SECRETARY OF LABOR,
CON AGRA, INC., McMILLAN
AMERICAN FEDERATION OF GRAIN
MILLERS LOCAL 118,
OSHRC Docket No. 79-1146
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
This case presents the question whether an employer operating a grain elevator is required, under section 5(a)(1) of the Occupational Safety and Health Act of 1970, [[1/]] 29 U.S.C. §§ 651-678 ("the Act"), to test the atmosphere and grain within arriving railroad cars for the presence of pesticides before employees enter the car to gather grain for grading purposes. Judge Wienman granted Respondent's motion to dismiss the complaint at the close of the Secretary's presentation of evidence. For the reasons that follow, we believe the Secretary has presented evidence sufficient to establish a prima facie case of a violation of section 5(a)(1) of the Act. We therefore vacate the judge's decision and remand for further proceedings, including the opportunity for Respondent to present evidence to rebut the Secretary's case.
Respondent, Con Agra, Inc., McMillan Co. Division ("Con Agra"), is engaged in the grain handling business and operates a grain elevator in Superior, Wisconsin. Grain arrives at this facility by railroad car. An employee of Con Agra then enters the car with a long handled probe and obtains a grain sample from various areas in the car to grade the grain for quality. As part of the grading procedure, the employee sniffs the grain to detect moldiness or staleness.
Some railroad cars contain grain which has been fumigated with pesticides. Employees generally identify cars containing fumigated lading either by the odor emanating from the cars or by the presence of a placard indicating that the lading has been fumigated. [[2/]] If a car is placarded or has an odor, Con Agra tests the car atmosphere for gas before an employee enters to gather a grain sample. If the levels are excessive, then the doors are opened to air the car out for a couple of days prior to retesting the car's atmosphere. During the summer, one to five or six cars a day would arrive either containing a placard or emitting an odor. However, placards on cars are often hard to read, may at times be missing even though the grain has been fumigated, or may pertain to a prior shipment. Also, a car may contain pesticide-treated grain but lack a detectable odor. For example, methyl bromide does not have a detectable odor. [[3/]] In addition, the odor thresholds for detecting carbon tetrachloride and phosphine are above permissible concentration levels as listed in 29 C.F.R. § 1910.1000. [[4/]]
On November 1 and 2, 1978, the Secretary's industrial hygienist, Robert Hager, conducted a general inspection of Con Agra's facility. He tested the atmosphere inside railroad boxcars containing grain for the presence of methyl bromide, carbon tetrachloride, and phosphine, but did not detect the presence of any pesticides. An air sampler attached for three hours to an employee engaged in grain sampling revealed his exposure to very small amounts of methyl bromide (0.02 ppm) and carbon tetrachloride (0.3 ppm), well below the permissible 8-hour time weighted average concentration limit established by section 1910.1000 of 10 ppm for carbon tetrachloride and the ceiling concentration limit of 20 ppm for methyl bromide. The compliance officer stated that the citation had been issued to require testing prior to an employee's entering the car because the presence of an odor or placard does not reliably indicate whether grain had been treated with toxic pesticides.
Daniel Jezierski, a chief inspector employed by International Multi-Foods, ("IMF") Grain Elevator No. 6 in Duluth, Minnesota, stated that his company began testing all arriving railroad cars for pesticides when they determined that only one out of approximately every fifteen arriving cars containing pesticide-treated grain was placarded. Mr. Jezierski also stated that, at the IMF elevator, five out of sixty arriving cars were treated. He stated that employees at IMF, including himself, had become sick from sniffing grain treated with pesticides. IMF began testing all arriving railroad cars for pesticides in April 1979, and had been testing all arriving trucks since about August 1976.
Thomas Richard, currently an OSHA industrial hygienist and formerly an industrial hygienist for the State of Wisconsin for ten years and a professor in industrial hygiene at the University of Wisconsin for two years, described the harmful effects of exposure to methyl bromide, carbon tetrachloride, and phosphine. Methyl bromide affects the central nervous system over a period of time and can cause accumulation of fluid in the lungs. Acute or temporary effects would be severe burns to lung tissue. Mr. Richard stated that carbon tetrachloride affects primarily the kidneys and the liver. Phosphine affects the entire body, but it most notably causes lung dysfunction by causing the lung to fill with fluid. He testified that these chemicals have poor warning properties by odor, and that while placarding cars containing pesticide-treated grain is very desirable and required, it is not fail-safe since placards may fall off or cars with treated grain may not be placarded.[[5/]] He stated that the device used to test for pesticides at the IMF grain elevators, called a Bendix Gastec, is a length-of-stain testing device which is used by the Labor Department. It is very easy to use and has a good sensitivity range, from high to low concentrations. Also, there are a number of other instruments available which would also measure pesticide concentrations. Mr. Richard testified that because of the severe toxic effects these chemicals have on the nervous system and the body, it is prudent to determine whether these chemicals are present and avoid exposure rather than to first expose employees and then try to measure what concentrations they were exposed to.
The Secretary also introduced into evidence a methyl bromide label from a Dow Chemical Co. fumigant can which details the hazard posed by the pesticide, and which notes the importance of mechanical testing prior to human entry into a treated area. The label stated in part:
Dow Methyl Bromide is a highly hazardous material and must be handled with care. Observe the following precautions.
(8) Do not enter a treated area without a gas mask unless you have checked the area with a halide leak detector to make sure dangerous concentrations of gas are not present. If there is any doubt, wear a gas mask.
As a result of the inspection, the Secretary issued to Con Agra a citation alleging violation of section 5(a)(1) of the Act in that the atmosphere and the grain inside every railroad boxcar was not tested for pesticides prior to an employee entering the car. A hearing was held on August 7, 1979, at which time Local 118, American Federation of Grain Millers ("the Union") requested and was granted party status. At the close of the Secretary's case, Con Agra moved to dismiss the alleged section 5(a)(1) violation. Judge Wienman found that employees frequently entered untested boxcars and sniffed grain samples, "thereby risk[ing] exposure to excessive amounts of methyl bromide, carbon tetrachloride and phosphine, toxic substances known to cause cardiac, nervous system and vital organ damage." However, Judge Wienman vacated the citation, concluding that the evidence failed to establish industry recognition of a hazard. In his view, the Secretary impermissibly sought to impose new technology upon an employer by way of the general duty clause rather than by rulemaking. Both the Secretary and the Union petitioned for review, and Commissioner Cottine granted both petitions pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i), and Commission Rule 91(a), 29 C.F.R. § 2200.91(a).
The Secretary argues on review that the judge's rationale for vacating the citation is inconsistent with Commission precedent and that all elements of a general duty clause violation have been established. He argues first that the record supports the judge's finding that the hazard of exposure to unknown levels of pesticides was a "real" hazard. Second, the Secretary points out that the grain elevator industry's recognition of the hazard that pesticides presented to its employees is evidenced by the presence of placards affording employers direct notice that the presence of fumigants require that precautions are to be taken to protect employees from the chemical vapors. Moreover, the Secretary asserts that Con Agra's actual knowledge of the hazard of exposure to toxic pesticides was shown by Con Agra's work practice of testing the atmosphere of boxcars which were emitting odors or were placarded. Next, the Secretary asserts that Con Agra's reliance on placards and on employee detecting of odors was inadequate in that these methods were shown to be unreliable indicators for detecting pesticides. Finally, the Secretary states that the feasibility of abatement was clearly shown in that it involved only extending the use of the present work practice of testing some cars to testing all arriving cars.
The Union has also filed a brief on review in which it argues that the Secretary carried his burden of establishing every element of a section 5(a)(1) violation and that the judge erred in granting Respondent's motion to dismiss.
On review, Con Agra characterizes the allegedly hazardous condition as its practice of not testing all grain cars for pesticides. Con Agra points to evidence indicating that only one out of six grain elevators in the area tested all incoming cars and asserts that this evidence supports its position that the industry does not recognize its practice of failing to test to be hazardous. Moreover, Con Agra states that it did not know, and had no reason to know, its actions were hazardous since no injuries had occurred, no one had become ill, and no damage to any employee's internal or external organs had been reported. Finally, Con Agra points out that there are regulations limiting employee exposure to these chemicals and that there is no evidence its employees were exposed to contaminants in excess of these limits set by 29 C.F.R. § 1910.1000. On the day of the inspection, its employees were found to be exposed to 0.02 ppm of methyl bromide, well below the permissible ceiling concentration of 20 ppm set by section 1910.1000, and to 0.3 ppm of carbon tetrachloride, also below the 25 ppm permissible ceiling concentration set by section 1910.1000.
In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. Little Beaver Creek Ranches, Inc., 82 OSAHRC , 10 BNA OSHC 1806, 1982 CCH OSHD ¶ 26,125 (No. 77-2096, 1982), and cases cited therein.
The judge's basis for concluding that recognition of a hazard was not shown is inconsistent with Commission precedent holding that the recognition element refers to recognition of the hazard, not the means of abatement. A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or the employer in particular. Beaird-Poulan, A Div. of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶ 23,493 (No. 12600, 1979); See Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 450 U.S. 965 (1981). It is the dangerous potential of the condition or activity being scrutinized that must be known specifically by the employer or known generally in the industry. See Pratt & Whitney Aircraft, United Technologies Div. v. Secretary of Labor, 649 F.2d 96, 101 (2nd Cir. 1981). Whether a means of abatement is appropriate is determined by proof of its feasibility. Peter Cooper Corp., 81 OSAHRC 101/A2, 10 BNA OSHC 1203, 1210, 1982 CCH OSHD ¶ 25,795 at 32,237 (No. 76-596, 1981) and cases cited therein. Moreover, the question is whether a precaution is recognized by safety and health experts as feasible, not whether the precaution's use has become customary in the industry. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973); Peter Cooper Corp., supra. Compliance with the Act may require methods of protection of a higher standard than industry practice. Beaird-Poulan, A Div. of Emerson Electric Co., 7 BNA OSHC 1225, at 1229, 1979 CCH OSHD at p. 28,459. The judge also erred in characterizing the means of detecting the presence of pesticides as new technology. The Secretary does not seek to require Con Agra to implement any particular testing device, but to use any reliable method of detecting the presence of toxic pesticides. The record establishes that reliable testing methods are currently available and at times are used by Con Agra. This case does not involve the issue of what technology to use, but when to use existing detection devices.
Judge Wienman found that employees frequently entered untested boxcars and sniffed grain samples, thereby risking contact with excessive amounts of "methyl bromide, carbon tetrachloride and phosphine, toxic substances known to cause cardiac, nervous system and vital organ damage." This finding is supported by the record and establishes the existence of the hazard of employee exposure to unknown but potentially dangerous concentrations of toxic pesticides. Con Agra's recognition of the hazard is demonstrated by the company's attempts to deal with the problem by testing the car atmosphere for the presence of these chemicals whenever an odor emanated from the car or if a placard was attached to the outside of the car.
However, the evidence reveals that placards are not always present when the grain has been fumigated. Moreover, a railroad car might contain fumigated grain but lack an odor despite potentially dangerous concentrations of toxic chemicals in pesticides. As noted previously, pesticides containing methyl bromide do not have a detectable odor and the odor thresholds for detecting carbon tetrachloride and phosphine are above permissible concentration levels as listed in 29 C.F.R. § 1910.1000. Because the placard system is unreliable as an indication that the grain has been treated with pesticides, and the pesticides have poor warning properties by odor, Con Agra's method of detecting the presence of pesticides in the arriving grain does not free its workplace of the cited hazard. [[6/]]
The evidence also establishes that acute exposure to these pesticides is likely to cause death or serious physical harm. Thomas Richard, a former professor of industrial hygiene and, at the time of the hearing, an OSHA compliance officer, indicated that methyl bromide was a highly toxic gas, and acute exposure to excessive concentrations could cause seizures, bronchitis, pneumonia and pulmonary edema. Intoxication from carbon tetrachloride could cause liver and kidney damage. Con Agra's claim that no employee has yet been seriously injured is without merit. "The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths and injuries from ever occurring." Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980). See Mineral Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981). "The Secretary need not show any actual injury to prove a § 5(a)(1) violation." Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 910 (2nd Cir. 1977). [[7/]]
Finally, the Secretary's proposed means of abatement is to pretest the
atmosphere and grain in the cars before employees are allowed to enter and sniff the
grain. This merely extends to all cars a practice Con Agra presently engages in
whenever a car has a placard or emits an odor. This testing takes a short time to
complete and would prevent employee exposure to chemicals. The feasibility and
likely utility of the proposed means of abatement is therefore established.
Con Agra has asserted in its brief that there is nothing in the OSHA regulations that requires all grain cars to be tested, and that it was aware of and in compliance with section 1910.1000 threshold limits for air contaminants. We note that the purpose of the general duty clause is to provide protection against recognized hazards where no duty under a specific standard exists, and that specific, promulgated standards will preempt the general duty clause, but only with respect to hazards, conditions or practices expressly covered by the specific standards. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1258 n.9 (D.C. Cir. 1973); Peter Cooper Corp., supra; Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD ¶ 25,551 (No. 13390, 1981); Sun Shipbuilding and Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973-74 CCH OSHD ¶ 16,725 (No. 161, 1973); Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD ¶ 16,345 (No. 1046, 1073). The failure to test in a confined atmosphere before possible exposure of employees to toxic substances is a violation distinct from a continued exposure to known quantities of substances listed in section 1910.1000. Cf. Mahone Grain Corp., 81 OSAHRC 108/B8, 10 BNA OSHC 1275, 1982 CCH OSHD ¶ 25,836 (No. 77-3041, 1981) (failure to test for disease producing spores in grain dust before permitting employees to enter a grain elevator exposed employees cleaning the elevator to a potentially fatal disease); Bomac Drilling Division of TRG Drilling Corp., 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1981 CCH OSHD ¶ 25,363 (No. 76-450, 1981) (oil and gas drilling industry recognizes that employees are exposed to the hazard of inhaling hydrogen sulfide when its presence is only suspected during drilling operations and the failure to provide emergency respiratory equipment constitutes a violation of section 5(a)(1)); Fry's Tank Service, Inc. 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1976-77 CCH OSHD ¶ 20,999 (No. 4447, 1976) (failure to test atmosphere in tank before employee entry or to provide breathing equipment and safety lines constitutes a violation of section 5(a)(1) where it was recognized that the atmosphere in the confined space could be incapable of supporting human life); Edgewood Construction Co., 75 OSAHRC 28/B5, 2 BNA OSHC 1485, 1487, 1974-75 CCH OSHD ¶ 19,218 at p. 22,975 (No. 1264, 1975) (Cleary, Commissioner, concurring and dissenting) (where no standard required the use of equipment to detect natural gas and ventilate the atmosphere breathed by employees while constructing a sewer alongside an old gas line, the employer was properly cited under the general duty clause); ARO, Inc., 73 OSAHRC 61/B1, 1 BNA OSHC 1453, 1455, 1973-74 CCH OSHD ¶ 17,084 at p. 21,733 (No. 465, 1973) (Van Namee, Commissioner, concurring) (failure to test a furnace for an oxygen deficient atmosphere prior to an employee's entering the furnace to make repairs violates section 5(a)(1)); American Smelting & Refining Co., 73 OSAHRC 37/A2, 1 BNA OSHC 1256, 1973-74 CCH OSHD ¶ 16,456 (No. 10, 1973), aff'd, 501 F.2d 504 (8th Cir. 1974) (serious health hazards which are only detectable by instrumentation are not outside the scope of the general duty clause).
Accordingly, we conclude Judge Wienman erred in granting Con Agra's motion to dismiss at the close of the Secretary's case. We vacate the judge's decision and remand this case to the chief judge [[8/]] for further proceedings. SO ORDERED.
FOR THE COMMISSION
RAY H. DARLING, JR
DATED: JAN 31 1983
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[[1/]] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:
Sec. 5(a)(1) Each employer--
(1) 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.
[[2/]] The placard is required by a Department of Transportation regulation
found at 49 C.F.R. § 173.426(b). It identifies toxic substances, and instructs
persons not to enter until the car is free of gas.
[[3/]] The Secretary alleged in the citation that the grain and atmosphere inside every railroad car were not tested for pesticides such as, but not limited to, methyl bromide, carbon tetrachloride and phosphine prior to an employee's entering the car to gather grain and conducting a sniff test during grain grading procedures.
[[4/]] 29 C.F.R. § 1910.1000 provides:
§ 1910.1000 Air contaminants.
An employee's exposure to any material listed in table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.
(a) Table Z-1:
(1) Materials with names preceded by "C" -- Ceiling Values. An employee's exposure to any material in table Z-1, the name of which is preceded by a "C" (e.g., C Boron trifluoride), shall at no time exceed the ceiling value given for that material in the table.
(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material listed in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.
(b) Table Z-2: (1) 8-hour time weighted averages. An employee's exposure to any material listed in table Z-2, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.
(2) Acceptable ceiling concentrations. An employee's exposure to a
material listed in table Z-2 shall not exceed at any time during an 8-hour shift the
acceptable ceiling concentration limit given for the material in the table, except for a
time period, and up to a concentration not exceeding the maximum duration and
concentration allowed in the column under "acceptable maximum peak above the
acceptable ceiling concentration for an 8-hour shift."
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.
Table Z-1 specifies a ceiling concentration for methyl bromide of 20 ppm and
an 8-hour time weighted average concentration of 0.3 ppm for phosphine. For carbon
tetrachloride, table Z-2 lists an 8-hour time weighted average concentration of 10 ppm, a
ceiling concentration of 25 ppm, and an acceptable maximum peak above the ceiling
concentration of 200 ppm for any 5 minutes in any 4 hours during an 8-hour shift.
[[5/]] Mr. Richard also testified that although the transportation of fumigated grain is prohibited until 48 hours after fumigation to allow for dissipation, in Wisconsin's cold climate 48 hours is not sufficient because pesticides will not evaporate in cold grain and could remain for months.
[[6/]] See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974), where the court stated:
Our technological age depends on instrumentation to monitor many conditions of industrial operations and the environment. Where hazards are recognized but not detectable by the senses, common sense and prudence demand that instrumentation be utilized.
501 F.2d at 511.
[[7/]] Unlike the stipulated factual record in Shenango Co., 82 OSAHRC, 10 BNA OSHC 1613, 1982 CCH OSHD ¶ 26,051 (No. 78-4723, 1982), in which the Commission affirmed as nonserious a violation of the asbestos monitoring standard, the evidentiary record in this case establishes employee exposure to potentially dangerous quantities of toxic substances as a result of the work practice involved.
[[8/]] Judge Wienman is no longer with the Commission.