SECRETARY OF LABOR,
Complainant,

v.

QUANTUM CHEMICAL CORPORATION, EMERY DIVISION,
Respondent.

UNITED STEELWORKERS OF AMERICA, LOCAL 14340,
Authorized Employee
Representative.

OSHRC Docket 87-1750

ORDER

The Secretary's notice to withdraw citation is construed as a motion to withdraw the citation and is granted.

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary

Dated 13 JAN 1989

SECRETARY OF LABOR,
Complainant,

v.

QUANTUM CHEMICAL CORPORATION, EMERY DIVISION,
Respondent.

UNITED STEELWORKERS OF AMERICA, LOCAL 14340,
Authorized Employee
Representative.

OSHRC Docket 87-1750

APPEARANCES:

Janice L. Thompson, Esquire, Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

David A. Copeland, Esquire, Quantum Chemical Corporation, Cincinnati, Ohio, on behalf of respondent.

Richard Smith, Safety Representative, United Steelworkers of America, Local 14349, Cincinnati, Ohio, on behalf of the authorized employee representative.

DECISION AND ORDER

SALYERS, Judge: Respondent, Quantum Chemical Corporation, Emery Divisions ("Emery"), contests a serious citation charging a violation of 29 C.F.R. § 1910.132(a) for failure to provide protective shields or barriers around a tank containing hot water. The citation emanates from an inspection conducted on July 16. 1987, by Occupational Safety for Health Administration ("OSHA) Compliance Officer an accident resulting in serious injuries to an Emery employee.

Emery is an intermediate chemical manufacturer located Cincinnati, Ohio, on 105 acres of land in more than two dozen Emery employs approximately 600 employees at that location (Tr. 183) various tanks are located throughout the buildings, connected by pipes (Tr. 36)

Building Three houses the acid boil department (Tr. 15,112). Tank U-13 is used in the acid boil department to contain hot water for cleaning (Tr. 37). This tank is eight feet, three inches, high and eight feet in diameter (Tr. 40). At the time of the accident, the tank was not equipped with a pressure gauge or a working capacity gauge. The tank was not covered with a lid or cap, and did not have an overflow (Tr. 38, 46). Tank U-18 had been used as hot water tank for the previous one or two years. Before that, it was used as a cold water tank (Tr. 122).

On March 28, 1987, Oliver Ali Jawwaad was on duty as the acid boil operator. Jawwaad was working the third shift alone from 11:30 P.M until 7:30 a.m. (Tr. 112, 117).

Around 2:30 a.m., tank U-13 was half full of water. Jawwaad mixed some soda ash and cleaning soap into the slurry and pumped it over to tank U-13, filling it to about two feet the top of the tank (Tr.120). He set up the to the pump center and put steam on the line (Tr. 124). Jawwaad then checked the line and saw that too much steam was being released whereupon he shut down the steam so that it was barely coming out (Tr. 125).

About 6:30 a.m. Jawwaad began preparations to transfer the heated water from tank U-13. His testimony indicates this procedure as follows (Tr. 157-158):

Well, the next thing you do, you go back, shut off the steam, open up the bleeder, make sure there's no back pressure, and then you go over and you shut the valve on the--the bypass valve on the pump. And I normally hit the bIeeder on the line to make sure there's no pressure. You go back over and then you shut the valve off--shut the extra--the valve on the steam blowout line, you shut that off, and then you--because it's already open to see if there's any back pressure. You shut that off and then the next thing you do is open the valve. And then you wait for a few minutes, you go back over and you check the bleeder again until you get stock through there. If you get stock through there you shut it off and you turn the pump on. And then you follow the Iine to make sure there's no bleeders open, and make sure it's going to where you want it to go.

After shutting off the steam and opening the bleeder valve under the tank to prevent any back pressure, he proceeded to the pump center where he opened another bleeder valve at that location (Tr. 127). As he was returning back to the tank to release the water from the tank, he was briefly interrupted by a telephone call from a company supervisor (Tr. 130-131).

After finishing the call, Jawwaad went back to the tank with the intention of opening the valve to let water flow to the transfer center. He crouched down, bent over and reached under the tank to manually open the valve. (Tr. 65-66) Jawwaad began turning the valve. On the third turn, he heard a (?) noise. Tank U-13 the erupted and water spilled over onto Jawwaad, who was still crouched beneath the tank. The water was heated to approximately 180*. Jawwaad suffered third degree burns to his back, ankles, hips and arm (Tr. 134, 137-138).

Jawwaad immediately paged his supervisor, Anthony Williams. When Williams arrived at the acid boil department, Jawwaad was flushing himself with a water hose. Williams put him in a safety shower and then took him to the hospital (Ex. C-2; Tr. 36). At the time of the accident, the only personal protective equipment. that Jawwaad was wearing was a hard hat, safety glasses, and rubber gloves. Emery required no other protective equipment for handling hot water (Tr. 144). At the time of the hearing, almost one year after his accident, Jawwaad had been unable to return to work due to the injuries he received from the overflow (Tr. 138).

Three days after Jawwaad's accident, Emery issued its first Serious Potential Incident (SPI) Investigation Report (Ex. C-2). SPI reports are conducted by Emery when it determines that an accident having a high potential for causing injury occurs at the plant. On May 28, 1987, two after the accident, Emery issued a "revised" SPI report which differed from the initial report on several significant points (Ex. C-3).

The original report stated that no safety violation occurred and that contributing causes of the accident were inadequate procedures, inadequate or improper design and inadequate maintenance. The revised report stated that there was a safety violation caused by employee carelessness in not bleeding steam pressure from the line. Contributing causes of the accident were listed as employee carelessness and inadequate procedures (Ex. C-3).

Anthony WiIIiams, Emery's rotating production manager, testified that the second SPI report was initiated because Emery was not satisfied with the results of the first one (Tr. 60). The first SPI report concluded that tank U-13 should have been covered; the second report blamed Jawwaad's carelessness in not following the company's double block and bleed procedure (Tr. 62).

WiIliams stated that Jawwaad was the most experienced operator in. the acid boil department. Jawwaad was with Emery for 22 years, at least ten of which had been spent in the acid boil department. Jawwaad had used tank U-13 for clean-up several times before his accident. Williams had never known Jawwaad to be careless (Tr. 58-59, 114). There is no evidence that Jawwaad was ever personally disciplined, reprimanded, or accused of being careless either before or following the accident (Tr. 149).

Attached to the revised SPI report was a summary of the results of a test conducted on tank U-13 after the accident (Ex. C-4). The test indicated that, after shutting off the steam supply, the back pressure in the pipe Iine gradually bleeds off through the water hose. The time required to bleed the pressure from the Iine to ten pounds of pressure per square inch was 24 seconds. That is sufficient pressure to cause a tank overflow if the pressure is released through the bottom valve (Tr. 285-286). Before that test was conducted, the capacity gauge and the leaking steam valves were replaced. A steam pressure gauge was also installed (Tr. 62-69).

Williams testified that approximately one year prior to the accident in question, tank U-13 had overflowed on him while he was working as an operator.

Williams reported the overflow to his supervisor at the time, John Czarnicki (Tr. 71-72). Williams submitted a written maintenance request, for a lid or cap or overflow on tank U-13 (Tr. 74, 87). Williams stated that he knew of at least four other operators who reported hearing a rumbling noise when they turned the pipe valves (Tr. 73).

No written procedure for the use of tank U-13 exists. The acid boil department did have a copy of Emery's, Pumping Manual (Ex. C-5; Tr. 78). The acid boil operators are trained by other operators in the department (Tr. 79).

Safety meetings are held once a month on a Tuesday and last from 10 to 30 minutes (Tr. 82). Attendance is mandatory, but employees are not disciplined for their failure to attend (Tr. 84-85). Emery has a progressive disciplinary program for employees violating safety rules (Ex. R-1; Tr. 342).

A great deal of time was spent at the hearing discussing the double block and bleed procedure. This procedure is designed to clear the steam Iine of condensate before steaming the Iine and to ensure that pressure is removed from the line before an additional operation is performed on that Iine (Tr. 257).  Tom Zesterman, Emery's production manager, described the procedure as follows (Tr. 263-264):

[W]e close the block valve first, open the bleeder valve. So, any pressure that's in that line there is going to bleed through the isolating valve and through the bleeder valve until all the pressure is relieved. At that point in time we're sure that the pressure is off the line, we then close the isolating valve and then we can open the valve on-- from U-13, and commence the pumping from U-13.

It was Zesterman's opinion that the tank would not have overflowed had there been no pressure on the line (Tr. 270-271). Zesterman stated that had Jawwaad properly isolated the line, he would have known there was a problem and would have continued to blow steam out of the bleeder (Tr. 285). Despite the fact that Jawwaad was alone at the time of the accident and was not interviewed by anyone conducting the SPI investigation, Zesterman stated that Jawwaad did not follow the proper double block and bleed procedure (Tr. 283-284). Zesterman said that "the only explanation that we could come up with on how the steam pressure remained on that line was that the block and bleed procedure was not properly followed" (Tr. 298).

Emery's plant manager, Alick Kovach, concurred with Zesterman's opinion regarding the cause of the accident. Kovach stated that U-13's eruption did not make sense based on Jawwaad's story (Tr. 197). If Jawwaad had followed the double block and bleed procedure, he would have known there was pressure on the line (Tr. 219). Kovach denied that any employee ever made a request to put a lid on U-13 (Tr. 233). Kovach was aware of other tank eruptions but stated, "Typically, it's usually a violation of some operating rule or some employee carelessness" (Tr. 243).

In June of 1985, Emery conducted a process hazard review in Building Three (Tr. 272). Emery targeted potential problem areas and categorized them, then gave these categories special attention (Tr. 273). Nothing in the review indicated that tank U-13 had any hazards associated with it (T-279). At that time, however, U-13 was used as a cold water, and not a hot water, tank (Tr. 288).

Emery was issued a citation for the violation of 29 C.F.R. § 1910.132(a) which provides:

Protective equipment, including protective equipment for eyes, face head, and, extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of process or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Compliance Officer Cannon stated that a shield or barrier around the tank would have protected Jawwaad from serious injury. Cannon pointed out that Emery had been notified of at least one other overflow and request for a cap on U-13 as evidence of Emery's knowledge of the hazard (Tr. 45). He testified that the best engineering control for the hazard would be to place a cap on the tank with an overflow on it that would empty into a safe place (Tr. 46). In the interim, Cannon suggested that a lean-to device could be placed on the side of the tank that would divert any overflow from the tank away from the operator. Cannon also suggested a remote valve with a chain drive device running from the valve under the tank to the remote valve (Tr. 44).

To establish the violation of § 1910.132(a), the Secretary must prove that "(1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) empIoyees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence." Astra Pharmaceutical Products, 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,576 No. 78.6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982).

Emery asserts that the Secretary failed to prove the first element (that § 1910.132[a] applies) because § 1910.132(a) required that a hazard exist before the standard is applicable. Emery claims that no hazard exists with respect to the operation of tank U-13. This argument is somewhat audacious in light of the consequences suffered by Jawwaad as a result of the tank overflow.

Emery bases this defense on two grounds: (i) that if tank U-13 was operated in conformance with Emery's safety procedures, then the accident would not have occurred, and (ii) that Emery conducted a Process Hazard Review in Building Three that did not identify any substantive hazards associated with U- 13. Both of these grounds are without merit.

To say that a hazard does not exist if proper safety procedures are followed is a sophistic argument. The fact that safety procedures are prescribed in the first place indicates that a hazard does exist. The implementation of safety procedures does not, obviate the fact of the hazard; it only reduces the risk.

Likewise, asserting that the company's Process Hazard Review did not identify any substantive hazards associated with U-13 does not obliterate the hazard that obviously existed. The Process Hazard Review was conducted when U-13 was being used to contain cold water. The hazard in this case is the employee exposure to overflows of water heated to 180*. The Process Hazard Review is, therefore, irrelevant to the case at bar.

Emery contends that the Secretary failed to prove the second element, (that there was a failure to comply with § 1910.132[a]) because the double block and bleed procedure is adequate to meet the requirements of § 1910.132(a). As previously indicated, a great deal at the hearing was devoted to the double block and bleed procedure. Both parties engaged in arguments on the effectiveness of the procedure, whether the leaking steam valves could have hampered the procedure, and whether Jawwaad had actually followed the procedure. The implementation of the double block and bleed procedure is, however, irrelevant to the present case. The standard calls for protective shields and barriers where necessary by reason of hazards of processes. The employer is not free to substitute its own procedures for those mandated by federal OSHA legislation.

Emery has not claimed or proven that the use of the lids or caps would constitute a greater hazard, or be technologically or economically infeasible. Indeed, in its posthearing brief, the company states: "Emery does not deny that one or more of these measures [recommended by OSHA] may have afforded some protection in the instant case . . ." (Emery's brief, p. 9). Emery has offered no reason for its noncompliance with § 1910.132(a). Emery must fail on its second defense.

Emery's third defense is that the accident occurred as a result of unforeseeable employee misconduct. Emery bases this defense on its claim that Jawwaad failed to follow the prescribed double block and bleed procedure in his operation of U-13. In the first place, Jawwaad's testimony reflects he did, in fact, follow this procedure. While Emery offered testimony of other witnesses who theorized about Jawwaad's actions, these witnesses had no direct knowledge of the events leading to the accident and their conclusions were based on assumptions not supported by the evidence. In view of Jawwaad's long association with Emery and his apparent unblemished record of compliance with its operating instructions, there is no reason to speculate that he deviated from these practices on the night in question. The actions taken by Jawwaad immediately preceding the accident were in accordance with company procedures and did not constitute an instance of employee misconduct.

The other elements the Secretary must prove are employee access to the violative condition and employer knowledge of the condition. Jawwaad's third degree burns are sufficient evidence of exposure to the hazard. Employer knowledge of the hazard was well established. Supervisor Anthony Williams experienced an overflow of U-13, and submitted a written request for a lid or cap. Plant manager Kovach testified as to his knowledge of tank eruptions and overflows. In its posthearing brief, Emery concedes that it "does not deny its awareness that tank eruptions have occurred in the plant . . ." (Emery's brief, p. 14). Emery goes on to contend that the overflows were all caused by violation of its administrative or engineering controls. Again, that does not excuse noncompliance on the part of Emery. The Secretary has met her burden of proving, and Emery has failed to rebut, that Emery violated § 1910.132(a).

Under § 17(k) of the Act, a violation will be deemed serious if there exists a "substantial probability that death or serious physical harm could result from the hazard. Jawwaad's injuries demonstrate that the hazard presented a substantial; probability of serious physical harm. The citation is affirmed as serious and a penalty of $600.00 is assessed.

FINDINGS OF FACT

1. Respondent operates a chemical manufacturing plant in Cincinnati, Ohio. Building Three of the plant houses the acid boil department. Tank U-13 in Building Three contains water that is heated and used in cleaning up. The tank is eight feet, three inches, high and eight feet in diameter. The tank was not covered by a lid or cap.

2. On March 28, 1987, respondent's acid boil operator, Oliver Jawwaad, had heated the water in tank J-13 approximately 180*. In preparation for transferring this hot water from the tank, Jawwaad performed the bleed and block procedures normally followed in conducting this operation. As he turned the valve underneath the tank to release the water, the tank erupted, splashing water on him as he crouched below, causing third degree burns.

3. Respondent issued an initial report on the accident that concluded that a lid should be placed on the tank.

4. Previous overflows of tanks had occurred at the plant and these occurrences were known to respondent. On one occasion prior to the accident, one of the respondent's supervisors experienced an eruption involving tank U-13 and specifically requested a lid for this tank.

CONCLUSIONS OF LAW

1. Respondent, at all times material to this proceeding was engaged in a business affecting interstate commerce within the meaning of section 3(5) of the Occupational Safety and health Act 1970 ("Act").

2. Respondent, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. Respondent was in violation of 29 C.F.R. § 1910.132(a) for failing to provide shields or barriers around a hot water tank. Respondent knew of the hazardous condition to which its acid boil operators were exposed, yet failed to provide a cap or lid or overflow for the tank.

ORDER

Based upon the findings of fact and conclusions of law, it is hereby ORDERED:

That the citation for the serious violation of 29 C.F.R. § 1910.132(a) is affirmed. and a penalty of $600.00 is assessed.

Dated this 3rd day of August, 1988.

EDWIN G. SALYERS
Judge