CONTINENTAL OIL CO.

OSHRC Docket No. 1829

Occupational Safety and Health Review Commission

July 20, 1978

[*1]

Before CLEARY, Chairman; BARNAKO, Commissioner. *

* Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marvin Tincher, Reg. Sol., USDOL

R. Allan Edgar, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

This case is before the Commission on remand from the United States Court of Appeals for the Sixth Circuit. Dunlop v. Continental Oil Co., No. 75-1961 (6th Cir. 1977). The Court directed us to reconsider and attempt to resolve our prior decision which, by an equally divided vote, affirmed an Administrative Law Judge's decision. Continental Oil Co., 75 OSAHRC 65/B4, 3 BNA OSHC 1225, 1974-75 CCH OSHD para. 19,717 (No. 1829, 1975). The Judge had held that the Respondent (Continental) did not violate the general duty clause (Section 5(a)(1)) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq.). n1

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n1 All other aspects of the case had been unanimously disposed of by the Commission. Neither party took exception to those aspects before the Court of Appeals.

[*2]

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The case arose following a fatal explosion and fire at Continental's petroleum storage tank farm outside of Atlanta. Under normal circumstances, a tank was filled by attaching a pipeline to the tank and then leaving the tank unattended for a predetermined length of time during which gasoline flowed into it. For unknown reasons this procedure malfunctioned on September 25, 1972. The pipeline did not shut off at the proper time and gasoline overflowed from the tank. George Douglas, a truck driver, spotted the escaping fuel when he arrived to load his delivery truck. He telephoned the terminal manager, Don Ross, who went to the tank farm and entered the facility in order to manually shut off the flow control valve from the pipeline into the tank. While he attempted to do so, a violent explosion occurred, killing him as well as two employees of a nearby rubber company.

The resulting citation alleged that the respondent violated Section 5(a)(1) n2 of the Act in three respects including:

(3) Automatic detection devices or persons were not employed to detect accidental discharge of flammables so that [*3] hazardous conditions that would endanger employees and others could be prevented.

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n2 Section 5(a)(1) provides that:

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 employees.

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The Judge vacated the citation. With respect to the above allegation, he concluded that since none of the suggested preventive devices, including manned receipt and automatic detection devices, were standard practice in the bulk petroleum storage industry, there was no "recognized hazard."

Former Commissioner Moran agreed with this reasoning. Chairman Cleary disagreed, and set forth the reasons why he would have reversed the Judge and found a violation of section 5(a)(1). n3 Having carefully reviewed the entire record, we reverse the Judge and affirm the citation for the following reasons.

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n3 Both members agreed with the Judge's conclusion that Continental did not violate the general duty clause for the other reasons alleged in the citation. The Secretary did not take exception to these aspects of the Commission's decision before the Sixth Circuit. Accordingly, we need consider only that allegation of the citation concerning the use of automatic detection devices or persons.

[*4]

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In order to establish a violation of section 5(a)(1), the Secretary must prove that:

(1) 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. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973). In this case, the record clearly establishes the second and third criteria listed above. As discussed more fully by Chairman Cleary in his initial decision, Continental recognized that the explosive vapors released by gasoline escaping from an overflowing tank posed a hazard to employees at its worksite. Indeed just a few months prior to the present tragedy, a storage tank at a nearby tank farm had overfilled and then erupted, killing one person. See Triangle Refineries, Inc., 73 OSAHRC 9/A14, 1 BNA OSHC 3050, 1971-73 CCH OSHD para. 15,454 (No. 1008, 1973) (ALJ). The record shows that Continental officials were well aware of the circumstances surrounding that explosion and knew that the neighboring storage tank farm, like its own, followed a procedure called "unmanned [*5] delivery" in filling its tanks. Additionally the record is uncontroverted that death or serious injury could result from the hazard created by an overflowing tank. n4

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n4 Respondent's company truck driver Douglas was exposed to the hazard when he drove up to the tank farm to load his delivery vehicle.

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The only remaining question then is whether Continental rendered its workplace "free" of the hazard. The Secretary suggested a manned delivery procedure, coupled with the usage of high level alarms, to prevent massive overflows such as occurred here. As noted above Judge Patton vacated the citation, however, because such devices were not recognized by the industry as a necessity for safe operations.

In National Realty & Construction Co., supra, the court addressed the question of what an employer must do to render its worksite "free" of a recognized hazard. In addressing this duty, the court stated that the hazard must be one which is preventable and defined preventability as follows:

This is not to say that [*6] a safety precaution must find general usage in an industry before its absence gives rise to a general duty violation. The question is whether a precaution is recognized by safety experts as feasible, not whether the precaution's use has become customary. Id at footnote 37, p. 1266.

We adhered to this rationale in Southern Railway Co., 75 OSAHRC 88/C2, p.3, 3 BNA OSHC 1657, 1658, 1975-76 CCH OSHD para. 20,091 (No. 5960, 1975); wherein we stated, "Though the level of hazard recognition required by the 'general duty' clause is measured against industry employer knowledge . . . an abatement order under section 5(a)(1) may require that work practices and safety precautions be upgraded to a feasible level which is above that considered customary or 'reasonable' by an industry." (citations omitted) Southern Railway Co., supra, at 23,897.

The evidence of record, described by Chairman Cleary in the Commission's initial decision, establishes that a manned delivery system and high level alarms are reasonable and feasible methods of preventing tank spills. National Realty & Construction Co., supra, at 1266. Not only did Exxon, another company operating petroleum storage [*7] facilities, have high level alarms and follow the manned delivery procedure at one site, but the Secretary's area director, who had experience in the petroleum industry, as well as one of Continental's own witnesses recognized the safety utility of these controls. In such circumstances, we hold that the Secretary has demonstrated the feasibility of the suggested abatement method and affirm the citation.

The Secretary proposed a penalty of $700. We recognize the large size of the employer and the high gravity of the violation. The company, however, after the Triangle Refineries incident, had taken initial steps to increase safety at its facility. While these actions were inadequate, they demonstrate Continental's good faith. Kent Nowlin Constr., Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (No. 9483, 1977), appeal filed, No. 77-1258 (10th Cir. April 18, 1977). We conclude that a penalty of $500 is appropriate.

The citation for a violation of section 5(a)(1) of the Act is affirmed and a penalty of $500 is assessed.

Commissioner COTTINE filing a separate opinion:

As a new member of the Commission, I must resolve the issue of my participation in [*8] pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received by commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except [*9] when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. [*10] 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, 802 n. 14.

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on [*12] the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict [*13] with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as [*14] guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective [*15] adjudication of cases by the administrative law judges.