VY LACTOS LABORATORIES, INC.

OSHRC Docket No. 31

Occupational Safety and Health Review Commission

February 21, 1973

Before MORAN, Chairman: VAN NAMEE and BURCH, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon a direction for review issued pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter “the Act”).   Following a hearing Judge William J. Broz vacated a citation for an alleged serious violation of section 5(a)(1) of the Act.

The Secretary had in substance alleged that Respondent exposed its employees to an atmosphere containing hydrogen sulfide gas in such concentration as to be incapable of supporting life, while not providing the employees with personal protective equipment and requiring them to use the equipment.   This exposure, sans equipment, according to the Secretary, constituted a recognized hazard within the meaning of section 5(a)(1).

In vacating the citation Judge Broz did not consider the question of whether the alleged conditions constituted a “recognized hazard” as the terms are used in section 5(a)(1).   Instead, he predicated his disposition of the case upon his interpretation of the knowledge requirement for a serious violation as prescribed by section 17(k)   of the Act.   He specifically concluded that Respondent did not, and could not with the exercise of reasonable diligence, know of the presence of lethal concentrations of hydrogen sulfide gas in its workplace.

We have reviewed the record, the Judge’s decision,   and the briefs of the parties.   We conclude that the Judge did not err in acting to vacate the citation; however, we do not agree with his stated reasons for taking the action.

Respondent is a manufacturer of concentrates to be used in the production of feed for livestock and poultry.   To that end, Respondent buys fish solubles in slurry form for use in its business.   The slurry comprises a mixture of proteinaceous fish material in a water diluted solution of sulfuric acid. Sulfuric acid is employed in the slurry to prevent or impede bacteriological decomposition of the fish material.

Sometime during the night of July 15-16, 1971, a shipment of fish solubles was discharged into a holding pit at Respondent’s workplace.   It appears that the slurry overflowed into a basement and covered the floor to a height of 31 inches.   The basement was pumped out leaving a residue standing at a height of about 3 inches.   Employees were then sent in to clean up the basement. The employees descended the basement steps and almost immediately experienced extreme difficulty in breathing.   Two employees succumbed and rescue efforts were immediately attempted by other employees.   None of the employees were equipped with personal protective equipment; i.e., self-contained oxygen systems.   Ultimately, firemen equipped with such systems removed five employees from the basement. Three of the employees were dead and two were unable to testify at this hearing due to the protracted effects of the incident.

At trial, the parties assumed that the deaths and injuries resulted from hydrogen sulfide gas.   Their area of factual disagreement centered on the question of the manner in which the gas was generated.   Thus, the Secretary attempted to prove that the gas was generated   through bacteriological decomposition of the fish solubles. Respondent countered with a theory that the gas was generated by a chemical reaction occurring as an incidental result of an attempt made to provide ventilation to the basement.

The area of factual disagreement had its counterpoint in law.   Thus, the question to which the foregoing evidence of causation was directed is whether Respondent knew, or should have known, of the hazard that existed in its workplace.   However, the violation charged was that Respondent violated section 5(a)(1); i.e., the general duty requirement. n1 Accordingly, the threshold question to be determined is whether the presence of hydrogen sulfide gas constituted a “recognized hazard” causing or likely to cause death or serious physical harm to Respondent’s employees.