COWAN METAL FINISHING COMPANY

OSHRC Docket No. 78-31

Occupational Safety and Health Review Commission

April 21, 1981

[*1]

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

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol; USDOL

Carl L. Schmitt, Cowan Metal Finishing Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Charles K. Chaplin is before the Commission for review under 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 Chaplin vacated one item of a serious citation issued to Respondent, Cowan Metal Finishing Company ("Cowan"), that alleged a failure to comply with the siandard at 29 C.F.R. 1910.94(d) (10), which provides that "[d]ikes or other arrangements shall be provided to prevent the possibility of intermixing of cyanide and acid in the event of tank rupture." We reverse Judge Chaplin's decision and find that Cowan violated the Act by failing to comply with section 1910.94(d)(10).

I

In October 1977, a compliance officer of the Occupational Safety and Health Administration inspected Cowan's small metal finishing shop. The officer observed that Cowan's acid and cyanide tanks were as close [*2] as two feet apart and that no dikes had been provided around the tanks. During the inspection, six or seven employees were dipping metal bars and other small metal objects placed in racks into the various tanks. When the racks were lifted out of the tanks, the acid and cyanide solutions dripped from the racks onto the floor around the tanks, and the compliance officer observed solution and moist areas around several tanks.

James P. Miller, Jr., a professional engineer who appeared as a witness for Cowan, testified that the chance of a tank rupture would be remote. He further testified, however, that corrosion could occur and could result in a breach in a tank wall unless the corrosion was detected during an inspection. The tanks containing the acid and cyanide solutions did not have drains and were therefore pumped out when the chemicals in the tanks were replaced. At these times, Cowan inspected the tanks for leaks. Cowan inspected the cyanide tanks about twice a year and inspected the acid tanks about every six weeks. However, Cowan's former president, Leo J. Schmitt, and the present president, Carl Schmitt, both testified that leakage from the tanks has occurred.

The compliance [*3] officer testified that if acid and cyanide are mixed, they form hydrogen cyanide, an extremely toxic gas which can cause death or serious physical harm and which Cowan stipulated is hazardous. The compliance officer also testified that the proximity of the acid and cyanide tanks created the possibility of hydrogen cyanide being formed in the case of a tank rupture. Therefore, the Secretary of Labor ("the Secretary") cited Cowan for failure to comply with 29 C.F.R. 1910.94(d)(10). n1

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n1 The serious citation stated:

29 C.F.R. 1910.94(d)(10): Dikes or other arrangements at open surface tank operations were not provided to prevent the possibility of intermixing of cyanide and acid in the event of tank rupture:

(a) Hoist Line, Still Line, Barrel Line; no dikes or other arrangements to prevent intermixing of Cyanide with Muriatic and Number 16 Acid (pH 1) in the event of tank rupture.

The Secretary proposed one month for abatement and a penalty of $120.

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II

Cowan argued before the judge that the walls of the [*4] separate tanks act as dikes for each solution in that, if a leak occurs in one tank, the solution would not intermingle with the solution of another tank. According to Cowan, the only way acid and cyanide could intermingle would be if both tanks ruptured simultaneously. However, Cowan contended such an occurrence is highly improbable. n2

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n2 Cowan pointed to Judge Ditore's unreviewed decision in Davorn Indus. Ltd., 75 OSAHRC 24/A10, 2 BNA OSHC 3290, 1974-75 CCH OSHD P19,098 (No. 6625, 1975), to support its arguments. In Davorn, Judge Ditore reasoned that the tanks served as "other arrangements" which prevented any mixture of acid and cyanide. Only a simultaneous rupture of the two tanks could cause the production of the gas and Judge Ditore thought such an occurrence was "extremely remote."

However, because the judge's decision was not reviewed by the Commission, it is not binding precedent. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Moreover, in Davorn, the employer admitted the violation and the discussion on which Cowan relied related only to the gravity of the violation for the purpose of assessing a penalty.

[*5]

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Cowan also argued that, because the standard talks about a "tank rupture," it refers only to a complete break in the wall of the tank. Therefore it does not cover the leakage of a small amount of solution, which has routinely occurred in Cowan's shop.

The Secretary contended that the purpose of the standard is "to prevent employee exposure to hydrogen cyanide in the event that a cyanide tank, located in close proximity to an acid tank, ruptures." In the Secretary's view, a rupture means any break in the tank, including a leak. The Secretary also submitted that Cowan's interpretation of the standard to allow the walls of the separate tanks to act as dikes is unreasonable and questions the wisdom of the standard. The Secretary argued that the requirement for dikes or "other arrangements" would be redundant and meaningless under Cowan's interpretation.

The Secretary argued that the record shows: (1) the tanks were close together, (2) no dikes or other arrangements were provided and (3) a mixture of even a small amount of the solutions could produce the poisonous gas. Therefore, the Secretary argued [*6] that the possibility of intermixing the solutions has been established. Because of this possibility of intermixture, the Secretary contended that dikes or other arrangements, as required by section 1910.94(d)(10), should have been provided.

Judge Chaplin agreed with Cowan's interpretation of the standard and found that each tank acted as a dike for each solution. The Secretary petitioned the Commission for review of the judge's decision, and Acting Chairman Barnako granted the petition. On review, the parties make essentially the same arguments to the Commission as they did to Judge Chaplin.

III

We conclude that Cowan failed to comply with section 1910.94(d)(10). The standard requires dikes or "other arrangements" to prevent "the possibility of intermixing of cyanide and acid in the event of a tank rupture." The record shows that if acid and-cyanide are mixed, they form hydrogen cyanide, a toxic gas which can cause death or serious physical harm. See Pratt & Whitney Aircraft, 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1980 CCH OSHD P24,447 (No. 13591, 1980) (lead and dissenting opinions), pet. for review filed, No. 80-4102 (2d Cir. June 24, 1980). Since the [*7] results of intermixture are so serious, the clear intent of the standard is to prevent any possible intermixture. As this record shows, intermixture can occur not only as the result of large breaks or breaches in tank walls but also from small breaches or leaks due to corrosion. Further, any leakage from one tank may mix with either the solutions already dripped on the floor or moist areas containing the acid and cyanide residues of solutions around the tanks. We therefore reject Cowan's argument that "rupture" as it is used in the standard refers only to large breaks or breaches in a tank wall and hold that "rupture," which is a general term indicating a breach of any size, n3 includes breaks in a tank wall that can result in leakage of a small amount of liquid.

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n3 A "rupture" is defined as "a breaking apart" or "separating," and a synonym is "breach" which is defined as "an opening or gap." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 270, 1990 (1971).

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Further, this record shows that simply keeping the solutions [*8] in separate tanks is not enough to prevent the possibility of intermixture. As we have found, a leak from one tank could mix with the drippings or leaks of another tank which have accumulated on the floor, thus producing hydrogen cyanide. Further, as the Secretary argues, if keeping the solutions in separate tanks was sufficient protection, the requirement for "diking or other arrangements" would be both redundant and meaning-less. We accordingly reject Cowan's argument that the standard does not require dikes where the acid and cyanide solutions are in separate tanks. Since Cowan did not provide dikes or other arrangements capable of preventing the intermixture of acid and cyanide solutions where tank rupture was possible, we find that Cowan failed to comply with the standard. n4

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n4 Cowan's argument that precautions against intermixture are unnecessary because the possibility of intermixture is so low questions the wisdom of the standard. The facts of the case establish noncompliance with the standard, employee exposure, and Cowan's knowledge. The Commission lacks statutory authority to determine the wisdom of a standard promulgated by the Secretary. Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD P23,935 (No. 76-93, 1979).

Cowan also argues that the rubber-lined tanks which were used for the acid solutions were "other arrangements" -- double-walled tanks -- meeting the requirements of the standard. We reject this argument since, as the record shows, the tank and lining were not separate walls which, like dikes, would contain the solution between the walls in the event of a breach in the inner wall The lining was simply a rubber coating on the tank surface to delay corrosion through the single tank wall.

[*9]

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Cowan's argument and the testimony that the possibility of the solutions mixing is remote raises the question whether the violation should be characterized as de minimis. In the past, the Commission has labelled a violation de minimis when the hazard was too trirling to warrant the imposition of an abatement order or the assessment of a penalty. See Southwestern Electric Power Co., 80 OSAHRC    , 8 BNA OSHC 1974, 1980 CCH OSHD P24,732 (No. 77-3890, 1980); Fabricraft, Inc., 79 OSAHRC 49/A2, 7 BNA OSHC 1540, 1979 CCH OSHD P23,691 (No. 76-1410, 1979). n5

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n5 In Commissioner Cottine's view, a violation is de minimis where the relationship of the violation to safety and health is so remote as to be negligible. See Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979).

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The record shows that an incident is unlikely. However, the results of an incident could [*10] be extremely serious. See Pratt & Whitney, supra. Under these circumstances, the hazard is not trifling and the violation is not de minimis. Indeed, because of the substantial probability that death or serious physical harm could result from a tank rupture producing a mixture of acid and cyanide, the violation is serious as alleged by the Secretary. See Electrical Constructors of America, Inc., 80 OSAHRC 8 BNA OSHC 2117, 1980 CCH OSHD P24,809 (No. 76-910, 1980).

Having considered the factors enumerated in section 17(k) of the Act, 29 U.S.C. 666(j), we assess a penalty of $120 for the violation. Although the harm from an accident could be severe, the probability of an accident occurring is low. The gravity therefore is moderate. Cowan is a small employer with no prior history and there is no basis for questioning Cowan's good faith.

Therefore, Judge Chaplin's decision is reversed, the citation for a serious violation of the standard at 29 C.F.R. 1910.94(d)(10) is affirmed, and a penalty of $120 is assessed. SO ORDERED.