Secretary of Labor,

Complainant,

v.

RMI COMPANY,

Respondent, and

OIL, CHEMICAL, AND ATOMIC WORKERS
UNION, AFL-CIO, LOCAL 7-509,

Authorized Employee

Representative.

OSHRC DOCKET
No. 89-0428

ORDER

On March 8, 1991, the Secretary filed a Notice of Withdrawal of Citation in the above-captioned case. The Secretary has withdrawn the only remaining item at issue in this case, item 3 of Citation 1.

The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and sets aside the Judge's Decision and Order which affirmed item 3 of Citation 1 and assessed a $350 penalty. There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: April 8, 1991


SECRETARY OF LABOR,

Complainant,

v.

RMI COMPANY,

Respondent,

and

OIL, CHEMICAL AND ATOMIC
WORKERS UNION, AFL-CIO,
LOCAL 7- 509,

Authorized Employee
Representative.

OSHRC Docket No. 89-0428

APPEARANCES:

Sandra B. Kramer, Esquire, Office of the 
Solicitor, U. S. Department of Labor, 
Cleveland, Ohio, on behalf of complainant.

Thomas Barnard, Esquire, and David Somrak, 
Esquire, Duvin, Cahn and Barnard, 
Cleveland, Ohio, on behalf of respondent.

Gary Thompson, International 
Representative, Oil, Chemical and Atomic 
Workers International Union, Chagrin 
Falls, Ohio, on behalf of authorized 
employee representative.

Fred Ruffo, Representative for the Local 
Union, Oil, Chemical and Atomic Workers 
International Union, Ashtabula, Ohio, on 
behalf of authorized employee representative.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 ("Act") to contest a citation issued to respondent ("RMI") by the Secretary of Labor ("Secretary") pursuant to section 9(a) of the "Act.

The facts which gave rise to issuance of the citation are not in dispute. RMI operates a plant in Ashtabula, Ohio, which manufactures sodium and chlorine. The facility consists of 20 to 25 buildings including an evaporator building and office building. An employee of an RMI subcontractor connected a respirator to RMI's plant compressed air line to use for breathing purposes. He was unaware the air line was being purged with nitrogen which caused his asphyxiation and death.

RMI's maintenance engineer authorized use of the air line by the subcontractor. However, he was not aware the line contained nitrogen.[[1]] The question to be resolved is whether RMI violated the hazard communication standard at 29 C.F.R. 1910.1200(h)(1)(ii) in not informing the engineer of the presence of nitrogen in the plant air lines.

The standard which pertains to employee information and training provides in pertinent part that:

Employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area.

(1) Information. Employees shall be informed of:

                                    * * *
(ii) Any operations in their work area where 
hazardous chemicals are present, . . . .

The Commission has held that, in order to establish a violation as in this case, it is necessary for the Secretary to show by a preponderance of the evidence that (1) the cited standard applies; (2) there was a failure to comply with the standard; (3) employees 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, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD 25,578 (No. 78-6247, 1979); Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD 21,679 (No. 76-181, 1977).

The central issue relates to whether the standard applies. RMI contends that the maintenance engineer, John Korb, was not an "employee" within the meaning of the standard and the hazard was not in his "work area" as defined by the regulation.

"Employee" is defined in 29 C.F.R. 1910.1200(c) as "a worker who may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies." The term "work area" is defined to mean "a room or defined space in a workplace where hazardous chemicals are produced or used, and where employees are present."

The evidence shows that Korb's job as maintenance engineer included estimating maintenance jobs, taking bids and awarding contracts. In this capacity, he contracted with the Boyd E. Hart Company ("Hart") to sandblast and paint a cooling tower support structure. The structure was located approximately 100 feet above the evaporator building. It also shows the evaporator building was separate and apart from the building where Mr. Korb's office was located and that he did not supervise any RMI employees but was involved with them on various maintenance and repair jobs in an advisory capacity. During the period in question, he had no reason to work in the evaporator building except with the outside contractor.

RMI's contention, however, that the regulation was not violated because Korb was not an employee with respect to the hazard or that the hazard was not present in this work area is without merit. Mr. Korb had the authority to provide the subcontractor's foreman with a special coupling to connect into the plant air line. He obtained the coupling from the storeroom where he had signed out for it.

Clearly the maintenance engineer's authority to obtain tools from the storeroom and provide them to subcontractors for use attests to his status as an employee and that he was not restricted to a particular work area. In carrying out the responsibilities of his position, the engineer could obviously encounter "foreseeable emergencies" working throughout the facility.

The evidence establishes that the cited standard applies and there was a failure to comply in not informing the maintenance engineer of the presence of nitrogen in the plant air line. Mr. Korb, as well as other employees outside the evaporator building, had access to the hazard of nitrogen which RMI knew about or could have known about with the exercise of reasonable diligence.

RMI had a duty, commensurate with the responsibilities of its maintenance engineer at the facility, to inform him of the presence of any hazardous conditions. Although the employees in the evaporator plant were adequately informed of the presence of the hazard, it was nonetheless incumbent on respondent to inform those employees who were foreseeable exposed to the hazard.

An employer as in this case need not take steps to prevent hazards which are not generally foreseeable, but it must do all it feasibly can to prevent foreseeable hazards. The relevant test is not the foreseeability of a particular incident but the foreseeability of the hazard. See General Dynamic Corp. v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

The violation having been established, it must now be determined whether it is of a serious nature, as alleged. For a violation to be determined serious under section 17(k) of the Act, there must be a substantial probability that death or serious physical harm could result therefrom. The death resulting from use of plant air containing nitrogen is clearly serious within the meaning of the Act.

The next question determination concerns the amount of penalty to be assessed for the violation. Under section 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1971). The Commission rated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the circumstances, it is concluded that a penalty in the amount of $350 is deemed appropriate.

FINDINGS OF FACT

1. RMI Company, at all times hereinafter mentioned, operated a plant in Ashtabula, Ohio, which manufactured sodium and chlorine.

2. Authorized representatives of the Secretary conducted an inspection of the work site resulting in issuance of a citation.

3. Respondent's maintenance engineer had contracted with a painting contractor to sandblast and paint the cooling tower on top of the evaporator building at the facility.

4. The maintenance engineer, whose office was in an office building, did not supervise employees in the manufacturing plant but worked with them more in an advisory capacity. His duties also carried throughout the facility when working with subcontractors.

5. The engineer had authority to direct use of the plant air and provided the subcontractor with a coupling to tap into the line.

6. The maintenance engineer was not informed the air line was being purged with nitrogen, a hazardous chemical.

CONCLUSIONS OF LAW

1. Respondent, RMI Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with the Act and the safety and health regulations promulgated pursuant thereto.

3. Complainant's motion to vacate Items 1 and 2 of the citation is granted.

4. Respondent violated 29 C.F.R. 1910.1200(h)(1)(ii) as alleged in the citation.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

Items 1 and 2 of the citation are hereby vacated. Item 3 is hereby affirmed and a penalty of $350.00 assessed.
Dated this 9th day of May, 1990.

PAUL L.Brady
Judge


FOOTNOTES:

[[1]] At the hearing, nitrogen was shown to be a hazardous chemical within the meaning of the standard (Exs. C-1, C-2, C-3).