RALSTON PURINA CO.  

OSHRC Docket No. 76-2551

Occupational Safety and Health Review Commission

April 12, 1979

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Robert T. McIver, Ralston Purina Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Review Commission Judge John J. Morris is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. ["the Act"].   In his decision, the Judge affirmed a citation alleging a serious violation of section 5(a)(2) of the Act for failure to comply with the general industry safety standard published at 29 C.F.R. §   1910.212(a)(1) n1 and assessed a $500 penalty.   We affirm the Judge's decision.

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n1 The standard reads as follows:

§   1910.212 General requirements for all machines.

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.   Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

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Respondent, a manufacturer of cattle and hog feed, was inspected by an occupational safety and health compliance officer following a fatal accident in which an employee had become entangled in the blade of an auger or screw conveyor.   The compliance officer was the sole witness at the hearing.   Respondent offered no evidence.

The accident occurred in the railroad car loading area of respondent's feed mill. The loading area consists of a raised concrete apron, about 5 1/2 feet wide, adjacent to a railroad siding. The side of the apron away from the tracks abuts the wall of the feed mill. The screw conveyor runs horizontally beneath the loading area from the siding to the mill.   The blade of the auger is 14 inches in diameter.

The purpose of the auger is to convey cotton seed hulls and dehydrated alfalfa unloaded from covered hoppercars and boxcars to the storage bins inside the mill.   Three openings or pits empty into the auger. Only two of the pits are involved in this case.   The first pit, in which the accident occurred, is located in the concrete apron. The opening is 35 inches long, 31 inches [*3]   wide, and 35 inches deep to the periphery of the blade.   The pit is surrounded by a 3-inch-high flange.   The second pit is located between the rails of the siding. Measured center to center, the horizontal distance between the two pits is approximately 6 feet.   The distance from the edge of a railroad car on the siding to the nearest edge of the pit in the apron is about 18 to 20 inches.

When the pits are not in use, each is covered with a metal lid. Normally a grille is also fitted over the mouth of each of the pits. The grille consists of heavy-duty steel bars, approximately 3/8-inch thick by 2 inches deep, spaced 3 inches apart and welded to an angle iron frame.   The compliance officer stated that when in place, the grille would support a man's weight and would prevent a person from falling into the auger.

The compliance officer described the standard procedure for unloading cotton seed hulls. A front-end loader, using a fold-down ramp to gain access to the boxcar, digs into the cotton seed hulls and dumps the hulls through a grating in the fold-down ramp into the pit on the apron. After an adequate working space for the front-end loader is cleared in the boxcar, the ramp [*4]   is retracted and the hulls are dumped directly into the pit. No chute or tube is used.   After the unloading of the hulls is completed, employees immediately clear the spillage of hulls around the edge of the pit by shoveling them into the pit.

The method of unloading dehydrated alfalfa is different.   Alfalfa arrives at the feed mill in covered hoppercars. To unload the alfalfa, chutes on the bottom of the hoppercar are opened when an employee manually actuates a tipple mechanism on the chutes.   The alfalfa then flows directly into the pit located in the bed of the siding. The compliance officer testified that when dehydrated alfalfa is unloaded, there also is spillage. The compliance officer stated that due to the alfalfa's powdery form, it is easily blown about the unloading area.   The employees clear this spillage by removing the metal lid of the closest pit and shoveling the spillage into the pit.

The complete circumstances surrounding the occurrence of the accident are unknown because there were no eyewitnesses.   The compliance officer testified that the metal lid over the pit in which the accident occurred was bent and warped on the day of the inspection.   The compliance [*5]   officer concluded that the lid was not tight-fitting because he had dislodged the lid when he accidentally kicked it during the inspection.   The compliance officer testified that an accident could occur due to the inadequate cover over the pit when the steel grille is not in place.   He testified that in the event of an accident, a serious injury such as amputation of a limb is possible.

The compliance officer also testified that respondent's production manager admitted to him that on the day of the fatality there was no grille in place over the pit in the apron. The production manager had stated that the grille had been removed because it disrupted the flow of the cotton seed hulls feeding into the auger. Although the manager stated to the compliance officer that the metal lid was replaced after the cotton seed hulls were unloaded, the manager indicated that the grille was not replaced.   That evening, the employee who was involved in the accident was assigned to unload dehydrated alfalfa at the pit that was located between the tracks.   His assigned duties did not include use of the pit in the apron. During the unloading of the dehydrated alfalfa, an accident occurred in which   [*6]   the employee fell into the pit in the apron and died of injuries caused by the auger. After the accident, the lid from the pit in the apron was found resting against the feed mill wall. n2

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n2 The compliance officer stated that there are two possible explanations for the accident.   The first is as follows: In order to unload the alfalfa into the pit under the hoppercar, the employee had to unlatch the tipple, which is the unloading mechanism on the hopper car.   To unlatch the tipple, the employee would squat under the hoppercar. The compliance officer opined that while coming out from under the hoppercar the employee might have hit his head or been distracted, dislodged the lid and fallen into the unguarded pit. The compliance officer stated that a second and more probable reason was that the employee removed the lid and placed it against the wall in order to sweep up the alfalfa spillage. While sweeping up the spillage, he slipped or fell into the pit.

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In his decision, Judge Morris found a serious violation of   [*7]   §   1910.212(a)(1).   He rejected respondent's argument that there was not substantial evidence of a violation.   He implicitly agreed with respondent's argument that the occurrence of an injury is not conclusive in proving a violation.   However, the Judge found a violation on the basis that the metal lid was warped and loose.   Furthermore, he pointed out that the compliance officer, the sole witness and stipulated by the parties to be an expert, testified that an accident could occur.   Also, he relied on the admission of the management representative to the compliance officer that there was no grille over the pit on the day of the accident.   The Judge stated that respondent's reliance on Cape & Vineyard, Division of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), was misplaced because the requirements of §   1910.212(a)(1) in this case, unlike §   1910.132(a) in Cape & Vineyard, supra, are "self-explanatory and clearly ascertainable." Finally, the Judge stated that the Commission has the authority to make an independent evaluation of civil penalties, citing Dreher Pickle Co., 73 OSAHRC 4/D10, 1 BNA OSHC 1132, 1971-73 CCH OSHD para. 15,470 [*8]   (No. 48, 1973).   He went on to state that of the four statutory factors enumerated in §   17(j) of the Act, the gravity of the violation generally should be accorded the greatest weight.   Stating that the gravity of the violation in this case was apparent, the Judge assessed a $500 penalty.

In respondent's brief before the Commission, n3 respondent relies on Cape & Vineyard for its contention that the record does not contain substantial evidence to support a finding that respondent failed to comply with §   1910.212(a)(1).   Respondent submits that because there is no evidence of the actual occurrence of the accident, there is no proof of a violation of §   1910.212(a)(1).   In essence, respondent is arguing that the evidence of record does not support the finding of a violation of §   1910.212(a)(1). n4 Respondent also contends that the fatality was caused by unpreventable employee misconduct.   We reject these contentions.

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n3 The Secretary filed no brief.

n4 At no time does respondent argue that §   1910.212(a)(1) is inapplicable to this factual situation.   Consequently, this issue is not before us.   Bechtel Power Corp., 76 OSAHRC 38/F2, 4 BNA OSHC 1005, 1010 n. 13a, 1975-76 CCH OSHD para. 20,503 at p. 24,502 n. 13a (No. 5064, 1976).

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In order to meet his burden of proof, n5 the Secretary must prove by a preponderance of the evidence both the existence of a hazard, A.E. Burgess Leather Co., Inc., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD para. 21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978), and that respondent failed to comply with the requirements of the cited standard.   Concrete Construction Corp., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1975-76 CCH OSHD para. 20,610 (No. 2490, 1976).   Although evidence concerning the occurrence of and circumstances surrounding an accident is not necessary for the Secretary to establish a prima facie case, and certainly such evidence is not necessarily conclusive in finding a violation, the occurrence of and circumstances surrounding an accident may be probative evidence of a violation.

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n5 Commission Rule 73(a), 29 C.F.R. §   2200.73(a), states that "the burden of proof shall rest with the Secretary."

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We hold that the evidence in this case demonstrates a violation of §   1910.212(a)(1).   The evidence establishes the existence of a hazard. It is clear that the pits are a hazard to employees when neither the cover nor the grille is in place.   We find that a hazard also existed at the pit in the apron any time the grille was not in place and the auger was in operation.   The metal lid was warped, bent, and easily dislodged. Indeed, the compliance officer testified that he accidentally dislodged the cover during the inspection.   Thus, the lid by itself, provided inadequate protection to the employees from the hazard of stepping or falling into the pit. It is established that there was no grille over the pit in the apron at the time of the accident.

We also conclude that respondent's employees were exposed to the cited hazard. The test for determining exposure to a violative condition is whether there is access to the hazard presented by the noncompliant condition.   Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   The employee had access to the pit because he was assigned to unload alfalfa at a pit that was less than 4 feet from [*11]   the pit into which he fell.   The auger was operating at the time.   Although the assigned duties of the employee did not include the use of the pit in the apron, he would have come very close to the pit in following the general procedure of unloading dehydrated alfalfa. The exhibits also show that the pit in the apron was situated such that any employee moving along the apron must either pass very close to the pit or step over it, particularly if a railroad car were on the siding at the time.   Clearly, the facts satisfy the access test set forth in the Commission decision in Gilles & Cotting, Inc.

Respondent attempted to establish a defense of unpreventable employee misconduct by contending that it should not be held responsible for the violation because the accident resulted from aberrant and unexplainable conduct by the deceased employee. Asserting that the employee had no reason to be near the pit in the apron, and that the pit was properly covered prior to the accident, respondent contends that the employee, for reasons that are now unknown and were therefore unforeseeable prior to the accident, himself uncovered the pit.

These arguments are without merit.   As described [*12]   above, the deceased employee had access to the pit due to the nature of the work he was assigned to perform.   Thus, his presence near the pit was foreseeable.   Even if the employee did remove the cover, it is reasonable to infer that he did so to shovel alfalfa into the pit, consistent with respondent's usual procedure, rather than that he removed the cover for aberrant and unexplainable reasons.   But regardless of how the cover was removed, the critical point is that even if the cover had not been removed, it was easily dislodged because it was bent and warped, and therefore did not provide the protection required by the standard.   Cf. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD para. 22,909 (No. 12523, 1978) (partial protection is inadequate when required method of abatement can be accomplished).   As there is no reason to believe that the deceased employee caused the cover to become bent and warped, the deficient guarding cannot be explained on the basis of unpreventable employee misconduct.

It is not clear whether respondent's argument encompassed the fact that the grille was absent from the pit in the apron. If so, we note that there is no   [*13]   evidence that the deceased employee removed the grille, as the grille was not in the vicinity of the pit after the accident.   Instead, we credit the compliance officer's testimony that respondent's production manager admitted that the grille had been removed to facilitate the flow of cotton seed hulls into the auger, and that the grille had not subsequently been replaced.   Respondent does not contend, and there is no evidence indicating, that the removal of the grille at that time contravened a uniformly and effectively enforced workrule requiring that grilles remain in place to protect employees from the auger. See B-G Maintenance Management, Inc., 76 OSAHRC 6/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4173, 1976).   Accordingly, the absence of the grille cannot be attributed to unpreventable employee behavior.

Finally, respondent contends that the Judge incorrectly applied the reasoning in Dreher Pickel Co., supra, because he assumed that the violation was serious because of the fatality, regardless of whether there was sufficient probative evidence to support such a finding.

We reject respondent's contention.   A serious violation exists when there   [*14]   is a substantial probability that death or serious physical harm could result if an accident occurs.   Charles A. Gaetano Construction Corp., 78 OSAHRC 24/A2, 6 BNA OSHC 1463, 1977-78 CCH OSHD para. 22,630 (No. 14886, 1978).   The compliance officer testified that a serious injury, such as an amputation, could occur if an employee fell into the pit. This unrebutted testimony, as well as the fact that a fatality occurred, establish that the violation is serious within the meaning of the Act.

We also affirm the Judge's assessment of a $500 penalty.   The Judge properly considered the statutory criterial for penalty assessment in section 17(j) of the Act.   The Judge did not err in making gravity the principal factor in his determination of the appropriate penalty.   Nacirema Operating Co., Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD para. 15,032 (No. 4, 1972).   It is also proper to consider the probable severity of resulting injuries in the event of an accident in determining the gravity of the violation.   Tacoma Boatbuilding Co., Inc., 73 OSAHRC 38/F2, 1 BNA OSHC 1309, 1973-74 CCH OSHD para. 16,538 (No. 6, 1973).   The assessment of a $500 penalty is, therefore,   [*15]   affirmed.

It is ORDERED that the Judge's decision be affirmed.