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Handle With Care (And Proper Training)

12 July 2023

Costas Cyprus

The use of potentially hazardous and dangerous substances such as propane, propylene and compressed oxygen, which are common in the construction industry, need to be handled and used with proper care to avoid work-place accidents. The decision in Secretary of Labor v. First Marine arises from an unfortunate accident shows how employers must ensure that their employees are trained to perform their required duties safely when operating in confined or enclosed spaces when using these hazardous substances.

First Marine, LLC (“First Marine”) owns and operates a shipyard in Calvert City, Kentucky. It had been operating for a month to repair and rebuild a river towboat when an explosion occurred on January 19, 2018, tragically killing three employees. At the time of the accident, the towboat was moored in the Tennessee River. Some of the boat’s doorways and windows were open but because workers were engaging in repairs (during the Winter months), these openings were covered with plastic tarps and welder’s blankets to retain heat and prevent wind incursion in the upper engine room located on the boat’s main deck. Diesel heaters were also being utilized to warm the workers and a propane heater was used in the lower engine room, at the boat’s lower deck. Shipyard operations were overseen by First Marine’s superintendent, Mr. Ronald Thorn, while other supervisors that were present included the dry dock foreman, Mr. David Byrum, who oversaw its welders, the head electrician, Mr. Curtis Jones, and the carpentry crew manager, Mr. Robert Miller. First Marine also had other subcontractors on-site, including Rupke Blasting and Painting (“Rupke”), that performed pressure-washing and painted water tanks. First Marine’s employees and its subcontractors utilized multiple potentially hazardous substances to fuel their equipment and heat the towboat, such as diesel, kerosene, propane, propylene and compressed oxygen.

On the incident day, upon arrival and boarding of the towboat, most workers, including head electrician, Mr. Jones, noticed an atypical gas odor. Although no atmospheric testing was conducted, some workers moved the materials to ventilate the upper engine room. Mr. Jones, accompanied by other workers, conducted a search of the lower engine room to locate the source of the gas odor since, as per Mr. Jones’ testimony, he assumed the smell originated from a propane tank for the heater that had been changed by Rupke’s workers and was located in that area. He had previously wired fans between the lower and upper engine rooms, which were running to ventilate the areas, and additional fans were also set up in a compartment in the forward section of the boat for further ventilation. Thereafter, work commenced in the lower engine room that included welding and cutting with the use of gas and compressed oxygen. At around 9:15 am, an explosion occurred killing and injuring workers.

OSHA issued multiple citations to First Marine but the one at issue, here, pertained to a willful violation of 29 C.F.R. § 1915.12(d)(1) requiring employers to “ensure that each employee that enters a confined or enclosed space and other areas with dangerous atmospheres is trained to perform all required duties safely”. The Secretary (of Labor) claimed that First Marine allowed its employees to enter these confined spaces to perform work that included arc welding with a torch, pipe fitting, (etc.) without training them on hazards of confined and enclosed spaces and exposed them to fire, atmospheric and explosion hazards.

The litigated issues in this decision pertained to First Marine’s noncompliance with the safety standard and whether First Marine’s actions could be characterized as a “willful violation” which would result in greater penalties. To establish non-compliance with the standard, the Secretary must show that the employer failed to provide instructions that a reasonably prudent employer would have provided under the same circumstances. Based on the testimony of five First Marine employees present on day of the explosion, the ALJ1 determined that these employees lacked “a firm grasp of proper safety procedures” and the ALJ rejected the testimony of First Marine’s supervisors, Mr. Thorn, Mr. Byrum and Mr. Miller, who claimed that their workers were in fact adequately trained, as they failed to provide any documentation of such training as required by a separate OSHA provision pertaining to shipyards. First Marine acknowledged that although many of its employees had not been formally trained, these employees were in fact trained through “informal, on-the-job training” and that their employees appreciated the dangers associated with the smell of gas. The Secretary contended that the noncompliance was not only proven by testimony but by their actions as numerous workers were in fact smoking cigarettes on a vessel that smelled of gas, even while it was being vented, and First Marine failed to train its workers on basic principles of working safely, such as in instances of smelling gas. The Commission agreed, and cited to the testimony of First Marine’s workers showing how they had not been trained in what to do when smelling gas on the boat, discounted the smell as not important or dangerous, and, in fact one of the injured welders testified that he had not been trained on the hazards with using propylene or compressed oxygen in confined spaces and did not even know if he had been working with propylene or propane. Some of the workers failed to even report to a supervisor about the gas odor and three employees even admitted to smoking in an area that smelled of gas. The testimony by First Marine’s supervisors of informal on-the-job training was insufficient especially as it pertained to the smell of gas or the hazards of working with compressed oxygen and given that one worker even admitted he was unaware of what materials he was actually using.

However, based on the evidence, the Commission found that First Marine had not consciously disregarded the safety provision, and re-classified the violation from “willful” to “serious” and lowered the monetary penalty, accordingly. First Marine’s four experienced supervisors had completed competent person training and Mr. Thorn, Mr. Byrum and Mr. Miller all testified that they believed their employees had been sufficiently trained by way of the weekly safety meetings, daily work meetings with welders, and on-the-job instruction. Although this testimony was insufficient to show First Marine’s compliance with the safety standard, based on the evidence submitted, First Marine did not appear to be “plainly indifferent” or that it consciously disregarded the applicable safety standards (so as to be “willful”). The submitted evidence and testimony showed that First Marine did not appreciate that its procedures were deficient, and there had been no prior OSHA citations or an external audit to have placed First Marine on notice that its training was deficient. Moreover, First Marine was not “plainly indifferent” as it responded to the conditions present prior to the explosion by undertaking an investigation as to the source of the gas smell and by ventilating the vessel. First Marine failed to train its employees, it did not fail to respond to the conditions.

1 The ALJ refers to the Administrative Law Judge for which this matter was initially heard and for which findings and decision was appealed to the Occupational Safety and Health Review Commission whose decision is discussed in this article.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445