CRESCENT WHARF AND WAREHOUSE COMPANY

OSHRC Docket No. 1672

Occupational Safety and Health Review Commission

February 21, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On May 8, 1973, Judge James A. Cronin Jr. issued his decision and order in this case, affirming the Secretary's citation for non-serious violation and assessing a $210 penalty.

On May 29, 1973, review was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The issues directed for review are the following:

1. Whether the trial Judge committed reversible error in holding that barium hydroxide monohydrate was hazardous cargo as defined by 29 C.F.R. 1910.3(s)(4) n1 when the record does not establish that barium hydroxide monohydrate is ". . . included in subparagraph (1), (2), or (3) of [29 C.F.R. 1910.3(s)]"?

2. Assuming arguendo a negative answer to issue no. 1, did the Secretary by proving that barium hydroxide monohydrate is a poisonous article when ingested sustain his burden of proof that the substance was a class B poison as defined in 46 C.F.R. 146.25-10 when in the circumstances it appears that employees were affected by inhalation and/or local contact with the substance?

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n1 See appendix for all statutory material referred to in this decision.

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In its brief on review respondent raises the issues of (1) whether section 4(b) of the Act deprives the Commission of jurisdiction and (2) whether the inspection was conducted in accordance with the section 8(a) requirement that the compliance officer shall present credentials. A section 4(b) defense is exemplary. It is not something jurisdictional to be raised at any stage of the proceedings. See Bettendorf Terminal Co., No. 837 (May 10, 1974); Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974). It has not been timely raised in this case. The Administrative Law Judge properly rejected respondent's 8(a) argument. For a discussion of the requirements under section 8(a) see Accu-Namics, No. 477 (May 31, 1974).

As the result of an inspection of respondent's workplace, a cargo handling operation on pier 4 at Universal Terminal, Alameda, California, a citation for non-serious violations of the longshoring standard codified [*3] at 29 CFR 1918.86(a) was issued. It alleged that respondent failed to ascertain whether hazardous cargo was to be handled, failed to inform employees of the existence of a hazard and failed to instruct employees to notify an employer representative of any leaks or spills.

Judge Cronin held that respondent violated 29 CFR 1918.86(a) but he failed fully and accurately to apply to the facts all relevant sections of 29 CFR 1918.3(s)(1), (2), (3) and (4), which define the term "hazardous cargo." The Judge's decision is affirmed with the additions and modifications included in this decision.

Judge Cronin found that the assertedly hazardous cargo in question, barium hydroxide monohydrate, falls within the definition of subparagraph (s)(4). This conclusion is reached on the basis of the warning appearing on each bag of the product and the cross-reference in (s)(4) to 46 CFR 146.03-8, which refers to 46 CFR 146.25-1. That section, in turn, cites 46 CFR 146.25-10, where "class B Poison" is defined in part as being among those poisons ". . . which are known to be so toxic to man as to afford a hazard to health during transportation . . . ." Judge Cronin refers to a part of the label [*4] warning as evidence satisfying this definition. In its entirety the warning states:

WARNING

May be fatal if swallowed. May cause skin irritation. Wash thoroughly before eating or smoking. Avoid contact with skin and eyes. Avoid inhalation of dust.

POISON

In case of contact, immediately flush with plenty of water. For eyes, get medical attention.

In addition to the evidence of a health hazard contained on the bag labels, the Secretary's expert witness testified concerning barium hydroxide monohydrate as follows:

It is also a corrosive chemical by virtue of its hydroxide component. It has the same actions as lye, for example, that we all know in the home, sodium hydroxide. It's a highly irritating chemical or material to mucous membranes. It also can cause skin problems, dermatitis from the caustic part of the chemical.

This evidence establishes that inhalation of barium hydroxide monohydrate or contact with it is a "hazard to health during transportation." Clearly, those transporting the product are susceptible to inhaling and contacting it and evidence reveals that the substance was leaking from the sacks in which it was transported. Thus, the Secretary has [*5] sustained his burden of proving that the substance is a class B poison.

Judge Cronin's analysis fails to consider the final part of 29 CFR 1918.3(s)(4), which requires that cargo, in order to be considered hazardous, be "included in subparagraph (1), (2), or (3) of this paragraph" in addition to meeting the requirements of the 46 CFR 146.03-8. Barium hydroxide monohydrate is not included in the "list of explosives and combustible liquids" of the "dangerous cargoes" regulations issued by the U.S. Coast Guard. However, that list, published at 46 CFR 146.04-5, includes "poisonous solids, N.O.S. [not otherwise specified] Pois, B." It has been shown, supra, that barium hydroxide monohydrate is a class B poison. Thus, it falls within subpart (s)(1) and within both requirements of subpart (s)(4) of 1918.3(s). On this basis, the conclusion that the substance constitutes a hazardous cargo, within the meaning of 1918.3(s), is warranted.

Accordingly, the decision of the Administrative Law Judge as modified, finding respondent in violation of 29 CFR 1918.86(a) for failing to issue warnings regarding hazardous cargo and assessing a $210 penalty, is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, [*6] CHAIRMAN, dissenting: This decision finds respondent in noncompliance with a longshoring standard which specifies requirements for identifying and handling "hazardous cargo," 29 CFR 1918.86(a) n2 and assesses a penalty in excess of the amount of penalty proposed by the Secretary of Labor.

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n2 See appendix for a statement of this standard.

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The respondent claims that the cargo in question, barium hydroxide monohydrate, is not hazardous. Consequently, it was not necessary to identify it as "hazardous cargo" or give special instructions for handling it. The Commission, on the other hand, has now determined that barium hydroxide monohydrate is "hazardous cargo," as that term is defined in 1918.3(s). The rule of this case is that respondent should have identified it as such and given special instructions for handling it in spite of the fact that respondent had no reason to believe it was hazardous cargo at any time in advance of the inspection.

1918.3(s) classifies cargo as "hazardous" with reference [*7] to U.S. Coast Guard regulations on which cargoes are "dangerous or hazardous," and goes on to define the term "hazardous cargo" as follows:

(1) Any packaged commodity in the "list of explosives and other dangerous articles and combustive liquids" of the "dangerous cargoes" regulations of the U.S. Coast Guard (46 CFR 146.04-5) requiring a label, without regard to the exemptions mentioned at the foot of the list;

(2) Any packaged commodity in the list identified is subparagraph (1) of this paragraph, not requiring a label but classed as a combustible liquid;

(3) Any packaged liquid commodity in the list identified in subparagraph (1) of this paragraph not requiring a label but classed as a hazardous article; or

(4) Any article not properly described by a name in that list but which is properly classified under the definition of those categories of dangerous articles given in 46 CFR 146.03-8 and is included in subparagraph (1), (2), or (3) of this paragraph. (Emphasis added.)

This decision does not mention a 1972 letter written by Coast Guard Captain H. J. Lynch to Mr. H. Mills, n3 the union representative involved in this case. In that letter, Captain [*8] Lynch states that the Coast Guard did extensive research on the chemical properties of barium hydroxide monohydrate and determined that it does not fall under the Coast Guard definitions of "hazardous or dangerous" cargo. Yet those are the self-same definitions upon which this decision has been founded.

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n3 The full text of that letter is as follows:

4 October 1972

Mr. H. Mills, Business Agent, 400 North Point, San Francisco, CA 94133

Dear Mr. Mills:

As requested in your telephone conversation with LTJG Dobert on 25 September 1972, the following information is provided.

After extensive research into the chemical and hazardous properties of the chemical Barium Hydroxide Monohydrate, the office of hazardous materials, U.S. Coast Guard, Washington, D.C., has determined that the above named chemical does not fall under the definitions in Title 46 Code of Federal Regulations, Part 146-149 as a dangerous or hazardous cargo. Therefore, this chemical does not require any special stowage in order [sic] to be shipped by water transportation.

Sincerely,

H. J. LYNCH, Captain, U.S. Coast Guard Captain of the Port

[*9]

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The letter did not come into the respondent's possession until the case had been directed for review, at which point it was promptly submitted to the Commission.

It is very difficult to understand why the Commission did not see fit to pursue this subject. Finding the respondent in violation of the Act for his handling of an allegedly hazardous cargo, in the face of information indicating that it was not hazardous, without fully examining that information, shows a callous indifference to justice.

This case should be remanded to the Judge. Justice requires a resolution of the doubt cast by the Coast Guard on the hazardous nature of barium hydroxide monohydrate. The only way to resolve that doubt is to reopen the case and hold a hearing to explore why the Coast Guard decided that that cargo is not hazardous.

There are other errors in this decision.

Despite the propensity of Mr. Van Namee and Mr. Cleary to increase the penalty a respondent must pay to an amount exceeding the proposal in the notification of proposed penalty, there is no legal basis or authority for this to be done. n4

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n4 See my dissent to Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 356 (1974).

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They also err in asserting that "a section 4(b) defense . . . is not something jurisdictional." It should be recalled that section 4(b) of the Act (29 U.S.C. 653(b)) begins with the words: "Nothing in this Act shall apply to working conditions of employees . . . [covered by certain other laws]." If the Members of the Commission cannot see that words such as these relate to the Act's jurisdiction, I suggest that a copy of the Act be consulted where the above-quoted phrase is printed directly beneath the heading "Applicability of this Act." n5

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n5 Furthermore, prior Commission decisions have referred to section 4(b)(1) questions as jurisdictional issues. Secretary v. California Stevdore & Ballast Co., 8 OSAHRC 811 (1974); Secretary v. Sigman Meat Co., 8 OSAHRC 216 (1974); Secretary v. Phoenix, Inc., 1 OSAHRC 355 (1972).

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APPENDIX

29 CFR 1918.86 hazardous cargo.

(a) Prior to the start of cargo handling operations a responsible representative of the employer shall ascertain from labels on the cargo, from the dangerous cargo manifest, or from other shipping documents, what hazardous cargoes, if any are to be handled and the general nature of the hazard. He shall inform employees of the general nature of the hazard, the importance to the employees of preventing damage to the cargo, and the special precautions to be taken. The responsible representative of the employer aboard the vessel shall instruct the employees to notify him of any leaks or spills.

1918.3(s) The term "hazardous cargo" includes:

(1) Any packaged commodity in the "List of explosives and other dangerous articles and combustible liquids" of the "dangerous cargoes" regulations of the U.S. Coast Guard (46 CFR 146.04-5) requiring a label, without regard to the exemptions mentioned at the foot of the list;

(2) Any packaged commodity in the list identified in subparagraph (1) of this paragraph, not requiring a label but classed as a combustible liquid;

(3) Any [*12] packaged liquid commodity in the list identified in subparagraph (1) of this paragraph not requiring a label but classed as a hazardous article; or

(4) Any article not properly described by a name in that list but which is properly classified under the definition of those categories of dangerous articles given in 46 CFR 146.03-8 and is included in subparagraph (1), (2), or (3) of this paragraph.

46 CFR 146.03-8, in pertinent part, provides:

A dangerous article within the meaning of the regulations in this subchapter is an article falling within any of the following classifications:

Poisons

. . . For definitions covering these classifications see the appropriate section within this subchapter. These are . . . 146.25-1 . . .

46 CFR 146.25-1, in pertinent part, provides:

Definition of poisonous articles.

(a) Poisonous articles for the purpose of Parts 146-149 are divided into three classes according to degree of hazard in transportation. These are:

Extremely dangerous poisons -- Class A. Less dangerous poisons -- Class B. Tear gases or irritating substances -- Class C.

(b) These poisonous articles are defined by the Department of Transportation regulations [*13] as set forth in 146.25-5, 146.25-10, and 146.25-15.

These definitions are accepted and adopted and form part of the regulations in this subchapter and apply to all shippers making shipments of poisonous articles . . . and shall apply to owners . . . and to other persons transporting, carrying, conveying, storing, stowing or using poisonous articles on board . . .

46 CFR 146.25-10, in pertinent part, provides:

146.25-10 . . . Class B Poison . . .

(a) Poisonous liquids or solids (including pastes and semisolids), other than Class A or C Poisons, which are known to be so toxic to man as to afford a hazard to health during transportation or which, in the absence of adequate data on human toxicity, are presumed to be toxic to man because they fall within any one of the following categories when tested on laboratory animals:

(1) Oral toxicity. Those which produce death with 48 hours in half or more than half of a group of 10 or more white laboratory rats weighing 200 to 300 grams at a single dose of 50 milligrams or less per kilogram of body weight, when administered orally.

(2) Toxicity on inhalation. Those which produce death within 48 hours in half or more than half of [*14] a group of 10 or more white laboratory rats weighing 200 to 300 grams, when inhaled continuously for a period of 1 hour or less at a concentration of 2 milligrams or less per liter of vapor, mist, or dust, provided such concentration is likely to be encountered by man when the chemical product is used in any reasonable foreseeable manner.

(b) The foregoing categories shall not apply if the physical characteristics or the probable hazards to humans as shown by experience indicate that the substances will not cause serious sickness or death. Neither the display of danger or warning labels pertaining to use nor the toxicity tests set forth above shall prejudice or prohibit the exemption of any substances from the provisions of the regulations in this part.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation and Notification of Proposed Penalty issued by the Complainant on October 13, 1972 against the Respondent under the authority of Sections 9(a) and 10(a) of the Act.

The Citation was issued as [*15] a result of an inspection on September 20, 1972 of a Respondent workplace located at Pier 4, Universal Terminal, Alameda, California and alleges that Respondent violated an occupational standard of the Act, namely, 29 CFR 1918.86(a). This violation is alleged in the Secretary's complaint to have had a direct and immediate relationship to safety and health but was not of a serious nature.

The alleged violation to be abated "immediately," was described in the Citation as follows:

Employer failed to ascertain that hazardous cargo was to be handled and the nature of the hazard. Employees were not informed of the existence or nature of the hazard or special precautions to be taken. The representative of the employer aboard the vessel failed to instruct employees to notify him of any leaks or spills.

The standard as promulgated by the Secretary provides:

1918.86 hazardous cargo. (a) Prior to the start of cargo handling operations a responsible representative of the employer shall ascertain from labels on the cargo, from the dangerous cargo manifest or from other shipping documents, that hazardous cargoes, if any, are to be handled and the general nature of the hazard. He shall [*16] inform employees of the general nature of the hazard; the importance to the employees of preventing damage to the cargo, and the special precautions to be taken. The responsible representative of the employer aboard the vessel shall instruct the employees to notify him of any leaks or spills.

Section 1918.3 entitled "Definitions," in pertinent part, provides as follows:

(a) The term "shall" indicates provisions which are mandatory.

(s) The term "hazardous cargo" includes:

(1) Any packaged commodity, in the "List of explosives and other dangerous articles and combustible liquids" of the "dangerous cargoes" regulations of the U.S. Coast Guard, (46 CFR 146.04-5) requiring a label without regard to the exemptions mentioned at the foot of the list;

(2) Any packaged commodity in the list identified in subparagraph (1) of this paragraph, not requiring a label but classed as a combustible liquid;

(3) Any packaged liquid commodity in the list identified in subparagraph (1) of this paragraph not requiring a label but classed as a hazardous article; or

(4) Any article not properly described by a name in that list but which is properly classified under the definition of [*17] those categories of dangerous articles given in 46 CFR 146.03-8 and is included in subparagraph (1), (2), or (3) of this paragraph.

46 CFR 146.03-8, in pertinent part, provides:

A dangerous article within the meaning of the regulations in this subchapter is an article falling within any of the following classifications:

Poisons

. . . For definitions covering these classifications see the appropriate section within this subchapter. These are . . . 146.25-1 . . .

46 CFR 146.25-1, in pertinent part, provides:

Definition of poisonous articles.

(a) Poisonous articles for the purpose of Parts 146-149 are divided into three classes according to degree of hazard in transportation. These are:

Extremely dangerous poisons -- Class A; Less dangerous poisons -- Class B; Tear gases or irritating substances -- Class C

(b) These poisonous articles are defined by the Department of Transportation regulations as set forth in 146.25-5, 146.25-10, and 146.25-15.

These definitions are accepted and adopted and form part of the regulations in this subchapter and apply to all shippers making shipments of poisonous articles . . . and shall apply to owners . . . and to other persons [*18] transporting, carrying, conveying, storing, stowing or using poisonous articles on board . . . (emphasis added).

46 CFR 146.25-10, in pertinent part, provides:

146.25-10 . . . Class B Poison . . .

(a) Poisonous liquids or solids (including pastes and semisolids), other than Class A or C Poisons, which are known to be so toxic to man as to afford a hazard to health during transportation (emphasis added) or which, in the absence of adequate data on human toxicity, are presumed to be toxic to man because they fall within any one of the following categories when tested on laboratory animals:

(1) Oral toxicity. Those which produce death within 48 hours in half or more than half of a group of 10 or more white laboratory rats weighing 200 to 300 grams at a single dose of 50 milligrams or less per kilogram of body weight, when administered orally.

(2) Toxicity on inhalation. Those which produce death within 48 hours in half or more than half of a group of 10 or more white laboratory rats weighing 200 to 300 grams, when inhaled continuously for a period of 1 hour or less at a concentration of 2 milligrams or less per liter of vapor, mist, or dust, provided such [*19] concentration is likely to be encountered by man when the chemical product is used in any reasonable foreseeable manner.

(b) The foregoing categories shall not apply if the physical characteristics or the probable hazards to humans as shown by experience indicate that the substances will not cause serious sickness or death. Neither the display of danger or warning labels pertaining to use nor the toxicity tests set forth above shall prejudice or prohibit the exemption of any substances from the provisions of the regulations in this part.

The Notification of Proposed Penalty issued on October 13, 1972 by the Secretary proposed that a penalty of $180.00 be assessed for the alleged violation. n1

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n1 The Secretary's Proposed Findings of Fact and brief propose a higher penalty in the amount of $210.00.

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Pursuant to due notice, this case was heard at San Francisco, California on February 27, 1973. Proposed Findings of Fact, Conclusions of Law and brief was filed by the Secretary. The Respondent filed a brief.

JURISDICTION [*20] AND ISSUES

The Respondent corporation is engaged in longshoring operations and related employments as those terms are defined at 29 CFR 1910.16(b)(1) and (2). Vessels loaded and unloaded by Respondent and its employees arrive from, and are destined for, foreign and out-of-state ports. On these facts, Respondent is found to be an employer engaged in a business affecting commerce who has employees within the meaning of Section 3(5) of the Act. Jurisdiction over the Respondent and the subject matter is thus conferred on this Commission.

The complainant's allegation of violation is made in the words of the standard and alleges that on September 20, 1972, at a worksite located at Pier 4, Universal Terminal, Alameda, California on the S.S. Sabogal, Respondent violated 29 CFR 1918.86(a) in that prior to the start of cargo handling operations, a responsible representative of Respondent failed to ascertain from labels on the cargo, from the dangerous cargo manifest, or from other shipping documents, what hazardous cargoes, if any, were to be handled and the general nature of the hazard. The complaint further claims that the Respondent failed to inform employees of the general [*21] nature of the hazard, the importance to the employees of preventing damage to the cargo and the special precautions to be taken. Finally, the complaint alleges that Respondent's representative board the vessel failed to instruct the employees to notify him of any leaks or spills.

Respondent in its answer denied the complaint's allegations of violation.

Therefore, issues to be resolved and determined include:

1. Whether Respondent violated the standard as alleged?

2. If Respondent violated the cited standard, what is the appropriate penalty?

Additional issues raised by Respondent's brief are whether the Compliance Officer presented his credentials to the Respondent's employer representative prior to the inspection and whether Respondent was allotted sufficient time to present its case at the hearing.

The only evidence bearing on the first issue is derived from Compliance Officer Gilbraith's testimony. He testified he did not recall whether or not he presented his credentials to Respondent's superintendent, Anthony Huber, but that Mr. Huber knows him. Although Respondent called Superintendent Huber as its own witness, no questions were directed to him regarding the circumstances [*22] of his meeting with Officer Gilbraith on September 20, 1972. This record, therefore, is not sufficient to support a claim that the Secretary's investigation on September 20th was unauthorized.

Respondent's brief protests the "minimal amount of time alloted" (sic) Respondent to present its case and alleges its Representative was "intimidated" to "conclude its case quickly." The official record of the hearing fails to sustain these allegations. Due to the serious nature of these charges, however, Respondent was granted ten days within which to file a Motion to Reopen the Hearing, accompanied by a supporting affidavit.

Respondent's representative did not avail himself of this opportunity and advised in his letter of April 30, 1973 that he had no additional evidence to present. In time same letter, however, he contends that he was "thoroughly exhausted" on the day of the hearing following the Secretary's presentation and continued because he was advised that both the undersigned Judge and Secretary's representative had a "heavy workload the following day." He further states that the Judge informed him that if it was possible to conclude "tonight early," he could have dinner [*23] with his son.

At no time on February 27, 1973 did Respondent's representative indicate to the presiding Judge that he was exhausted or tired and the record makes clear that the Judge was prepared to recess and resume the hearing the following day. The Judge did mention to those present, during the evening recess, that he had a dinner engagement with his son which he intended to cancel. At no time, however, was it implied that the hearing should be expedited to accommodate the Judge's prior plans. Respondent's unsupported charges of intimidation are rejected.

FINDINGS OF FACT

The entire record has been considered and evaluated. The facts set forth below are specifically found in resolving the issues presented in this case.

1. On September 20, 1972, at a worksite located at Pier 4, Universal Terminal, Alameda, California, Respondent employed at least thirteen longshoremen to load cargo consisting of a chemical labeled as "Barium Hydroxide Monohydrate" and a bagged insecticide labeled as "Furadan 5 Granulado" onto the S.S. Sabogal, as ocean-going vessel of Peruvian registry (Joint Exhibit No. 1).

2. The 550 bags of Barium Hydroxide Monohydrate to be loaded also had a printed [*24] warning in English in red lettering as follows:

WARNING!

May be fatal if swallowed. May cause skin irritation. Wash thoroughly before eating or smoking. Avoid contact with skin and eyes. Avoid inhalation of dust.

POISON!

In case of contact, immediately flush with plenty of water. For eyes, get medical attention. (Joint Exhibit 1).

3. The 880 Furadan 5 Granulado insecticide bags to be loaded onto the S.S. Sabogal had labels, written in Spanish, posted over part of the English lettering. The Spanish label required by the country of Peru contained the following wording in Spanish:

PELIGRO VENENO

Mantengase alejado de los ninos "Evitese la contaminacion de alimentos y "destruya este envase immediatamente despues de usarlo

The English language translation of the aforesaid Spanish wording is:

DANGER POISON

Keep away from children. Avoid contamination with edibles. Destroy this container immediately after use.

Directory to the left of the word "PELIGRO," and directly to the right of the word "VENENO," there was depicted in red a skull and crossbones (Joint Exhibit 1, Secretary's Exhibit 8).

4. The loading of this cargo commenced at approximately 11:00 A.M. [*25] on September 20, 1973 and ceased at or about 11:45 A. M. Several of the bags, containing both types of chemicals, were leaking their contents when being loaded and stored into the ship's hold. Some of the leaking bags had to be stowed by hand and lifted above the heads of the workmen.

5. The four employees of Respondent working in the ship's hold breathed in dust coming from the spillage of the Barium Hydroxide Monohydrate, and some of them got this chemical on their clothes and skin. As a result of coming into contact with the dust from the Barium Hydroxide Monohydrate several of these employees had difficulty in breathing, coughed, sneezed, received burning sensation in nostrils, sore throats, became nauseous, and incurred tears in, and redness of, the eyes. Respondent's employees working this cargo sought medical attention for their symptoms.

6. In the early morning of September 20, 1972, before the loading and stowing of the referenced cargo commenced, Respondent's Stevedore Superintendent, Anthony Huber, had in his possession the "tags" or "boat notes" indicating the cargo to be loaded that day consisted of 550 bags of "Net Barium Hydrate" and 800 bags of "insecticide" [*26] (Exhibit 39); the "Booking List" (Exhibit 40) indicating 800 bags of "insecticide" and 550 bags of "Barium Hydroxide, 'NON-HAZ'," and the Loading List indicating 800 bags of "insecticide" and 550 bags of "Barium Hydrate" (Exhibit 43). In examining the "Booking List" (Exhibit 40), he noticed three chemicals listed that, in his opinion, could "possibly be hazardous," the insecticide, sodium sulphide flakes and the barium hydrate. The barium hydrate and sodium sulphide flakes had the phrase "Non-Haz" printed after both their listings (Exhibit 40). The name Furadan 5 Granulado (hereafter called Furadan 5G) did not appear on the booking list but because he knew insecticide was to be loaded he examined, prior to loading, the "Blue Book," or U.S. Coast Guard regulations for dangerous and hazardous cargo under the classification "insecticide" (46 CFR 146.04-05). n2 Because the Furadan 5G bags did not have 4-inch triangular labels with red skull and crossbones on them and the words, "Poison Warning," in English, he assumed the product was non-hazardous. He did observe the red skull and crossbones on the Furadan 5G bags but made no attempt to have the Spanish label translated into English. [*27] Also, he read the label "Barium Hydroxide Monohydrate" and the accompanying red warning label in English.

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n2 Section 146.04-5 states: ". . . asterisk indicates the article may or may not come within the classification shown. If in accordance with the definitions herein, the article does come within the classification, it is subject to the regulations in this part."

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7. Prior to commencement of the loading operation and after observing the skull and crossbones on the Furadan 5G bags, Superintendent Huber also called the receiving clerk of Universal Terminals and made inquiry whether the insecticide (Furadan 5G) was non-hazardous. He was told it was non-hazardous.

8. At no time did Superintendent Huber notify the employees handling the material that it was, or might be, hazardous; advise them of any precautions to be taken regarding preventing damage to the cargo; direct their use of protecting equipment while working, or instruct them to notify him or others when any leaks or spills of this specific [*28] cargo occurred. There is a standing order of Respondent that its foremen notify Superintendent Huber if there is any damage to cargo.

9. Until a dangerous cargo has been loaded aboard a ship, it would not be listed on the ship's dangerous cargo manifest.

10. The names "Barium Hydrate," "Barium Hydroxide Monohydrate" and "Furadan 5 Granulado" do not appear upon the "List of explosives and other dangerous articles and combustible liquids" (46 CFR 146.04-5).

11. There is insufficient evidence on the record to support a finding that Furadan 5 Granulado, a 5% carbofuran concentration in granular form, is highly toxic by inhalation and a "Class B poison" as contended by the Secretary and as that classification is defined in 46 CFR 146.25-10. Therefore, the evidence does not establish that the insecticide in question is "hazardous cargo" as that term is defined in 29 CFR 1919.3(s), subparagraphs 1, 2, 3 and 4.

12. The chemical "Barium Hydroxide Monohydrate" is highly toxic by ingestion with a corrosive element, a "Class B" poison as that classification is defined in 46 CFR 146.25-10, and requires a poison label. Therefore, this chemical is "hazardous cargo" as that term is [*29] defined in 29 CFR 1918.3(s), subparagraph 4.

13. Superintendent Huber, prior to the start of employee cargo handling, did not ascertain that the cargo, Barium Hydroxide Monohydrate, was "hazardous cargo" as that term is defined in 29 CFR 1918.3(s).

14. Four employees of Respondent incurred injury by exposure to the cargo, Barium Hydroxide Monohydrate, on September 20, 1972.

15. Respondent employed approximately 36 employees at Universal Terminals, Alameda, California, on September 20, 1972.

16. Respondent has an annual dollar volume of business in excess of one million dollars.

17. Respondent has been inspected on 15 occasions and issued four previous citations for non-serious violations of the Act prior to the issuance of the citation in this case, which citations and proposed penalties based thereon have become final orders of this Commission.

DISCUSSION

A. As to Violation

Because the requirements of section 1918.86(a) become obligatory upon employers engaged in longshoring operations only with the presence of hazardous cargo, the threshold issue to be resolved is whether the cargo loaded in this case was "hazardous cargo," as that term is defined under [*30] 29 CFR 1918.3(s).

Substantial, uncontradicted evidence, in the form of Dr. Alice Ottoboni's expert testimony, establishes that Barium Hydroxide Monohydrate is orally toxic and a "Class B" poison as defined in 46 CFR 146.25-10(a) and (a)(1) and therefore, must be classed as "hazardous cargo" (Exhibits 32-38).

The Secretary's evidence with respect to the Furadan 5 Granulado, however, is not substantial and does not prove that this product is "hazardous cargo." While establishing that a five percent wettable powder concentration of carbofuran would fall into the "Toxicity on inhalation" category (46 CFR 146.25-10(a)(2)), thereby requiring its classification as a Class B poison and "hazardous cargo" (Exhibits 29-31), the record evidence fails to establish that the Furadan 5G granular formulation falls into the "Toxicity on inhalation" category.

Dr. Ottoboni's testimony with respect to Furadan 5G is predicated solely on her review of the literature on Furadan insecticide, published and furnished by the manufacturer, FMC Corporation, and her calculations based on this information. Essentially, her conclusion that Furadan 5G is a Class B poison is premised on her conclusion that [*31] the inhalation toxicity of a 5% granular concentration of carbofuran is at least equal to that of a 5% wettable powder concentration of carbofuran.

Respondent's expert witness, Dr. John S. Tobin, however, who is certified in Occupation Medicine by the American Board of Preventive Medicine and a member of the American Academy of Clinical Toxicology, testified that Furadan 5G can not be classified as highly toxic by inhalation because the granules are not dust and their size and weight prevent them from being airborne and inhaled. According to Dr. Tobin, no inhalation studies have been done on Furadan 5G by his company, FMC Corporation, because the material cannot be "aerosolized." However, industrial hygiene studies have been performed by the manufacturer on the atmosphere of enclosed truck trailers in which granular Furadan has been transported and did not indicate the presence of "sufficient carbofuran to pose a hazard." Dr. Tobin's testimony is persuasive that the physical characteristics of Furadan 5G would preclude inhalation of the formulated product as contemplated by the tests described in 46 CFR 146.25-10(a)(2). If such an inhalation test cannot be performed, [*32] it can not be concluded that Furadan 5G falls within the category, "Toxicity on inhalation." n3 Finally, both Dr. Ottoboni and Dr. Tobin agree that the product is not highly toxic orally or by skin absorption.

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n3 46 CFR 146.25-10(b) also provides: "The foregoing categories shall not apply if the physical characteristics or the probable hazards as shown by experience indicate that the substances will not cause serious sickness."

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Unquestionably, the evidence demonstrates that Furadan 5G could constitute, under certain circumstances, a potential health hazard to uninformed longshoremen; for example, getting the product in their eyes. Because this same evidence, however, fails to establish that Furadan 5G comes within the standard's definition of "hazardous cargo," no violation of 29 CFR 1918.86(a) with respect to this product can be found.

The next question to be determined is whether Respondent is liable for failing to ascertain that the product, Barium Hydroxide Monohydrate, was "hazardous cargo."

Section 1918.86(a) [*33] imposes a mandatory obligation upon longshoremen employers to ascertain the presence of hazardous cargo, but only on the basis of the cargo labels, the dangerous cargo manifest or other shipping documents, and the federal regulations governing "hazardous cargo." If these specific sources of information permit a reasonable inference that a particular cargo comes within the "hazardous cargo" definition of 29 CFR 1918(3)(s), the employer then is required to comply with the additional requirements of 29 CFR 1918.86(a).

The Respondent's responsible representative, prior to cargo handling, examined the shipping documents customarily available to Respondent and the labels on the individual cargo bags. The shipping documents indicate that a part of the cargo to be loaded consisted of bagged "Barium Hydrate" and that this product was "NON-HAZ." He then proceeded to check whether the names "Barium Hydrate" or "Barium Hydroxide Monohydrate" appeared on the "List of explosives and other dangerous articles and combustible hazards" (46 CFR 146.04-5). They did not. No check of the ship's dangerous cargo manifest with respect to the cargo in question was made because the cargo [*34] had not yet been stowed aboard and therefore, would not have been eligible to appear on that manifest.

Obviously, the shipping documents did not contain any information from which Respondent's representative reasonably could have inferred that the Barium Hydroxide Monohydrate was "hazardous cargo."

This same conclusion, however, cannot be made with respect to the information appearing on each individual bag of this product. Respondent contends that its representative did all that was possible to ascertain whether this cargo was "hazardous." We must disagree. The label, read by Respondent's representative, expressly warns that the contents of the bag are "POISON!" and "may be fatal if swallowed." Also, the label instructs to "Wash thoroughly before eating or smoking; Avoid contact with skin and eyes, and, Avoid inhalation of dust." Certainly, this information should have alerted Superintendent Huber that, despite the characterization "NON-HAZ" on the "Booking list," the absence of the names on the federal hazardous cargo list (46 CFR 146.04-5), and the lack of a 4 inch triangular poison label (46 CFR 146.05-17), Barium Hydroxide Monohydrate might fall within the fourth definition [*35] of "hazardous cargo" (29 CFR 1918.3(s), subparagraph 4), namely an article not properly described by a name on the hazardous cargo list but which is properly classified under the definition of dangerous article categories given in 46 CFR 146.03-8. While recognizing that he would have no way of knowing, on the basis of the label information, whether this barium product falls within the categories of "oral toxicity," "toxicity on inhalation," or "toxicity by skin absorption," this same information clearly indicates that it is a "Poison!," and possibly "fatal if swallowed." From these statements alone it is reasonable to conclude that the product is "known to be so toxic to man as to afford a hazard during transportation" (46 CFR 146.25-10(a)) and, therefore, properly classified as a "poisonous article" (46 CFR 146.25-1). In failing to so conclude, Respondent, through its responsible representative, did not comply with the mandatory duty to ascertain the presence of "hazardous cargo" as imposed by 29 CFR 1918.86(a) or comply with the other requirements of this standard which become operative upon the presence of "hazardous cargo."

B. As to Penalty

All four factors [*36] prescribed in section 17(j) of the Act, the size of employer's business, gravity of the violation, the good faith of the employer, and the history of previous violations under the Act, have been duly considered in determining the appropriate penalty for this violation.

The Secretary, starting with an unadjusted penalty of $600.00, initially gave percentage reduction credits of 10% for size, 10% for good faith, 20% for previous history, and 50% for abatement. Subsequently, the Secretary, in his brief, proposed that only 10% credit should be given for Respondent's prior history of violations, thereby increasing the proposed penalty from $180.00 to $210.00.

The Respondent employed approximately 36 employees at Universal Terminals, Alameda, California, on September 20, 1972, and does an annual dollar volume of business in excess of one million dollars. Therefore, a 10% credit reduction for size appears warranted.

Prior to the issuance of the citation in this case the Respondent had been issued four previous citations which citations and the proposed penalties based thereon became final orders of the Commission. Because of the relatively large size of the Respondent, the [*37] nature of its business, and number of prior inspections (15), this history of four violations is not considered significantly adverse. Accordingly, the 20% credit for past history originally proposed by the Secretary is not unreasonable.

The violation in this case had a direct and immediate relationship to safety and health, but because the Secretary did not allege, nor prove, that the violation created a "substantial probability" of serious physical harm it is not deemed to be "serious" within the meaning of Section 17(k) of the Act. However, the evidence does establish that a violation of 29 CFR 1918.86(a) does present a real potential to cause physical harm and did so to at least four of Respondent's employees. Therefore, the gravity of this violation must be found to be relatively high and the Secretary's unadjusted penalty of $600.000 appropriate.

While recognizing that an employer is presented with a formidable task in complying with the mandatory obligation of 29 CFR 1918.86(a) to ascertain "hazardous cargo," the record reflects an indifference, bordering almost on callousness, on the part of Respondent's superintendent in regard to the welfare and safety of the longshoremen [*38] employees. Respondent, therefore, is entitled to no credit for "good faith."

In view of the foregoing, a penalty of $210.00 for violation of 1918.86(a) is considered appropriate.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and is obliged to comply with Part 1918 standards promulgated under the Act.

2. On September 20, 1972, at a worksite located at Pier 4, Universal Terminal, Alameda, California on the S. S. Sabogal, Respondent was in violation of 29 CFR 1918.86(a) and a penalty of $210.00 is appropriate.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that: The alleged violation of 29 CFR 1918.86(a) is hereby AFFIRMED and a penalty of $210.00 is hereby ASSESSED.