ASTRA PHARMACEUTICAL PRODUCTS, INC.
OSHRC Docket No. 78-6247
Occupational Safety and Health Review Commission
September 30, 1982
Before CLEARY and COTTINE, Commissioners. *
* Chairman Rowland was not a member of the Commission when it issued its earlier decision concerning the merits of the alleged violation in this case. He, therefore, declined to participate now in determination of findings in support of a penalty predicated on that violation.
Office of the Solicitor, USDOL
Albert H. Ross, Reg. Sol., USDOL
William J. LeDoux, for the employer
BY THE COMMISSION:
This case is before the Commission on remand from the court of appeals. The First Circuit affirmed the Commission's ruling that Astra Pharmaceutical Products, Inc. ("Astra"), committed a serious violation of the standard at 29 C.F.R. § 1910.132(a), but the court remanded the case "for a more particularized finding by the Commission to support its imposition of the $800 penalty." Astra Pharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69, 74 (1st Cir., 1982).
The issuance of a citation in this case was prompted by an accident that occurred at Astra's Worcester, Massachusetts, plant. A 200-gallon reactor vessel used in the production of chloroacetyl xylidine overflowed, spraying toxic chemicals. Paul Sund, the operator of [*2] the reactor vessel, was sprayed by the chemicals and seriously injured. The only items of personal protective equipment required to be worn by Astra employees who were working in the area of the reactor vessel were goggles, respirators, and gloves. Astra was found to have committed a serious violation of 29 C.F.R. § 1910.132(a) by failing to require such employees to use "full body protection," including boots, jackets, pants, and face shields constructed of materials impervious to the chemicals in the area.
An employer who commits a serious violation under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678, must be assessed a civil penalty of up to $1,000. 29 U.S.C. § 666(b). In assessing civil penalties, the Commission is to give due consideration to "the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." 29 U.S.C. § 666(i).
It is clear that the chemicals involved in Astra's production of chloroacetyl xylidine presented hazards of high gravity. n1 Chloroacetyl chloride is a strong irritant to the skin, eyes, nose, and throat. If the concentration inhaled [*3] is sufficiently high, chloroacetyl chloride can cause a constriction of the throat and consequential cessation of breathing. Benzene, which can be inhaled as well as absorbed through the skin, can cause irritation, dermatitis, disorientation, and, with prolonged exposure, aplastic anemia and leukemia. Xylidine, which also can enter the body through inhalation or absorption, limits the oxygen-bearing capacity of the blood and can cause death even when absorbed only through the skin. Sodium carbonate monohydrate presents a lesser hazard, skin irritation. Three of Astra's employees operated the reactor vessels used to produce chloroacetyl xylidine and were exposed to these chemicals. In addition, employees attempting to rescue an operator following an incident could be exposed to the same hazards.
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n1 The process used by Astra to produce chloroacetyl xylidine is described in the prior decisions by the court of appeals and the Commission. Astra Pharmaceutical Prod., Inc. v. OSHRC, supra, affirming in part and remanding in part, 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD P25,578 (No. 78-6247, 1981).
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The incident that Astra reported to OSHA and which led to the inspection in this case illustrates how serious that situation could be. A malfunction in a reactor vessel resulted in the employee on duty in the room, Sund, being covered from head to toe with toxic chemicals. That employee was seriously injured and hospitalized. Other employees who came to his aid were hospitalized for observation. Although the record does not reveal how seriously Sund was injured, see 681 F.2d at 73 n. 6, the potential for severe consequences is clear from the record as a whole. In conclusion, the gravity of the violation must be considered high.
As to the other elements relevant to penalty assessment, Astra did provide some protective equipment and the compliance officer testified that Astra was very cooperative during his inspection. Thus, Astra demonstrated some good faith in this case. The Secretary introduced no evidence regarding Astra's size, or its history of previous violations, if any. Some penalty reduction is warranted in light of these factors.
In assessing penalties under the Act the Commission [*5] need not accord equal weight to the statutory factors discussed above. George J. Igel & Co., 6 BNA OSHC 1642, 1978 CCH OSHD P22,769 (No. 76-1087, 1978), citing Keyes Associates, 4 BNA OSHC 1794, 1976-77 CCH OSHD P21,180 (No. 13410, 1976). In our view, the high gravity of the violation, based on the probable severity of resulting injuries in the event of an incident, is the principal factor in determing the appropriate penalty in this case. See Ralston-Purina, 7 BNA OSHC 1302, 1979 CCH OSHD P23,507 (No. 76-2551, 1979). However, taking into account Respondent's partial abatement efforts, see Del-Cook Lumber, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978), and the lack of evidence regarding size and history, a greater reduction from the statutory maximum of $1000 for a serious violation than was given by the Commission in its original penalty assessment is appropriate under the circumstances. In lieu of the $800 penalty previously assessed by the Commission, we assess a penalty [*6] of $500.
Accordingly, a penalty of $500 is assessed for Astra's serious violation of 29 C.F.R. § 1910.132(a).