“SECRETARY OF LABOR,Complainant,v.QUANTUM CHEMICAL CORPORATION, EMERY DIVISION,Respondent.UNITED STEELWORKERS OF AMERICA, LOCAL 14340,Authorized EmployeeRepresentative.OSHRC Docket 87-1750_ __ORDER _ The Secretary’s notice to withdraw citation is construed as a motion towithdraw the citation and is granted. FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated 13 JAN 1989 ————————————————————————SECRETARY OF LABOR,Complainant,v.QUANTUM CHEMICAL CORPORATION, EMERY DIVISION,Respondent.UNITED STEELWORKERS OF AMERICA, LOCAL 14340,Authorized EmployeeRepresentative.OSHRC Docket 87-1750APPEARANCES:Janice L. Thompson, Esquire, Office of the Solicitor,U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.David A. Copeland, Esquire, Quantum Chemical Corporation, Cincinnati,Ohio, on behalf of respondent.Richard Smith, Safety Representative, United Steelworkers of America,Local 14349, Cincinnati, Ohio, on behalf of the authorized employeerepresentative._DECISION AND ORDER_SALYERS, Judge: Respondent, Quantum Chemical Corporation, EmeryDivisions (\”Emery\”), contests a serious citation charging a violation of29 C.F.R. ? 1910.132(a) for failure to provide protective shields orbarriers around a tank containing hot water. The citation emanates froman inspection conducted on July 16. 1987, by Occupational Safety forHealth Administration (\”OSHA) Compliance Officer an accident resultingin serious injuries to an Emery employee.Emery is an intermediate chemical manufacturer located Cincinnati, Ohio,on 105 acres of land in more than two dozen Emery employs approximately600 employees at that location (Tr. 183) various tanks are locatedthroughout the buildings, connected by pipes (Tr. 36)Building Three houses the acid boil department (Tr. 15,112). Tank U-13is used in the acid boil department to contain hot water for cleaning(Tr. 37). This tank is eight feet, three inches, high and eight feet indiameter (Tr. 40). At the time of the accident, the tank was notequipped with a pressure gauge or a working capacity gauge. The tank wasnot covered with a lid or cap, and did not have an overflow (Tr. 38,46). Tank U-18 had been used as hot water tank for the previous one ortwo years. Before that, it was used as a cold water tank (Tr. 122).On March 28, 1987, Oliver Ali Jawwaad was on duty as the acid boiloperator. Jawwaad was working the third shift alone from 11:30 P.M until7:30 a.m. (Tr. 112, 117).Around 2:30 a.m., tank U-13 was half full of water. Jawwaad mixed somesoda ash and cleaning soap into the slurry and pumped it over to tankU-13, filling it to about two feet the top of the tank (Tr.120). He setup the to the pump center and put steam on the line (Tr. 124). Jawwaadthen checked the line and saw that too much steam was being releasedwhereupon he shut down the steam so that it was barely coming out (Tr. 125).About 6:30 a.m. Jawwaad began preparations to transfer the heated waterfrom tank U-13. His testimony indicates this procedure as follows (Tr.157-158):Well, the next thing you do, you go back, shut off the steam, open upthe bleeder, make sure there’s no back pressure, and then you go overand you shut the valve on the–the bypass valve on the pump. And Inormally hit the bIeeder on the line to make sure there’s no pressure.You go back over and then you shut the valve off–shut the extra–thevalve on the steam blowout line, you shut that off, and thenyou–because it’s already open to see if there’s any back pressure. Youshut that off and then the next thing you do is open the valve. And thenyou wait for a few minutes, you go back over and you check the bleederagain until you get stock through there. If you get stock through thereyou shut it off and you turn the pump on. And then you follow the Iineto make sure there’s no bleeders open, and make sure it’s going to whereyou want it to go.After shutting off the steam and opening the bleeder valve under thetank to prevent any back pressure, he proceeded to the pump center wherehe opened another bleeder valve at that location (Tr. 127). As he wasreturning back to the tank to release the water from the tank, he wasbriefly interrupted by a telephone call from a company supervisor (Tr.130-131).After finishing the call, Jawwaad went back to the tank with theintention of opening the valve to let water flow to the transfer center.He crouched down, bent over and reached under the tank to manually openthe valve. (Tr. 65-66) Jawwaad began turning the valve. On the thirdturn, he heard a (?) noise. Tank U-13 the erupted and water spilled overonto Jawwaad, who was still crouched beneath the tank. The water washeated to approximately 180*. Jawwaad suffered third degree burns to hisback, ankles, hips and arm (Tr. 134, 137-138).Jawwaad immediately paged his supervisor, Anthony Williams. WhenWilliams arrived at the acid boil department, Jawwaad was flushinghimself with a water hose. Williams put him in a safety shower and thentook him to the hospital (Ex. C-2; Tr. 36). At the time of the accident,the only personal protective equipment. that Jawwaad was wearing was ahard hat, safety glasses, and rubber gloves. Emery required no otherprotective equipment for handling hot water (Tr. 144). At the time ofthe hearing, almost one year after his accident, Jawwaad had been unableto return to work due to the injuries he received from the overflow (Tr.138).Three days after Jawwaad’s accident, Emery issued its first SeriousPotential Incident (SPI) Investigation Report (Ex. C-2). SPI reports areconducted by Emery when it determines that an accident having a highpotential for causing injury occurs at the plant. On May 28, 1987, twoafter the accident, Emery issued a \”revised\” SPI report which differedfrom the initial report on several significant points (Ex. C-3).The original report stated that no safety violation occurred and thatcontributing causes of the accident were inadequate procedures,inadequate or improper design and inadequate maintenance. The revisedreport stated that there was a safety violation caused by employeecarelessness in not bleeding steam pressure from the line. Contributingcauses of the accident were listed as employee carelessness andinadequate procedures (Ex. C-3).Anthony WiIIiams, Emery’s rotating production manager, testified thatthe second SPI report was initiated because Emery was not satisfied withthe results of the first one (Tr. 60). The first SPI report concludedthat tank U-13 should have been covered; the second report blamedJawwaad’s carelessness in not following the company’s double block andbleed procedure (Tr. 62).WiIliams stated that Jawwaad was the most experienced operator in. theacid boil department. Jawwaad was with Emery for 22 years, at least tenof which had been spent in the acid boil department. Jawwaad had usedtank U-13 for clean-up several times before his accident. Williams hadnever known Jawwaad to be careless (Tr. 58-59, 114). There is noevidence that Jawwaad was ever personally disciplined, reprimanded, oraccused of being careless either before or following the accident (Tr. 149).Attached to the revised SPI report was a summary of the results of atest conducted on tank U-13 after the accident (Ex. C-4). The testindicated that, after shutting off the steam supply, the back pressurein the pipe Iine gradually bleeds off through the water hose. The timerequired to bleed the pressure from the Iine to ten pounds of pressureper square inch was 24 seconds. That is sufficient pressure to cause atank overflow if the pressure is released through the bottom valve (Tr.285-286). Before that test was conducted, the capacity gauge and theleaking steam valves were replaced. A steam pressure gauge was alsoinstalled (Tr. 62-69).Williams testified that approximately one year prior to the accident inquestion, tank U-13 had overflowed on him while he was working as anoperator.Williams reported the overflow to his supervisor at the time, JohnCzarnicki (Tr. 71-72). Williams submitted a written maintenance request,for a lid or cap or overflow on tank U-13 (Tr. 74, 87). Williams statedthat he knew of at least four other operators who reported hearing arumbling noise when they turned the pipe valves (Tr. 73).No written procedure for the use of tank U-13 exists. The acid boildepartment did have a copy of Emery’s, Pumping Manual (Ex. C-5; Tr. 78).The acid boil operators are trained by other operators in the department(Tr. 79).Safety meetings are held once a month on a Tuesday and last from 10 to30 minutes (Tr. 82). Attendance is mandatory, but employees are notdisciplined for their failure to attend (Tr. 84-85). Emery has aprogressive disciplinary program for employees violating safety rules(Ex. R-1; Tr. 342).A great deal of time was spent at the hearing discussing the doubleblock and bleed procedure. This procedure is designed to clear the steamIine of condensate before steaming the Iine and to ensure that pressureis removed from the line before an additional operation is performed onthat Iine (Tr. 257). Tom Zesterman, Emery’s production manager,described the procedure as follows (Tr. 263-264):[W]e close the block valve first, open the bleeder valve. So, anypressure that’s in that line there is going to bleed through theisolating valve and through the bleeder valve until all the pressure isrelieved. At that point in time we’re sure that the pressure is off theline, we then close the isolating valve and then we can open the valveon– from U-13, and commence the pumping from U-13.It was Zesterman’s opinion that the tank would not have overflowed hadthere been no pressure on the line (Tr. 270-271). Zesterman stated thathad Jawwaad properly isolated the line, he would have known there was aproblem and would have continued to blow steam out of the bleeder (Tr.285). Despite the fact that Jawwaad was alone at the time of theaccident and was not interviewed by anyone conducting the SPIinvestigation, Zesterman stated that Jawwaad did not follow the properdouble block and bleed procedure (Tr. 283-284). Zesterman said that \”theonly explanation that we could come up with on how the steam pressureremained on that line was that the block and bleed procedure was notproperly followed\” (Tr. 298).Emery’s plant manager, Alick Kovach, concurred with Zesterman’s opinionregarding the cause of the accident. Kovach stated that U-13’s eruptiondid not make sense based on Jawwaad’s story (Tr. 197). If Jawwaad hadfollowed the double block and bleed procedure, he would have known therewas pressure on the line (Tr. 219). Kovach denied that any employee evermade a request to put a lid on U-13 (Tr. 233). Kovach was aware of othertank eruptions but stated, \”Typically, it’s usually a violation of someoperating rule or some employee carelessness\” (Tr. 243).In June of 1985, Emery conducted a process hazard review in BuildingThree (Tr. 272). Emery targeted potential problem areas and categorizedthem, then gave these categories special attention (Tr. 273). Nothing inthe review indicated that tank U-13 had any hazards associated with it(T-279). At that time, however, U-13 was used as a cold water, and not ahot water, tank (Tr. 288).Emery was issued a citation for the violation of 29 C.F.R. ? 1910.132(a)which provides:Protective equipment, including protective equipment for eyes, facehead, and, extremities, protective clothing, respiratory devices, andprotective shields and barriers, shall be provided, used, and maintainedin a sanitary and reliable condition wherever it is necessary by reasonof hazards of process or environment, chemical hazards, radiologicalhazards, or mechanical irritants encountered in a manner capable ofcausing injury or impairment in the function of any part of the bodythrough absorption, inhalation or physical contact.Compliance Officer Cannon stated that a shield or barrier around thetank would have protected Jawwaad from serious injury. Cannon pointedout that Emery had been notified of at least one other overflow andrequest for a cap on U-13 as evidence of Emery’s knowledge of the hazard(Tr. 45). He testified that the best engineering control for the hazardwould be to place a cap on the tank with an overflow on it that wouldempty into a safe place (Tr. 46). In the interim, Cannon suggested thata lean-to device could be placed on the side of the tank that woulddivert any overflow from the tank away from the operator. Cannon alsosuggested a remote valve with a chain drive device running from thevalve under the tank to the remote valve (Tr. 44).To establish the violation of ? 1910.132(a), the Secretary must provethat \”(1) the cited standard applies, (2) there was a failure to complywith the cited standard, (3) empIoyees had access to the violativecondition, and (4) the cited employer either knew or could have known ofthe condition with the exercise of reasonable diligence.\” AstraPharmaceutical Products, 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981CCH OSHD ? 25,576 No. 78.6247, 1981), aff’d, 681 F.2d 69 (1st Cir. 1982).Emery asserts that the Secretary failed to prove the first element (that? 1910.132[a] applies) because ? 1910.132(a) required that a hazardexist before the standard is applicable. Emery claims that no hazardexists with respect to the operation of tank U-13. This argument issomewhat audacious in light of the consequences suffered by Jawwaad as aresult of the tank overflow.Emery bases this defense on two grounds: (i) that if tank U-13 wasoperated in conformance with Emery’s safety procedures, then theaccident would not have occurred, and (ii) that Emery conducted aProcess Hazard Review in Building Three that did not identify anysubstantive hazards associated with U- 13. Both of these grounds arewithout merit.To say that a hazard does not exist if proper safety procedures arefollowed is a sophistic argument. The fact that safety procedures areprescribed in the first place indicates that a hazard does exist. Theimplementation of safety procedures does not, obviate the fact of thehazard; it only reduces the risk.Likewise, asserting that the company’s Process Hazard Review did notidentify any substantive hazards associated with U-13 does notobliterate the hazard that obviously existed. The Process Hazard Reviewwas conducted when U-13 was being used to contain cold water. The hazardin this case is the employee exposure to overflows of water heated to180*. The Process Hazard Review is, therefore, irrelevant to the case atbar.Emery contends that the Secretary failed to prove the second element,(that there was a failure to comply with ? 1910.132[a]) because thedouble block and bleed procedure is adequate to meet the requirements of? 1910.132(a). As previously indicated, a great deal at the hearing wasdevoted to the double block and bleed procedure. Both parties engaged inarguments on the effectiveness of the procedure, whether the leakingsteam valves could have hampered the procedure, and whether Jawwaad hadactually followed the procedure. The implementation of the double blockand bleed procedure is, however, irrelevant to the present case. Thestandard calls for protective shields and barriers where necessary byreason of hazards of processes. The employer is not free to substituteits own procedures for those mandated by federal OSHA legislation.Emery has not claimed or proven that the use of the lids or caps wouldconstitute a greater hazard, or be technologically or economicallyinfeasible. Indeed, in its posthearing brief, the company states: \”Emerydoes not deny that one or more of these measures [recommended by OSHA]may have afforded some protection in the instant case . . .\” (Emery’sbrief, p. 9). Emery has offered no reason for its noncompliance with ?1910.132(a). Emery must fail on its second defense.Emery’s third defense is that the accident occurred as a result ofunforeseeable employee misconduct. Emery bases this defense on its claimthat Jawwaad failed to follow the prescribed double block and bleedprocedure in his operation of U-13. In the first place, Jawwaad’stestimony reflects he did, in fact, follow this procedure. While Emeryoffered testimony of other witnesses who theorized about Jawwaad’sactions, these witnesses had no direct knowledge of the events leadingto the accident and their conclusions were based on assumptions notsupported by the evidence. In view of Jawwaad’s long association withEmery and his apparent unblemished record of compliance with itsoperating instructions, there is no reason to speculate that he deviatedfrom these practices on the night in question. The actions taken byJawwaad immediately preceding the accident were in accordance withcompany procedures and did not constitute an instance of employeemisconduct.The other elements the Secretary must prove are employee access to theviolative condition and employer knowledge of the condition. Jawwaad’sthird degree burns are sufficient evidence of exposure to the hazard.Employer knowledge of the hazard was well established. SupervisorAnthony Williams experienced an overflow of U-13, and submitted awritten request for a lid or cap. Plant manager Kovach testified as tohis knowledge of tank eruptions and overflows. In its posthearing brief,Emery concedes that it \”does not deny its awareness that tank eruptionshave occurred in the plant . . .\” (Emery’s brief, p. 14). Emery goes onto contend that the overflows were all caused by violation of itsadministrative or engineering controls. Again, that does not excusenoncompliance on the part of Emery. The Secretary has met her burden ofproving, and Emery has failed to rebut, that Emery violated ? 1910.132(a).Under ? 17(k) of the Act, a violation will be deemed serious if thereexists a \”substantial probability that death or serious physical harmcould result from the hazard. Jawwaad’s injuries demonstrate that thehazard presented a substantial; probability of serious physical harm.The citation is affirmed as serious and a penalty of $600.00 is assessed._FINDINGS OF FACT_1. Respondent operates a chemical manufacturing plant in Cincinnati,Ohio. Building Three of the plant houses the acid boil department. TankU-13 in Building Three contains water that is heated and used incleaning up. The tank is eight feet, three inches, high and eight feetin diameter. The tank was not covered by a lid or cap.2. On March 28, 1987, respondent’s acid boil operator, Oliver Jawwaad,had heated the water in tank J-13 approximately 180*. In preparation fortransferring this hot water from the tank, Jawwaad performed the bleedand block procedures normally followed in conducting this operation. Ashe turned the valve underneath the tank to release the water, the tankerupted, splashing water on him as he crouched below, causing thirddegree burns.3. Respondent issued an initial report on the accident that concludedthat a lid should be placed on the tank.4. Previous overflows of tanks had occurred at the plant and theseoccurrences were known to respondent. On one occasion prior to theaccident, one of the respondent’s supervisors experienced an eruptioninvolving tank U-13 and specifically requested a lid for this tank._CONCLUSIONS OF LAW_1. Respondent, at all times material to this proceeding was engaged in abusiness affecting interstate commerce within the meaning of section3(5) of the Occupational Safety and health Act 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and of the subject matter.3. Respondent was in violation of 29 C.F.R. ? 1910.132(a) for failing toprovide shields or barriers around a hot water tank. Respondent knew ofthe hazardous condition to which its acid boil operators were exposed,yet failed to provide a cap or lid or overflow for the tank._ORDER_Based upon the findings of fact and conclusions of law, it is herebyORDERED:That the citation for the serious violation of 29 C.F.R. ? 1910.132(a)is affirmed. and a penalty of $600.00 is assessed.Dated this 3rd day of August, 1988.EDWIN G. SALYERSJudge”