Imperial Aluminum

Plain-English summary

Imperial Aluminum was installing a new rotary furnace when an outside contractor troubleshooting its gas-flow controls allowed natural gas to accumulate and then opened the furnace door while the pilot remained lit. The resulting explosion damaged ductwork and released a fireball, but no employees were injured. OSHA alleged that missing safety interlocks and related procedures exposed workers to explosion, struck-by, and crushing hazards. The judge found that the Secretary did not show the cited NFPA provisions applied during the furnace's setup stage or that noncompliance with them created the specific hazard. The contractor acted alone, was qualified for the specialty work, and did not inform Imperial of his actions, so Imperial neither recognized nor knew of the hazard. The general duty clause citation was vacated with no penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious general duty clause citation was vacated, with no penalty.
• Key point: An employer may reasonably rely on a qualified specialty contractor when it has no reason to foresee that contractor's unsafe work method.

Full text (OSHRC public release)

                        United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1924 Building – Room 2R90, 100 Alabama Street SW
                                   Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,

           v.                                               OSHRC Docket No. 12-1129

Imperial Aluminum,
Respondent.

Appearances:

   Brian D. Mauk, Esquire, U.S. Department of Labor, Office of Solicitor, Nashville, Tennessee
            For the Secretary

   Melissa Livingston, pro se, Safety Director, Imperial Aluminum, Scottsboro, Alabama
           For the Respondent (Appearance prior to and at hearing)

   Mark D. Katz, Esquire, Ulmer & Berne, LLP, Cleveland, Ohio
           For the Respondent (Appearance post hearing)

BEFORE: Administrative Law Judge Sharon D. Calhoun

                                  DECISION AND ORDER
   Imperial Aluminum (Imperial) operates a secondary aluminum production facility in

Scottsboro, Alabama. On November 22, 2011, the Occupational Safety and Health
Administration (OSHA) conducted a limited inspection of the facility in response to a complaint
reporting that an explosion had occurred ten days earlier. As a result of the OSHA inspection, on
May 7, 2012, the Secretary issued a Citation and Notification of Penalty to Imperial. The
citation alleges Imperial committed a serious violation of the general duty clause, § 5(a)(1) of the
Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651-657, by exposing
employees to struck-by, crushed-by, and explosion hazards during the installation of a new
furnace. The Secretary proposed a penalty of $5,390.00 for the violation.
Imperial timely contested the citation. The undersigned held a hearing in this matter on
February 20, 2013, in Huntsville, Alabama. Imperial stipulated the Commission has jurisdiction
over this proceeding under § 10(c) of the Act and is an employer engaged in a business affecting
interstate commerce under § 3(5) of the Act. Imperial contends the Secretary failed to establish a
§ 5(a)(1) violation.
The undersigned determines the Secretary failed to establish that a recognized hazard
existed and that Imperial had actual or constructive knowledge of the cited hazard. The citation is
vacated.
Background
Imperial’s customers bring scrap aluminum to its facility in Scottsboro, Alabama, where
Imperial melts it, removes impurities, and recasts it into large bars. Imperial then stores the
recast aluminum in warehouses until the customers return to pick it up. Imperial uses rotary
furnaces to melt the aluminum. A rotary furnace consists of a large cylindrical container, like a
concrete mixer, equipped with a ceramic shell liner. The shell is heated with a combination of
oxygen and natural gas. The heated shell melts the aluminum (Exh. C-4; Tr. 166-167).
A housing/vent stack is built over the furnace. The unit is approximately 20 feet wide
and 40 to 50 feet tall, and is built up to the ceiling of the facility. Metal ductwork from the unit
extends outside to the roof and across into the bag house. The bag house is a separate building
where the furnace emissions are vented and cleaned for environmental safety (Exhs. C-4, C-5, C-
7 and C-9; Tr. 33-36, 41-43). The furnace operates on natural gas and oxygen, which is supplied
by valves and piping referred to as the “gas train” (Tr. 28, 47). The furnace operator stands in
the “crow’s nest,” an elevated platform located approximately 20 feet from the furnace. The
crow’s nest is 15 to 20 feet high and is surrounded by Plexiglas. The operator uses a control
station/module located at the crow’s nest to operate the furnace (Exhs. C-1, C-2, and C-3; Tr. 28,
39, 47).
On November 12, 2011, Imperial’s original rotary furnace (Rotary 1 Furnace) was
operating. Imperial was in the process of installing a new rotary furnace (Rotary 2 Furnace)
which would enable the company to double its production (Tr. 159). Rotary furnaces are
equipped with “Delta Pressure Transducers,” which are referred to by their brand name
“Rosemounts.” Rosemounts are electronic flow devices which sense the gas flow and meter it to
assure the combustion system is calibrated correctly. Charles Stalnaker is Imperial’s project
manager at the facility. He discovered the Rosemounts were not working, so he contacted an
outside contractor (Contractor), who had worked with Imperial previously to program the
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Rosemounts (Tr. 148-149). When the Contractor arrived at the site on November 12, 2011, he
and Stalnaker spoke briefly and the Contractor told Stalnaker he would take care of the Rotary 2
Furnace (Exh. C-11). The Contractor told Stalnaker, “Go. We’ll get it.” (Tr. 151).
After Stalnaker left, the Contractor worked with the assistance of two Imperial
employees. One of the Imperial employees and the Contractor lit the pilot light for the Rotary 2
Furnace (two people are required to perform the task). To light the pilot light, the Contractor
stood in the crow’s nest at the control panel, while one of the Imperial employees held a long
pole with a lighted kerosene-soaked rag attached at the end to the burner (Tr. 68). After the pilot
light was lit, the Contractor came down from the crow’s nest and went to the gas train to check
the readings. He discovered the natural gas was flowing into the furnace at “high fire,” but no
oxygen was flowing (Tr. 48, 96). This situation created an unsafe condition because the natural
gas was building up pressure inside the furnace instead of being burned off (Tr. 96-97).
The Contractor wanted to stop the flow of natural gas to the furnace and relieve the
pressure. He went back up into the crow’s nest and turned off the flow of natural gas. The
Contractor also opened the furnace door to relieve the pressure. When he opened the door, air
from outside the furnace entered it and ignited the natural gas, causing an explosion. The
explosion created a fireball that burst out of the furnace. The Contractor felt the heat of the
fireball as he stood in the crow’s nest, 20 feet away. The fireball left scorch marks on the
furnace. The explosion traveled up through the ductwork and damaged several sections of the
duct work as well as several duct support beams. No employees were injured (Exhs. C-4 through
C-9; Tr. 64-65, 97-98).
Jennifer McWilliams is an OSHA Safety Engineer (a Compliance Safety and Health
Officer (CSHO) with an additional educational background in engineering). Safety Engineer
McWilliams earned a degree in Mechanical Engineering from the University of Alabama and an
MBA from Florida Atlantic University (Tr. 14-16). She arrived at Imperial’s facility on
November 22, 2011, to initiate an inspection in response to the complaint to OSHA regarding the
explosion (Tr. 23). During the inspection, she interviewed Imperial employees and took
photographs of the relevant areas of the facility (Tr. 23-25). She interviewed the Contractor on
January 26, 2012 (Exh. C-12). As a result of McWilliams’ inspection, the Secretary issued the
citation that gave rise to this proceeding.
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 The Citation
The Secretary charges Imperial with a serious violation of § 5(a)(1). The citation alleges:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer
did not furnish to each of his employees a place of employment which was free
from recognized hazards that were causing or likely to cause death or serious
physical harm to his employees in that employees were exposed to a struck-by,
crushed-by and explosion hazards:
(a) On or about November 12, 2011 - at Rotary 2 Furnace, when
troubleshooting the gas train system during installation of a new
furnace.
Among other methods, one feasible and acceptable method to correct this hazard
would be to comply with the requirements of the National Fire Protection
Association standard, NFPA 86, Standard for Ovens and Furnaces, 2007 edition,
regarding the use of documented safety interlocks including those to prevent fuel
gas from being admitted prior to establishment of combustion air and furnace
heating system operation without essential fan or ventilations systems
functioning; following safe operating procedures, and properly training
employees.

                           Elements of a § 5(a)(1) Violation

   Section 5(a)(1) of the Act mandates that each employer “furnish to each of his
   employees employment and a place of employment which are free from
   recognized hazards that are causing or are likely to cause death or serious physical
   harm to his employees.” 29 U.S.C. § 654(a)(1). To establish 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. Pegasus
   Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No.
   01-0547, 2005).

Erickson Air-Crane, Inc., 2012 WL 762001 at *2 (No. 07-0645, 2012).
In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also
establish the employer had either actual or constructive knowledge of the hazardous condition.
Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South
Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013).

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(1) The Cited Condition Presented a Hazard
The Commission has held that, as part of his burden for proving a § 5(a)(1) violation, 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 Co., 21 BNA OSHC 2205, 2206 (No.
03-1344, 2007).
Imperial argues the Secretary failed to define the hazard adequately in the citation. The
undersigned disagrees. Imperial was aware of the November 12, 2011, explosion and its
attendant property damage. The citation cited Imperial for exposing employees to “a struck-by,
crushed-by and explosion hazards” and referred to the National Fire Protection Association
(NFPA) standard that requires the use of safety interlocks designed “to prevent fuel gas from
being admitted prior to establishment of combustion air and furnace heating system operation
without essential fan or ventilation systems functioning.” The citation adequately gave Imperial
fair notice of the conditions for which it was being cited.
The Secretary also has established the cited condition presented a hazard. It is
undisputed that when the Contractor opened the door to the Rotary 2 Furnace, an explosion
occurred which damaged sections of ductwork and which released a fireball whose heat the
Contractor felt from 20 feet away. The Secretary has proven the first element of the violation.
(2) The Hazard Was Likely to Cause Death or Serious Physical Harm
Imperial had 10 to 12 other employees working in the same building at the time of the
explosion. Three or four employees of another contractor were working outside on the new bag
house (Tr. 122, 76). Imperial had not set up barricades to keep employees away from the Rotary
2 Furnace area, as was its regular practice when a furnace was being worked on (Tr. 151).
Employees had access to the zone of danger created by the explosion.
The Secretary has established the explosion hazard was likely to cause death or serious
physical harm if any of the employees present had happened to be within the zone of danger
when the explosion occurred.
(3) Feasible Means of Abatement
Safety Engineer McWilliams testified Imperial could have abated the cited hazard in a
number of ways:
5
 Some of the different ways that we’ve talked about are in regards with
ensuring safety interlocks are in place and are operating before fuel is allowed
into the system, such as some of the ones indicated in the NFPA 86, where fuel is
not allowed to flow unless combustion air is already established and prior to
letting . . . the natural gas fuel flow in, to ensuring that the ventilation system is
operating and being able to pull that airflow through and ventilate so that you
don’t end up creating the situation that [the Contractor] felt he was in, where
basically he had a bomb, he—he was building up pressure and didn’t have any
way to relieve it. . . .
Another type of way that would have helped to prevent this would have
been that if the pilot light had been turned off before the door was opened, was
another way. [The Contractor’s] main concern was stopping that fuel flow of gas
pressure, relieving the pressure, but if the pilot light had been turned off and there
had been no ignition source, opening the door would not have caused the fireball.
...
Another way the gas flow could have been shut off is there could have
been a manual hand valve installed in the system so that when he was down there
troubleshooting the actual equipment and he saw that the gas valves were fully
opened, instead of having to take that additional time and concern to go back up
to the crow’s next to be able to close that valve, if the manual valve had been
installed, he could have just turned the hand valve and shut the flow of fuel off,
and that possibly could have given him more time to evaluate the situation.
(Tr. 122-124).
She also suggested the Contractor could have used an inert gas instead of natural gas
when troubleshooting the Rotary 2 Furnace: “[A]n inert gas could have been used if you needed
to have flow through the system, such—for instance, you could use nitrogen or helium. You can
flow gas through there to verify flow and your valves are functioning correctly, but you don’t—
you’re not flowing a flammable gas” (Tr. 126).
All of these means of abating the hazard are feasible. Imperial installed a safety interlock
on the Rotary 2 Furnace approximately one week after the explosion (Tr. 124). The Secretary
has established this element.
(4) Employer or Industry Recognition of the Hazard
An essential requirement for meeting the Secretary’s burden of proof is establishing the
employer had knowledge of the hazard. “As part of the Secretary’s prima facie case, [he] must
show that the employer had actual knowledge of the violation or could have discovered it with
the exercise of reasonable diligence.” Otis Elevator Co., 21 BNA OSHC at 2207.

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The Secretary did not raise the issue of employer knowledge at the hearing, nor did he
address the issue in his post-hearing brief. It is undisputed that the person responsible for
operating the Rotary 2 Furnace in an unsafe manner was a third-party consultant who was not
employed by Imperial. Because the issue of employer knowledge is intertwined with the issue of
recognized hazard, it will be addressed in this section.
In his post-hearing brief, the Secretary musters only a cursory argument that he has
established the cited hazard is recognized by either Imperial or the industry:
There is no dispute that this explosion hazard is recognized by respondent and by
the industry. An industry-wide standard has been published to prevent this type
of hazard, the NFPA 86 (C-13). Respondent’s witness, Michael Chenoweth,
testified that NFPA is “definitely applicable to our particular industry” (Tr. 179).
Respondent has implicitly acknowledged that hazards exist in the installation and
set-up of a new furnace by bringing in third-party contractors who are more
qualified to perform this type of work.
(Secretary’s brief, p. 7).
Michael Chenoweth is Imperial’s vice-president of operations (Tr. 166). The
phrase attributed to him by the Secretary is taken out of context. The pertinent question
and answer at the hearing was as follows:
Q. And in your experience and expertise, would you say that the specific cited
NFPA standards apply or do not apply to what we are going through today with
the explosion, the scope, the purpose, applications?
Chenoweth: Parts and pieces. They’re, you know—it’s definitely applicable to
our particular industry, parts and pieces. Does every single thing here directly
apply? No, because there are, you know, differences within our particular actual
equipment.
(Tr. 179).
The National Fire Protection Association standard cited by the Secretary, NFPA 86, is the
“Standard for Ovens and Furnaces” (Exh. C-13). The standard “provides the requirements for
furnaces to minimize the fire and explosion hazards that can endanger the furnace, the building,
or personnel.” (C-13, § 1.2). It is undisputed that Imperial was in the process of installing the
Rotary 2 Furnace and so had not yet brought the furnace into full compliance with NFPA 86.
Stalnaker testified the installation of a furnace can take six months to a year to complete (Tr.
159). Imperial was not operating the Rotary 2 Furnace at the time of the explosion. It was not
until January or February of 2012 that it began operating the Rotary 2 Furnace (Tr. 162).
7
 At the hearing, the Secretary specified certain sections of NFPA 86 he deemed applicable
to the instant case. Section 3.3.33.2 defines “safety interlock” as “A device required to ensure
safe start-up and safe operation and to cause safe equipment shutdown.” Section 6.2.3.4
provides:
Where primary or secondary combustion air is provided mechanically,
combustion airflow or pressure shall be proven and interlocked with the safety
shutoff valves so that fuel gas cannot be admitted prior to establishment of
combustion air and so that the gas is shut off in the event of combustion air
failure.
An industry standard demonstrates industry recognition only when it is established that
noncompliance with the industry standard created the cited safety hazard. K.E.R. Enterprises,
Inc., dba Armadillo Underground, 2013 WL 157681 (No. 08-1225, 2013). Chenoweth explained
that the Rotary 2 Furnace is equipped with an electronic eye and pressure switches on the fuel
system. The electronic eye focuses on the furnace’s flame. If it detects insufficient oxygen to
maintain the flame, the furnace shuts down. Although the oxygen supply flow was not
functioning correctly the day of the explosion, air was still entering the furnace from the outside
exhaust port and from the mouth of the furnace (Tr. 194-196). The electronic eye performed the
equivalent safety function as the safety interlock. The absence of the safety interlock on the
oxygen line did not create the cited hazard.
The cited hazard was the result of operator error on the part of the outside Contractor.
Chenoweth testified:
Generally, we don’t have this problem. We’ve been through multiple
installations like this before, and we’ve never had an issue. I think this was an
isolated case where the contractor left the burner on high fire for a period of time,
and that’s what we would say was his first error in doing this.
In order to check the flow, all he had to do was leave the pilot light on. He
did not have to have the high fire on, so we’re not sure why he had to turn the
high fire on. You just need to have a little bit of flow going in order to check the
valves. And then not shutting it—the burner off entirely so that eliminated the—
the flame was the ultimate culprit behind this.
(Tr. 177).

                                            8

When the contractor opened the door to the furnace, the inrush of air caused the
explosion. Safety Engineer McWilliams acknowledged it was the Contractor’s actions what
created the hazard:
Another type of way that would have helped to prevent this would have been that
if the pilot light had been turned off before the door was opened, was another
way. [The Contractor’s] main concern was stopping that flow of gas pressure,
relieving the pressure, but if the pilot light had been turned off and there had been
no ignition source, opening the door would not have caused the fireball.
(Tr. 123).
In his statement taken by McWilliams, the Contractor confirms he acted alone in deciding
on the course of conduct that resulted in the November 12, 2011, explosion. He stated that after
one of Imperial’s employees helped him light the pilot light, the employee wandered off. Once
the Contractor realized the gas was flowing at the high fire setting with no flow from the oxygen
line, he scrambled to correct the situation:
Lonely feeling when you look up & find yourself all alone & something needs to
be done. At least an additional 40-50 seconds of flow. Every second bad.
Instead of trying to find someone to help I decided to stop the flow & relieve the
pressure. It would have been 5-10 minutes to find someone.
(Exh. C-12, p. 8).
The Secretary also cited § 8.5.1 of NFPA 86, which provides: “Where a fan is essential
to the operation of the oven or allied equipment, fan operation shall be proved and interlocked
into the safety circuitry.” Imperial contends that, while a fan is used with the Rotary 2 Furnace,
it is not essential to the operation of the oven. Chenoweth stated:
This particular furnace does not require any secondary assistance or
operation of a fan, per se, for its operation. Again, the purpose of the bag house is
primarily as an environmental control capture unit. Does it assist in some of the
ventilation? Yes, because it creates a natural draw so that all the emissions
actually are contained and sent to the particular bag house and contained within
the bags themselves.
But this particular design does not, you know—I’ve said the ventilation on
this one is the actual door and opening of the door itself. That’s how this
particular door is ventilated.

(Tr. 178-179).

                                             9

The Secretary has failed to establish the sections of NFPA 86 cited by him apply to the
Rotary 2 Furnace being installed by Imperial. Safety Engineer McWilliams acknowledged there
is a difference between a setup and a startup of a furnace. A setup is “the installation of the
equipment and the initial check out and operation of the system,” while a startup is “when you
are getting ready to run production” (Tr. 137). The Secretary has not shown that the NFPA
advisory standard applies to furnaces in the setup stage. When it can take six months to a year to
install a furnace, some elements will necessarily be installed later than others.
The Secretary also has failed to establish Imperial had either actual or constructive
knowledge that a hazard had been created. The Contractor alone decided to use the high fire
setting while troubleshooting the gas train. He was working alone at the time he decided to open
the furnace door while the pilot light was still on (Exh. C-12). The Contractor was not an
employee of Imperial and his knowledge of his own actions cannot be imputed to Imperial. The
two Imperial employees working with the Contractor were not supervisors and they were not
aware of the Contractor’s actions once the pilot light was lit. Imperial had no actual knowledge
of the hazardous activity.
Nor did Imperial have constructive knowledge of the hazardous activity. “The test is
whether the Secretary established that [the employer] could have discovered the violative
condition through the exercise of reasonable diligence.” Otis Elevator, 21 BNA OSHC at 2208.
Imperial reasonably relied on the Contractor to perform the contracted work safely.
Without actually charging that Imperial contracted with an unqualified consultant, the
Secretary implies Imperial was at fault for not engaging someone else (“Respondent could have
brought in a third-party contractor who had prior experience installing these types of furnaces”
(Secretary’s brief, p. 9)). Safety Engineer McWilliams, however, testified the Contractor was
qualified and capable of performing the work for which he was contracted.
Q. Do you believe that Imperial Aluminum engaged in a reputable contractor
prior—with prior experience and expertise in troubleshooting these types of
systems? Do you believe [the Contractor] had experience with PLC programs
and, you know, troubleshooting and calibrating?

   McWilliams: Based on his interview, yes.

(Tr. 136-137).

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The Commission has held that an employer reasonably may rely on an outside contractor
to perform specialty work within its expertise, even when assisted by the employer’s employees:
[T]he fact that the cited employer has employees who assist in the work and have
access to potential hazards does not mean that the employer cannot reasonably
place some reliance upon the independent contractor. In many situations in the
workplace, it is natural for an employer to rely upon the specialist to perform
work related to that specialty safely in accordance with OSHA standards. Cf.
Cities Service Oil Co., . . . 4 BNA OSHC 1515, 1518 . . .(No. 4648, 1976), aff’d.
577 F.2d 126 (10th Cir. 1978) (“Normally, when an employer hires an
independent contractor to perform certain work, it relies on the contractor’s
expertise to perform the work correctly.”)
Sasser Electric & Manufacturing Co., 11 BNA OSHC 2133, 2136 (No. 82-178, 1984).
The Secretary has failed to establish that either Imperial or its industry recognized the
cited hazard, which was created solely by a third-party contractor. The Secretary did not
establish that Imperial was required to have the safety interlock installed at that stage of the setup
of the Rotary 2 Furnace. The record establishes that no Imperial employee, supervisory or not,
had actual knowledge of the cited hazard. The Secretary has failed to prove Imperial had
constructive knowledge of the cited hazard. Imperial reasonably relied on the Contractor’s
expertise to perform the work safely. Imperial could not reasonably foresee the Contractor
would engage in the unsafe work practices that caused the explosion.
Item 1 of the citation is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is HEREBY ORDERED that the Citation and
Notification of Penalty, alleging a serious violation of § 5(a)(1), is vacated and no penalty is
assessed.
SO ORDERED.
/s/
Sharon D. Calhoun
Date: November 18, 2013 Administrative Law Judge
Atlanta, Georgia

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