Authorized Employee

OSHRC Docket, No. 79-2610


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.


This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.   See section 10(c) of the Act, 29 U.S.C. 659(c).

The issue on review is whether an administrative law judge erred in finding that the Exxon Company, U.S.A. violated section 5(a)(1) of the Act,[[1]] 29 U.S.C. 654(a)(1), at its Linden, New Jersey refinery by failing to periodically inspect for corrosion at a dead end, a section of pipe in which there is no product flow during normal operation.  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 36/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD 26,125, p. 32,878 (No. 77-2096, 1982).  Commissioner Cleary would affirm the judge's decision.  The evidence establishes that Exxon and its industry recognized that dead ends were likely places for water to accumulate and corrosion to occur.  He notes that the serious injuries suffered as a result of this incident show that death or serious physical harm was likely.  See Chevron Oil Co., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1983 CCH OSHD 26,507 (No. 10799, 1983), appeal filed, No. 83-4371 (5th Cir. June 17, 1983). He would find that the Secretary's proposed method of abating the hazard by inspecting dead ends at least every 5 years was a more effective method than that of Exxon, see U.S. Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1642 n.6, 1981 CCH OSHD
25,282, p. 31,250 n.6 (No. 76-5007, 1981), which inspected dead ends only when its testing revealed corrosion in similar dead ends.  Commissioner Cleary would also find that the Secretary's proposed abatement method of inspecting dead ends at least every 5 years was feasible.

Chairman Buckley would reverse the judge's decision because the Secretary failed to prove that either Exxon or its industry recognized that Exxon's method of inspecting the cited dead end was hazardous.  The judge's decision found that the recognition element was established because a failure to "adequately" inspect dead ends for internal corrosion is recognized as hazardous in the oil industry.  Chairman Buckley observes, however, that this record furnishes no basis for finding that Exxon's sampling program was recognized by Exxon or its industry as inadequate.   See Davey Tree Expert Co., 84 OSAHRC __/__, 11 BNA OSHC 1898, 1900, 1984 CCH OSHD 26,852, p. 34,400 (No. 77-2350, 1984).  Indeed, the record refutes such an assertion.  Exxon showed that the cited dead end was not a likely place for corrosion to occur because the pipe was deflected from the horizontal, causing any corroding liquid that might ordinarily be retained to drain off.  Moreover, tests Exxon had conducted on the piping system that included the cited dead end showed negligible corrosion.

The two Commission members are divided on whether the judge erred in his disposition.  To resolve this impasse and to permit the parties to conclude the litigation, the members have agreed to vacate the direction for review.[[2]]  E.g., Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD 24,634 (Nos. 77-3040 & 77-3542, 1980).  The Commission members have discretion under the Act and the Commission's Rules of Procedure to direct review of a judge's decision.   Section 12(j), 29 U.S.C. 661(i); 29 C.F.R. 2200.92.  In the absence of a direction for review, the judge's decision becomes a final order of the Commission and can be appealed by an aggrieved party to a United States court of appeals.  Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. 659(c), 660(a) and (b), 661(i).  The judge's decision in this case therefore becomes the appealable final order of the Commission, but is accorded the precedential value of an unreviewed judge's decision.

Under section 10(c) of the Act, 29 U.S.C. 659(c), abatement is not required until the entry of a Commission final order affirming a contested citation.   Inasmuch as the administrative law judge's decision affirmed the citation, and that decision will be the final order of the Commission, Exxon will be required to undertake substantial abatement measures.  The members of the Commission, however, have agreed to stay the abatement requirement of the citation until the expiration of the 60 day period during which appellate review of this decision may be sought under section 11(a) of the Act, 29 U.S.C. 660(a), and, if review is sought, until the assumption of jurisdiction by the court of appeals.  If appellate review is sought, determination as to whether abatement should be further stayed would be within the discretion of the court of appeals.

Accordingly, the direction for review is vacated.  Abatement is stayed for a period of sixty days, or if review by a circuit court of appeals is sought, until that court assumes jurisdiction.


Ray H. Darling, Jr.
Executive Secretary

DATED:  AUG 30 1984

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[[1]] Section 5(a)(1) states:

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]] As established by the Act, the Commission is composed of three members.  Section 12(a), 29 U.S.C. 661(a).  Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  Presently, the Commission has two members as a result of a vacancy.