SECRETARY OF LABOR,

Complainant,

v.

ARCO CHEMICAL CO.,

Respondent.

OSHRC Docket No. 88-2484

SECRETARY OF LABOR,

Complainant,

v.

LYONDELL PETROCHEMICAL CO.,

Respondent.

OIL, CHEMICAL & ATOMIC

WORKERS INTERNATIONAL
UNION, LOCAL 4-227
Intervenor.

OSHRC Docket No. 88-2567

ORDER OF REMAND

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

For the reasons set forth below, the Commission hereby vacates the Direction for Review in Lyondell Petrochemical Co., OSHRC Docket No. 88-2567, and remands that case, along with Arco Chemical Co., OSHRC Docket No. 88-2484, to the Deputy Chief Administrative Law Judge for assignment and further proceedings consistent with the recent decision of the Third Circuit in Dole v. Arco Chemical 921 F.2d 484 (3d Cir. 1990).

Both of these cases arose from a fatality inspection of Lyondell Petrochemical Company's facility in Houston, Texas, by the Occupational Safety and Health Administration ("OSHA") of the United States Department of Labor. A fire extinguisher had exploded at Lyondell's facility while an Arco employee was attempting to charge it during a fire control training exercise. The employee was killed as a result of the explosion.

Following the OSHA inspection, the Secretary issued a citation to Arco. The citation, as amended by the Complaint, alleged that Arco had failed to properly inspect the fire extinguisher, in violation of 29 C.F.R. 1910.157(e)(1), and had failed to perform hydrostatic testing upon the fire extinguisher, in violation of 1910.157(f)(4). Arco contested those allegations and moved for summary judgment before the judge on the ground, among others, that it did not own or control the equipment. The Secretary then moved to amend the Complaint to delete the 1910.157(f)(4) item and to allege instead a violation of 1910.156 (d). The latter provision covers fire brigades, and states in part that [f]ire fighting equipment that is in damaged or unserviceable condition shall be removed from service and replaced."

The judge denied the motion to amend and granted summary judgment to Arco, without articulating the reasoning for his rulings. He merely stated that Arco's arguments were "well taken." The case was not directed for review. (There were no members of the Commission then serving.) On appeal, the Third Circuit concluded that the judge abused his discretion in failing to allow the Secretary to amend her Complaint. It remanded the case to the Commission for further proceedings. 921 F.2d at 484-85.

Lyondell was cited for noncompliance with, among other provisions, the fire extinguisher testing requirement at 29 C.F.R. 1910.157(e)(2), and the hydrostatic testing requirement at 1910.157(f)(4). Lyondell contested the citation and moved for summary judgment on the ground that it was not responsible because, among other reasons, the fire extinguisher was not provided for use by its own employees. It also argued that the 1910.157(f)(4) charge could not be sustained because the Secretary had not offered "new evidence of corrosion or mechanical injury," which is required to prove a violation of that subsection. The secretary argued in opposition to the motion for summary judgment. Without entering any findings or conclusions in support of his ruling, the judge granted summary judgment to Lyondell. Following the Secretary's petition, Chairman Foulke directed the case for review.

Normally, when a judge fails to state the reasons for his decision, the appropriate course for the Commission to take is to remand the case for an adequate statement of reasons. See, e.g., Stripe-A-Zone, Inc., 12 BNA OSHC 1192, 1193, 1984-85 CCH OSHD 27,184, p. 35,090 (No. 79-2380, 1985). A remand also is appropriate when there exist material factual issues which require a hearing for resolution. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510 (1986); Chen v. Metropolitan Ins. and Annuity Co., 907 F.2d 566, 567-68, 570 (5th Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46, 50 (3d Cir. 1989). Summary judgment may be granted only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c) . See also, e.g., LTV Steel Co., 13 BNA OSHC 1090, 1986-87 CCH OSHD 27,826 (No. 86-449A, 1987) (Commission remanded to judge portion of case on which judge had issued partial summary judgment, and noted strong Federal policy against confusion, overlapping decisions, and wasted effort that often result from piecemeal adjudication of cases). See generally, 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure, 2725 (1983).

The Secretary has asserted that there are genuine issues of material fact in Arco as to whether that company controlled the hazards. Arco has argued that the Secretary failed to provide sufficient evidence of control to avoid summary judgment. It is appropriate for a judge to expressly resolve this controversy, stating the reasons upon which he relies. 5 U.S.C. 557(c).

There also may be factual issues in Lyondell which require a hearing for resolution. The Third Circuit noted that Arco and Lyondell both were subsidiaries of Atlantic Richfield Co. at the time of the fatality, and that they occupied adjacent plants. Arco, 921 F.2d at 485 n.1. The facts, regarding the corporate relationship between Arco and Lyondell may be relevant to the decision. Furthermore, as noted above, the parties dispute whether the Secretary has offered "new evidence of corrosion or mechanical injury," regarding the 1910.157(f)(4) item. It is appropriate for a judge to expressly resolve these matters, stating the reasons upon which he relies.

Accordingly, the direction for Review in Lyondell is vacated, and both Arco and Lyondell are remanded to the Deputy Chief Administrative Law Judge for assignment and further proceedings consistent with this decision and with the Third Circuit's decision in Arco.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: April 26, 1991