. ) Rust testified that “these were actually
steel beams so I think there's justification to go as high as ten percent.”
(Tr. 214.)

However, Dr. Meyers opined that although the
photographs taken by Rust from the Tupelo Plant show local accumulations at
some elevated surfaces, “OSHA has not provided any calculation or estimate of
the fraction of the horizontal area that was covered with dust.” Thus,
according to Dr. Meyers, “OSHA did not supply sufficient information about the
extent of dust accumulations to evaluate if an unacceptable hazard exists.”
(R-41, pp. 36, 38.) The Court agrees. Since the Secretary failed to establish
that a dust layer “of 1/32-inch thickness accumulate[d] over a surface area of
at least 5% of the floor area of the facility or any given room” or that the
equivalent surface area for the steel beams exceeded 10%, he likewise failed to
establish that the accumulations were capable of creating a hazardous
condition.

Further, as indicated supra , Rust
collected only one dust sample from one of the five areas cited in Citation
Number 1, Items 2a and 2b and failed to take any samples of the dust in the
ductwork and dust collector, which were cited in Citation Number 2, Item 1. However, the sampling protocol described
in Appendix E of the NEP required testing of three to five dust concentrations,
from 500 g/m3 to about 2500 g/m3, for each sample. ( See C-20, p. 39.)
The testing was not performed per this protocol since only one sample
was provided by Rust to the SLTC. Therefore, the Court concludes that any analysis based upon the
single Rust sample was unreliable and any opinions based upon that sample were
of little value. In re Paoli R.R. Yard PCB Litig ., 35 F.3d at 745.

Significantly, Cooper Tire also argues,
and the Court agrees, that “the Secretary cannot rely on NFPA 654 to show
Cooper Tire acted unreasonably if it allowed carbon black dust to accumulate
more than 1/32 nd of an inch because at the time of the time of the
inspection, no such explicit proscription was contained in that standard.”
(Resp’t’s Post-Hr’g Br., p. 141.) As explained by Dr. Myers, in “NFPA 654, the
only place that referenced 1/32 nd of an inch wasn’t in the section
that described whether or not you had an explosion hazard. It was in a section
that talked about how to separate areas with a hazard from a non-hazard and the
quantity of dust you could have over some distance if you’re trying to use
segregation of areas to separate the areas.” (Tr. 1807-09.)

Significantly, in the Secretary’s post-trial brief he cites
to Rima’s testimony that “NFPA 654 applies to [Cooper Tire’s] facility
because it handles combustible dust in its manufacturing process” and that NFPA
654 “ applies to `all phases’ of “manufacturing, processing, blending,
pneumatic conveying, repackaging, and handling of combustible particulate
solids or hybrid mixtures, regardless of concentration or particle size, where
the materials present a fire or explosion hazard.” (Emphasis added) (Compl’t’s
Post-Hr’g Br., p. 39; Tr. 202).

However, at the time that NFPA 654 became relevant for tire
manufacturing, “Cooper Tire’s Tupelo facility either existed or was approved
for construction.” (Resp’t’s Post-Hr’g Br., p. 64.) Therefore, Cooper Tire
argues that “because Chapter 7 is not applied retroactively to existing
equipment, the terms of Chapter 7 do not apply to the Cooper Tire’s Tupelo facility.”
( Id. , pp. 64-65.) In response, the Secretary argues that “where the
authority having jurisdiction determines that the existing situations presents
an unacceptable degree of risk, the authority having jurisdiction shall be
permitted to apply retroactively any portions of this standard deemed
appropriate.” ( Id. , pp. 39-40) ( Citing C-42, p. 8.) The Secretary
asserts that he is an “authority having jurisdiction,” citing in his post-trial
brief to Annex A of NFPA 654:

The phrase
‘authority having jurisdiction,’ or its acronym AHJ, is used in NFPA documents
in a broad manner , since jurisdictions and approval agencies vary, as do
their responsibilities. Where public safety is primary, the authority having
jurisdiction may be a federal, state, local, or other regional department or
individual such as a fire chief; fire marshal; chief of a fire prevention
bureau; labor department , or health department; building official;
electrical inspector; or others having statutory authority.

(Emphasis in original) (Compl’t’s Post-Hr’g Br., p 40) ( Citing
C-42, pp. 23-24). The Secretary further notes in his post-trial brief that
“OSHA has held itself out as an AHJ as defined by the NFPA.” (Compl’t’s
Post-Hr’g Br., p. 90 n. 11.)

However, in American Phoenix , the Secretary took a
contrary position when American Phoenix argued that the NEP “in effect, creates
a substantive rule that required employers to comply with the [NFPA 654].” Am.
Phoenix, Inc. , 24 BNA OSHC at 2234. In that case, the Secretary argued that
“the NEP does not require Respondent to do
anything; rather, it `simply provides guidance to OSHA Area Offices on how to determine whether
an employer, upon inspection, is in violation of the General Duty Clause’” and that with respect to NFPA 654 the NEP only states that
it “should be consulted to obtain evidence of hazard recognition and feasible
abatement methods.” Id. The Secretary’s position in American Phoenix
comports with Commission precedent that voluntary industry standards may be
cited as evidence of industry recognition of the cited hazards . See,
e.g. , Cargill, Inc. , 10 BNA OSHC 1398, 1403 (No. 78-5707, 1982) ( vacating
ALJ’s ruling that NFPA 61B was not acceptable proof of industry recognition of
hazards associated with grain dust and grain-handling equipment and noting that
construction of employer’s facility before effective date of consensus standard
had “no bearing on its relevance to industry awareness” of hazards); Kokosing
Constr. Co. , 17 BNA OSHC 1869 (No. 92-2596, 1996) (holding that voluntary
industry codes may be used to demonstrate industry recognition).

However, the Court notes that “standards should aim toward
correction rather than mere inquiry into possible hazards.” Louisiana Chem.
Ass'n v. Bingham , 657 F.2d 777, 782 (5th Cir. 1981). Thus, “[a] standard
performs the function of correcting or ameliorating a particular hazard, which
the Supreme Court has defined as a “significant risk[.]” Id. , 657 F.2d
at 783 (citing Industrial Union Dept. v. American Petroleum Institute ,
448 U.S. 607 (1980)). However, if the basic function of NFPA 654 is to
“address[] ... a specific and already identified hazard,” and it is “not a
purely administrative effort designed to uncover violations of the Act,” then
it “is a standard.” Chamber of Commerce of U.S. v. U.S. Dep't of Labor ,
174 F.3d 206, 209 (D.C. Cir. 1999) (quoting Louisiana Chemical Ass'n v.
Bingham , 657 F.2d 777, 782 (5th Cir. 1981)).

“[T]the distinction between substantive and procedural
rules is one of degree’ depending uponwhether the substantive effect is
sufficiently grave so that notice and comment are needed to safeguard the *318
6 policies underlying the APA.’” Elec. Privacy Info. Ctr. v. U.S. Dep't of
Homeland Sec. , 653 F.3d 1, 5-6 (D.C. Cir. 2011) (citing Lamoille Valley
R.R. Co. v. ICC, 711 F.2d 295, 328 (D.C.Cir.1983). “Our cases “make clear
that an agency pronouncement will be considered binding as a practical matter
if it either appears on its face to be binding, or is applied by the agency in
a way that indicates it is binding.” Elec. Privacy Info. Ctr. , 653 F.3d
7, (citing Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C.Cir.2002)
(internal citation omitted)). See also Chamber of Commerce, 174 F.3d at
212–13). Since the Secretary is now arguing that NFPA 654 “applied” to the
Tupelo Plant and that Cooper Tire was “required” to comply with it and that
OSHA was an “authority having jurisdiction” with the authority to enforce it,
NFPA 654 is now a standard “aimed towards correction rather than mere inquiry
into possible hazards.” The Court therefore concludes that the Secretary has
impermissibly transformed this “purely administrative effort to uncover
violations” into a new standard. Accordingly,

ORDER

IT IS HEREBY ORDERED THAT for all the reasons indicated  supra , the
remaining citations and proposed penalties are  VACATED .

SO ORDERED THIS 17 th day of March, 2015 .

/s/                                               

JOHN
B. GATTO, Judge

U.S.
Occupational Safety And

Health
Review Commission