OSHRC's 2013 Starts Poorly

In case you somehow missed it, the Occupational Safety and Health Review Commission began calendar 2013 with an interesting decision in Secretary of Labor v. K.E.R. Enterprises Inc., d/b/a Armadillo Underground, No. 08-1225. There are just two commissioners at the moment, bringing us perilously close to a decision-making body of one.

Here's the interesting part, IMHO: The OSHRC commissioners agreed unanimously (2-0) on Jan. 9 with Administrative Law Judge Dennis J. Phillips that Armadillo Underground is not guilty of violating the general duty clause because an American National Standard -– the American Water Works Association standard C-111 -- does not "contain a safety warning or suggest a link between noncompliance and a safety hazard."

As I see it, the hazard(s) engendered by non-compliance with safety standards are implicit. If one governs the work you or a colleague are doing, failing to comply with it gets you into potentially serious trouble. Which is what happened in this case, which began five years ago when OSHA inspected a site in Naples, Fla., where three employees of Armadillo Underground and another person were injured by a pipe explosion. OSHA duly inspected and issued a serious citation against the company. Phillips vacated it, finding the Labor secretary failed to establish that the cited conditions created a hazard.

Armadillo is an underground utility excavation contractor. It was installing water line piping and then hydrostatically testing it in Collier County, Fla., using a mechanical joint restraining gland manufactured by Sigma Corporation to connect sections of the pipe. The gland is a metal ring that fits around the pipe and is secured with T-head bolts and hex-head bolts.

Armadillo's tests filled the pipe with water at a sustained minimum pressure of 150 pounds psi and then called for monitoring the pipe for water leaks for two hours as required by the county. The county hired AIM Engineering, which employed the fourth injured worker, to inspect the water line during installation.

"On the evening before the accident, an Armadillo crew supervised by foreman William Davis began preparations for a hydrostatic pressure test by filling a completed section of pipe with water to a pressure of approximately 165 psi," the commission's decision states. "The following morning, the crew began the pressure test with an AIM employee present to observe. While performing the test, Davis noticed a small water leak in the area near the restraining gland. Following Armadillo's procedure for fixing a water leak, Davis instructed two members of his crew to tighten the T-bolts on the restraining gland while the pipe remained pressurized. The workers tightened the T-bolts with a hand wrench approximately three-quarters to a full revolution and the leak stopped. Less than one minute after the leak stopped, the pipe attached to the restraining gland exploded. Fragments of the pipe struck Davis, breaking both of his legs, and also hit the two Armadillo employees who had tightened the T-bolts as well as the AIM employee, resulting in minor lacerations."

DOL contended Armadillo exposed its employees to a recognized struck-by hazard by failing to follow Sigma's installation instructions for the restraining gland or the AWWA standard, "Rubber-Gasket Joints for Ductile Iron Pressure Pipe and Fittings." DOL maintained both required Armadillo to depressurize and reassemble the pipe to fix the water leak rather than risk overtightening the bolts while the pipe was pressurized.

To my surprise, both the ALJ and the commission disagreed. They found the evidence insufficient to show that "the cited condition presented a hazard." After all, previous OSHRC cases have established that "A hazard is 'recognized' within the meaning of the general duty clause if the hazard is known either by the employer or its industry," and manufacturers' instructions and voluntary industry standards that contain explicit safety warnings regarding compliance can establish a general duty clause violation.

But Sigma's installation instructions and the AWWA standard do not contain a safety warning or suggest a link between non-compliance and a safety hazard, the commissioners found.

So tell me, can a pipe-laying contractor's foremen not be aware that an overpressurized water pipe can be hazardous to employees told to tighten a connecting joint?

Posted by Jerry Laws on Jan 14, 2013