CADILLAC MALLEABLE IRON COMPANY

OSHRC Docket No. 1369

Occupational Safety and Health Review Commission

June 25, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge Louis J. Rubin, dated January 12, 1973, is before this Commission for review pursuant to section 661(i) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § §   651 et seq., 84 Stat. 1590).

Having examined the record in its entirety, the Commission finds no prejudicial error therein.   Accordingly, the Judge's decision is hereby affirmed in all respects.

[The Judge's decision referred to herein follows]

RUBIN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act).   Respondent contests Complainant's proposed assessment of a $600 penalty for an alleged serious violation. The Citation issued August 4, 1972 alleges that an inspection on May 31, 1972 of a workplace under the ownership, operation or control of the Respondent, located at 230 Tenth Street, Cadillac, Michigan, more specifically described as the weight man work station on the "Herman" or (B-line), disclosed that the Respondent violated Section 5(a)(2) of the Act by failing to comply [*2]   with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 thereof   in that: "Employer allowed employee to be exposed to carbon monoxide concentrations above 150 PPM for more than one hour out of an 8-hour work day."

The standard as set forth in 29 CFR 1910.93 provides, in pertinent part, that an employee's exposure to carbon monoxide in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average of 50 p.p.m. (parts of vapor or gas per million parts of contaminated air by volume at 25 degrees C and 760 mm. Hg pressure).

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Bay City, Michigan, on October 27, 1972.

STATEMENT OF LAW AND ISSUES

There is no dispute about the material facts.   The parties have stipulated that Respondent is a Michigan corporation engaged in the production of malleable iron goods; that the goods are sold and shipped interstate; that Respondent is engaged in a business affecting commerce within the meaning of Section 3(5) of the Act; that the violation alleged has been abated [*3]   as provided in the Citation; and that the sole issue is whether the proposed penalty of $600 is appropriate.

Section 17(b) of the Act provides that an employer who has received a citation for a serious violation shall be assessed a civil penalty of up to $1,000 for each such violation.

Section 17(j) of the Act provides "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employee being charged, the   gravity of the violation, the good faith of the employer, and history of previous violations."

Section 17(k) of the Act defines a serious violation as one in which there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

SUMMARY OF THE EVIDENCE

William O. Bianconi, an industrial hygiene expert, inspected Respondent's plant on May 31, 1972.   [*4]   The inspection was prompted by a complaint from the union concerning gases, dust and fumes.   Using a Hopcalite instrument, Mr. Bianconi measured a carbon monoxide concentration averaging 1976 p.p.m. for a period of one hour and twenty-three minutes at the weight shifting station on the Herman or B-line.   Tests taken at other points did not disclose a concentration in excess of 50 p.p.m. Employees within 15 to 20 feet of the weight shifting station were not exposed to the excessive concentration. The sole employee affected was the weight shifter. Mr. Bianconi testified that the weight shifter was engaged in heavy manual work and was at the station approximately five hours out of an 8-hour work day during the time of inspection. Mr. Bianconi testified further that a concentration in excess of 150 p.p.m. for one hour was a serious exposure since it could result in impairment of vision and loss of coordination.   This would increase the possibility of accidental injury.   There is a high incidence of severe injury to employees who work at   conveyor belts.   Long term exposure could result in a significant cardiac burden.

Carbon monoxide is released from carbonaceous material [*5]   in the mold. The gas concentration is heaviest where the molten metal is poured into the mold. The weight shifting station is at a loop at one end of the conveyor line.   Six or seven flares along the line burn off the carbon monoxide. In addition, a fan had been installed to dilute the gas concentration. Mr. Bianconi did not consider the fan to be an effective control.

The Respondent cooperated fully in all phases of the inspection. At Mr. Bianconi's request, the conveyor line was stopped and the largest and dirtiest molds (those most likely to produce carbon monoxide) were substituted.   Mr. Bianconi testified the test result might have been different with other molds. However, the difference could not be quantitated because of many variables.

Donald B. Peterson, Sr., president of the Cadillac Malleable Iron Company, testified that the company had no prior knowledge of excessive concentrations of carbon monoxide. Previous inspections by the State of Michigan and insurance company industrial hygienists had never mentioned this problem nor had tests been conducted for carbon monoxide. The company employs approximately 246 persons and there had been no complaints of illness [*6]   due to carbon monoxide. The company was aware of a smoke and odor problem for which remedial action was undertaken prior to the inspection by Mr. Bianconi.   The conveyor line was to be redesigned and the weight shifting station completely automated.   A quotation for pouring hood equipment dated February 3, 1972, was offered in evidence (R-2).   Mr. Bianconi was informed of the contemplated changes at the post-inspection conference.   The changes, at an estimated cost of   $40,000 -- $50,000, were approved by the Board of Directors on June 23, 1972.

After the Citation was received, temporary measures were immediately taken to reduce the carbon monoxide concentration. A permanent plan was submitted timely to the Occupational Safety and Health Administration and was pending approval at the time of the hearing.   Mr. Bianconi was of the opinion that the temporary measures were adequate and that the permanent plan would correct the violation cited.

In assessing the penalty, Mr. Bianconi started with $1,000 for a serious violation. The gravity of the violation was rated very high because of the probability of visual and motor impairment and the risk of injury.   A maximum reduction [*7]   credit of 20 percent was allotted for good faith and a like credit because there was no history of previous violations.   No reduction was made for size since Respondent has over 100 employees.

DISCUSSION

The uncontroverted evidence of Mr. Bianconi, a qualified expert in this field, establishes that the violation charged is a serious violation in that there is a substantial probability that serious physical harm could result from the concentration of carbon monoxide reported for a period of one hour and twenty-three minutes at the weight shifter's station. It is equally clear that with the exercise of reasonable diligence the Respondent could have known of the presence of the violation.

Respondent contends that the method used in calculating the proposed penalty is unfair,   unbalanced, and imposes an arbitrary minimum penalty contrary to congressional intent.

In Secretary of Labor v. Nacirema Operating Co. Inc.,   The Commission then commented [*8]   that the question to be decided is whether the penalty proposed is appropriate under the circumstances in the case.   More recently, in Secretary of Labor v. National Realty and Construction Company, Inc.,

The circumstances presented herein require special consideration.   No error is found in the weight accorded Respondent's size: However, it is noted that the precautionary measures in use at the time of the inspection were generally effective in reducing the carbon monoxide concentration to safe levels.   The excessive concentration was confined to an extremely limited area and just one employee was exposed to this concentration. At its own initiative and prior to the inspection, the company was planning extensive and costly changes which would eliminate smoke and odor and effectively reduce the carbon monoxide concentration to safe levels.   Funds were appropriated before the Citation was issued.   [*9]   The Respondent voluntarily stopped production and substituted its dirtiest molds so that the test was performed under conditions most adverse to Respondent.   In addition, temporary measures were immediately adopted and a   permanent plan promptly submitted.   The undersigned concludes that the gravity of the offense is significantly modified by these factors and that a reduction in the proposed penalty is therefore warranted.   Accordingly, it is held that a reasonable and appropriate penalty is $200.

FINDINGS OF FACT

1.   The Cadillac Malleable Iron Company, Respondent herein, is a Michigan corporation located at 230 Tenth Street, Cadillac, Michigan.

2.   Respondent is engaged in the production of malleable iron goods which are sold and shipped interstate.

3.   On May 31, 1972, an inspection of a workplace under the ownership, operation or control of Respondent disclosed a carbon monoxide concentration of 197 p.p.m. for a period of one hour and twenty-three minutes at the weight shifting station on the Herman or B-line, in violation of 29 CFR 1910.93.

4.   There is a substantial probability that death or serious physical harm could result from the condition noted in (3) above.   [*10]  

5.   With the exercise of reasonable diligence, Respondent could have known of the condition noted in (3) above.

6.   Tests readings at other points in the plant were below 50 p.p.m.

7.   The weight shifter was the sole employee exposed to the excessive concentration of carbon monoxide.

8.   The violation was corrected within the abatement dates set in the Citation.

9.   Respondent employs approximately 246 persons.

  CONCLUSIONS OF LAW

1.   On May 31, 1972, Cadillac Malleable Iron Company was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.   The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

2.   Section 5(a)(2) of the Act (29 USC 654) (a)(2) imposed a duty upon Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.

3.   Respondent violated Section 5(a)(2) of the Act on May 31, 1972 by failing to comply with the Occupational Safety and Health Standard set forth in 29 CFR 1910.93.

4.   The violation is a serious violation [*11]   within the meaning of Section 17(k) of the Act.

5.   The appropriate penalty is $200, giving due consideration to the size of the business, gravity of the violation, good faith, previous history, and prompt abatement.

It is ORDERED that:

1.   The Citation issued Respondent on August 4, 1972 is hereby affirmed.

2.   The proposed penalty in the amount of $600 is hereby modified to $200.