OSHRC Docket No. 13720
Occupational Safety and Health Review Commission
April 19, 1977
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor, USDOL
Stephen F. Avery, for the employer
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
Judge Otto correctly decided this case except insofar as he assessed a penalty $200 greater than that proposed by the complainant. Secretary v. Worcester Pressed Steel Company, 20 OSAHRC 737 (1975) (concurring and dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.
Since my colleagues do not address any of the matters covered in Judge Otto's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.
DECISION AND ORDER
James P. White and Timothy J. Pauley, for complainant
Stephen F. Avery, for respondent
George W. Otto, Judge
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health [*3] Act of 1970 (29 U.S.C. 651 et seq., herein referred to as the Act). On May 2, 1975 the Secretary of Labor (Secretary) made an inspection and investigation of a May 1, 1975 accident resulting in two fatalities and hospitalization of twenty-five employees of Spencer Leathers, Division of Spencer Foods, Inc. (respondent) in a tannery located at 1830 South Third Street, Milwaukee, Wisconsin. On May 23 the Secretary issued a citation charging respondent with serious violation of 29 U.S.C. 654(a)(1). n1 A penalty of $800 was proposed. By letter of June 13 respondent contested the citation; complaint and answer were duly served and hearing was held in Milwaukee, Wisconsin on September 24, 1975.
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n1 This section of the Act allegedly violated is identified in the citation as "Public Law 91-596 Section 5(a)(1)."
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Respondent denies violation, questions the abatement dates and disputes the proposed penalty. n2
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n2 While not specifically stated in the notice of contest, the complaint (para. IV(e) and the answer (para. IV) join issue on the question of penalty.
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The tragic event of May 1 was caused by exposure of employees to hydrogen sulfide gas, produced by the mixing of sulfuric acid with sodium sulphydrate.
The sodium sulphydrate intake and distribution system was installed between January 20, 1975 and February 4, 1975 (Transcript pages 153, 154). The sodium sulphydrate intake pipe was locaded on the inner side of an outside wall, about one foot from a loading dock doorway (T. 18, 20, 33, 175, 181, Secretary's Exhibit C-1: photo 1-B, 1-D). There was no label or other identification, either on the pipe or adjacent wall (T. 181).
The sulfuric acid intake pipe was not over 18 to 20 feet away from the sodium sulphydrate pipe, on the outer wall of the building and west of the doorway (T. 18, 112, 120). The words "DANGER ACID" were printed on the adjacent wall (T. 18, 34, 119, 181, C-1: 1-C).
Another outside pipe was east of the doorway about 15 to 20 feet, with the word "CHROME" printed on the adjacent wall (T. 18, 32, 181, C-1: 1-A).
Sodium sulphydrate deliveries were made on March 6, 1975 and April 29, 1975 (T. 141, 142, C-5). Sulfuric acid deliveries [*5] were made in 1975 on January 8 and 12, February 19, March 5, April 3 and 18, May 1 (T. 134, 135, 138-141, C-4, C-5).
Stanley Maxwell, employee of Scheneider Tank Lines, arrived at respondent's tancery the afternoon of May 1, 1975 to deliver a tank truck load of sulfuric acid. He hooked up his hose to the sodium sulphydrate pipe after it had been identified as the sulfuric acid pipe by Charles Jordan, respondent employee, and by an unidentified man on the loading dock. Mr. Jordan identified O. B. Jamison, respondent employee, as the man to see and sign for the load. Mr. Jamison was in charge because the foreman was absent that afternoon (T. 108-112, 143).
Referring to Mr. Jamison, Stanley Maxwell testified "We were standing right by this pipe where I was hooked, and I asked him if that was the unloading for the sulfuric acid and he said, yes, and I handed him the bill of lading for the load, and he walked out to the fender of the tank which was approximately fifteen foot away from the building, and he signed the bill of lading. And at that time, I questioned him, the capacity of the tank and where the tank was located, and he told me that the tank was on the third floor and that [*6] there was plenty of room and there was no problem. So again, I asked him if it was okay to let the product go and he said, yes, and he left. And then I proceeded to build my air pressure up and let the product go. So then approximately fifteen, twenty minutes later, a gentleman by the name of Mr. Hagen can out yelling to shut the product -- to shut it off, and I shut the product off at that time." (T. 108-112, 113, 114).
29 U.S.C. 654(a)(1) provides as follows:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employes.
The alleged violation is described in the citation and complaint as follows:
Employer failed to furnish to each of his employees employment free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees in the following separate manners: a) employer failed to provide proper training and supervision of employees in the handling and receiving of dangerous chemicals; e.g., shipping employees allowed mixing of Sulfruic Acid with Sodium Sulphydrate, b) employer [*7] failed to properly supervise receipt of Sulfuric Acid; e.g., supervisory employee did not oversee the receipt of Sulfuric Acid so as to prevent its mixing with Sodium Sulphydrate, c) employer failed to provide proper storage facility; e.g., overflow pipe on Sodium Sulphydrate tank vented into the workplace; and d) employer failed to label receiving pipe for dangerous chemicalds; e.g., no label on receiving pipe for Sodium Sulphydrate so as to prevent accidental mixing of incompatible chemicals.
In order to establish a violation of section 5(a)(1), the Secretary must prove: (1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.' National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973).
Both sulfuric acid and sodium sulphydrate are commonly used in the tanning industry (T. 97, C-3). Any hazard related to the handling or use of either chemical, alone and unmixed, is not the hazard in issue herein. The mixing of these two chemicals produced the hazard.
A mixing of sodium sulphydrate and sulfuric acid reacts to form hydrogen sulfide gas and [*8] sodium sulfate. Hydrogen sulfide gas is dangerous. Its lethal level has been fixed at about .07 percent, or 700 cubic feet of hydrogen sulfide mixed with a million cubic feet of air. This level makes the atmosphere unsafe for human life (T. 57, 62, 106, 107).
This hazard was recognized by respondent. In the course of the investigation and inspection, Ernest Hagen, plant manager, stated the two chemicals will have to be kept separated, because if they come in contact, hydrogen sulfide would come out an a result (T. 15, 16). His orders to evacuate the plant and to disconnect the sulfuric acid hookup to the sodium sulphydrate line confirm his recognition of the hazard.
This hazard is recognized by the tanning industry. At least half the tanners in America belong to the Tanners Council of America; about a third are members of the leather industry division of the National Safety Council (T. 68, 69, 70). The two Councils jointly prepared the Tanners Safety Manual, published in 1952 (T. 72, 73, 73, C-3). Respondent is not a member of the National Safety Council; the plant manager did not knew if it was a member of the Tanners Council of America (T. 183, 184). Respondent is a member [*9] of the tanning industry, engaged in tanning leather and related types of activities (complaint para. II, answer para. II). The Manual states, pages 48 and 54, "Potential hazards to life are hydrogen sulfide gas and oxygen deficiency. Hydrogen sulfide is an exceedingly toxic, as well as highly inflammable gas . . ." "Care must be used . . . in using sodium sulfide where it may come in contact with an acid because, on contact with acid, it forms hydrogen sulfide (sometimes called "rotten eggs" gas) which is fatally toxic. Any place where either sodium sulfide or sulphydrate is used should be well ventilated, and acide should be kept away."
Originally the sodium sulphydrate overflow line was to be installed running from the third floor tank to the roof area but was rerouted by respondent and installed to run down the inside of the building (T. 152, 153). Whether ventilation of this line to the outside would have prevented employee exposure to the hazard is not established. It would not have prevented the hazard. The location of the outlet pipe about ten feet from the sewer appears proper (T. 94, 184, C-1: 1-F, 1-G).
At least two respondent employees, including one supervisory, [*10] incorrectly identified the sodium sulphydrate pipe as the sulfuric acid line; acting upon such misin-formation the truck driver began delivery and thereby the hazard was created.
It was well within the capability of respondent to furnish employment and a place of employment free from this recognized hazard. There were no instructions, written or otherwise, to identify and isolate the proper pipe for the chemical delivered. There could have been specific identification of the line to declare its sole function, intake of sodium sulphydrate. There was none. The words "DANGER ACID" at the sulfuric acid pipe did not serve to identify the sodium sulphydrate line, nor did the word "CHROME" at the third pipe. There was no training of supervisory personnel, no detailed procedure to follow to assure correct delivery. There were no instructions to employee generally, designed to emphasize the hazards inherent in the chemicals and the necessity of precise, accurate delivery. There was no physical barrier to pipe use, such as a lock. In short, there was no enforced and practiced safety program on May 1, 1975 sufficient to preclude the mixing of the two chemicals.
Respondent is not charged [*11] with failure to issue and enforce instructions, identify pipes, provide locks or to train employees. The section of the Act charged does not so specify. No occupational safety and health standard has been cited by the Secretary. The employer is not an absolute insurer. He may not be responsible for an isolated occurrence beyond his contemplation or control. However, the method of receiving chemical deliveries was, at the best, casual. Mr. Jamison's name and/or signature appears on each bill of lading covering the two deliveries of sodium sulphydrate and seven deliveries of sulfuric acid between January 8, 1975 and May 1, 1975 (C-4, C-5). It was not his practice to check the loads. He did not make a practice of asking what line deliveries were hooked up to; at times he signed bills of lading while in the plant away from the receiving dock area (T. 137, 138). An employer is entitled to assume the item ordered is the item delivered. However, bills of lading were signed without first checking the delivery point to assure the identification and use of the proper intake pipe. Mr. Jamison represented the respondent in authorizing the use of the sodium sulphydrate pipe for delivery [*12] of sulfuric acid.
Respondent is charged with the responsibility of knowing the properties of chemicals used in his production process, at least to an extent necessary to protect his employees from hazards associated with proper or improper use. Any of several safety methods were available. The hazard resulting from the improper delivery in this case could have been eliminated by precautionary measures assuring proper delivery.
The violation was serious. Section 29 U.S.C. 666(j) provides that a serious violation shall be deemed to exist in a place of employment if 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, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. Respondent had the requisite knowledge. The violation caused death to his employees.
The abatement dates as set forth in the citation and complaint were proper and reasonable. Respondent was allowed four weeks to provide proper training and [*13] supervision of employees in the handling and receiving of the chemicals. Such period was sufficient to permit training of all involved employees. Also the violation was subject to correction by proper supervision of receipt of chemicals, by labeling receiving pipes and with associated procedures and safeguards designed to eliminate the improper mixing of chemicals; these abative steps could have been invoked immediately.
Section 29 U.S.C. 666(b) provides that a penalty shall be assessed of up to $1,000 for a serious violation. The Secretary proposes a penalty of $800, based upon a 20% credit for no history of previous violations. Section 29 U.S.C. 666(i) provides that 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 employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. Each of the four statutory factors is evaluated separately.
In Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33, 37, the Commission stated "We believe that the four criteria to [*14] be considered in assessing penalties cannot always be given equal weight. Obviously, for example, a particular violation may be so grave as to warrant the assessment of the maximum penalty, even though employer may rate perfect marks on the other three criteria." It does not necessarily follow that every violation established under the Act resulting in a fatality shall be considered of sufficient gravity to require the assessment of the maximum penalty. Nor does it follow that in every case where there has been no prior investigation or inspection or where there has been no history of previous violation that the maximum penalty is thereby automatically reduced to $800 instead of $1,000. Considering the inevitable result of death or serious physical harm to the employee exposed to the hazard created by this violation, the factor of gravity herein requires assessment of the maximum penalty of $1,000 for this serious violation.
FINDINGS OF FACT
1. On May 1, 1975 respondent was engaged in a business affecting commerce while operating a tannery in Milwaukee, Wisconsin.
2. On said date an order of sulfuric acid was delivered into a sodium sulphydrate line, with mixture of the two [*15] chemicals producing hydrogen sulfide gas.
3. Respondent employees were exposed to the hydrogen sulfide gas with resulting fatality.
4. The hydrogen sulfide created a hazard recognized by the respondent and by respondent's industry.
5. Respondent failed to provide controls sufficient to assure the delivery of sulfuric acid through the sulfuric acid intake pipe.
6. Respondent failed to furnish to each of his employees employment and place of employment free from said recognized hazard.
7. The violation was serious.
8. The abatement dates set forth in the citation and complaint herein are reasonable.
CONCLUSIONS OF LAW
1. The parties are subject to the Act and the Review Commission has jurisdiction.
2. Respondent failed in its duty under Section 29 U.S.C. 654(a)(1) to furnish to each of his employees employment and a place of employment free from a recognized hazard causing or likely to cause death or serious physical harm.
Now therefore it is ORDERED that the citation issued May 23, 1975 be and the same is hereby affirmed. Penalty is assessed in the sum of $1,000.
George W. Otto, Judge, OSAHRC
Dated: February 26, 1976