Bunge Corp. v. Secretary of Labor

• Decision Date: 05 March 1981
• Docket Number: No. 79-1906,79-1906
• Citation: 638 F.2d 831
• Parties: 9 O.S.H. Cas.(BNA) 1312, 1981 O.S.H.D. (CCH) P 25,252 BUNGE CORPORATION, Petitioner, v. SECRETARY OF LABOR and the Occupational Safety and Health Review Commission, Respondents. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 831

638 F.2d 831

9 O.S.H. Cas.(BNA) 1312, 1981 O.S.H.D. (CCH) P 25,252

BUNGE CORPORATION, Petitioner, v. SECRETARY OF LABOR and the Occupational Safety and Health Review Commission, Respondents.

No. 79-1906.

United States Court of Appeals, Fifth Circuit.

Unit A

March 5, 1981.

Monroe & Lemann, Alvin J. Bordelon, Jr., Andrew P. Carter, David E. Walker, New Orleans, La., Lynn E. Pollan, New York City, for petitioner.

Carin A. Clauss, Sol. of Labor, Ann D. Nachbar, Allen H. Feldman, Benjamin W. Mintz, U. S. Dept. of Labor, Marleigh Dover Long, Atty., Dept. of Justice, Washington, D. C., James E. White, Regional Sol., U. S. Dept. of Labor, Dallas, Tex., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is an appeal from the Occupational Safety and Health Review Commission (Commission). The Commission found petitioner Bunge Corporation (Bunge) to have seriously and repeatedly violated an Occupational Safety and Health Administration (OSHA) housekeeping regulation. The issues before this Court are whether there is substantial evidence that Bunge violated the housekeeping regulation, whether there is substantial evidence that the violation was serious, and whether that violation can properly be considered a repeated violation within the meaning of the Occupational Safety and Health Act the latter issue one of first impression in this Circuit. This Court affirms the Commission decision.

I. Facts

Bunge owns and operates over one hundred grain elevators in the United States, and is one of the world's largest grain handlers. The elevator involved in this litigation is located at Destrehan, Louisiana. It handles between 1,000,000 and 1,500,000 bushels of grain daily and generates approximately 59 tons of grain dust each day.

Depending on the size of the dust particles, some of it becomes suspended in the air, while the remainder settles on ledges, stairs, floors, machinery, and other surfaces throughout the grain elevator. Bunge maintains many dust control systems throughout the elevator that pick up dust at locations where there is significant grain turbulence. In addition, manual clean-up activities are required for dust in places not adequately reached by the vacuums.

This facility was twice previously cited for violations of the OSHA housekeeping regulation, 29 C.F.R. § 1910.22(a)(1), one of the general standards. ¹ In 1973, Bunge was cited for dust accumulations on equipment, and cited for dust piles, hoses, ropes, and electric cords in walking areas. In 1975, Bunge was again cited for violation of the housekeeping standard, this time for metal and wood pieces, hoses, wire rope cable, and manilla rope left in walking areas. Neither citation was contested by Bunge. Bunge elevators have also been cited at three other locations for nonserious violations of the housekeeping standards; in one instance for dust accumulation. Bunge contested none of these citations. ²

An OSHA compliance officer inspected the Destrehan facility between February 28 and March 17, 1978. As a result OSHA issued citations against Bunge. One was for willful violation of the housekeeping standard. The latter citation listed forty-two locations where dust and grain had accumulated; this condition was alleged to be poor housekeeping and to create a fire hazard. ³ A $10,000 penalty was proposed and abatement of the violation immediately ordered. Bunge timely contested the citation and a hearing was set before an administrative law judge (ALJ) of the Commission. The Secretary of Labor alleged that the violation of the housekeeping regulation was willful, repeated, and serious, and requested the $10,000 penalty.

At the hearing, Bunge stipulated that the OSHA compliance officer observed forty-two instances of poor housekeeping, which consisted primarily of dust and grain accumulations. The company at the same time contended that since it had undertaken considerable effort and expense to control its dust problem, the violation was not "willful." Bunge also disputed the "serious" characterization of the hazard posed by the dust accumulations on the ground that the evidence demonstrated neither the likelihood of an explosion nor Bunge's actual or constructive knowledge of the explosion hazard.

The ALJ affirmed the citation. He held that the violation was repeated and serious, but not willful, and assessed the $10,000 penalty. This decision became a final order of the Commission by operation of law and Bunge timely appealed to this Court.

II. The Violation and Seriousness of the Violation of the Housekeeping Regulation

A. The Violation

It is undisputed that the dust accumulation existed at the elevator Bunge stipulated at the hearing to the existence of the dust accumulations. Section 1910.22(a)(1) requires all places of employment, passageways, storerooms, and service rooms be kept in a clean, orderly, and sanitary condition. Therefore, there is substantial evidence to support the finding that the housekeeping regulation was violated by the existence of the dust accumulation condition.

Bunge's contention, rather, is that the housekeeping regulation has been impermissibly expanded to include fire and explosion hazards instead of, for example, tripping and slipping hazards. ⁴ The type of hazard, however, is irrelevant to whether some condition or practice constitutes a violation of this regulation. Unless the general standard incorporates a hazard as a violative element, the proscribed condition or practice is all that the Secretary must show; hazard is presumed and is relevant only to whether the violation constitutes a "serious" one. See, e. g., Central of Georgia R.R. Co. v. OSHRC, 576 F.2d 620 (5th Cir. 1978); Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975); Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir. 1975). Compare 29 U.S.C.A. § 654(a)(1) (recognized hazard causing or likely to cause death or serious physical harm) with id. § 666(j) (violation serious if substantial probability that death or serious physical harm could result from a condition, practice, or process). Condition is what gives rise to a violation here. Therefore, the regulation was not impermissibly extended to cover fire and explosion hazards. The grain dust accumulations were properly cited as an unclean condition in violation of the housekeeping regulation.

B. The Seriousness of the Violation

Whether the violative condition is serious depends on an application of 29 U.S.C.A. § 666(j), which provides that a violation is serious

if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The first part of the statutory test is thus a calculation of the probable extent of physical injury should the accident occur. See Shaw Construction Co., Inc. v. OSHRC, 534 F.2d 1183, 1185 n.4 (5th Cir. 1976). See also Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir. 1978). Therefore, the seriousness of the violation depends on the hazard produced by the condition, subject to the second part of the statutory test the negligence-type limitation of employer lack of actual or constructive knowledge.

The ALJ found that the dust accumulations could contribute to an explosion likely to kill or seriously injure employees, and that because the dust piles were in plain sight Bunge knew or should have known of the violation of the housekeeping regulation. There was substantial evidence to justify the ALJ's conclusion. ⁵

C. Other Arguments

Bunge also argues that the Secretary is required to prove that the explosion hazard actually existed and was or should have been a hazard recognized by the employer. This argument proceeds on the assumption that although this is technically a "section 5(a)(2)" case failure to comply with OSHA standards promulgated under the Act it should be treated instead like a "section 5(a) (1)" case a violation of the "general duty clause" requirement to furnish each employee a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to the employees. 29 U.S.C.A. § 654(a)(1) & (2).

Bunge's argument that this case should be treated as a section 5(a)(1) case rests on its earlier argument that the Secretary extended the housekeeping regulation to situations for which it was never intended. This Court again rejects the theory that the housekeeping regulation can include only tripping and slipping but not fire and explosion hazards. In a section 5(a)(1) case the Secretary must show, among other things, the existence of the hazard, recognition of the hazard by the employer or the industry in general, and worker exposure to the hazard. Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir. 1976); Brennan v. OSHRC, 494 F.2d 460 (8th Cir. 1974); National Realty Construction Co. v. OSHRC, 489 F.2d 1257 (D.C.Cir.1973). When the standard incorporates hazard as an element of the violation, then the Secretary must show hazard in addition to condition or practice the standard keys the violation to hazard just like the general duty clause. The existence of a hazard is not always an element, however, of the Secretary's burden of proof for showing violation of an OSHA standard. When the violative element is only a condition, hazard is presumed, and the Secretary need only show the existence of the violative condition and worker exposure to the condition. See, e. g., Central of Georgia R.R. Co. v. OSHRC, 576 F.2d 620 (5th Cir. 1978); Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975); Lee...