“Docket No. 79-2610 SECRETARY OF LABOR, Complainant, v.EXXON COMPANY, U.S.A., Respondent. INTERNATIONAL BROTHERHOOD OFTEAMSTERS, CHAUFFEURS, WAREHOUSEMAN AND HELPERS OF AMERICA, LOCAL 877, EXXON OIL WORKERS,Authorized Employee Representative.OSHRC Docket, No. 79-2610DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatoryagency, independent of the Department of Labor and the Occupational Safety and HealthAdministration.\u00a0 It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether an administrative law judge erred in finding that the ExxonCompany, U.S.A. violated section 5(a)(1) of the Act,[[1]] 29 U.S.C. ? 654(a)(1), at itsLinden, New Jersey refinery by failing to periodically inspect for corrosion at a deadend, a section of pipe in which there is no product flow during normal operation.\u00a0 Inorder to establish a section 5(a)(1) violation, the Secretary must prove:\u00a0 (1) theemployer failed to render its workplace free of a hazard, (2) the hazard was recognizedeither by the cited employer or generally within the employer’s industry, (3) the hazardwas causing or likely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materially reduced thehazard.\u00a0 Little Beaver Creek Ranches, Inc., 82 OSAHRC 36\/A2, 10 BNA OSHC 1806,1810, 1982 CCH OSHD ? 26,125, p. 32,878 (No. 77-2096, 1982).\u00a0 Commissioner Clearywould affirm the judge’s decision.\u00a0 The evidence establishes that Exxon and itsindustry recognized that dead ends were likely places for water to accumulate andcorrosion to occur.\u00a0 He notes that the serious injuries suffered as a result of thisincident show that death or serious physical harm was likely.\u00a0 See ChevronOil 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 theSecretary’s proposed method of abating the hazard by inspecting dead ends at least every 5years was a more effective method than that of Exxon, see U.S. Steel Corp.,81 OSAHRC 28\/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 ends only when itstesting revealed corrosion in similar dead ends.\u00a0 Commissioner Cleary would also findthat the Secretary’s proposed abatement method of inspecting dead ends at least every 5years was feasible.Chairman Buckley would reverse the judge’s decision because the Secretaryfailed to prove that either Exxon or its industry recognized that Exxon’s method ofinspecting the cited dead end was hazardous.\u00a0 The judge’s decision found that therecognition element was established because a failure to \”adequately\” inspectdead ends for internal corrosion is recognized as hazardous in the oil industry.\u00a0Chairman Buckley observes, however, that this record furnishes no basis for findingthat Exxon’s sampling program was recognized by Exxon or its industry as inadequate.\u00a0 See Davey Tree Expert Co., 84 OSAHRC __\/__, 11 BNA OSHC 1898, 1900,1984 CCH OSHD ? 26,852, p. 34,400 (No. 77-2350, 1984).\u00a0 Indeed, the record refutessuch an assertion.\u00a0 Exxon showed that the cited dead end was not a likely place forcorrosion to occur because the pipe was deflected from the horizontal, causing anycorroding liquid that might ordinarily be retained to drain off.\u00a0 Moreover, testsExxon had conducted on the piping system that included the cited dead end showednegligible corrosion.The two Commission members are divided on whether the judge erred in hisdisposition.\u00a0 To resolve this impasse and to permit the parties to conclude thelitigation, the members have agreed to vacate the direction for review.[[2]]\u00a0 E.g.,Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos.77-3040 & 77-3542, 1980).\u00a0 The Commission members have discretion under the Actand the Commission’s Rules of Procedure to direct review of a judge’s decision. \u00a0Section 12(j), 29 U.S.C. ? 661(i); 29 C.F.R. ? 2200.92.\u00a0 In the absence of adirection for review, the judge’s decision becomes a final order of the Commission and canbe appealed by an aggrieved party to a United States court of appeals.\u00a0 Sections10(c), 11(a) and (b) and 12(j), 29 U.S.C. ?? 659(c), 660(a) and (b), 661(i).\u00a0 Thejudge’s decision in this case therefore becomes the appealable final order of theCommission, but is accorded 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 a contested citation.\u00a0 Inasmuch as the administrative law judge’s decision affirmed the citation, and thatdecision will be the final order of the Commission, Exxon will be required to undertakesubstantial abatement measures.\u00a0 The members of the Commission, however, have agreedto stay the abatement requirement of the citation until the expiration of the 60 dayperiod during which appellate review of this decision may be sought under section 11(a) ofthe Act, 29 U.S.C. ? 660(a), and, if review is sought, until the assumption ofjurisdiction by the court of appeals.\u00a0 If appellate review is sought, determinationas to whether abatement should be further stayed would be within the discretion of thecourt of appeals.Accordingly, the direction for review is vacated.\u00a0 Abatement is stayedfor a period of sixty days, or if review by a circuit court of appeals is sought, untilthat court assumes jurisdiction.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 AUG 30 1984The Administrative Law Judge decisions in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees . . . .[[2]] As established by the Act, the Commission is composed of threemembers.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Under section 12(f) of the Act,29 U.S.C. ? 661(e), official action can be taken by the Commission with the affirmativevote of at least two members.\u00a0 Presently, the Commission has two members as a resultof a vacancy.”