OSHRC Docket No. 465
Occupational Safety and Health Review Commission
December 27, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
CLEARY, Commissioner: On August 31, 1972, Judge James D. Burroughs issued his decision and order in this case, finding one serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"), and assessing a penalty of $900.
Respondent had been issued four citations alleging four violations of section 5(a)(1) of the Act and penalties in the amount of $2,800 were proposed. n1
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n1 Subsequent to an accident resulting in the death of two employees, respondent was issued four citations alleging that it violated section 5(a)(1) of the Act four times by:
Permitting employees to enter a confined working space in a vessel without;
(1) testing to determine the respirable quality of the atmosphere,
(2) having suitable rescue equipment readily available,
(3) disconnecting piping used to convey hazardous material to the enclosure, and
(4) providing external means of ventilation.
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On September 15, 1972, former Commissioner Alan F. Burch directed that the decision and order of the Judge be reviewed by the Commission pursuant to section 12(j) of the Act.
The Commission has reviewed the entire record and adopts the Judge's decision insofar as it is consistent with the following determination.
Respondent contends that the Compliance Officer was in error in issuing four separate citations. Respondent bases its contention on the grounds that since section 5(a)(1) of the Act provides, inter alia,
Each employer shall furnish . . . a place of employment . . . free from recognized hazards . . . [Emphasis added.]
An employer may be cited for more than one violation of section 5(a)(1) only where more than one hazard exists. Respondent maintains that because the hazards, defined by respondent has "sources of danger," that formed the basis of all four citations in this case were in fact but one source of danger, an oxygen-deficient atmosphere in the Lindberg Pit Furnace, the issuance of four separate citations was improper. Respondent points out that each citation as issued described a method of prevention and not a separate hazard.
The Judge states that ". . . the pivotal question is whether there was one 'recognized hazard' or several as contended by the complainant." He concludes that only one citation should have been issued on the grounds that:
The source or sources of danger rather than the number of safety methods that could or should have been taken must of necessity determine the number of citations that are to be issued.
While we agree with and adopt the Judge's statement of the law, we conclude that he incorrectly applied the principle to the facts here. n2 In applying this principle to the facts before him, the Judge relied upon the common denominator of the citations, i.e., the oxygen-deficient atmosphere in the furnace. Thus he viewed a chain or series of events solely from its starting point. Such a view fails to take into consideration subsequent events. The purpose of the Act is ". . . to assure so far as possible every working man and woman in the National safe and healthful working conditions" by maximum reduction or elimination of employee exposure to hazardous conditions in the workplace. In order to determine what hazardous conditions existed to which employees were exposed we must look at the sequence of events.
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n2 We note that the Judge finds that the evidence does not support citation number 4 (lack of available external ventilation) and affirm his dismissal of that citation.
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We find that two hazardous conditions existed. The weight of the evidence demonstrates that the nature of the furnace operation reasonably required that a number of safety procedures should have been used at the outset of the repair procedure. The failure to carry out these procedures resulted in the exposure to an oxygen-deficient atmosphere of the first employee to enter the furnace. Once this employee complained of an inability to breath and was overcome, a second employee was faced with an obviously dangerous condition in which attempted rescue was required. There was, however, no suitable rescue equipment available. We thus conclude that the unavailability of suitable rescue equipment in an area where respondent knew, or should have known, the need for such rescue could arise was a distinct and separate violation of section 5(a)(1). The Judge properly concluded that the oxygen-deficient atmosphere in the furnace was a "recognized hazard" and a serious violation of section 5(a)(1) of the Act. We apply his reasoning to conclude that the absence of suitable rescue equipment was also a "recognized hazard" constituting a serious violation of section 5(a)(1).
The testimony of the Compliance Officer demonstrates that in computing the proposed penalties, he did not weigh the gravity of the alleged violations. The gravity of the two violations found above will be considered separately in order to arrive at appropriate penalties. n3
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n3 For this purpose, the failure to test for respirable atmosphere and blank out the Argon piping will be referred to as violation 1 and the failure to have rescue equipment readily available will be referred to as violation 2.
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As we stated in Secretary of Labor v. National Realty and Construction Co., Inc., OSHRC Docket No, 85 (September 6, 1972):
In determining the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; the precaution taken against injury, if any; and (3) the degree of probability of occurrence of an injury. (Footnote omitted).
As to violation 1, we consider that there were only two employees involved, the comparative rarity of personnel entering the furnace, and the double valve system installed by respondent. We further consider, however, that this double valve system was not checked by respondent's safety officials. Having considered all of these factors, we conclude that the gravity of violation 1 is moderate.
The gravity of violation 2, however, we find to be high. Once the need for rescue arises, even though the need may arise infrequently, the absence of readily available rescue equipment creates another situation from which serious injury or death can be anticipated. Respondent took no precautions against injury in this circumstance and the probability of an injury under these conditions is high.
Under the criterion for good faith as outlined in Secretary of Labor v. Nacirema Operating Co., Inc., and (3) its cooperation with others seeking that objective. In reviewing the evidence of record, including the testimony to the effect that the pit furnace had been in operation for a number of years and had never been examined by respondent's safety officials, we conclude that respondent's good faith deserves only moderate consideration when arriving at the amount of the final penalties. There is no record as to history of previous violations under the Act.
The size of the business of the employer is sufficiently large so as to allow no reduction in penalties, the size-of-business consideration being a mechanism to avoid the imposition of unduly severe penalties upon small employers.
Under the criteria set forth above, we conclude that a penalty of $600 for violation 1 is not inappropriate.
As to violation 2, we find that the violation warrants the assessment of a severe penalty because of the high gravity, even though the employer has good marks on the other three statutory criteria. Nacirema, supra. A penalty of $900 for violation 2 is assessed.
Accordingly, it is ORDERED that the Judge's order is modified as follows:
(A) Citations number 1 and 3 are hereby consolidated and as such are affirmed as a single serious violation of section 5(a)(1) of the Act. A penalty of $600 is assessed therefor.
(B) Citation number 2 is hereby affirmed and a penalty of $900 is assessed therefor.
CONCURBY: VAN NAMEE
VAN NAMEE, Commissioner, concurring: The facts of this case are those of a play which is repeatedly acted out on the industrial stage. Industry has long known of the potential for an oxygen deficient atmosphere in a closed vessel which if entered prior to purging and testing can cause asphyxiation. And, industry has long known that it is a natural and human reaction for co-workers to attempt a rescue of their imperiled fellow worker.
In this case, the furnace was not tested for oxygen and was not purged. Respondent's employee, Hill, entered the furnace and within five or ten seconds said he could not breathe good. Five seconds, later he slumped over. Respondent's employee, Overman, saw Hill pass out. Overman jumped into the furnace to render assistance. When he could not pass Hill's limp body up out of the furnace to employee Hampton, he yelled: "Get help." Hamptom ran 30 steps to a door and obtained the help of three other employees, two of which joined him at the furnace. Hampton looked in and saw Overman slumped over whereupon he jumped into the furnace to attempt a rescue. Hampton passed out as the other two employees grabbed his outstretched hand and pulled him out. Respondent's employee fireman, Kriss, arrived on the scene, gave his self-contained oxygen unit to Hampton, donned a dust mask, and jumped into the furnace. Kriss also experienced breathing difficulty and was pulled out of the furnace. The bodies of Overman and Hill were thereafter removed.
Clearly, only one source of danger existed, i.e., an oxygen deficient atmosphere in the furnace. n4 However, on the facts I concur that Respondent has twice violated the general duty section of the Act.
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n4 I agree with Judge Burrough's finding that the single source of danger constituted a "recognized hazard" within the meaning of section 5(a)(1) in this case.
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Section 5(a)(1) requires each employer to "furnish to each of his employees employment and a place of employment " free of recognized hazards. In this case Respondent did not provide Hill such employment because it did not purge and test the furnace. On that basis it violated the general duty section as to Hill. Similarly, Respondent did not provide Overman and Hampton such employments because it did not provide them with appropriate rescue equipment. Respondent thereby violated its general duty a second time. n5
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n5 It could be argued that separate violations exist as to each of these two employees. Indeed, it might be argued that the violation also exists as to fireman Kriss. The arguments have not been made and such issue is not decided. Complainant charged only one violation for failure to provide suitable rescue apparatus or a safety harness and lifeline.
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I believe that the rescue aspects of this case are worth emphasizing. As I said above and as the facts of this case show, it is a human reaction to go to the assistance of one who is in trouble. Overman and Hampton had worked together for 18 years, and Hill had worked with them for 5 or 6 years. Under the circumstance, it was totally predictable that they would try to save each other. As Hamptom said: "I immediately jumped in to . . . I guess a person ought to think a second or two when something like that happens. I really jumped in and didn't think."
We do not know whether they would have taken the time to use the apparatus had it been available. The point is that appropriate rescue equipment should have been provided, the employees should have been instructed in its use, and they should have been admonished to use it in the event of a need.
I also concur in the assessment of penalties of $600 and $900 respectively. In this regard I agree with the Judge's conclusion that Respondent's good faith is "tarnished." Respondent has no history of previous violations, and it is a large corporation. I consider the gravity of violation 1 to be moderate. The likelihood of an accident occurring was moderate, and the number of employees exposed was low. There is no question that death or serious physical harm could result in the event of an accident.
The second violation was of a higher level of gravity. Once it is known that an accident of the kind involved here has occurred there is a high degree of probability that a second accident will occur if proper precautions are not taken. Moreover the degree of injury that might be incurred is increased. A would-be rescuer attempting to perform heavy labor, e.g., by lifting a limp body, necessarily requires more oxygen than one who is not performing such task. The point is that the rescuer is likely to fall victim to oxygen deficiency faster than the individual who was first overcome by the deficiency.
On the other hand, I do not agree with those portions of my colleague's opinion wherein he refers to Respondent's safety officials and where he refers to the double valve system. The Act places responsibility for compliance on employers. It is their responsibility to check equipment for safety hazards. How they discharge that responsibility is their business. To say that safety officials should have checked the furnace and valves and their failure to do so will affect penalties is the same as assigning corporate compliance responsibility to individual levels of management within a corporation. In general, I cannot agree to such assignment.
As regards the double valve system, I would point out that an enclosed chamber can have an oxygen deficient atmosphere absent the introduction of another gas into the chamber. Accordingly, a failure in the valve system would tend to increase gravity rather than reduce it because it would tend to increase any existing oxygen deficiency.
MORAN, Chairman, dissenting: While it is clear that exposure of an employee to an oxygen deficient atmosphere and failure to provide suitable rescue equipment are separate and distinct acts or omissions, they do not constitute separate violations of section 5(a)(1) of the Act.
The duty created by Congress in section 5(a)(1) is unequivocally to provide a place of employment free from recognized hazards. Where a fact situation shows only a single place of employment, there cannot be more than one violation of this section. The requirement of the general duty clause is that " All preventable forms and instances of hazardous conduct must . . . be entirely excluded from the workplace." [emphasis supplied] National Realty and Construction Company, Inc., v. OSAHRC et al., D.C. Cir., F.2d (slip op. no. 72-1978, December 13, 1973). The provision that a particular place must be kept free of all instances of certain types of hazards is a single requirement and, at any single point in time, can be breached only once regardless of the number of such hazards then existing. Nor is the occurrence of a violation (or violations) related to numbers of employees exposed to the hazard, as is suggested by the statement that the employer's general duty is owed "to each of his employees." If this were true, the presence of a single hazard in a place of employment with one hundred workers exposed would require the issuance of one hundred citations for one hundred separate violations because the duty arising in section 5(a)(1) would be breached with respect to each such employee. The number of employees exposed to hazardous conditions in the workplace is a factor to be considered in determining the gravity of a violation, not the extent of its occurrence. See, for example, Secretary v. Broadview Seed Company, d/b/a/,
In addition, there is insufficient evidence upon which to base a finding that the oxygen deficient atmosphere constituted even a single violation of section 5(a)(1).
The Commission has ruled that one of the two recognized hazards it has found here involves the method of operation of respondent's employees in their failure to follow certain safety procedures before entering the furnace. Yen, the record indicates that the employees' method of operation was safe: that their practice of care was the norm, and that their reliance on the double valve system was recognized in the industry as a sufficient safety precaution.
Twenty-twenty hindsight vision will not suffice as a foundation for a 5(a)(1) violation. Respondent cannot be charged with knowledge of its employees' failure to close the valves, which failure was an obviously isolated occurrence. Nor can it be charged with failure to institute a practice of testing the oxygen level before entering. Not only was this practice not recognized in the industry as necessary for safety, but also such tests could only be made with the use of a mechanical device. In Secretary v. American Smelting and Refining Company,
Finally, this record does not contain any evidence of what the respondent should have done to avoid being cited. As was stated in the National Realty case, supra, the Secretary of Labor, in order to establish a violation of section 5(a)(1), must "specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." That was not done in this case.
[The Judge's decision referred to herein follows]
BURROUGHS, JUDGE. OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act), to review four Citations for Serious Violations issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act, and proposed assissment of penalties in the amount of $2,800.00 upon such alleged violations pursuant to Section 10(a) of the Act.
The Citations for Serious Violations were issued on January 6, 1972, alleging four separate violations under Section 5(a)(1) of the Act. On the same date, a Notification of Proposed Penalty was issued proposing a penalty of $700.00 for each of the alleged serious violations. Within 15 days of the receipt of the complainant's notice of proposed penalty and citations, the respondent notified the complainant that it wished to contest the four alleged serious violations and the proposed penalties.
The four Citations for Serious Violations alleged that respondent violated Section 5(a)(1) of the Act in the following manner:
(1) persons were permitted to enter a confined working space in a vessel without conducting appropriate tests to determine respirable qualities of the enclosures atmosphere;
(2) persons were permitted to enter a confined work space in a vessel without having suitable rescue (including but not limited to self-contained breathing apparatus, safety harness, life line) convenient and readily available for emergency use;
(3) persons were permitted to enter a confined work space in a vessel without blanking or disconnecting piping system used to convey hazardous material to the enclosure; and
(4) persons were permitted to enter a confined work space in a vessel without providing an external means of ventilation to remove and prevent the occurrence of a hazardous atmosphere within the enclosure.
The complainant advised the Occupational Safety and Health Review Commission of the notice of contest by respondent. The Commission assigned the case to this judge and an opportunity for hearing pursuant to Section 10(c) of the Act was afforded the respondent. The hearing was held in Manchester, Tennessee, on April 20 and 21, 1972. No additional parties desired to intervene in the proceeding.
The primary question for determination is whether there was one or more serious violations of Section 5(a) (1) of the Act by respondent. In the event a violation or violations occurred, a determination must be made as to the appropriate penalty to be asserted.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
The respondent, Aro, Inc., is a Tennessee corporation with an office and place of business at Arnold Engineering Development Center in Tullahoma, Tennessee. It is engaged in business as an operating contractor in the conduct of research and development projects for the United States Air Force Systems Command. It has a total of 2,817 employees (Complaint and Answer).
Respondent was founded essentially for the purpose of managing operations and maintaining Arnold Engineering Development Center. It conducts operations in many specialized fields and is involved in the space test procedures (Tr. 229). In the conduct of its business activities, respondent regularly orders and receives equipment, chemicals, metals, machinery, and materials produced and furnished by suppliers outside the State of Tennessee (Complaint and Answer).
In the summer of 1967, respondent purchased a Lindberg furnace from the Lindberg Heat Treating Furnace Company. The specifications for the furnace were reviewed and approved by the respondent's chief of its engineering support facility (Tr. 236, 246). The furnace can be operated with argon or an endothermic atmosphere (Tr. 117-118). It is capable of being heated to 1900 degrees fahrenheit (Tr. 95).
The furnace is a special atmospheric type used for heat treatment in several different operations performed by the respondent (Tr. 17, 105). It is used for carbon as well as stainless steel. Argon gas is used in the furnace primarily on staninless steel to prevent oxidation of the metal being heated and is introduced into the furnace to replace oxygen (Tr. 105-106, 115, 262). The more argon in the furnace the less oxygen in it (Tr. 106, 221). Argon is an inert gas and respondent recognized the properties of argon (Tr. 200, 241). It is heavier than air and is inclined to go to the bottom of the furnace (Tr. 177).
The furnace is heated by means of electrical elements located on the bottom and side walls of the furnace. A protective cage or basket type grid work similar to a grate (hereinafter referred to as a grate) protects the heating elements when metal is placed inside the furnace for heat treatment (Ex. 8; Tr. 17, 95-96). The furnace is 7 1/2 feet in depth without the grate and 6 1/2 feet with the grate. It is cylindrical and is approximately 4 1/2 feet in diameter (Tr. 52, 238). The furnace is housed in a building approximately 40' x 40' and is installed partly above the floor and partly below it (Tr. 50-51, 85). There is no way to enter the furnace except through the top (Tr. 86).
Joseph Hampton, J. T. Hill, and A. D. Overman were employed by respondent in its heat treating and plating operations (Tr. 94-96). Their immediate supervisor was Walter Swanson (Tr. 94). They were knowledgable in the respondent's treating and plating operations and generally worked by oral procedures among themselves (Tr. 111). They were the only employees of the heat treating section. Overman and Hampton had worked together for 18 years and Hill had worked in the section approximately 5 or 6 years (Tr. 110).
The purchase agreement for the Lindberg furnace required the manufacturer to provide the services of an installation engineer to advise respondent's personnel as to how to install and properly operate the furnace. (Tr. 247, 259). When the furnace was installed, representatives of the manufacturer instructed Hampton, Hill and Overman as to its use (Tr. 116-117). They were the only employees that were to operate the furnace (Tr. 128) The representatives stayed several days and instructed them on the procedure to follow in using argon in the furnace (Tr. 117). In addition to oral instructions, the Lindberg Company furnished written manuals of instruction (Tr. 247).
Hill, Hampton and Overman were not informed by the Lindberg representatives of any dangers associated with the use of argon in the furnace (Tr. 119). No instructions were given by the representatives in regard to procedures to be followed in entering the furnace. (Tr. 126). The instructions for use of argon amounted to little more than how to run it through the flow meter (Tr. 120). In addition the manual of operation furnished by the manufacturer contained no warning as to the danger of argon asphyxiation of employees entering the furnace (Tr. 120, 248, 260).
The manufacturer did request that the respondent insert another valve in the argon line prior to the argon flowing into the flow meter (Tr. 248, 259). This suggestion was consistent with respondent's general philosophy of relying on the double valve system as a means of protection and safety, and the additional valve was installed (Tr. 259-260). The manufacturer's representative also recommended that when anyone was working in the furnace that the valves be closed (Tr. 270).
As a result of the manufacturer's suggestion, the line by which the argon gas is induced from the tank to the furnace is controlled by two shut off valves and a flow meter. There is a shut off valve in the argon line immediately inside the building (Tr. 92, 120-121, 278-279). The argon then goes into the flow meter (Tr. 278-279). On top of the flow meter is another valve which can shut off the flow of argon into the furnace (Tr. 92, 121). The normal flow of the argon is through the registering gauge of the meter and then through the valve on top (Tr. 280). The valve on top has to be opened to allow the argon to flow to the furnace (Tr. 276). The gauge is an indicating instrument that regulates the amount of flow into the furnace (Tr. 273). The shut off valve on top of the flow meter is the last means of stopping the flow of the argon into the furnace (Tr. 279). If there is any flow of argon into the furnace it will register on the flow meter (Tr. 121).
The respondent relied on the double valve protection and the flow meter to assure safety in the furnace. (Tr. 231). This system of protection is also used in all of respondent's systems, both gas and liquid (Tr. 231-232, 250-251). The double valve system is also recognized by the Factory Insurance Association in gas furnaces (Tr. 251-252, 256). In twenty-two years of operation respondent has had no prior serious accidents as a result of using the double valve system (Tr. 231-232). There is, however, always the possibility of a valve leaking although it would not be a substantial possibility (Tr. 182, 211).
Respondent established a procedure that both valves were to be shut off and the flow meter checked prior to anyone entering the furnace (Tr. 133, 266-267). The argon line was marked with a yellow band to indicate that the line conveyed dangerous material hazardous to life or property (Ex. 3; Tr. 197-199). The supervisor of the section, Walter Swanson, stressed to Hill, Overman and Hampton that they turn off both valves when they finished using the furnace. He cautioned them on at least two or three occasions to make sure both valves were turned off (Tr. 122-123). The responsibility for insuring that the flow valves were turned off was upon the employees operating the furnace (Tr. 237). Hill, Overman and Hampton followed normal procedure when they finished using the furnace, but they did not usually recheck the valves when entering the furnace. They assumed that the valves would be turned off from the last time the furnace was used (Tr. 123).
Some three weeks prior to December 10, 1971, Swanson instructed Hill, Overman and Hampton to do some repair work inside the Lindberg furnace. They were to remove a section of the grate and replace it with a new section (Tr. 95, 97, 111). The usual procedure was to make such repairs whenever they had extra time to complete the job (Tr. 97). The furnace had previously been entered on numerous occasions by respondent's employees for purposes of checking of loose heating elements, taking out the bottom and for purposes of cleaning the furnace (Tr. 113-115).
At approximately 8:30 A.M. on December 10, 1971, Hill asked Hampton if he would assist him in replacing the section of the grate. Hampton agreed to assist but suggested that they wait until Overman returned so that Overman could answer the phone. In the meantime, Swanson called Hampton to the office to discuss another job. Hampton returned in approximately thirty minutes and by that time Overman had returned. They informed Overman as to what they intended to do and then walked to the furnace room (Tr. 98). The furnace was open. It had been open at least thirty minutes and possibly as long as a week (Tr. 99).
The furnace was last operated prior to December 10, 1971, by Hampton and Hill. Overman was not working on that day. Hampton had assisted Hill in loading the furnace and removing the load when the job was finished. Hampton shut off the furnace and reminded Hill to shut off the argon. Hill later informed Hampton that he had shut off the argon flow (Tr. 123-124).
Swanson was not present in the building when Hill and Hampton decided to undertake the repair of the grate. The employees were alone (Tr. 96). They were not informed at the time of the initial instructions or at anytime prior to December 10, 1971, as to any safety precautions to be taken upon entering the furnace (Tr. 97).
Hampton and Hill tried to remove the protective ring that sits on top of the furnace but the door on top of the furnace would not swing over far enough to allow removal of the grate without tearing out some brick. The grate had at one time been removed by Overman and Hill so it was decided to ask Overman how he had removed it (Tr. 99-100). The grate on the sides had been removed on at least two prior occasions (Tr. 109). The bottom had been removed on several occasions (Tr. 109).
Hampton and Hill asked Overman to come over to the furnace. The three of them discussed the project and then decided to take the pins out of the grate, roll it up and then pull it out. This procedure would permit the grate to come inside the protective ring at the top (Tr. 99-100). They had planned to hook a sling and a hoist to the grate and pull it out the top of the furnace. They intended to remove the whole grate and repair it (Tr. 112).
Hill informed Overman and Hampton that they might as well get it [grate] loose and jumped into the furnace (Tr. 100-101). Immediately prior to Hill entering the Lindberg furnace, Hampton had looked at the flow meter from a distance of approximately ten feet and it appeared to him that it was closed (Tr. 108). The flow meter had been installed at the same time the furnace was installed and had been removed and cleaned at least twice since it was installed (Tr. 109). Normal operating procedure was for the employees to be sure that the valves were closed and the flow was zero before entering the furnace (Tr. 245). Hill, Overman and Hampton were generally responsible for opening and shutting off the valves in the argon line (Tr. 128).
In a matter of seconds after Hill entered the furnace, he told Overman and Hampton that he could not breathe and almost immediately slumped over against the wall of the furnace. Overman, who had full view of Hill, screamed to Hill and told Hampton that Hill had passed out (Tr. 100-101). Overman immediately jumped into the furnace and tried to lift Hill and asked Hampton to assist him. Hill was limber and they were unable to raise him from the furnace. Overman then told Hampton to go for some assistance (Tr. 101).
Hampton ran outside to obtain additional assistance and to have someone call an ambulance. When he returned to the furnace, he found Overman lying on the bottom of the furnace partially on top of Hill. Hampton immediately jumped in the furnace and tried to help remove Hill and Overman (Tr. 101). Hampton suddenly realized that he had to get out of the furnace and started trying to climb out. He had to be assisted by two other men who had arrived on the scene. Hampton lost consciousness but was administered oxygen immediately upon removal and was taken to the dispensary for treatment and observation (Tr. 102-103, 135). At the time of the hearing, Hampton was still under a doctor's care although he returned to work within a few days of the accident (Tr. 103).
Hampton was not aware of any gas masks being in the building when they entered the furnace. He was aware of such masks but was not aware of where they were located. Hampton, Hill and Overman also had no safety harness or rope attached to them when they entered the furnace. They also wore no kind of breathing apparatus. In addition the pipe from the argon tanks to the Lindberg furnace had not been disconnected prior to Hill, Overman and Hampton entering the furnace (Complaint and Answer; Tr. 107-108).
The only type mask available at the time of the accident was a dust mask which is used mostly in places where there is a heavy concentration of dust. It has a fine filter on it, but is not suitable for use in oxygen deficient situations (Tr. 135, 138-139). At the time of the entry into the Lindberg furnace on December 10, 1971, respondent had qualified personnel and equipment to test the oxygen content. However, no such tests were made (Tr. 244, 263).
Hill and Overman were removed from the furnace by the fire department. They were both dead (Tr. 23-24, 104). Prior to December 10, 1971, the fireman who assisted in the rescue attempt had received no instructions as to rescue procedures in the heat treating unit (Tr. 139). He had been instructed in the rescue operations of a pit furnace and was familiar with instructions issued by respondent for entering vessels (Tr. 140).
There was a compressed air hose on the wall immediately adjacent to the Lindberg furnace (Tr. 90). It was used for agitation in the water bath and for clean up. Some employees also used it when they worked on the furnace (Tr. 106, 136). It was an all purpose line (Tr. 107). The air hose was dropped into the furnace and turned on as a means of ventilating the furnace prior to removing Hill and Overman (Tr. 91, 136-137).
Swanson appeared on the scene immediately after Overman was pulled out of the furnace. He looked at the flow meter and noticed that it had flow in it. He shut off the flow meter valve and then checked the main valve and discovered that it was open (Tr. 273, 276). The main valve had to be turned several times to shut it off (Tr. 277).
Subsequent to the accident on December 10, 1971, an investigation disclosed that there was a leak in the valve at the flow meter (Tr. 185). The flow meter registered a flow even with the flow meter valve turned completely off (Tr. 185, 205-205). The meter was indicating that there was a flow of some 60 to 70 cubic feet of argon per hour which went directly into the furnace (Tr. 87, 121). The valve was disassembled and it was discovered that the gasket or seat of the valve was out of position and the valve was turned so that the valve was not entirely concentric (Tr. 186). Respondent was unaware of the leaking valve (Tr. 57).
The investigation conducted by respondent determined that the cause of the accident was due to the failure of the shut-off valve immediately inside the building to be closed, combined with a leading valve on the flow meter (Tr. 122, 230). The flow meter itself was calibrated in the laboratory and found to be registering correctly (Tr. 230, 236, 245). As far as could be determined, the flow meter was indicating essentially the correct flow of argon at the time Hill went into the furnace (Tr. 245). It was determined that the meter would have registered a flow of only one percent (Tr. 236).
The respondent has a separate safety department which includes six safety engineers (Tr. 203). Approximately 40 percent of their time is devoted to consultation. They have little time for inspection (Tr. 210). The respondent as a whole has a very good safety record (Tr. 72, 208). Its frequency rate for accidents over its 21 years of existence is 3.4 disabling injuries per million man hours (Tr. 205). This is approximately half of the national average for all industry (Ex. A; Tr. 206).
In 1954 respondent issued safety standard M-3 which pertained to entering vessels. It was effective as of November 30, 1954 (Ex. 1). Pertinent provisions of this safety standard are as follows: (Ex. 1)
To require such action as necessary to assure the safety of persons whose work requires that they enter tanks or vessels.
The supervisor in charge of the system of which the vessel is a part will be responsible for preparing the vessel for entry. The foreman in charge of the entering crew will personally inspect the vessel to determine if it meets safety requirements and will see that personal protective requirements are met.
The terms "tank" or "vessel" refer to any enclosure which must be entered through a manhole or other constricted opening. Examples: tanks, barometric wells, coolers, ducts, sewers, water mains or any enclosure where hazard may be encountered due to lack of oxygen or the presence or possible introduction of vapors, steam, air pressure or any material which might cause injury to a worker.
1. d. The tank will be purged of toxic or flammable vapors, dust or gases, and tests will be made to assure effectiveness of the purging operation. The Fire Protection Branch will make these tests for flammability and the Safety Branch will make toxicity tests.
e. Artificial means of ventilation will be required unless this requirement is waived by a representative of the Safety Branch after tests have been made to assure that the oxygen supply is sufficient. If any doubt exists as to the sufficiency of oxygen or the presence of toxic materials, either a fresh air hose-mask or self-contained air-breathing apparatus (Scott Air Pak) will be worn by those entering the vessel. (Scott Air Pak may be borrowed from ETF). If portable blowers or hose-masks are used, care must be taken that the intake is from fresh air and is not contaminated by exhaust gases or other contaminants.
2. Personal Protection Requirements for Person Entering the Vessel:
a. Employees entering vessels must wear a harness-type safety belt (Stock No. 13C-8330-12-00620) with a life line attached. The line must be tended by a watcher posted outside the vessel at a point from which he can be in constant touch with the employee throughout the time he is in the vessel.
b. Where the vessel may contain toxics or lack oxygen, two extra self-contained air breathing respirators (Scott Air Pak) will be kept conveniently available for emergency use. * * *
The procedure provided by safety standard M-3 was in effect on December 10, 1971, but was not applied to the heat treating and plating operation (Tr. 11, 192, 233). It was generally interpreted by some of respondent's management as being inapplicable because of the definition given by M-3 of a tank or vessel (Tr. 192, 233). The Chairman of the Safety Council interpreted standard M-3 to apply to tanks or vessels which must be entered through a manhole or other restricted opening and the Lindberg furnace was not considered by him to meet this requirement (Tr. 233). The safety director was of the opinion that M-3 was applicable to the heat treating and plating operation (Tr. 196). He was not, however, aware that argon was being introduced into the furnace to exclude oxygen (Tr. 209). The safety department had never specifically considered or evaluated the potential of death or serious physical harm resulting from entry into the furnace (Tr. 209-210).
Safety instructions issued by respondent are directed to about 250 supervisors and they are to discuss them with their employees if it applies to their operation (Tr. 216-217). The supervisor makes the judgment as to whether it applies to his operation. The safety department discusses safety rules at their council meetings and during inspections they try to determine if the applicable safety procedures are being followed (Tr. 217). No one in the safety department had ever made any effort to ascertain if M-3 was being applied in the heat treating and plating operations (Tr. 218).
As a result of the accident, respondent contacted other heat treating and plating operations in an effort to determine what standards were being applied (Tr. 253). The survey indicated that no specific set of standards were being followed by others in the industry (Tr. 254). The companies contacted that had safety procedures were ones that had previously had a fatality in such operations (Tr. 254-255). After the accident, respondent applied the provisions of safety standard M-3 to entries in the furnace (Tr. 233).
In 1964 respondent had a previous incident involving argon gas which incurred in the endothermic test facility. The incident occurred in a vacuum chamber (Tr. 234). The chamber had been filled with argon as part of normal operations and this fact was known. There was no similarity between the type of function being performed in the vacuum chamber and the Lindberg furnace (Tr. 235). The person entering the vacuum chamber did so before checking the oxygen content (Tr. 243).
As a result of the argon incident in 1964, respondent issued safetygram number 111, which was dated November 13, 1964 (Ex. 3; Tr. 189). The safetygram stated, in part, as follows: (Ex. 3)
TO: ALL SUPERVISORS Recently a vacuum chamber was returned to atmospheric pressure by introducing argon, an inert gas. The complete top of the 3 1/2 ft. by 7 ft. vessel was then removed. The chamber was exposed to natural ventilation for approximately 15 minutes. A worker then entered the vessel, was promptly overcome by lack of oxygen and fell to the bottom.
A rescuer immediately entered the chamber. After near collapse he was able to complete the rescue with the help of others. Air supplied by fans hastily turned on also helped.
The above near-fatal accident emphasizes the need for education of both supervisors and workmen on Safety Standard M-3, "Entering Vessels." Three of the most important requirements are:
(1) Persons entering must wear a safety harness with attached line attended by a watcher outside the vessel.
(2) The vessel atmosphere must be sampled for oxygen or toxics . . .
Supervisors are requested to discuss this subject with their employees and assure observance of safety procedures.
On December 16, 1971, compliance officer, Raymond Finney, contacted respondent's safety director and conducted an inspection of part of respondent's facilities (Tr. 13, 184). As a result of the inspection, four Citations for Serious Violations were issued to respondent on December 16, 1971 (Tr. 37). A penalty of $700.00 was proposed for each of the four violations (Tr. 39). In arriving at the penalties of $700.00 for each of the alleged serious violations, complainant started with an unadjusted penalty of $1,000.00 and allowed a 30 percent reduction. Respondent was allowed a 10 percent reduction for good faith, a 20 percent reduction for previous history and no reduction for size (Tr. 38-39).
LAW AND OPINION
Section 5(a)(1) of the Act provides as follows:
(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;
Complainant contends that respondent violated Section 5(a)(1) on four separate occasions, all of which contributed to the death of two employees, J. T. Hill and A. D. Overman.
If a "recognized hazard" existed in this case, the pivotal question is whether there was one "recognized hazard" or several as contended by the complainant. Complainant submits that respondent violated Section 5(a)(1) on four separate occasions by allowing its employees to enter the Lindberg furnace (1) without conducting appropriate tests to determine respirable qualities of the enclosures atmosphere, (2) without having suitable rescue equipment convenient and readily available for emergency use, (3) without blanking or disconnecting the piping system used to convey hazardous material to the enclosure, and (4) without providing an external means of ventilation to remove and prevent the occurrence of hazardous atmosphere within the enclosure.
Respondent admitted in its answer, and the evidence supports complainant's determinations that respondent did not conduct tests to determine respirable qualities of the atmosphere in the furnace, did not disconnect or blanket the argon piping system leading into the furnace, and did not have suitable rescue equipment convenient and readily available. Respondent denies that an external means of ventilation was not available to remove the hazardous atmosphere.
The evidence does not support the allegation that an external means of ventilation was not available. It is true that a forced ventilation system was not built into the furnace as the compliance officer seemingly suggested (Tr. 79), but there is no safety standard in effect which requires such a forced ventilation system. There was a compressed air hose on the wall immediately adjacent to the furnace (Tr. 90) which was available for use and, in fact, was dropped into the furnace and turned on as a means of ventilating it prior to removing Hill and Overman (Tr. 91, 136-137). Thus, even if complainant's contentions were warranted, the evidence would support only three violations.
While the respondent admitted and the evidence supports the fact that it failed to pursue the standard of conduct set forth in three of the citations, the facts of this case do not warrant the conclusion that the final determination necessitates the sustaining of three serious violations. Only one citation should have been issued under Section 5(a)(1) of the Act. The issuance of four citations serves only to pecuniarily punish the respondent for standards of conduct which complainant deemed warranted. The object of the Act is to insure safe working conditions for employees and not to pecuniarily punish the employer.
The Act and the legislative history offer no guidelines delineating the circumstances under which more than one citation for violation of Section 5(a)(1) should issue. Undoubtedly if more than one "recognized hazard" exists then more than one citation can be issued under Section 5(a)(1). However, in this particular instance the complainant confuses the hazard (be it recognized or not) with safety measures. The term "hazard" in its commonly accepted meaning implies a source of danger. It is the source from which an accident may, but not necessarily, arise. The source or sources of danger rather than the number of safety methods that could or should have been taken must of necessity determine the number of citations that are to be issued.
What was the source of danger in this case? It seems clear that there was only one danger present at the time Hill and Overman entered the furnace, namely, the presence of an oxygen deficient atmosphere within the furnace caused by argon leaking into it. The conditions cited are not hazardous in and of themselves. Only the conducting of appropriate tests to determine respirable qualities of the atmosphere in the furnace would have assured a safe place of employment at the time the furnace was entered. The lack of rescue equipment (needed only after it was discovered the furnace was unsafe) and blanking or disconnecting the piping system would not have assured that sufficient oxygen was within the furnace.
Complainant uses one danger to set standards which he undoubtedly believes should have been part of respondent's regular procedure for entry into the furnace. In essence, the respondent is being held responsible for additional safety standards that he had no way of knowing that he was "required" to institute. These standards have never been adopted through the administrative process provided by Section 6 of the Act. How was respondent to know that each of these measures were required by the Act? Section 5(a)(1) certainly does not specifically require these four separate measures all be undertaken by the respondent in the circumstances of this case.
Section 5(a)(1) was enacted with the recognition that precise standards to cover every conceivable situation would not always exist. It was not enacted with the purpose of allowing the complainant to assert standards which had not been adopted under the administrative process as provided by Section 6 of the Act, but to impose a standard of care the employer must furnish his employees. Congress intended only to impose the common law duty of taking precautions to avoid injury to anyone for acts which are likely to cause injury and which are foreseeable by a reasonable person. In other words, the duty is to conform to the legal standard of reasonable conduct in the light of the apparent risk. This appears to be the most plausible implication of the Senate Committee on Labor and Public Welfare in reporting favorably on the bill (S. 2193). The Committee commented as follows on the general duty clause (S. Rept. No. 91-1282, 91st Cong., 2nd Sess. (1970), page 9):
* * * Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to this as a general duty to others. Statutes usually increase but sometimes modify this duty. The Committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment 'which is free from recognized hazards so as to provide safe and healthful working conditions,' merely restates that each employer shall furnish this degree of care.
Under Section 5(a)(1) of the Act the respondent owed a duty to its employees to insure that the entry into the furnace would not bring adverse effects to their health and life. This duty necessitated that it insure the furnace was safe from any "recognized hazard" prior to their entry. The hazard was an oxygen deficient atmosphere caused by the argon inside the furnace. This duty could easily have been met by testing the respirable qualities of the air in the furnace by a qualified person to assure sufficient oxygen. Had this precaution been undertaken, respondent, under complainant's approach, would still have committed three serious violations under Section 5(a)(1) since it would not have put into effect the other measures required in the three remaining Citations for Serious Violations. Obviously Congress did not intend Section 5(a)(1) to be used in such a manner.
Section 17(b) of the Act sets the maximum penalty for a serious violation at $1,000.00. Complainant has in effect subverted the intent of Section 17(b) by citing various additional protective measures as serious violations rather than the "recognized hazard." What is the effect of Section 17(b) if the complainant can take one source of danger and break it into as many separate violations as he desires. The answer seems obvious. It would be meaningless. Complainant would under such a procedure be free to pecuniarily punish an employer as much as he desired. The Act grants no such authority to the complainant.
Under complainant's procedure, he could have just as easily issued three additional Citations for Serious Violations in this case. For instance, he offered testimony that the electric power activating heating element should have been locked out (Tr. 167) a written form or permit should have been used to show that the furnace had been properly prepared and tested (Tr. 160, 175-176) and there should have been in effect a rescue or emergency procedure (Tr. 179).
One can hardly dispute the fact that the four measures for which complainant issued citations would certainly add to the safety of entering a confined space in which oxygen has been excluded. The same can be said for the three additional measures which were suggested by complainant's compliance officers. However, they have not been adopted as standards and respondent had no knowledge that he was required to observe each and every one of them. The Act required only one duty from him, i.e., furnish a place of employment free from recognized hazards that were causing or likely to cause serious physical harm to his employees. The absence of the measures cited by complainant, taken in the aggregate, contributed only to the probability that death or serious physical harm would come to the employees who entered the furnace. They in no way contributed additional sources of danger toward which Section 5(a)(1) was enacted.
Section 5(a)(1) has applicability only to situations where there are recognized hazards which are likely to cause or are causing serious injury or death. Since a hazard existed, a determination must be made as to whether it was recognized by respondent. The evidence must be construed in light of the Congressional intent of enacting Section 5(a)(1). While the term "recognized hazards" is not defined by the Act, the legislative history does provide some guidance as to what was intended by use of the term. Congressman Daniels in agreeing to modify his bill (H.R. 16785) so as to limit the general duty requirement to "recognized hazards," explained the intent of the term as follows: (Cong. Rec. - House, November 23, 1970)
. . . A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is 'recognized' is a matter for objective determination; it does not depend on whether the particular employer is aware of it.
. . . A danger, in other words, may be recognized as such in the industry, but may not be apparent to an employer who is ill-informed and does not choose to investigate the danger of the situation. That is not sufficient protection for employees.
Thus the term "recognized hazards" connotes an objective test and has applicability to a hazard which is of common knowledge or general recognition in the particular industry in which it occurs.
The record is clear that the respondent understood and was aware of the hazards associated with the use of argon. It acknowledged that it was familiar with the properties of argon (Tr. 200). Respondent's safety director testified that he knew that argon excluded oxygen and that asphyxiation could result from use of argon in a confined space (Tr. 201). The director of operations, who acts as chairman of the safety council, also indicated that he was aware that argon was an inert gas and that it displaced oxygen (Tr. 241). Charles A. Wood, manager of the machine shop and maintenance branch of the engineering support facility and the immediate superior of the supervisor of the employees who entered the furnace, testified that he knew argon was a suffocating gas and that it would be hazardous for anyone to enter the furnace when it was filled with argon (Tr. 263-264).
While respondent was acutely aware of the potential hazards associated with the use of argon, the paramount question is whether it "recognized" the hazard of asphyxiation of its employees in entering the furnace. There is 'probably universal recognition of the potential hazard of entering a furnace, such as is in this case, when it contains an oxygen deficient atmosphere. However, the resolution of this issue is not quite so simple. Respondent, in recognition of the potential hazard from the use of argon, had undertaken certain precautions to insure the safety of its employees. Whether the hazard was "recognized" within the intendment of Section 5(a)(1) must be construed in light of the precautions undertaken by respondent. In other words, in spite of its precautions should respondent, taking into account the standard of knowledge in the industry, have "recognized" that its inability to take additional protective measures would be likely to cause death or serious physical harm to its employees.
As a result of its understanding of the hazards associated with the use of argon, respondent had marked the argon line with a yellow band to indicate that the line conveyed a dangerous material hazardous to life. A double valve system and a flow meter were installed in the line as a means of protection. A procedure was established that required both valves to be shut off and the flow meter checked prior to anyone entering the furnace. This requirement was stressed by the supervisor of the section but the responsibility for insuring that the valves were turned off was upon the employees operating the furnace.
Respondent had experienced any serious accident in using the double valve system in its twenty-two years of operations. Its safety director acknowledged that there was always a possibility of a valve leaking but that it would not be a substantial possibility (Tr. 211). The furnace had previously been entered on numerous occasions without incident (Tr. 113-115). In addition, it must be noted that Hill, Hampton and Overman had been the only employees to use the furnace since its installation in 1967 and were regarded by respondent as knowledgeable and capable, a fact which appears undisputed.
Respondent stresses that it was justified in relying on the double valve system and that such a system is recognized in the industry. In addition to testimony of its own supervisory personnel that the double valve system was accepted within the industry, evidence was introduced to show that the Factory Insurance Association recognized the double valve system in gas furnaces. (Tr. 251-252, 256). One of the compliance officers also readily admitted that some people do believe that a double valve system is sufficient protection, although he was personally of the opposite view (Tr. 181).
Due to the precautionary measures it had taken, respondent submits that it did not recognize the hazard of argon asphyxiation in the Lindberg furnace prior to the accident of December 10, 1971. Upon a superficial analysis respondent's position seems justified. However, a careful study makes it convincingly clear that the hazard was "recognized" within the meaning of Section 5(a)(1). If respondent did not recognize the hazard, it was due to its failure to investigate the danger until the unfortunate fatalities occurred on December 10, 1971. It owed a higher standard of care to its employees than it furnished on December 10, 1971.
Respondent's reliance on the double valve system puts the cart before the horse. Such a system might be sufficient to insure that the flow into the furnace has ceased but it cannot assure the employee that there is sufficient oxygen inside to permit safe entry. Once the atmosphere inside the furnace had been tested by qualified personnel, which respondent had available, to determine the respirable qualities within the furnace, it would probably have been justified in relying on the double valve system if the oxygen content had been sufficient. In this instance such a test would, in all probability, have disclosed the human error (an unclosed valve) and the mechanical failure (a leaking valve) that contributed to the deaths. Certainly it would have resulted in the employees knowing that the furnace was unsafe for entry.
The respondent had a duty to insure that the furnace was safe for entry. The fact that both valves may be closed and the flow meter reading zero does not per se mean that the oxygen content inside the furnace is safe for entry. Respondent recognized that argon was an inert gas which was heavier than air and therefore inclined to go to the bottom of the furnace. It was also aware that the furnace was 7 1/2 feet in depth without the grate and 6 1/2 feet with the grate installed. Under the circumstances, it seems only reasonable that respondent should have recognized a hazard to employees entering the furnace prior to tests being conducted to determine the respirable qualities of the atmosphere. This is especially true on December 10, 1971, since Hampton did not know if the furnace had been open thirty minutes or a week prior to Hill entering it (Tr. 99).
Respondent emphasizes that the double valve means of protection was used in all of its systems, both gas and liquid, and had served as a good means of protection. This may be true but it was not the only means of insuring a safe place of employment used by it in entering a confined space where there might be a lack of oxygen. It had in effect a detailed safety standard (known as M-3) which applied to entry of vessels (Ex. 1). This standard prescribed several safety measures, including tests to insure that the vessel had been purged of toxic or flammable vapors, dusts or gases. Apparently, through oversight or misinterpretation of its applicability it was not applied to the Lindberg furnace. The safety manager was of the opinion that it should have been applicable to the furnace on December 10, 1971 (Tr. 196), whereas the chairman of the safety council interpreted the standard to apply only to tanks or vessels which had to be entered through a manhole or other constricted opening and the furnace, in his opinion, did not meet this requirement (Tr. 233).
The examples under the definition of the standard includes the phrase "or any enclosure where hazard may be encountered due to lack of oxygen." It would appear clear that this would include the furnace regardless of what classification one might ascribe to the furnace. The safety of the respondent's employees should have been kept foremost in mind when applying the standard and applied, as the safety director was of the opinion it should have been, in lieu of narrowly interpreting it to have no applicability. Respondent knew the dangers of argon and recognized the need to assure the safety of persons whose work required that they enter confined spaces. Under such circumstances it should have recognized its safety precautions were inadequate insofar as the furnace was concerned.
Respondent also had never informed Hampton, Hill or Overman as to any safety precautions to be taken prior to entering the furnace (Tr. 97). There is no evidence to indicate that they had ever been informed or, indeed, if anyone had determined how long the furnace had to be exposed to natural ventilation after the use of argon gas in it to assure that the oxygen inside was sufficient for entry. It would seem obvious that one could not be assured of safe entry within a relatively short period after argon has been used in the furnace. This seems amply demonstrated by the near-fatal accicident from the entry of an employee into a vacuum chamber approximately the same size of the Lindberg furnace (3 1/2' X 7' chamber) in November, 1964. In that instance the top of the chamber was removed and the chamber exposed to natural ventilation for approximately 15 minutes. An employee entered the chamber and was promptly overcome by lack of oxygen.
In addition to safety standard M-3, respondent had issued a safetygram in November, 1964, to all its supervisors which described the near-fatal accident from the entry of an employee in the vacuum chamber into which argon had been introduced. The safetygram emphasized the need for education of both supervisors and workmen on safety standard M-3 and restated the three most important requirements, including sampling the vessel atmosphere for oxygen. In light of the emphasis placed by the safetygram on the near-fatality, it is difficult to conceive how safety standard M-3 could have been ignored by respondent when entering the Lindberg furnace. It is also difficult to comprehend how the chairman of the safety council could make a valid distinction between the vacuum chamber which was practically the same depth (7' as opposed to 7 1/2') and diameter (3 1/2' as opposed to 4 1/2') as the furnace; both were entered through the top.
It is equally distressing to note that while the safety manager was of the opinion that M-3 was applicable to the Lindberg furnace he did not even know that argon was being introduced into the furnace to exclude oxygen until December 10, 1971, (Tr. 209) and no member of the safety department (although it had six engineers) had ever made any effort to ascertain if M-3 was applied in the heat treating and plating operations (Tr. 218). This means that respondent had been using the furnace for approximately four years and the safety department had never considered or evaluated the potential of death or serious physical harm likely to result from entry into the furnace (Tr. 209-210). Yet, respondent knew and understood the dangerous properties of argon when used in confined spaces. One can only surmise that the safety department was impeded by lack of authority or insufficient personnel.
In concluding that there was a violation, it is recognized that the employees themselves cannot be totally absolved from some responsibility for the tragic deaths. They were obviously careless in not insuring that the valves were closed and in failing to properly read the flow meter. However, final responsibility for compliance with the Act remains with the employer. (S. Rept. No. 91-1282. 91st Cong., 2d Sess., page 11 (1970)). Had respondent met the duty or standard of care imposed upon it by Section 5(a)(1) the place of employment would have been free from a "recognized hazard."
The record is clear that the "recognized hazard" was likely to cause death or serious physical harm and that it was a serious violation under Section 17(k) of the Act. Section 5(a)(1) uses the phrase "likely to cause death or serious physical harm," whereas Section 17(k) uses the phrase "substantial probability that death or serious physical harm could result." These terms are synonymous. Section 17(k) further provides that the violation is not serious if the employer is both unaware of the facts constituting the violation and even with reasonable diligence could not have known of it. The finding that respondent should have recognized the hazard satisfies this requirement of Section 17(k).
APPROPRIATENESS OF PENALTIES
Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly 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. See Secretary of Labor v. Nacirema Operating Company, Inc.,
The compliance officer testified that he commenced consideration of the four alleged serious violations with the statutory maximum penalty of $1,000.00 which is authorized in the Act for a serious violation and then applied a 30 percent reduction. This reduction was arrived at by allowing the respondent a 10 percent reduction for good faith, a 20 percent reduction on the respondent's history of previous violations and no reduction for size.
In Nacirema Operating Company, Inc., OSHRC Docket No. 4, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The Commission indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. The record does not indicate the extent to which consideration was given to the gravity of the violation.
After due consideration of the four criteria provided by Section 17(j), it is concluded that a penalty of $900.00 is appropriate for the one serious violation. There was a severe potential for injury and the good faith of the respondent is considerably tarnished.
CONCLUSIONS OF LAW
1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. On December 10, 1971, respondent violated Section 5(a)(1) of the Act by failing to furnish employment and a place of employment free from a recognized hazard which was likely to cause death or serious physical harm in that it permitted employees to enter a confined space without conducting appropriate tests to insure sufficient oxygen was available.
4. There was only one violation of Section 5(a)(1), in lieu of four as alleged, and the violation was serious. The respondent was not in violation of Section 5(a)(1) for not having suitable rescue equipment convenient, for not blanking or disconnecting the piping system, and for not providing an external means of ventilation.
5. A penalty of $900.00 is appropriate for the violation.
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is
1. That the respondent violated Section 5(a)(1) of the Act by not conducting appropriate tests to determine the sufficiency of oxygen prior to permitting its employees to enter a confined space, namely, a furnace. The violation was serious and respondent is liable for a penalty of $900.00.
2. That respondent is guilty of only one violation of Section 5(a)(1). It did not violate Section 5(a)(1) by not having suitable rescue equipment convenient, by not blanking or disconnecting the piping system, and by not providing an external means of ventilation.