“Docket No. 87-1750 SECRETARY OF LABOR, Complainant,v. QUANTUM CHEMICAL CORPORATION, EMERY DIVISION, Respondent. UNITED STEELWORKERS OF AMERICA, LOCAL 14340, Authorized Employee Representative.OSHRC Docket 87-1750\u00a0ORDER \u00a0The Secretary’s notice to withdraw citation is construed as amotion to withdraw the citation and is granted.\u00a0FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary Dated 13 JAN 1989\u00a0SECRETARY OF LABOR, Complainant,v. QUANTUM CHEMICAL CORPORATION, EMERY DIVISION, Respondent. UNITED STEELWORKERS OF AMERICA, LOCAL 14340, Authorized Employee Representative.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 behalfof respondent.Richard Smith, Safety Representative, United Steelworkers of America, Local 14349,Cincinnati, Ohio, on behalf of the authorized employee representative.DECISION AND ORDERSALYERS, Judge: Respondent, Quantum Chemical Corporation, EmeryDivisions (\”Emery\”), contests a serious citation charging a violation of 29C.F.R. ? 1910.132(a) for failure to provide protective shields or barriers around a tankcontaining hot water. The citation emanates from an inspection conducted on July 16. 1987,by Occupational Safety for Health Administration (\”OSHA) Compliance Officer anaccident resulting in serious injuries to an Emery employee.Emery is an intermediate chemical manufacturer locatedCincinnati, Ohio, on 105 acres of land in more than two dozen Emery employs approximately600 employees at that location (Tr. 183) various tanks are located throughout thebuildings, connected by pipes (Tr. 36)Building Three houses the acid boil department (Tr. 15,112).Tank U-13 is 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 in diameter (Tr. 40). At thetime of the accident, the tank was not equipped with a pressure gauge or a workingcapacity gauge. The tank was not 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 or two 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 acidboil operator. Jawwaad was working the third shift alone from 11:30 P.M until 7:30 a.m.(Tr. 112, 117).Around 2:30 a.m., tank U-13 was half full of water. Jawwaadmixed some soda ash and cleaning soap into the slurry and pumped it over to tank U-13,filling it to about two feet the top of the tank (Tr.120). He set up the to the pumpcenter and put steam on the line (Tr. 124). Jawwaad then checked the line and saw that toomuch steam was being released whereupon he shut down the steam so that it was barelycoming out (Tr. 125).About 6:30 a.m. Jawwaad began preparations to transfer theheated water from 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 up the bleeder, makesure there’s no back pressure, and then you go over and you shut the valve on the–thebypass valve on the pump. And I normally hit the bIeeder on the line to make sure there’sno pressure. You go back over and then you shut the valve off–shut the extra–the valveon the steam blowout line, you shut that off, and then you–because it’s already open tosee if there’s any back pressure. You shut that off and then the next thing you do is openthe valve. And then you 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 there you shut it offand you turn the pump on. And then you follow the Iine to make sure there’s no bleedersopen, and make sure it’s going to where you want it to go.After shutting off the steam and opening the bleeder valve under the tank to prevent anyback pressure, he proceeded to the pump center where he opened another bleeder valve atthat location (Tr. 127). As he was returning back to the tank to release the water fromthe tank, he was briefly interrupted by a telephone call from a company supervisor (Tr.130-131).After finishing the call, Jawwaad went back to the tank withthe intention of opening the valve to let water flow to the transfer center. He croucheddown, bent over and reached under the tank to manually open the valve. (Tr. 65-66) Jawwaadbegan turning the valve. On the third turn, he heard a (?) noise. Tank U-13 the eruptedand water spilled over onto Jawwaad, who was still crouched beneath the tank. The waterwas heated to approximately 180*. Jawwaad suffered third degree burns to his back, ankles,hips and arm (Tr. 134, 137-138). Jawwaad immediately paged his supervisor, Anthony Williams.When Williams arrived at the acid boil department, Jawwaad was flushing himself with awater hose. Williams put him in a safety shower and then took him to the hospital (Ex.C-2; Tr. 36). At the time of the accident, the only personal protective equipment. thatJawwaad was wearing was a hard hat, safety glasses, and rubber gloves. Emery required noother protective equipment for handling hot water (Tr. 144). At the time of the hearing,almost one year after his accident, Jawwaad had been unable to return to work due to theinjuries he received from the overflow (Tr. 138).Three days after Jawwaad’s accident, Emery issued its firstSerious Potential Incident (SPI) Investigation Report (Ex. C-2). SPI reports are conductedby Emery when it determines that an accident having a high potential for causing injuryoccurs at the plant. On May 28, 1987, two after the accident, Emery issued a\”revised\” SPI report which differed from the initial report on severalsignificant points (Ex. C-3).The original report stated that no safety violation occurredand that contributing causes of the accident were inadequate procedures, inadequate orimproper design and inadequate maintenance. The revised report stated that there was asafety violation caused by employee carelessness in not bleeding steam pressure from theline. Contributing causes of the accident were listed as employee carelessness andinadequate procedures (Ex. C-3).Anthony WiIIiams, Emery’s rotating production manager, testified that the second SPIreport was initiated because Emery was not satisfied with the results of the first one(Tr. 60). The first SPI report concluded that tank U-13 should have been covered; thesecond report blamed Jawwaad’s carelessness in not following the company’s double blockand bleed procedure (Tr. 62).WiIliams stated that Jawwaad was the most experienced operatorin. the acid boil department. Jawwaad was with Emery for 22 years, at least ten of whichhad been spent in the acid boil department. Jawwaad had used tank U-13 for clean-upseveral times before his accident. Williams had never known Jawwaad to be careless (Tr.58-59, 114). There is no evidence that Jawwaad was ever personally disciplined,reprimanded, or accused of being careless either before or following the accident (Tr.149).Attached to the revised SPI report was a summary of the resultsof a test conducted on tank U-13 after the accident (Ex. C-4). The test indicated that,after shutting off the steam supply, the back pressure in the pipe Iine gradually bleedsoff through the water hose. The time required to bleed the pressure from the Iine to tenpounds of pressure per 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). Beforethat test was conducted, the capacity gauge and the leaking steam valves were replaced. Asteam pressure gauge was also installed (Tr. 62-69).Williams testified that approximately one year prior to theaccident in question, tank U-13 had overflowed on him while he was working as an operator.Williams reported the overflow to his supervisor at the time,John Czarnicki (Tr. 71-72). Williams submitted a written maintenance request, for a lid orcap or overflow on tank U-13 (Tr. 74, 87). Williams stated that he knew of at least fourother operators who reported hearing a rumbling noise when they turned the pipe valves(Tr. 73).No written procedure for the use of tank U-13 exists. The acidboil department did have a copy of Emery’s, Pumping Manual (Ex. C-5; Tr. 78). The acidboil operators are trained by other operators in the department (Tr. 79).Safety meetings are held once a month on a Tuesday and lastfrom 10 to 30 minutes (Tr. 82). Attendance is mandatory, but employees are not disciplinedfor their failure to attend (Tr. 84-85). Emery has a progressive disciplinary program foremployees violating safety rules (Ex. R-1; Tr. 342).A great deal of time was spent at the hearing discussing thedouble block and bleed procedure. This procedure is designed to clear the steam Iine ofcondensate before steaming the Iine and to ensure that pressure is removed from the linebefore an additional operation is performed on that Iine (Tr. 257).\u00a0 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,any pressure that’s in that line there is going to bleed through the isolating valve andthrough the bleeder valve until all the pressure is relieved. At that point in time we’resure that the pressure is off the line, we then close the isolating valve and then we canopen the valve on– from U-13, and commence the pumping from U-13.It was Zesterman’s opinion that the tank would not have overflowed had there been nopressure on the line (Tr. 270-271). Zesterman stated that had Jawwaad properly isolatedthe line, he would have known there was a problem and would have continued to blow steamout 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 SPI investigation, Zestermanstated that Jawwaad did not follow the proper double block and bleed procedure (Tr.283-284). Zesterman said that \”the only explanation that we could come up with on howthe steam pressure remained on that line was that the block and bleed procedure was notproperly followed\” (Tr. 298).Emery’s plant manager, Alick Kovach, concurred with Zesterman’sopinion regarding the cause of the accident. Kovach stated that U-13’s eruption did notmake sense based on Jawwaad’s story (Tr. 197). If Jawwaad had followed the double blockand bleed procedure, he would have known there was pressure on the line (Tr. 219). Kovachdenied that any employee ever made a request to put a lid on U-13 (Tr. 233). Kovach wasaware of other tank eruptions but stated, \”Typically, it’s usually a violation ofsome operating rule or some employee carelessness\” (Tr. 243).In June of 1985, Emery conducted a process hazard review inBuilding Three (Tr. 272). Emery targeted potential problem areas and categorized them,then gave these categories special attention (Tr. 273). Nothing in the review indicatedthat tank U-13 had any hazards associated with it (T-279). At that time, however, U-13 wasused as a cold water, and not a hot 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, face head, and,extremities, protective clothing, respiratory devices, and protective shields andbarriers, shall be provided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of process or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a manner capable of causinginjury or impairment in the function of any part of the body through absorption,inhalation or physical contact.Compliance Officer Cannon stated that a shield or barrieraround the tank would have protected Jawwaad from serious injury. Cannon pointed out thatEmery had been notified of at least one other overflow and request for a cap on U-13 asevidence of Emery’s knowledge of the hazard (Tr. 45). He testified that the bestengineering control for the hazard would be to place a cap on the tank with an overflow onit that would empty into a safe place (Tr. 46). In the interim, Cannon suggested that alean-to device could be placed on the side of the tank that would divert any overflow fromthe tank away from the operator. Cannon also suggested a remote valve with a chain drivedevice running from the valve under the tank to the remote valve (Tr. 44).To establish the violation of ? 1910.132(a), the Secretarymust prove that \”(1) the cited standard applies, (2) there was a failure to complywith the cited standard, (3) empIoyees had access to the violative condition, and (4) thecited employer either knew or could have known of the condition with the exercise ofreasonable diligence.\” Astra Pharmaceutical Products, 81 OSAHRC 79\/D9, 9 BNA OSHC2126, 2129, 1981 CCH 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 hazard exist before the standard isapplicable. Emery claims that no hazard exists with respect to the operation of tank U-13.This argument is somewhat 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-13was operated in conformance with Emery’s safety procedures, then the accident would nothave occurred, and (ii) that Emery conducted a Process Hazard Review in Building Threethat did not identify any substantive hazards associated with U- 13. Both of these groundsare without merit. To say that a hazard does not exist if proper safety proceduresare followed is a sophistic argument. The fact that safety procedures are prescribed inthe first place indicates that a hazard does exist. The implementation of safetyprocedures does not, obviate the fact of the hazard; it only reduces the risk.Likewise, asserting that the company’s Process Hazard Review did not identify anysubstantive hazards associated with U-13 does not obliterate the hazard that obviouslyexisted. The Process Hazard Review was conducted when U-13 was being used to contain coldwater. The hazard in this case is the employee exposure to overflows of water heated to180*. The Process Hazard Review is, therefore, irrelevant to the case at bar.Emery contends that the Secretary failed to prove the second element, (that there was afailure to comply with ? 1910.132[a]) because the double block and bleed procedure isadequate to meet the requirements of ? 1910.132(a). As previously indicated, a great dealat the hearing was devoted to the double block and bleed procedure. Both parties engagedin arguments on the effectiveness of the procedure, whether the leaking steam valves couldhave hampered the procedure, and whether Jawwaad had actually followed the procedure. Theimplementation of the double block and bleed procedure is, however, irrelevant to thepresent case. The standard calls for protective shields and barriers where necessary byreason of hazards of processes. The employer is not free to substitute its own proceduresfor those mandated by federal OSHA legislation.Emery has not claimed or proven that the use of the lids orcaps would constitute a greater hazard, or be technologically or economically infeasible.Indeed, in its posthearing brief, the company states: \”Emery does not deny that oneor more of these measures [recommended by OSHA] may have afforded some protection in theinstant case . . .\” (Emery’s brief, p. 9). Emery has offered no reason for itsnoncompliance with ? 1910.132(a). Emery must fail on its second defense.Emery’s third defense is that the accident occurred as a resultof unforeseeable employee misconduct. Emery bases this defense on its claim that Jawwaadfailed to follow the prescribed double block and bleed procedure in his operation of U-13.In the first place, Jawwaad’s testimony reflects he did, in fact, follow this procedure.While Emery offered testimony of other witnesses who theorized about Jawwaad’s actions,these witnesses had no direct knowledge of the events leading to the accident and theirconclusions were based on assumptions not supported by the evidence. In view of Jawwaad’slong association with Emery and his apparent unblemished record of compliance with itsoperating instructions, there is no reason to speculate that he deviated from thesepractices on the night in question. The actions taken by Jawwaad immediately preceding theaccident were in accordance with company procedures and did not constitute an instance ofemployee misconduct.The other elements the Secretary must prove are employee accessto the violative condition and employer knowledge of the condition. Jawwaad’s third degreeburns are sufficient evidence of exposure to the hazard. Employer knowledge of the hazardwas well established. Supervisor Anthony Williams experienced an overflow of U-13, andsubmitted a written request for a lid or cap. Plant manager Kovach testified as to hisknowledge of tank eruptions and overflows. In its posthearing brief, Emery concedes thatit \”does not deny its awareness that tank eruptions have occurred in the plant . ..\” (Emery’s brief, p. 14). Emery goes on to contend that the overflows were allcaused by violation of its administrative or engineering controls. Again, that does notexcuse noncompliance on the part of Emery. The Secretary has met her burden of proving,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 there exists a\”substantial probability that death or serious physical harm could result from thehazard. Jawwaad’s injuries demonstrate that the hazard presented a substantial;probability of serious physical harm. The citation is affirmed as serious and a penalty of$600.00 is assessed.FINDINGS OF FACT1. Respondent operates a chemical manufacturing plant inCincinnati, Ohio. Building Three of the plant houses the acid boil department. Tank U-13in Building Three contains water that is heated and used in cleaning up. The tank is eightfeet, three inches, high and eight feet in diameter. The tank was not covered by a lid orcap. 2. On March 28, 1987, respondent’s acid boil operator, OliverJawwaad, had heated the water in tank J-13 approximately 180*. In preparation fortransferring this hot water from the tank, Jawwaad performed the bleed and blockprocedures normally followed in conducting this operation. As he turned the valveunderneath the tank to release the water, the tank erupted, splashing water on him as hecrouched below, causing third degree burns.3. Respondent issued an initial report on the accident thatconcluded that a lid should be placed on the tank.4. Previous overflows of tanks had occurred at the plant andthese occurrences were known to respondent. On one occasion prior to the accident, one ofthe respondent’s supervisors experienced an eruption involving tank U-13 and specificallyrequested a lid for this tank.CONCLUSIONS OF LAW1. Respondent, at all times material to this proceeding wasengaged in a business affecting interstate commerce within the meaning of section 3(5) ofthe Occupational Safety and health Act 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, wassubject to the requirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and of the subject matter.3. Respondent was in violation of 29 C.F.R. ? 1910.132(a) forfailing to provide shields or barriers around a hot water tank. Respondent knew of thehazardous condition to which its acid boil operators were exposed, yet failed to provide acap or lid or overflow for the tank.ORDERBased upon the findings of fact and conclusions of law, it ishereby ORDERED: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”