UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 20, 1987

ORDER

The Commission approves the Parties’ Stipulation and Settlement Agreement.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

March 20, 1987

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

February 25, 1986

APPEARANCES:

F. Benjamin Riek, III, Esquire, and Mary Anne Garvey, Esquire, Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Leonard A. Costa, Jr., Esquire, Dickie, McCamey and Chilcote, Pittsburgh, Pennsylvania, on behalf of respondent.

Kenny Fithen, Safety Committee, United Steelworkers of America, AFL–CIO–CLC, District 23, Local Union No. 1190, on behalf of authorized employee representative.

DECISION AND ORDER

SPARKS, Judge:

On April 3, 1984, there was a sudden and massive release of carbon monoxide gas in and around respondent’s number one boiler house at its North plant, Steubenville, Ohio (Tr. 56, 686). Ten of respondent’s employees were injured and five employees of a subcontractor working in the area were injured (Tr. 86). Several of respondent’s employees were hospitalized (Tr. 90). At least one employee sustained serious injuries and another did not regain consciousness until a week later (Tr. 88–90, 422).

The gas release occurred April 3, 1984, approximately seven weeks after the reactivation of blast furnace number one and gas mains on February 12, 1984, which had been out of service since June 1981 (Tr. 416, 513, 637–638). The gas release resulted when the water seal on a “drip leg”1 failed because the level of water in the tank fell below the level necessary to prevent the gas from escaping (Tr. 61–64, 565–568).

Following an investigation, the Occupational Safety and Health Administration issued citations for serious and willful violations.

Carbon monoxide is produced in the blast furnaces as a by-product of the steel-making process. It and other gases are collected at the blast furnaces and transported through gas mains to the boiler house where the gases are used as boiler fuel. The boilers provide steam to operate turbines which push air through the blast furnaces (Tr. 544).

Carbon monoxide is highly poisonous to humans and is recognized by respondent, particularly, and the steel industry, generally, as a hazard to employees. The hazard is recognized in respondent’s collective bargaining agreement with the United Steelworkers of America, in its own gas safety manual and general safety code (Ex. GX–11, GX–14, GX–16).

II

THE ISSUES

Most of the facts are not disputed and, therefore, are not at issue. The matters at issue are as follows:

1. Regarding citation one for serious violation, respondent acknowledges that the failure to have warning lights and audible alarms meets the requirement for a serious violation of the Act, but contends the failure to check the gas main, blow-out plugs and drip leg before and after start-up of the number one blast furnace was not shown to be a serious violation. Respondent, therefore, acknowledges that a serious violation has been established but contends the penalty should be reduced from the proposed $1,000 to $500 (Resp. brief pp. 21–22).

2. At issue is whether citation 2, item 1, and citation 2, item 2(b), were properly classified as willful violations, and if so, the amount of penalty to be assessed.

3. Respondent agrees that citation 2, item 2(a), was properly reclassified as a serious violation for which a penalty of $1,000 is appropriate (Resp. brief pp. 22–23).

III

THE CITATION

A. Serious Citation

The serious citation alleges a violation of section 5(a)(1)2 of the Act, the general duty clause, in that respondent did not take adequate precautions to protect employees working in and around the number one boiler house from the hazard of acute carbon monoxide poisoning in several specific circumstances.3

The requirements of a general duty violation are well established. Sharon Steel Corp., – OSAHRC ––, 12 BNA OSHC 1539, 1985 CCH OSHD ¶ 27,423 (No. 80–7251, Nov. 19, 1985):

To prove that an employer violated section 5(a)(1), the Secretary must first show that a condition or activity in the employer’s workplace presents a hazard to employees. Aluminum Co. of America, 83 OSAHRC 24/E10, 11 BNA OSHC 1520, 1522–23, 1983–84 CCH OSHD ¶ 26,526, pp. 33,794–95 (No. 78–3157, 1983). He must then prove that the cited employer or the employer’s industry recognizes the hazard. Davey Tree Expert Co., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1984 CCH OSHD ¶ 26,852 (No. 77–2350, 1984). The Secretary must further prove that the hazard is likely to cause death or serious physical harm and that feasible means exist to eliminate or materially reduce the hazard. Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983–84 CCH OSHD ¶ 26,783, p. 34,524 (No. 78–1816, 1984), aff’d, No. 84–1425 (10th Cir. Sept. 19, 1985).

The evidence shows that a management team, including a safety representative, planned and executed a start-up procedure for putting the blast furnace back into operation (Tr. 515–520, 549–550, 590). Such procedures did not include checks of the system used to transport CO from the blast furnace to the boiler house as alleged in items (a) and (b) (Tr. 94, 109, 121, 494). Respondent acknowledges it did not make routine checks of the valves or drip legs (Tr. 494). Compliance Officer Gingerich testified that such checks would have revealed problems with the blow-off caps, possible cracks and problems with the drip leg and valves (Tr. 291–292, 353–354, 397).

Likewise there is no indication that regular routine checks were made after the system was placed into operation (Tr. 111–113, 494).

  Compliance Officer Gingerich was of the opinion that the development of checklists and the numerous gas leaks in the system made the respondent aware of the hazard created by leaks in the gas delivery system (Tr. 105, 121). He was of the opinion that the hazard could be abated by checking the system before start-up and then routinely checking it after operations began (Tr. 121–122, 287–288, 291–292, 353–354, 397).

There had been a number of leaks prior to the accident which caused the alarms to go off (Tr. 95–96, 114, 403, 428, 555–557, 597). Many of the leaks were due to the blow-out plugs (Tr. 97, 474–475). Following the accident on April 3, 1984, it was discovered that a faulty water valve had caused a reduced flow of water into the drip leg reservoir (Tr. 52–53, 369–374, 567–569). The valve had been observed by employees earlier (Tr. 102, 122–123, 362–363, 365–367). It was brought to the attention of management (Tr. 417–418, 426–427).

Respondent had experienced a similar accident several years previously when CO gas escaped from the drip leg. One of the employees who stopped the drip leg leak was Mr. Hunt, a foreman (Tr. 451–455, 460–464, 573, 623–625, 697–699, 937). Although respondent disputes the occurrence of the prior drip leg leak, the weight of the evidence clearly shows that it did happen and that a company foreman was aware of the event (Tr. 771–772, 889, 934–939).

Considering the numerous leaks in the gas line, the previous drip leg leak and the broken valve on water make-up line, the evidence establishes that the gas leaking from the transmission system was a known and recognized hazard to employees. Under such circumstances, respondent had a duty to inspect the system prior to transmitting blast furnace gas to the boiler house and had a duty to perform routine inspection after it was placed into operation.

Subitems (c) and (d) of citation one alleged that respondent breached the general duty clause by failing to have warning lights and/or audible alarms to warn employees of low water levels in the drip leg reservoir and failed to have a general alarm system in the boiler house to warn boiler house employees of high carbon monoxide levels (Tr. 125–130, 132–142). The absence of a low water alarm permitted the leak to occur without knowledge of the pending disaster. The lack of a general alarm permitted employees to be exposed to carbon monoxide without their knowledge. As the gas is odorless and tasteless, the employees did not know of the danger to which they were exposed (Tr. 420, 467–468). The absence of alarms needlessly exposed employees to the CO hazard. Respondent acknowledges that the absence of warning lights and audible alarms constitutes a serious violation.

There are feasible means to abate the hazards. Routine inspections of the gas main, valves and drip leg can be scheduled. Compliance Officer Gingerich’s testimony is convincing that had such inspections been made before and after start-up, the problems in the system would have been discovered and action taken which would have prevented the accident. Likewise, visual and audible alarms would have shown the low water level. Such alarms are available and were installed following the accident.

The failure to conduct routine inspections of the gas main, blow-out plugs and drip leg, and to provide alarms constitutes a serious violation of the general duty clause. Pursuant to section 17(j), a penalty of $1,000 is appropriate for the serious violations as alleged in citation number one. Even if only the absence of alarms had been established as a serious violation, a penalty of $1,000 would be appropriate.

B. Willful Citation

The willful citation number two alleges a violation of section 5(a)(1), the general duty clause, in that respondent did not follow its own written procedures, or take adequate precautions to protect employees from carbon monoxide poisoning.4

The evidence establishes the factual basis of the allegations. The safety director rated the overall rescue effort as excellent, but the facts of record fail to support that evaluation (Tr. 860). It appears to be a matter of luck that death or more serious injuries did not result. Respondent acknowledged that it did not have sufficient staff to implement the respondent’s own written gas manual (Tr. 827, 828, 877), and had not had any practice drills (Tr. 780, 913). Employees worked in the boiler house, a recognized gas area, who had not received training in gas exposure (Tr. 918). Furthermore, respondent admits there was no gas rescue plan for the boiler house prior to the accident (Tr. 783). Although there is no requirement in the law that rescues be organized on a departmental basis, the manual provided for a plan. Moreover, the evidence indicates that the rescue was not a planned methodical scheme but was the ad hoc efforts of some skilled persons and a large number of untrained and unequipped employees (Tr. 200–201, 205–206, 217–218, 223, 419–424, 440–450, 466–478, 479, 687, 701–703). The evidence also establishes that employees, including the nurse, entered areas of unknown concentrations of CO gas without respirators while attempting to rescue other employees and re-entered areas which had been evacuated when an alarm sounded without ascertaining that the gas hazard was no longer present. No method for accounting for personnel during the rescue operation had been instituted.

There is little disagreement over the factual circumstances, but respondent contends the violation was only serious not willful. The Commission has defined the elements of a willful violation as follows [Asbestos Textile Co., OSAHRC , 12 BNA OSHC 1062, 84 CCH OSHD ¶ 27,101 (No. 79–3831, 1984) ]:

To establish that a violation was willful, the Secretary must show that it was committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety. See, e.g., D.S. & L. Caruso, Inc., 84 OSAHRC , 11 BNA OSHC 2138, 2142, 1984 CCH OSHD ¶ 26,985, p. 34,694 (No. 79–5676, 1984); Duquesne Light Co., 84 OSAHRC , 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ¶ 26,959, p. 34,603 (No. 79–1682, 1984, pets. for rev. filed, Nos. 84–3530 & 84–3538 (3d Cir. Aug. 20 & 28, 1984). It is not enough for the Secretary simply to show carelessness or a lack of diligence in discovering or eliminating a violation, nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard even though the employer’s efforts are not entirely effective or complete. Marmon Group Inc., 84 OSAHRC , 11 BNA OSHC 2090, 1984 CCH OSHD ¶ 26,975 (No. 79–5363, 1984), pet. for rev. filed, Mo. 84–2193 (8th Cir. Sept. 17, 1984), citing Mobile Oil Corp., 83 OSAHRC , 11 BNA OSHC 1700, 1983 CCH OSHD ¶ 26,699 (No. 79–4802, 1983).

Where, as here, the alleged willful violation is of the general duty clause, the Secretary’s burden of proof is even more difficult. The Review Commission has stated as follows [Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ¶ 25,738 (No. 76–2644, 1981) ]:

The Secretary’s burden of proving willful conduct is notably more difficult when an employer is charged with a willful violation under a general standard or “the general duty clause,” section 5(a)(1), rather than a specific standard. St. Joe Minerals Corp. d/b/a St. Joe Lead Co. v. OSHRC & Marshall, 647 F.2d 840 (8th Cir.1981). In particular, a more concrete evidentiary showing is required to prove willfulness in this context. Where a willful violation of section 5(a)(1) is alleged, the Secretary has the burden of proving the employer’s intentional disregard of or its plain indifference to its statutory duty to furnish a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Id. at 848. Thus, “there must be evidence, apart from that establishing knowledge of the hazard, from which we may reasonably conclude that the employer intentionally disregarded or was indifferent to the safety of the workplace.” Id. at 848–849.

There is compelling evidence of record that the violation was willful. The evidence shows that respondent was fully aware of the hazard of carbon monoxide gas. It is covered in the collective bargaining agreement and the safety code, areas of the plant, including the boiler house, have been designated as gas areas with signs erected to so indicate, a gas manual has been published and gas training initiated (Ex. GX–11, GX–14, GX–16; Tr. 835, 887).

As evidence of respondent’s intentional disregard or its plain indifference to its duty to furnish a workplace free from the recognized gas hazard, the Secretary of Labor points to the respondent’s own written rules and procedures with which respondent did not comply (Tr. 757–758). Compliance Officer Gingerich described the gas manual, which was developed in 1964, as “very good” if it had been implemented (Ex. GX–11; Tr. 239, 606). Respondent acknowledges it did not comply with the gas manual which it termed unrealistic and out of date (Tr. 827–828, 877). Respondent’s superintendent of utilities could not remember if he had read the manual (Tr. 606).

Furthermore, section O, paragraph six, of respondent’s General Safety Codes (Ex. GX–16) provides that employees are to “Stay out of areas marked as gas areas unless your work requires it and you have been instructed in the safe work procedures to be followed.” Many of respondent’s employees working in and around the boiler house had not received such training. The safety supervisor was aware that employees working in the boiler house were working in a gas area and had not received training but thought it was all right because employees were “partially aware” of the hazards (Tr. 757–758). Not only had employees not been trained, protective equipment was not available, a rescue program was not operative, there was no method to account for employees, personnel entered gas areas and no practice drills had been held. Such conditions demonstrate an “intentional disregard of or plain indifference” to its duty to protect employees from recognized hazards. Respondent justifies its action by pointing out that in settlement of an OSHA citation of the South plant, the agency permitted production to continue over a period of several weeks while employees received gas training; but that does not imply approval to start up a new blast furnace without first complying with its safety code which requires that employees receive gas training before working in a designated gas area. Rather than open new gas training classes, respondent decided to stretch out the training process and only use the limited resources available.

The record indicates that respondent was concerned about financial constraints so that it failed to comply with its written safety policy. The action needlessly exposed its employees to death or serious injury. Such actions constituted “intentional disregard or plain indifference” for the requirements of the Act and are, therefore, willful.

Feasible means exist to abate the hazardous conditions described in the citations. Many hazards could be abated by implementing the provisions of the gas safety manual and other training and planning activities. Some would require the purchase of alarms, breathing apparatus or other equipment. Many corrective actions have been instituted since the accident.

The gravity of the violation is high as the results of the accident demonstrate, respondent had been cited for violations arising from a gas exposure during an accident at the South plant in December 1983 in which five persons were injured. Considering the size of respondent and the other circumstances, a penalty of $10,000 is appropriate.

Item 2(b) of the willful citation charges a violation of regulation 29 C.F.R. § 1910.134(e)(5).5 The evidence sustains the alleged violation. Employees in the gas areas had not been trained in the various phases of use of the respirator. Although the violation is of a published regulation, it is closely akin to the willful violation of the general duty clause. The same considerations require that it be classified as a willful violation but also warrant no additional penalty.

Item 2(a) of the willful citation was reclassified to serious by the Secretary. It alleges a failure to maintain communications during use of respirators as stated in 29 C.F.R. § 1910.134(e)(3)(i).6 The evidence showed that, during rescue operations, employees could not and did not maintain communications with all persons in the gas area and communications were not maintained with an unaffected person who could obtain aid if needed. Respondent agrees it was a serious violation. It is found to be a serious violation with $1,000 penalty.

FINDINGS OF FACT

1. Wheeling-Pittsburgh Steel Corporation is a producer of steel products with sales, in 1983, in excess of 750 million dollars.

`2. Respondent has three integrated facilities in the Steubenville, Ohio, area, known as the North plant, South plant and Coke plant.

3. In late 1983 respondent decided to reopen blast furnace number one at its North plant which had been shut down since June 1981. A management committee, including a safety representative, was formed to plan the reopening.

4. Large quantities of gases are produced during the combustion process in the blast furnaces, including carbon monoxide, hydrogen, sulfur dioxide and probably nitric oxides (Tr. 77–78). The gases are drawn off the blast furnaces and used as boiler fuel.

5. Blast furnace gases are transported from the blast furnaces to the boilers through a large gas main. The flow of gases can be controlled by valves located on the gas main. Impurities in the gas main are permitted to drain off through a “drip leg.”

6. Twenty-one percent to twenty-five percent of the blast furnace gases are carbon monoxide. Carbon monoxide is a highly poisonous gas and constitutes a substantial hazard to humans.

7. The exposure of employees to carbon monoxide is recognized as a health hazard by respondent and by the steel industry.

8. In 1980 respondent and the United Steelworkers of America, as part of their collective bargaining agreement, negotiated “Memorandum of Understanding on Carbon Monoxide Control Program” pursuant to which respondent was obligated to conduct a survey to identify areas subject to carbon monoxide release and the steps necessary to minimize or control the hazard. The 1983 agreement required respondent to, among other things, install automatic sensing devices and alarms, provide an adequate number of approved breathing apparatus, train employees in recognition and symptoms of carbon monoxide poisoning and an emergency rescue program (Ex. GX–14, Appendix L).

9. Safety policies and procedures concerning toxic gases are contained in respondent’s Manual for Gas Use (GX–11) and General Safety Code (GX–16).

10. The blast furnace was banked in June 1981 and re-started February 12, 1984.

11. The gas main was not routinely checked for gas leaks prior to or after start-up of the blast furnace. The gas mains were in bad condition prior to the start-up. Routine checks could have revealed problems in the gas main and drip legs and probably would have prevented the accident.

12. Numerous gas leaks occurred in the gas main subsequent to the start-up of the blast furnace.

13. On April 3, 1984, a sudden and massive release of carbon monoxide occurred from a drip leg near the number one boiler house. The gas permeated the boiler house and surrounding area.

14. The accident occurred when the water in the drip leg reservoir fell below the level necessary to maintain the water seal permitting the carbon monoxide to escape into the atmosphere. A defective valve in the make-up water line used to maintain the water level in the reservoir had been observed by employees and reported to a foreman.

15. Respondent had experienced a similar accident about 1980 in which the water level was insufficient to maintain the seal and carbon monoxide was permitted to escape. The problem was corrected by a foreman named Hunt. Hunt and other employees affected by the carbon monoxide received first aid treatment.

16. The water level in the drip leg was not routinely inspected.

17. Ten of respondent’s employees were injured in the accident on April 3, 1984, including seven who were hospitalized. In addition, five employees of subcontractors working in the area were also injured.

18. After start-up and before the accident, there had been numerous leaks in the gas main. Some leaks were attributed to blow-out plugs.

19. Respondent was aware that employees who had not received gas safety training would be working the boiler house area.

20. Respondent had not held gas practice drills prior to the accident of April 3, 1984.

21. The drip leg reservoir did not have a low-water alarm to signal the loss of water pressure needed to maintain the seal. The water level was not visible by the casual observer, but one had to climb the side of the reservoir to determine the water level.

22. The boiler house was not equipped with a general carbon monoxide alarm system inside the boiler house. The two alarms inside the building were so far apart that they were inadequate to warn employees exposed to the hazard. One alarm was approximately 170 feet from the drip leg and failed to warn eight employees working in the area of their exposure to hazardous levels of carbon monoxide.

23. Pipefitters and boiler house employees, including some attempting to rescue persons overcome by carbon monoxide, entered areas of unknown concentrations of carbon monoxide without personal protective equipment and standby personnel available to render assistance.

24. A previous citation for willful violation was issued on September 12, 1983, alleging that respondent’s employees were required to enter an area of unknown concentrations of carbon monoxide without appropriate respiratory protection.

25. Respondent’s Gas Safety Training Manual, page nine, provides that “... No one shall enter a gaseous area to attempt a rescue without first putting on protective breathing apparatus.”

26. Water tender Brooks, at a time prior to the accident, had vacated the boiler house when the CO alarm sounded but later returned to the exposed area without a respirator to determine if the alarm was still sounding.

27. The plant nurse entered the area of CO concentration without wearing protective equipment. She had not been trained with a self-contained breathing apparatus nor had she previously worked in a rescue situation, nor was she acquainted with the Gas Safety Training Manual.

28. Pipefitters and boiler house employees re-entered the area of carbon monoxide concentration without proper protective equipment to assist victims of the accident.

29. Respondent had no method in effect to account for employees working in the boiler house at the time of the accident.

30. There was not a gas rescue plan of the boiler house at the time of the accident. The rescue plan in the Gas Manual was not operational.

31. Some supervisors and employees of the boiler house, a designated carbon monoxide area, including Mr. Masters, Mr. Feeman and Mr. Hibbit, had not received training regarding use of respirators prior to the accident on April 3, 1984. Others had not received the training within one year prior to the accident.

32. During the rescue effort following the accident, there was no effective communication system between the rescuers or standby personnel ready to assist should the need arise.

33. As a result of a previous inspection, respondent received a citation dated September 13, 1983, alleging a violation of 29 C.F.R. § 1910.134(e)(3)(i) in that communications were not maintained or standby rescue personnel available when the water tender, stove operator, gas washer and blast furnace water recycle systems operator entered areas of unknown concentrations of carbon monoxide gases.

34. Settlement of the previous citation issued as a result of violation at South plant required accelerated gas training but did not require that the plant cease operations while it attained the level of gas training.

35. Respondent implemented a very good gas safety training program following the issuance of citations on September 13, 1983, regarding the South plant. Most employees working in the boiler house area had not received training at the time of the April 3, 1984, accident. In all 140 to 145 employees had been trained by April 3, 1984, and 655 had been so trained at the time of the hearing of this case.

36. A study of fatal accidents in the steel industry by the American Iron and Steel Institute showed that gas inhalation was the sixth most frequent cause of death in the industry during the period between 1970 and 1979 with 19 fatalities. Most fatalities were of persons employed in the blast furnace area (Ex. R–7, pp. 79–80).

37. Feasible means exist to abate the hazardous conditions described in the citations alleging violations of the general duty clause. Many of the hazards were abated by actions of respondent following the accident on April 3, 1984. Alarms and equipment have been purchased. Other hazards could be abated by the implementation of its own gas safety manual or with equally effective policies and procedures. Additional training was necessary and possible to abate other feasible conditions. Although respondent has experienced considerable financial pressure, it has not been established that any of the means of abatement suggested would not be feasible (Tr. 881).

CONCLUSIONS OF LAW

1. Respondent is an employer subject to the Act.

2. Respondent violated section 5(a)(1), the general duty clause, as alleged in citation number one under circumstances constituting a serious violation.

3. A penalty of $1,000 is appropriate for the serious violation of citation number one.

4. Respondent violated section 5(a)(1), the general duty clause, as alleged in citation number two, item one, under conditions constituting a willful violation for which a penalty of $10,000 is appropriate.

5. Respondent violated regulation 29 C.F.R. § 1910.134(e)(5) described in citation 2, item 2(b), under conditions constituting a willful violation. It is grouped with the violations described in citation 2, item 1, above and no additional penalty is appropriate.

6. Respondent violated regulation 29 C.F.R. § 1910.134(e)(3)(i) alleged in citation 2, item 2(a), under conditions constituting a serious violation. A penalty of $1,000 is appropriate.

ORDER

1. Citation 1 and item 2(a) of citation 2 are affirmed as serious violations.

2. Citation 2, items 1 and 2(b), are affirmed as willful violations.

3. Penalties of $12,000 are assessed.

Dated this 25th day of February, 1986.

JOE D. SPARKS

Judge

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