579 F.2d 536 (9th Cir. 1978), 75-3724, Titanium Metals Corp. of America v. Usery

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation579 F.2d 536
Date04 August 1978
PartiesTITANIUM METALS CORPORATION OF AMERICA, Petitioner, v. W. J. USERY, Secretary of Labor, U. S. Department of Labor and Occupational Safety and Health Review Commission, Respondents.
Docket Number75-3724.

Page 536

579 F.2d 536 (9th Cir. 1978)

TITANIUM METALS CORPORATION OF AMERICA, Petitioner,

v.

W. J. USERY, Secretary of Labor, U. S. Department of Labor

and Occupational Safety and Health Review

Commission, Respondents.

No. 75-3724.

United States Court of Appeals, Ninth Circuit

August 4, 1978

Page 537

[Copyrighted Material Omitted]

Page 538

Gary Goodheart (argued), Las Vegas, Nev., for petitioner.

Allen H. Feldman (argued), Washington, D. C., for respondents.

On Appeal from the Occupational Safety and Health Review Commission.

Before CHAMBERS and KILKENNY, Circuit Judges, and KELLEHER [*], District Judge.

PER CURIAM:

Titanium Metals Corporation of America has petitioned this court to review an order of the Occupational Safety and Health Review Commission ("OSHRC") finding the petitioner (respondent below) to have committed a serious violation of the general duty clause of the Occupational Safety and Health Act ("OSHA"). 1 Because we find that the Commission's decision is supported by substantial evidence when the record is considered as a whole, we affirm.

The finding of a violation of OSHA §§ 5(a)(1) and 17(k) was the culmination of an investigation prompted by an explosion and fire that occurred in and around a "24 to one" splitter in Unit 11 of petitioner's plant in Henderson, Nevada, on October 24, 1974, as a result of which one of petitioner's employees working on the splitter at the time sustained fatal burns.

The issue presented is whether the record, considered as a whole, substantially supports the administrative law judge's finding that petitioner committed a serious violation of OSHA's general duty clause by "allowing excessive amounts of titanium dust and fines (particles somewhat larger than dust) to accumulate on its 24 to one splitter and other surfaces in Unit 11 of its Henderson plant."

In affirming the Commission's order, we make no determination as to a matter of law of what constitutes "a recognized hazard causing or . . . likely to cause death or serious physical harm" nor do we set as a matter of law any standard in the titanium industry of permissible accumulation of dust and fines. As noted above, we do no more than apply the traditional rule of appellate review of an administrative determination. We leave to the Commission to determine on a case-by-case basis whether a violation of the statute has occurred.

Titanium challenges the decision on the grounds that (a) despite titanium's recognized flammability, nevertheless it is not a recognized hazard "causing or . . . likely to cause death or serious physical harm" within the meaning of § 5(a)(1) of the OSHA that (b) in the absence of a recognized standard in the industry regarding what level of accumulation of dust and fines constitutes such a hazard (or actual knowledge by Titanium thereof), there can be no violation of § 5(a)(1) as a matter of law, and that (c) in the absence of a showing by the Secretary of Labor ("Secretary") of what feasible and effective measures petitioner could have taken to render Unit 11

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free of such hazard, there is no violation of § 5(a)(1) as a matter of law.

FACTS

Petitioner produces titanium ingots at its plant in Henderson, Nevada, where it employs approximately 950 persons.

Titanium is one of the rare earth substances known as reactive metals, which, because of their tendency to combine with oxygen and nitrogen, cannot be processed by the standard metallurgical processes. Instead titanium is processed inside a sealed reactor. Its affinity for atmospheric gases means that in small particles such as dust or fines it is highly flammable, a fact concerning which there is no dispute. Titanium dust and fines can be ignited by heat, sparks, friction, or simply striking other similar particles. Consequently, the metal must be handled with care.

Unit 11 of petitioner's Henderson plant is a separate area where approximately sixty employees work each shift. About six work on or near a "24 to one" splitter located within Unit 11. The splitter, a large cylindrical machine over thirty feet tall, is utilized in processing titanium. Titanium "sponge" an interim form between raw ore and finished ingots passes from a large overhead tote bin into the splitter's funnel-like feed hopper where it is separated (or "split") by a counterclockwise rotation which distributes the sponge equally into 24 chutes. At the bottom of each chute, a barrel or drum collects the falling sponge. The sponge varies considerably in coarseness and is graded into one of thirteen "codes." A split, four of which typically are made during each shift, involves no chemical change in the titanium.

The splitter operator discharges the sponge from a tote bin by standing on a 24 by 14 foot platform at the third (top) level of the splitter and opening a lock on the bin with a tool called a "T-bar" wrench. This wrench, made of rolled steel, is also used to "bang" the tote bin so as to dislodge sponge caught in the lock and door. The titanium sponge then falls through the feed hopper and, after the split is complete, into the 24 barrels or drums located at ground level below the corresponding chutes.

Splitting titanium sponge produces dust and fines, the amount varying with the grade (or "code") of the sponge being split. The particles typically will suspend in the air and gradually settle on the floors, platforms, beams and walls in and around the splitter. There are a variety of sources of such dust and fines: (a) the tote bin, as it is opened to release sponge into the feed hopper; (b) leaking chutes; and (c) an opening (of six to eight inches) between the bottoms of the chutes and tops of the collecting drugs. (This last is the greatest source of escaping dust and fines.)

To minimize the amount of dust and fines which escaped during the splitting operation, a "rotocomb unit" or collecting tube was installed on the splitter. (Earlier use of a vacuum cleaner-like system had been discontinued due to the fact that that method presented an additional source of ignition, which had on occasion caused fires.) The fan-generated rotocomb unit sucks dust from the top of the splitter hopper into a dust collector.

In addition to the "rotocomb unit," petitioner sought to minimize accumulations of titanium dust and fines by periodic washdowns of the entire area (including walls) and by sweepdowns (at the end of each shift) of the splitter decks and surrounding floor area in Unit 11.

On October 24, 1974, swing-shift splitter operator Randall Kemp released a load of "code 7" sponge from the tote bin into the feed hopper of the splitter. Instantaneously, an explosion and fire erupted on or in the vicinity of the splitter. The fire spread rapidly to other parts of Unit 11, including the walls. Kemp, who had been standing on the third level platform in order to open the tote bin, sustained burns that proved fatal.

ADMINISTRATIVE PROCEEDINGS

On October 25, as a result of the fatality, an OSHA compliance officer made a routine investigation of the Henderson plant.

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On November 5, the Secretary issued two serious citations based on alleged violations of the general duty clause (1) for failure to provide "non-sparking" tools and equipment (i. e., the "T-bar" wrench and the lach assembly on the tote bins) "in an area where explosive conditions existed (the presence of titanium dust and fines), and a stray spark could trigger an explosion" and (2) for allowing "flammable accumulations of titanium dust and fines . . . to accumulate on horizontal surfaces of the 24 to one press splitter, surrounding equipment, and inside structural members of the building."

The Secretary proposed a penalty of $800 for each of the serious violation citations (Citation Nos. 2 and 3). Petitioner timely contested each charge, and by consent of the parties they were tried together before the administrative law judge. At the close of the hearing, the Secretary withdrew Citation No. 2 on the grounds that the charge had merged into and was "part and parcel" of Citation No. 3. This citation was affirmed by the administrative law judge who assessed a penalty of $900. His order is final and is here for review, petitioner having exhausted his administrative remedies.

  1. SCOPE OF REVIEW

    Preliminarily the Court notes that review is limited to the record produced before the administrative law judge, 29 U.S.C. § 660(a). Of more immediate import, review of the findings of fact below is limited to a determination of whether such findings are "supported by substantial evidence on the record considered as a whole," 29 U.S.C. § 660(a). Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir. 1976). 2

    In remarking on the narrow review provided by OSHA, the Court of Appeals for the District of Columbia Circuit, in a leading case on the subject of the general duty clause, aptly has noted:

    A reviewing court will typically be concerned only with the Secretary's production burden. The burden of proof presumably also includes the burden of persuading the Commission, or its hearing examiner, by a preponderance of the evidence, but a reviewing court must uphold a Commission finding supported by substantial evidence, and the Commission's view on the preponderance of the evidence is otherwise final.

    National Realty & Construction Co., Inc. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1263 n. 24 (1973).

    Having this in mind, and similarly having in mind that "(u)nder the (general duty) clause, the Secretary must prove (1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm,' " Id. at 141, 489 F.2d at 1265, the Court proceeds to a review of the record in this case as it bears on the elements of a violation of § 5(a)(1) and on petitioner's contentions previously noted.

  2. RECOGNIZED HAZARD CAUSING OR LIKELY TO...

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