Occupational Safety and Health Review Commission Steps Informal Hearing

494 F.second 460

i O.South.H. Cas.(BNA) 1623

Peter J. BRENNAN, Secretarial assistant of Labor, Petitioner,
v.
OCCUPATIONAL SAFETY AND Health REVIEW COMMISSION, and Vy
Lactos Laboratories, Inc., Respondents.

No. 73-1235.

United states Court of Appeals, Eighth Excursion.

Submitted Nov. 12, 1973.
Decided April 5, 1974.

Michael H. Stein, Atty., Dept. of Justice, Washington, D.C., for petitioner.

Thomas A. Finley, Des Moines, Lowa, for respondents.

Earlier MEHAFFY, Master Judge, MOORE,* Senior Circuit Judge, and WEBSTER, Circuit Guess.

MEHAFFY, Chief Estimate.

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The Secretary of Labor has petitioned this courtroom to review the determination of the Occupational Safety and Health Review Commission in Vy Lactos Laboratories, Inc., OSHRC Dock. No. 31 (Feb. 21, 1973). The decision in question affirmed, but on different grounds, a hearing examiner's study and club that had vacated a citation and proposed punishment issued by the Secretarial assistant to Vy Lactos for an alleged serious violation of the Occupational Safety and Wellness Human action's full general duty clause, 29 U.s.a.C. 654(a)(ane). The Secretary argues that incident and dismissed the citation and erroneous structure of the general duty clause and that we should therefore reverse the decision and reinstate the citation and proposed punishment. For the reasons stated below, we agree that the Commission's conclusion must exist reversed, but on the basis of the tape earlier us we feel compelled to remand the thing for farther authoritative proceedings.

3

Respondent Vy Lactos Laboratories is an interstate manufacturer of animal feed concentrates. In the class of the manufacturing process at its Des Moines, iowa establish Vy Lactos utilizes proteinaceous fish solubles. These fish solubles, which consist of the 'innards and guts' of fish, are received in a liquid 'slurry' form that is treated with sulfuric acid to retard decomposition. The slurry is stored in tanks in the basement of the establish.

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On the evening of July fifteen, 1971 a truck delivered a full load of fish slurry into one of the basement tanks of the Vy Lactos establish in Des Moines. The tank overflowed into an adjacent room in the basement and filled it to a depth of 31 inches. When the overflow was discovered the next morning, a hose was inserted and the slurry pumped out until a depth of three or four inches remained. Employees of Vy Lactos were so directed to enter the basement room in order to clean up the remaining slurry and repair some pumps that had been submerged nether the overflow. The employees who entered the basement were about immediately overcome, apparently past hydrogen sulfide gas, every bit were those who tried to come up to their assistance. Vy Lactos had no emergency animate apparatus available in the found and had taken no safety precautions to cope with accumulations of hydrogen sulfide gas. The men who had been overcome were extricated past the fire department rescue team. Ultimately 3 of the employees died and two were seriously injured.

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II. The Hearing Examiner's Study.

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After an inspection and investigation of the foregoing incident the Secretarial assistant issued Vy Lactos a commendation for a serious violation of the full general duty clause of the Occupational Prophylactic and Health Human action, 29 U.Southward.C. 654(a)(one), and assessed a proposed punishment of $750.00. Vy Lactos contested the citation and proposed penalisation, and a hearing was subsequently held earlier an OSHRC hearing examiner. At the hearing the Secretary proceeded on the theory that the lethal accumulation of hydrogen sulfide gas was the foreseeable effect of natural decomposition of the fish slurry. Vy Lactos, on the other hand, based its proof on the theory that the hydrogen sulfide gas had been produced by a reasonably unforeseeable chemical reaction betwixt the acid in the slurry and fe sulfide particles that allegedly dropped from the ceiling when an employee cut an emergency ventilation hole into the basement room from the floor above with a welding torch.

7

The report and conclusion of the hearing examiner basically adopted Vy Lactos's welding-chemic reaction theory of the incidnet and dismissed the commendation and proposed penalty. The statutory rationale used by the hearing examiner was expressly based on section 17(k) of the Act, 29 U.South.C. 666(j), which provides that no serious violation of the Act shall be deemed to exist where:

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* * * the employer did non, and could not with the do of reasonable diligence, know of the presence of the violation.

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The hearing examiner'south use of department 17(g) of the Act as the sole footing for dimissing the citation and proposed penalization has two basic weaknesses. First, the provisions of section 17(k) relate only to determinations involving serious violations of the Act. In addition to serious violations (which must be penalized by a fine of up to $one,000.00), the Act also provides that an employer may be cited for de minimis violations (which carry no penalization) and for 'violations' simpliciter (which may be penalized by a fine of up to $one,000.00). Thus the hearing examiner'southward section 17(k) rationale is irrelevant to whatsoever conclusion of whether or non the Secretary had established a violation, de minimis or simpliciter. The second bones weakness of the hearing examiner'southward rationale is that it addresses itself to the foreseeability of the incident every bit it actually occurred rather than the foreseeability of the general hazard of hydrogen sulfide accumulations. Neither the general duty clause nor section 17(g) requires whatsoever actual death or physical injury for a violation to occur. A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards' that are causing or are probable to cause death or serious concrete injury. Thus, even if the three deaths and two serious injuries involved here were actually the consequence of an unforeseeable chemical reaction, Vy Lactos may still have been in violation of the full general duty clause considering of its self-admitted failure to take any precautionary steps whatsoever to protect its employees from the run a risk of hydrogen sulfide accumulations that is at present apparent.

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III. The Review Commission Decision.

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Pursuant to the provisions of 29 United statesC. 661(i) Commissioner Burch directed review of the hearing examiner's determination before the total Commission. Although the Commission affirmed, by a vote of two to one, the result reached past the hearing examiner, it expressly refrained from reliance on the hearing examiner's section 17(thou) rationale. Instead, the Commission majority addressed itself to the threshold result of whether or non the general gamble of hydrogen sulfide accumulation was a recognized gamble for purposes of the full general duty clause.

12

The Committee majority was of class right in final that the Secretary had to prove, as an essential element of his example, that the hazard involved was recognized. In formulating the Secretary's brunt on this consequence, however, the Committee majority clearly indicated information technology felt that proof of bodily knowledge on the part of Vy Lactos of the weather and of their chancy nature was not enough. As the majority stated it:

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The question under section five(a)(ane) (the full general duty clause) is not whether Respondent personally recognized the run a risk. Rather, the question is whether the take chances is recognized by the industry of which Respondent is a part.

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Majority stance at 5.

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Commissioner Burch, in his dissent, vigorously attacked the majority'southward decision that an employer's bodily knowledge of a hazard was insufficient to brand that hazard recognized for purposes of the general duty clause. Commissioner Burch's opinion then went on to examine the Secretary'south evidence and concluded that a serious violation had been established.

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IV. The Issue on Appeal.

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In the early on stages of this entreatment information technology appeared that the cardinal event would be whether or not an employer'southward bodily noesis of a hazard would make that adventure 'recognized' for purposes of the full general duty clause. In oral statement, even so, Vy Lactos conceded that bodily cognition of a hazard on the function of an employer would satisfy the general duty clause requirement of recognition.1

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Although this result would take been i of outset impression, it is understandable that respondent so willingly conceded the point. Even a cursory examination of the Deed's legislative history clearly indicates that the term recognized was chosen by Congress not to exclude actual noesis, but rather to achieve across an employer'south bodily noesis to include the by and large recognized knowledge of the industry equally well.

19

In conceding the statutory construction issue Vy Lactos did not concede the outcome of this appeal. Assuming that actual knowledge does satisfy the recognition requirement, Vy Lactos argues quite strenuously that the Secretary failed to establish that respondent did in fact have actual noesis of the gamble before the incident occurred. The Secretary, on the other manus, contends that he established bodily cognition by undisputed evidence. Unfortunately, our review of the record indicates that neither party has conclusively established its instance on bodily knowledge.

20

The record does reverberate that Vy Lactos utilized proteinaceous fish solubles in its manufacturing process. The record as well reflects that Vy Lactos stored the fish solubles and other ingredients in tanks in the basement. The tape reveals that Vy Lactos knew that occasional overflows of some sort of fabric from these tanks into the adjacent basement room had occurred. From the record information technology is also articulate that Vy Lactos had been informed by employees of certain infrequent merely highly malodorous and physically irritating conditions in the basement room. Finally it is clear that Vy Lactos'due south chemist knew that the proteinaceous fish solubles were subject to natural decomposition, that the decomposition process would produce hydrogen sulfide gas, and that hydrogen sulfide gas in sufficient concentration poses a serious take chances of death or physical injury.

21

On the basis of the foregoing facts and the remainder of the tape, either the hearing examiner or the Review Commission might well have been able to conclude as a finding of fact that Vy Lactos had actual noesis of the hazard of hydrogen sulfide accumulation before the incident occurred. Such a finding of fact has not been made, nonetheless, by anyone except Commissioner Burch in his dissent. Neither the facts described above nor the rest of the record establishes the presence or absenteeism of actual knowledge on the part of Vy Lactos as a legal certainty; and this court is powerless to supply the inferences necessary to conclude the factfinding process. It follows that we must remand this case to the Commission for further factfinding proceedings.

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In summary we concur that the Commission erred to the extent that it ignored the Secretarial assistant'due south evidence of actual knowledge in determining whether or non the gamble involved hither had been recognized. We further hold that the record before us is insufficient to conclusively establish either the presence or absence of actual knowledge on the part of Vy Lactos of the hazard. We therefore are compelled to remand this example to the Committee for further factfinding proceedings.

24

The decision and order of the Occupational Safety and Health Review Committee is reversed, and the matter is remended for farther proceedings not inconsistent with this opinion.

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Source: https://openjurist.org/494/f2d/460/brennan-v-occupational-safety-and-health-review-commission

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