BAROID DIVISION OF NL INDUSTRIES, INC.

OSHRC Docket No. 16096

Occupational Safety and Health Review Commission

January 29, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Stephen S. Livingston, for the employer

OPINION:

ORDER

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of Appeals for the Tenth Circuit. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981).

In a previous decision in this case, n1 the Commission determined that Respondent, Baroid Division of NL Industries ("Baroid"), violated section 5(a)(1) n2 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, in that Baroid failed to protect its employee working at an oil drilling site from fire and explosion hazards resulting from natural gas accumulation. Among other things, the Commission found that Baroid had failed to adequately train its "mud man," Boden, concerning the detection and evaluation of natural gas accumulation hazards so that Boden would know under what circumstances it would be necessary to leave the oil drilling site.

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n1 79 OSAHRC 45/A9, 7 BNA OSHC 1466, 1979 CCH OSHD P23,661 (No. 16096, 1979).

n2 Section 5(a)(1) provides:

Sec. 5.(a) 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.

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In its decision, the Tenth Circuit refrained from ruling on whether it was feasible to train Baroid's mud man to detect hazardous levels of gas accumulation by sense of smell. n3 Because this basis of liability was not mentioned in the citation, the court determined that the parties should be afforded the opportunity to reopen the record to present evidence on this issue. The court stated:

We therefore remand this case for further development of the record through a hearing on the issue whether training employees to measure hazardous levels of gas accumulation by sense of smell is feasible. If the evidence shows that detection by employees of hazardous levels of gas accumulation by sense of smell is feasible, and if training employees to so detect the gas accumulations is feasible, then the citation will stand. If, on the other hand, the evidence does not show that training to detect hazardous levels of gas accumulation by sense of smell is feasible, the citation must fall. Both parties will be permitted on remand to supplement the record through the presentation of evidence. The Secretary, however, [*3] will be limited to presenting evidence on the issue of training employees to detect gas accumulations by sense of smell, and may not present evidence on training in other detection methods such as the use of electronic monitors.

660 F.2d at 448.

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n3 The court concluded, however, that other theories of liability that were advanced in this case did not establish a violation of 5(a)(1).

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Accordingly, this case is remanded to Judge James A. Cronin, the judge who initially heard and decided this case. n4 The judge shall permit the parties to present further evidence and argument with respect to the remanded issue. He also shall make findings of fact on the issue and shall enter an order disposing of the section 5(a)(1) citation consistent with those findings and with the court's remand order.

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n4 Chairman Rowland was not a member of the Commission when the prior decision was issued in this case. He expresses no opinion on the merits of the case and joins in the instant remand order for the limited reason that the decision of the Tenth Circuit has established the law of the case.

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SO ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I concur.