MAHONE GRAIN CORPORATION

OSHRC Docket No. 77-3041

Occupational Safety and Health Review Commission

December 31, 1981

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Robert H. Mahone, Jr., Mahone Grain Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Harold O. Bullis is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision Judge Bullis affirmed a citation alleging Respondent violated eight subparts of the standard at 29 C.F.R. 1910.134 n1 in that it failed to provide an adequate respiratory protection program for its employees. n2 Although the judge affirmed the citation, he reduced the classification of the violation from serious to other than serious and reduced the penalty from $100.00 to zero. The Secretary petitioned for review of the judge's decision and review was granted by Commissioner Cleary. The only issue before the Commission is that raised in the Secretary's petition, namely:

Whether the judge erred by concluding that Respondent's failure to comply with the standard at 29 C.F.R. 1910.134 is not a serious violation of the [*2] Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The eight subparts Respondent was alleged to have violated, 29 C.F.R. 1910.134(a)(2), (b)(1), (b)(4), (b)(5), (b)(6), (b)(7), (b)(8), and (b)(9), provide:

1910.134 Respiratory protection

(a) Permissible practice

* * *

(2) Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.

* * *

(b) Requirements for a minimal acceptable program. (1) Written standard operating procedures governing the selection and use of respirators shall be established.

* * *

(4) Where practicable, the respirators should be assigned to individual workers for their exclusive use.

(5) Respirators shall be regularly cleaned and disinfected. Those issued for the exclusive use of one worker should be cleaned after each day's use, or more often if necessary. Those used by more than one worker shall be thoroughly cleaned and disinfected after each use.

(6) Respirators shall be stored in a convenient, clean, and sanitary location.

(7) Respirators used routinely shall be inspected during cleaning. Worn or deteriorated parts shall be replaced. Respirators for emergency use such as self-contained devices shall be thoroughly inspected at least once a month and after each use.

(8) Appropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained.

(9) There shall be regular inspection and evaluation to determine the continued effectiveness of the program.

n2 The citation charged violations as follows:

29 CFR 1910.134(a)(2): The employer did not establish and maintain a respiratory protection program which included the requirements outlined in paragraph (b) of this section:

Employer had no respiratory program

29 CFR 1910.134(b)(1): Written standard operating procedures governing the selection and use of respirators were not established:

Employer did not have written respiratory program procedures

29 CFR 1910.134(b)(4): Where practicable, the respirators were not assigned to individual workers for their exclusive use:

Seven employees took turns using two respirators

29 CFR 1910.134(b)(5): Respirators were not regularly cleaned and disinfected:

The employees' two respirators were not cleaned and disinfected

29 CFR 1910.134(b)(6): Respirators were not stored in a convenient, clean and sanitary location:

Two respirators were stored in back of pick-up truck and/or hung on wall

29 CFR 1910.134(b)(7): Respirators used routinely were not inspected during cleaning and worn or deteriorated parts replaced:

The two dust masks had dirty filters and were not routinely inspected

29 CFR 1910.134(b)(8): Appropriate surveillance of work area conditions and degree of employee exposure or stress was not maintained:

Employees were not appropriately observed for work exposure and stress while cleaning out grain tanks

29 CFR 1910.134(b)(9): There were no regular inspections and evaluations to determine the continued effectiveness of the respirator program:

The two respirators, employees, and work exposures were not evaluated to determine the effectiveness of the respirator program.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I

Respondent, Mahone Grain Corporation, is in the business of storing and handling grain. While engaged in the cleaning and refurbishing of a grain elevator in Smiley, Texas, that had been in disuse for several years, some of Respondent's employees became ill. The elevator consisted of a series of 16 steel tanks 56 feet high. Seven or eight employees were assigned to the Smiley worksite, including Respondent's supervisor Paul Jeffrey, at least one other full-time employee, and about five high school students who were hired only for this two-week project. Respondent's president, Robert H. Mahone, Jr., visited the site numerous times, but supervisor Jeffrey was in charge of day-to-day operations. The work consisted of "sweeping down" the elevator, cleaning out the tunnels, replacing machinery and conveyors, and cutting the grass. Much of the employees' time was spent cleaning the inside of the elevator. Mud, dust, and old grain dampened by rainwater had accumulated to depths between one-and-a-half to three feet in the bottom of some of the tanks. Employees had to remove the water with buckets [*4] and then shovel the grain, dust, and mud into buckets and haul them out of the tanks. They also swept the sides and bottom of the inside of the tanks. One employee testified that when they did this work the air was sometimes so thick with dust that employees could hardly see or breathe. They had to leave the tanks to "come up for air" every 15 to 30 minutes because of the thick dust and foul odor in the tanks.

Respondent did not require or even suggest that the employees wear respirators. There were only about three respirators at the worksite that the employees knew of, and the employees took turns wearing them. n3 Some did not wear a respirator at all. When respirators became so caked with dust that employees could not breathe through them, the employees cleaned the respirators with a water hose, but nothing was done to disinfect them. When not in use, the respirators were stored in a tank with the shovels and were not put in sealed containers. Respondent had no written policy or program concerning respirator use.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Supervisor Jeffrey testified that there were only four respirators at the worksite for the first day or two. He then brought a box of 20 more from another worksite, he said, but left them behind the seat of his pickup truck and did not tell the employees that they were available.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Supervisor Jeffrey, three of the high school students, and one other employee, Jimmy Limmer, became ill within three days after the elevator cleaning project ended. Supervisor Jeffrey experienced a high fever, chills, and a generally run-down condition and was hospitalized for a week. George Garcia, one of the students, had a fever, coughed, "sweated a lot," and was also hospitalized for a week. John Webb, another student, broke out in a cold sweat, became weak, and, during his three-week illness, lost about 30 pounds. A third student, David Stewart, coughed, sneezed, had trouble breathing, and was out of work for a week. Jimmy Limmer ran a fever, sweated a lot, and was out of work for a week.

All five employees consulted physicians. Jeffrey's illness was not clinically proven to be histoplasmosis, according to Jeffrey. n4 Garcia was diagnosed as having histoplasmosis or a "chemical burn." Webb's illness was diagnosed as histoplasmosis, mild pneumonitis, or possibly allergies. Stewart was diagnosed as having "histoplasmosis or something like that." Limmer's illness was identified as being a virus [*6] infection or possibly histoplasmosis.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Although the five employees consulted six physicians, and three of them consulted the same physician, Dr. John Davis, no physician testified. Thus, testimony concerning the physicians' diagnoses was given by the patients.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

After the Secretary of Labor was informed of this outbreak of illness by the Texas Industrial Accident Board, industrial hygienist Greg Edwards of the Occupational Safety and Health Administration (OSHA) conducted an investigation. He interviewed Robert Mahone, Jr., president of Respondent, at his office in Seguin, Texas, and talked to employees, including some of the ones who had been ill. He also talked to Dr. John Davis, who had treated three of the employees.

At the hearing Edwards testified that Dr. Davis had informed him that Respondent's employees had contracted histoplasmosis. Edwards stated that histoplasmosis symptoms resemble those of pneumonia or tuberculosis -- long inflamation, shortness of breath, and sometimes fever, tightness in the chest, [*7] and weight loss. He stated that histoplasmosis can be fatal if exposure is high. Edwards deemed the violations serious because histoplasmosis "would result in a serious injury or illness."

Edwards testified further that histoplasmosis is caused by histoplasma capsulatum spores and that an employer in Respondent's business should be aware of the types of hazards associated with grain dust -- insecticides, fumigants, allergy-producing molds, and dust itself. Edwards acknowledged, however, that he knew of no other grain elevator where employees had contracted histoplasmosis. Edwards maintained that, since Respondent's grain elevators were contaminated with histoplasma capsulatum spores, Respondent's employees should have used a self-contained breathing apparatus with a full face mask; the mouth and nose masks that Respondent's employees intermittently used were sufficient only for nuisance dust. Edwards testified that an adequate respirator program would include ascertaining what hazards were present prior to choosing a respirator so an appropriate one would be selected. Thus, Respondent should have detected the histoplasma capsulatum spores before work on the elevator began, [*8] according to Edwards.

Mahone testified that his company had no reason to believe there were contaminated substances in the grain being removed from the elevator at the work site. Mohone called it a "freak accident" that his employees became ill. He stated that he had cleaned out old elevators all his life and this was the first time employees became ill as a result. Jeffrey also testified that he has been in a number of situations similar to the work at the Smiley elevators, and he had no reason to believe that it would cause any harmful effects. Mahone also contended that his employees had not contracted histoplasmosis. Mahone pointed out that Jeffrey's illness was not determined to be histoplasmosis, while doctors consulted by the other employees did not agree on a diagnosis.

II

In his decision Judge Bullis affirmed a violation of the cited standard but found the violation "nonserious." The judge ruled that to prove a serious violation of the Act, "the Secretary must show that there is a substantial probability that the consequences of the violative condition could be death or serious bodily injury." According to the judge, the Secretary proved only that some of Respondent's [*9] employees contracted histoplasmosis at Respondent's worksite and that histoplasmosis can be fatal if not treated. Such proof, ruled the judge, does not amount to showing a substantial probability that death or serious physical harm could result from work in Respondent's elevator. On the contrary, Respondent's testimony that histoplasmosis is a freak result and the compliance officer's unawareness of the contraction of histoplasmosis in any other grain elevator, the judge found, "disproves the existence of the required 'substantial probability' that histoplasmosis could occur." Furthermore, the fact that histoplasmosis is curable, and the lack of some permanent disability, residual effect, or lasting impairment in Respondent's employees as a result of their illness, the judge noted, is additional proof that the violation was not serious. For these reasons the violation was reduced to "nonserious." No penalty was assessed.

III

On review, the Secretary argues that the judge erred by reducing the violation to "nonserious." The Secretary emphasizes that Respondent's employees contracted histoplasmosis as a result of work in Respondent's facility and that histoplasmosis may lead to [*10] severe symptoms or even death. According to the Secretary, a serious violation exists where (1) "the accident itself is merely possible," and (2) "there is a substantial probability of serious injury if it does occur." Under the first part of this test, the Secretary argues that he proved a disease could result (i.e., was at least "merely possible") in Respondent's workplace by showing that five employees had symptoms of histoplasmosis during or after working for Respondent and that two doctors positively diagnosed histoplasmosis. The Secretary maintains that this evidence points to a strong likelihood of contracting histoplasmosis at Respondent's work site and disproves both Respondent's and the judge's assertion that the employees' illness was a freak accident. Under the second part of the test, the Secretary argues that he proved the serious physical harm histoplasmosis can cause. The Secretary emphasizes that histoplasmosis causes such serious physical harm as weakness, fever, loss of weight, and difficult breathing; moreover, it can be fatal. The physical harm is of such a serious nature that hospitalization is sometimes required, notes the Secretary.

Finally, the judge's [*11] requirement that a disease permanently affect or disable an employee before it can be regarded as serious, argues the Secretary, is not found in the Act and is therefore erroneous. According to the Secretary, the Act states that a violation is serious if there is a substantial probability of serious physical harm from a condition at a worksite. "The Act says nothing whatsoever about the temporary or permanent nature of an occupationally-induced impairment. . . ."

Respondent did not submit a brief on review.

IV

Section 17(k) of the Act, 29 U.S.C. 666(j), defines a serious violation as follows:

[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The Commission recently examined whether there was a substantial probability that death or serious physical harm could result in the context [*12] of a respiratory protection violation in Anaconda Aluminum Co., 81 OSAHRC 81/27/A1, 9 BNA OSHC 1460, 1981 CCH OSHD P25,300 (No. 13102, 1981). There the Commission found that Anaconda violated the standards at 29 C.F.R. 1910.134(a)(2) and 1910.1000 n5 by not providing an adequate respirator to an employee exposed to coal tar pitch volatiles (CTPV). In order to determine whether there was a substantial probability that death or serious physical harm could result from the violation, the Commission held that it had to look to the nature of the hazard against which the standard was intended to protect. The Commission determined that 29 C.F.R. 1910.1000, which limits exposure to CTPV, a carcinogen, was intended to protect employees from contracting a life-threatening disease. Thus, the violation was deemed serious.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The standard at 29 C.F.R. 1910.1000 sets the maximum concentrations of numerous air contaminants, including coal tar pitch volatiles, to which employees may be exposed.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case, the hazard [*13] against which the standard is intended to protect is less specific. The standard at 29 C.F.R. 1910.134(a)(2) requires employers to provide respirators "when such equipment is necessary to protect the health of the employees." The standard, in the preceding paragraph, section 1910.134(a)(1), addresses "the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors. . . ." Since the hazard against which the standard is intended to protect is general, we cannot determine whether the violation in this case was serious simply by identifying the hazard on the face of the standard. Instead, we must look to the seriousness of the specific hazards to which the employees were exposed in this case.

The industrial hygienist testified that an employer working with grain dust should test to ascertain the type and amount of dust and to determine the presence of pesticides, fumigants, spores and allergy-producing organisms. The disease contracted by several of Respondent's employees, histoplasmosis, is caused by spores. n6 It is a potentially fatal disease that resembles pneumonia or tuberculosis, with [*14] symptoms of lung inflammation, shortness of breach, fever, tightness of the chest, and weight loss. It is incapacitating and sometimes requires hospitalization. n7 We find harm of this severity substantial enough to deem the violation serious. That histoplasmosis, if survived, is not permanently disabling does not compel a finding that it is other than serious. The severity of its symptoms, the fact that hospitalization for it is common, and the fact that it can be fatal lead to a contrary conclusion. Accordingly, the violations were serious if the Respondent knew, or with the exercise of reasonable diligence could have known, of the presence of the violations.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Histoplasmosis was identified as the possible or likely diagnosis of four of the five employees' illnesses. No other disease was identified as a possible cause of more than one employee's illness. Additionally, Dr. Davis, who examined three of the five employees, told industrial hygienist Edwards that all three had contracted histoplasmosis. Therefore, we conclude that the employees did contract histoplasmosis.

n7 See generally Nat. Institute for Occupational Safety and Health, U.S. Dep't of Health, Education, and Welfare, Pub. No. 77-181, Occupational Diseases: A Guide to Their Recognition 66-67 (rev. ed. 1977).

[*15]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's president, Mahone, and its supervisor at the Smiley worksite, Jeffrey, knew of the dusty conditions in which the employees cleaning out the elevator were working and knew that respirators were not uniformly used. Also, they knew that Respondent had no respiratory protective program. The Respondent argues that the violations were not serious because histoplasmosis is not generally associated with grain elevators. However, the industrial hygienist testified that the Respondent should have tested for spores before exposing employees to the grain dust. The failure to test for spores exposed the employees to a potentially fatal disease that could have been detected with the exercise of reasonable diligence. Accordingly, the violation is serious under section 17(k) of the Act, supra.

V.

The judge's decision, therefore, is reversed insofar as it reduced the violation to other than serious. We find Respondent's violation of 29 C.F.R. 1910.134 to be serious. We also assess a penalty of $100.00, as proposed by the Secretary, since we find this amount to be appropriate under the criteria [*16] of section 17(j) of the Act, 29 U.S.C. 666(i).

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the majority's conclusion that Respondent's failure to comply with 29 C.F.R. 1910.134 is a serious violation. I would hold that Respondent lacked the requisite knowledge for a serious violation because the record shows that Respondent did not, and could not with the exercise of reasonable diligence, know of the presence of histoplasma capsulatum spores. I would further hold that the violation is other-than-serious with regard to uncontaminated nuisance dust.

The Secretary argues that the violation is serious because Respondent's employees contracted histoplasmosis, a potentially fatal disease, by inhaling dust contaminated with histoplasma capsulatum spores at Respondent's grain elevator. n8 The Secretary's evidence shows that severe symptoms are associated with histoplasmosis. Accordingly, I agree with the majority that the record establishes a substantial probability that serious physical harm could result from the histoplasma capsulatum spores which presumably existed at Respondent's facility.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - [*17] - - - - - - - - -

n8 I note that the Secretary presented ambiguous hearsay evidence as to whether the employees contracted histoplasmosis from the dust at Respondent's facility. For the purposes of review, I must assume that Respondent's grain elevator contained histoplasma capsulatum spores because the judge specifically found that the employees contracted the infection at Respondent's facility and because the propriety of that finding was not directed for review. See Commission Rule 92, 29 C.F.R. 2200.92.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As the majority notes, a violation may not be characterized as "serious", if the employer "did not, and could not with the exercise of reasonable diligence, know" of the violative condition. Section 17(k) of the Act, 29 U.S.C. 666(j). It is not disputed that Respondent did not actually know that the dust was contaminated with histoplasma capsulatum spores. However, the majority concludes that "[t]he failure to test for spores exposed the employees to a . . . disease that could have been detected with the exercise of reasonable diligence." I disagree.

The majority's conclusion is [*18] based on the testimony of the Secretary's industrial hygienist, Edwards. The majority states that "the industrial hygienist testified that the Respondent should have tested for spores before exposing employees to the grain dust." In reviewing the industrial hygienist's testimony, I find that Edwards testified that an employer should have tested for "allergy-producing organisms" (Tr. 81). Elsewhere in the record edwards interchangeably used the terms "allergy-producing dust and resultant spores" (Tr. 72, lines 3-4) and "allergy-producing molds" (Tr. 72, lines 18-19) in referring to hazards which would require use of an appropriate respirator. Thus, Edwards did not specifically state that Respondent should have tested for "histoplasmosis spores." I further observe that Edwards did not testify as to what type, method or manner of tests would be appropriate to detect "allergy-producing organisms" or "histoplasmosis spores." Confronted with the industrial hygienist's conclusory opinion that unidentified tests should have been taken by Respondent, I am unable to accord his opinion controlling weight as does the majority. See Air Kare Corp., 81 OSAHRC, 10 BNA OSHC 1146, 1981 [*19] CCH OSHD P25,758, (No. 77-1133, 1981) (dissenting opinion).

Furthermore, the majority does not mention that Mahone, Respondent's president, stated without rebuttal at the hearing that the "filth" which causes histoplasmosis is normally associated with "cleaning out chicken houses, pigeon lofts [and] hay barns," not grain elevators. It is well settled that histoplasmosis is a bird-borne disease; the histoplasma capsulatum fungus grows in bird excreta, particularly the droppings of chickens, pigeons, bats, and starlings. 2 R. GRAY, ATTORNEYS' TEXTBOOK OF MEDICINE PP35.34, 37.83 (3d ed. 1977); 9 P. CANTOR, TRAUMATIC MEDICINE & SURGERY FOR THE ATTORNEY, P2251 (P. Cantor ed. 1963). As a result, the disease is contracted primarily in chicken coops, pigeon roosts and bat-infested mines. 2 R. GRAY, supra, at P37.83, 37.59; 9 P. CANTOR, supra. n9 Both Mahone and the supervisor, Jeffrey, testified that they had never encountered histoplasmosis when cleaning other elevators. The industrial hygienist conceded that he knew of no other cases in which workers had contracted histoplasmosis from grain elevators. Inasmuch as the record shows that histoplasma capsulatum spores are not [*20] generally associated with grain elevators and since the Secretary failed to prove how unidentified "tests" would reveal the presence of such spores, I would hold that Respondent could not have anticipated the presence of or the need to test for the spores. Cf. Automatic Sprinkler Corp., 79 OSAHRC 102/B2, 7 BNA OSHC 1957, 1979 CCH OSHD P24,077 (No. 76-5271, 1979) (employer has the duty to anticipate hazards which the employer should reasonably know its employees will be exposed.) Since the requisite knowledge for a serious violation is not established, I would not characterize the violation as serious.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 I note that the same NIOSH publication referred to by the majority in footnote 7 explains that the histoplasma capsulatum fungus "grow[s] on soils enriched by bat, chicken, and other bird excrement." The NIOSH publication also states that the disease is associated with old barnyards, chicken houses, caves, pigeon roosts and fertilizers containing chicken droppings; the publication does not mention grain or grain elevators as potential sources of the disease. OCCUPATIONAL DISEASES, supra.

I further note that there is no evidence in the record that chickens, pigeons, bats or starlings were at the elevator, either prior to or during the cleaning operation.

[*21]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Nevertheless, I would conclude that the evidence shows that the violation is other-than-serious. In response to questions from the judge, the Secretary's industrial hygienist referred to hazards associated with uncontaminated "nuisance" dust. Mahone acknowledged that he knew that many workers are allergic to "nuisance" dust, and that "nuisance" dust is normally present at grain elevators. But, the record contains no evidence as to whether death or serious physical harm could result from the allergies induced by nuisance dust. I would, therefore, hold that Respondent's failure to comply with the cited subparts at 29 C.F.R. 1910.134 is an other-than-serious violation.

As to the appropriate penalty, the record shows that Respondent, a small employer, has exhibited good faith and has no history of prior violations. See section 17(j) of the Act, 29 U.S.C. 666(i). However, in light of the two-week duration of exposure, I would find that the gravity was moderate, regardless of the other-than-serious nature of the violation. Accordingly, I would conclude that the proposed $100 penalty is appropriate [*22] under 17(j) of the Act, and I would assess a penalty in the amount of $100 for an other-than-serious violation of 29 C.F.R. 1910.134.