Stone Container Corp.

Plain-English summary

Stone Container operated a paper and linerboard mill with a black liquor recovery boiler in Montana. A boiler explosion burned three employees, and one employee later died from the injuries. OSHA cited the company for not requiring protective clothing and self-contained respirators during boiler upset conditions. The judge found that Stone recognized the explosion hazard and used training, evacuation procedures, respirators in the control room, and an explosion-proof control room. The citation was vacated because OSHA did not prove that the industry recognized the cited protective equipment as necessary or that practical, effective clothing was available for routine use in the hot boiler area.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a)
• Outcome: Serious personal protective equipment citation vacated
• Key point: OSHA proved an explosion hazard but did not prove that the proposed protective clothing and respirators were a recognized, practical, and effective response.

Full text (OSHRC public release)

,.
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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006-t 246

                                                                                               FAX
                                                                                               CGM     ,252)    63a-4008
                                                                                               FTS   (252)     634-4008
 SECRETARY       OF LABOR                                                   I
                   Complainant,                                                 OSHRC DOCKET
          v.                                                                     NO. 91-3457

 STONE CONTAINER CORPORATION,
              Respondent,
 UNITED PAPERWORKERS INTERNATIONAL
 UNION, HELLGATE LOCAL 885,
              Authorized Employee
              Representative.


                        YOTICE OF DOCKETING
                 OF ADMINISTRATIVE LAW JUDGE’S DECISION

      The Administrative L;tw Judge’s Report in the above referenced case was
 docketed with the Commission on February 18, 1993. The decision of the Judge
 will become a final order of the Commission on March 22, 1993 unless a
 Commission member directs review of the decision on or before that date. ANY
 PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
 COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
 Any such petition should be received by the Executive Secretary on or before
 March 10, 1993 in order to ermit sufficient time for its review. See
 Commission Rule 91, 29 C. P .R. 2200.91.

    All further pleadings or communications                regarding this case shall be
 addressed to:
                         Executive Secretary
                         Occupritional Safetv and Health
                          Review Commission
                         1825 K St. N.W., Room 301
                         Wash i ngton, D.C. 20006- 1246
 Petitioning parties shall 31~0 mail a copy to:
                         Dand J. Mick, Esq.
                         Counsel for Regional Trial Liti ation
                         Oiiice ot‘ the Solicitor, U.S. DO5
                         Room S-W4
                         ZOO ConMution      Avenue, NW.
                         ~V;ishmcton,      D.C. 20210

DOCKET NO. 91-3457

If a Direction for Review is issued by the Commission, then the Counsel for
Re@ond Trial Litigation will represent the Department of Labor. Any party
havq questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.

Date: February 18, 1993

                                                                     . .

_ DOCKET NO. 91-3457
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, J%qa
Counsel for Re ‘onal Trial Liti ation
Office of the SoT kitor. U.S. DOc
Room S4004 -
200 Constitution Ave., N.W.
Washington, D.C. 20210

Tedrick Housh, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
Federal Office Bldg., Ro& 2106
911 Walnut Street
Kansas City, MO 64106

John M. Husband. Esauire
Judith A Bi s, Esquirk
Holland & &r:art
Post Office Box 8749
Denver, CO 80202

Robert J. Nixon, Chairman
Robert L. Cul , Asst. Chairman
Hellgate Loca P No. 885
Post Office Box 8885
Missoula, MT 59807

Benjamin R. Lo e
Administrative Li w Jud e
Occupational Safety an cf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582

00107214348:08
 OCCUPATION& SAFETY .AND HEALTH REVEW CO~MIS’SION
1244N. SEER BOULEVA~
RooM2so
DENVER,Colors 80204-3582

                                                                                fAx
                                                                                cmm3)844-37s
                                                                                FE(303)
                                                                                     844-3749




                                                     I

SECRETARY OF LABOR, I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 91-3457
I
STONE CONTAINER CORPORATION, 1
Respondent, I
.
I
and I
I
UNITED PAPERWORKERS I
INTERNATIONAL UNION, I
HELWA’IE IDCAL 885, I
Authorized Employee I
Representative. I
I

APPEARANCES:
Tobias B. Fri~ Esq., Offia of the Solicitor, U.S. Departmentof Labor,
Kansas city, Missouri

      John M. Husband, Esq., Holland & Hart, Denver, Colorado

Before: Administrative Law Judge Benjamin R. Loye

                                 DECISION AND ORDER


      This proceeding       arises under the Occupational Safety and Health Act of 1970

(29 U.S.C. Section 651 a seq.; hereafter called the “Act”).
 Respondent, Stone &Nainer bporation (stone), at d times rekvant to &j~
action maintained a w&site and place of business at Mullan Road, Frenchtown,
Montana, where it was engaged in paper and liner-d manufacturing (Mer f1).
Stone admits it is an employer engaged in a business affecting commem and is sub-
ject to the requirements of the Act (Tr. 23, Answer 12).
On May 15, 1992, an Occupational Safety and Health Administration @SW)
Compliance Ofker (CO) conducted an inspection of Stone’s Frenchtown worksite (Tr.
50). Following the inspection, Stone was issued a “serious” citation alleging violation
of 29 CFR 81910.132(a), together with proposed penalty. Stone filed a timely notice
of contest to the citation bringing this proceeding before the Occupational Safety and
Health Review Commission (commission).
On October 21-22, 1992 a hearing was held in Missoula, Montana, on the con-
tested item. The parties have submitted briefs and this matter is ready for disposition.
Alleged Violations
Serious citation 1, item 1 states:
1
29 CFR 1910.132(a): Protective equipment was not used when necessary whenever
hazards capable of causing injury and impairment were encountered.

    (a) At Stone Container:      On or about 05/14/W and at times prior thereto
    respiratory protection for emergency evacuation was not worn when employees
    were exposed to the hazards of hot steam and caustic chemicals while working
    outside of the explosion proof control room in the #4 black liquor recovery
    boiler building.

    (b) At Stone Container:      On or about 05/14/W and at times prior thereto
    protective clothing was not worn when employees were exposed to the hazards
    of hot steam and caustic chemicals while working outside of the explosion proof
    control room in the #4 black liquor recovery boiler building.

    The Complaint amends item (a) to include the allegation:    “No such respiratory

protection was provided in this area subsequent to the fatal accident.” Item (b) was
amended to include: “No such protective clothing was provided subsequent to the fatal
accident.”
 T’he cited standard pfovides:
Protective equipment, including personal protective equipment for eyes, face,
head, and extremities, protective clothing, respiratory devices, and protective
shields and btien, shall be provided, used, and maintained in a sanitary and
reliable condition wherever it is ncccssq by reason of hazards of processes or
environment, chemical hazards, radiological hazards, or mechanical irrjtanu
encountered in a manner capable of causing injury or impairment in the func-
tion of any part of the body through absorption, inhalation or physical contact.

                            Alleged Violation of 61910.132fa]

Facts
On May 14, 1991, the burners went out in Stone’s #4 black liquor recovery
boiler (a “blackout,” or “upset” conditionI) (Tr. 61, 206). A fir&man (boiler tender)
was relighting the burners when the boiler exploded (Tr. 62). The explosion was
unforeseeable, and its cause was never determined (Tr. 53, 12425).
The fireman sustained bums which resulted in fatal “pulmonary consolidation”
(Tr. 64-65; Exh. C-10). Two other employees also sustained minor bums (Tr. 6364).
At the time of the explosion, the employees2 were wearing hard hats and hard-toed
boots, safety glasses and shields, but not fireproof protective clothing or self contained
respirators (Tr. 64-65). Respirators and protective equipment were, however, main-
tained in the contioI room for emergency evacuation of the operators3 (‘I?. 118).
Thomas Grace, president of T.M. Grace Co., Inc., a chemical -recovery
consulting firm, testified for Stone (Tr. 195). Grace explained that the black liquor
recovery boiler is used to bum off organic waste and recover spent wood pulping

• Thomas Grace, Stone’s cxpcn defined an upset condition as “anything that is different from a
  normal steady state of opcratron which in a rtoovery boiler wuid be operating at its normal load on
  black liquor alone and opcratmg steadily. .-” (Tr. 205).

2 Employees, including the fireman and his helper, who perform periodic inspections and relight
burners, work in the area of the boilers on a daily basis, sometimes for their entire eight hour shift fir.
100-1,167).

3 Mr. Petrilli, one of the employees injured on May 14, 1991 donned a self-containul breathing appa-
ratus following the explosion (Tr. 168).

                                                                                             .
                                                3

chemj& from the Waste PdUCd dUfing tie PUlpins prm (Tre 201-2). The Waste

sofutjon, or “black liquor,” is heated in the boiler, creating a waste product, which is
bum4 off (?‘r. 202, 206’), and a concentrated sodium and suhr compound, which
runs out of the funrace as a liquid “smelt” (Tr. 202-S).
Grace stated that the boilers are subject to combustion explosions from the
accidental ignition of uncontrolled fuel or black liquor gases, as well 8s from q con-
tact of the smelt with water, which can generate steam at an explosive rate vr. 204,
206). The incidence and cause of boiler explosions has been tracked by the industry
(Tr. 94, 205). A loss prevention brochure from Factory Mutual System, Stone’s
insurer, states that in the last 18 years 215 critical exposures (near misses) imdtig
recovery boilers have been reported. In addition, 128 boiler explosions havk been
reported in the fast 35 years (Exh. C-6, p.22). Auxiliary fuel was invokd in 26 of the
explosions, only one which occurred after 1980, while smeltbater reactions were
responsible for 96 (Exh. C-6, p.22).
Grace testified that there are warning signs in the majority of smeltjwattr
explosions, allowing boiler personnel to institute emergency shutdown procedures and
evacuate (Tr. 214-15, 238, 273-75). Nonetheless, Grace admitted that with the current
technology, it is possible that any given boiler could explode without warning (Tr. 240-
42, 247). Moreover, Grace testified that there is “a definitely higher risk of a combus-
tible type of explosion during an upset period, particularly if it involves lighting a
burner” (“I?. 249).
Stone recognized the explosion hazard, providing explosion proof control rooms
for employees working in boiler rooms (Tr. 78, 213-M), conducting audits of its boilem
(Tr. 91, 95, 200; Exh. C-S), and providing training in emergency recognition for its
employees (Tr. 216-217).
CO Wolf testified that a lightweight Gortex material is available from Dupont
which can protect against steam burns at temperatures up to 700”, the operating tem-
perature of the recovery boiler (Tr. 104). No protective clothing using the Gortex
material is available on the market (Tr. 160); however, Wolf testified that he found

                                             4

Go~~x suits j,n use ifi ~IWO
companies in Montana and TCX~ (Tr. 104). Neither cmn-
pany & in the pulp/paper buincss or uses black liquor recovery boilers (Tr. 16748).
Wolf admitted that the protective clothing recommended by OSHA had not
been tested for use around black liquor boilers (Tr. 161), and that he did not know
whether it would have protected Stone’s fireman during the May 14, 1991 explosion
(Tr. 113).
Wolf conceded that the boiler areas are “relatively warm areas to work in,” and
so would not recommend that heavier protective equipment be worn, or that any
equipment be worn at all times (Tr. 102). Wolf recommended that the equipment be
worn, and respirators carried, only during upset conditions (Tr. 103, 110, 165). Black-
outs, an upset condition, may occur many times on a given day, and are considered
fairly routine (Tr. 61, 157, 205-207).
Neither Grace nor Frank Hockmuth, an expert retained by OSHA to investi-
gate the explosion, recommended the use of protective equipment (Tr. 124-129).
Grace stated that he had not recommended protective equipment because it would be

unwieldy and would be ineffective in protecting against unanticipated incidents unless
worn at all times by everyone in the boiler areas (Tr. 251, 254, 276). Grace also noted
that protective equipment is ineffective in protecting against flying debris in the event
of an explosion (Tr. 209). No other employers or trade organizations in the pulp and
paper industry require or recommend the use of respirators and protective dothing in
the boiler areas”(Tr. 13637, 185184).
Discussion
The Commission has held that:
to establish the existence of a hazard requiring the use of personal protective
equipment, the Secretary must either show that the employer had actual know]-
edge that such a hazard existed or that a reasonable person familiar with the
circumstances surrounding the hazardous condition, including any facts unique
to the particular industry, would recognize a hazard warranting the use of

’ BLRBAC does recommend fact shields and full protective clothing around smelt dissolving tanks
and spouts (Il. 22728,269).

                                             5

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   personal protective equipment.. Evidenceof industry custom and prab                    a
   aid such a determination, but it is not ncccsar@ determinative.

Ammu Fd Co., 14 BNA OSHC 1817, l=O, 1990 CCH OSHD 129,088, p, ~881
(No. 86-247,199O).
The Secretary amply demonstrated tht hazardous nature of black liquor
recovery boilers. The record establishes that employees in Stone’s boiler area are
exposed to the poss~%ilityof injury from the unexpected explosion of such boilers. The
record also shows that Stone had actual knowledge of the hazard, and attempted to
protect its employees from injury by instituting hazard recognition training and emer-
gency shutdown and evacuation procedures, and by installing explosion proof control
rooms in its boiler areas.
The Secretary failed to show, however, that Stone recognized, or that a reason-
able person familiar with black liquor recovery boilers would recognize, that the possi-
bility of explosion warrants the use of personal protective clothing and respirators
during boiler upset conditions.
The pulp/paper industry does not use protective clothing in boiler areas. The
incidence of upset conditions is frequent and the undersigned agrees with Stone’s
expert, Grace, that in order to provide protection from the danger of tmfomeen expb
sions, protective equipment and respirators would have to be worn at all times in the
boiler area. Grace testified and CO Wolf admitted that etisting heat resistant clothing
is not practical for consistent use in the hot boiler rooms. Moreover, Wolf’s testimony
is insufficient to establish that there exists an effective alternative. Although Wolf
stated that a lightweight Gortex is available from Dupont, no clothing made from the
material is available on the market, nor has such clothing been tested for use around
black liquor recovery boilers. Finally, Wolf admitted that he did not know whether the
recommended equipment would be effective in protecting boiler area workers in the
event of an explosion.
The undersigned finds that the Secretary failed to carry her burden of proof,
and the cited violation will be vacated.
 .

6

                             Findings of Fact and conclusions   of Law
         Au findings of fact and conclusions of law relevant and necessary to a deter-
mination of the contested issues have been found specially and appear in the decision
above.    Set Rule 52(a) of the Federal Rults of Civil Procedure.        Proposed Findings of
Fact or Conclusions of Law that are inconsistent with this decision are denied.


                                             ORDER
         Serious citation 1, item 1, alleging violation of §1910.132(a) is VACATED.




Dated:    Y?e!xu.3r.J   5,     ’ -IT