“SECRETARY OF LABOR,Complainant,v.EXXON COMPANY, U.S.A.,Respondent.INTERNATIONAL BROTHERHOOD OFTEAMSTERS, CHAUFFEURS, WAREHOUSEMANAND HELPERS OF AMERICA, LOCAL 877,EXXON OIL WORKERS,Authorized EmployeeRepresentative.OSHRC Docket, No. 79-2610_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether an administrative law judge erred infinding that the Exxon Company, U.S.A. violated section 5(a)(1) of theAct,[[1]] 29 U.S.C. ? 654(a)(1), at its Linden, New Jersey refinery byfailing to periodically inspect for corrosion at a dead end, a sectionof pipe in which there is no product flow during normal operation. Inorder to establish a section 5(a)(1) violation, the Secretary mustprove: (1) the employer failed to render its workplace free of ahazard, (2) the hazard was recognized either by the cited employer orgenerally within the employer’s industry, (3) the hazard was causing orlikely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materiallyreduced the hazard. _Little Beaver Creek Ranches, Inc_., 82 OSAHRC36\/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD ? 26,125, p. 32,878 (No.77-2096, 1982). Commissioner Cleary would affirm the judge’s decision. The evidence establishes that Exxon and its industry recognized thatdead ends were likely places for water to accumulate and corrosion tooccur. He notes that the serious injuries suffered as a result of thisincident show that death or serious physical harm was likely. _See__Chevron Oil Co.,_ 83 OSAHRC 19\/B2, 11 BNA OSHC 1329, 1983 CCH OSHD ?26,507 (No. 10799, 1983), _appeal filed_, No. 83-4371 (5th Cir. June 17,1983). He would find that the Secretary’s proposed method of abating thehazard by inspecting dead ends at least every 5 years was a moreeffective method than that of Exxon, _see_ _U.S. Steel Corp_., 81 OSAHRC28\/C2, 9 BNA OSHC 1641, 1642 n.6, 1981 CCH OSHD? 25,282, p. 31,250 n.6 (No. 76-5007, 1981), which inspected dead endsonly when its testing revealed corrosion in similar dead ends. Commissioner Cleary would also find that the Secretary’s proposedabatement method of inspecting dead ends at least every 5 years wasfeasible.Chairman Buckley would reverse the judge’s decision because theSecretary failed to prove that either Exxon or its industry recognizedthat Exxon’s method of inspecting the cited dead end was hazardous. Thejudge’s decision found that the recognition element was establishedbecause a failure to \”adequately\” inspect dead ends for internalcorrosion is recognized as hazardous in the oil industry. ChairmanBuckley observes, however, that this record furnishes no basis forfinding that Exxon’s sampling program was recognized by Exxon or itsindustry as inadequate. _See_ _Davey Tree Expert Co_., 84 OSAHRC__\/__, 11 BNA OSHC 1898, 1900, 1984 CCH OSHD ? 26,852, p. 34,400 (No.77-2350, 1984). Indeed, the record refutes such an assertion. Exxonshowed that the cited dead end was not a likely place for corrosion tooccur because the pipe was deflected from the horizontal, causing anycorroding liquid that might ordinarily be retained to drain off. Moreover, tests Exxon had conducted on the piping system that includedthe cited dead end showed negligible corrosion.The two Commission members are divided on whether the judge erred in hisdisposition. To resolve this impasse and to permit the parties toconclude the litigation, the members have agreed to vacate the directionfor review.[[2]] _E.g_., _Texaco, Inc_., 80 OSAHRC 74\/B1, 8 BNA OSHC1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542, 1980). TheCommission members have discretion under the Act and the Commission’sRules of Procedure to direct review of a judge’s decision. Section12(j), 29 U.S.C. ? 661(i); 29 C.F.R. ? 2200.92. In the absence of adirection for review, the judge’s decision becomes a final order of theCommission and can be appealed by an aggrieved party to a United Statescourt of appeals. Sections 10(c), 11(a) and (b) and 12(j), 29 U.S.C. ??659(c), 660(a) and (b), 661(i). The judge’s decision in this casetherefore becomes the appealable final order of the Commission, but isaccorded the precedential value of an unreviewed judge’s decision.Under section 10(c) of the Act, 29 U.S.C. ? 659(c), abatement is notrequired until the entry of a Commission final order affirming acontested citation. Inasmuch as the administrative law judge’sdecision affirmed the citation, and that decision will be the finalorder of the Commission, Exxon will be required to undertake substantialabatement measures. The members of the Commission, however, have agreedto stay the abatement requirement of the citation until the expirationof the 60 day period during which appellate review of this decision maybe sought under section 11(a) of the Act, 29 U.S.C. ? 660(a), and, ifreview is sought, until the assumption of jurisdiction by the court ofappeals. If appellate review is sought, determination as to whetherabatement should be further stayed would be within the discretion of thecourt of appeals.Accordingly, the direction for review is vacated. Abatement is stayedfor a period of sixty days, or if review by a circuit court of appealsis sought, until that court assumes jurisdiction.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: AUG 30 1984————————————————————————The Administrative Law Judge decisions in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 5(a)(1) states:Each employer-(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees . . . .[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) of theAct, 29 U.S.C. ? 661(e), official action can be taken by the Commissionwith the affirmative vote of at least two members. Presently, theCommission has two members as a result of a vacancy.”