715 F.2d 57 (2nd Cir. 1983), 1055, Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Donovan

Docket Nº:1055, Docket 82-4186.
Citation:715 F.2d 57
Party Name:P 26,647 PRATT & WHITNEY AIRCRAFT, DIVISION OF UNITED TECHNOLOGIES CORPORATION, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor and Occupational Safety and Health Review Commission, Respondents.
Case Date:August 12, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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715 F.2d 57 (2nd Cir. 1983)

P 26,647

PRATT & WHITNEY AIRCRAFT, DIVISION OF UNITED TECHNOLOGIES

CORPORATION, Petitioner,

v.

Raymond J. DONOVAN, Secretary of Labor and Occupational

Safety and Health Review Commission, Respondents.

No. 1055, Docket 82-4186.

United States Court of Appeals, Second Circuit

August 12, 1983

Argued April 15, 1983.

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Edward J. Dempsey, Hartford, Conn. (Joseph C. Wells, Farmer, Wells, McGuinn & Sibal, Hartford, Conn., of counsel), for petitioner.

Laura V. Fargas, U.S. Dept. of Labor, Washington, D.C. (Albert H. Ross, Regional Sol., Boston, Mass., T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol., Occupational Safety and Health, Dennis K. Kade, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., of counsel), for respondents.

Before FEINBERG, Chief Judge, MESKILL, Circuit Judge, and WYATT, [*] District Judge.

MESKILL, Circuit Judge:

We are asked to review for the second time a final order of the Occupational Safety and Health Review Commission (Commission) holding Pratt & Whitney Aircraft, Division of United Technologies Corporation

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(Pratt & Whitney), in serious violation of 29 C.F.R. § 1910.94(d)(7)(iii) (1982), a safety and health standard promulgated pursuant to the Occupational Safety and Health Act of 1970 (OSHA). 1 29 U.S.C. §§ 651-78 (1976 & Supp. II 1978). The standard provides that "[t]wo or more operations shall not be connected to the same exhaust system where either one or the combination of substances removed may constitute a fire, explosion, or chemical reaction hazard in the duct system."

In its original order, the Commission held that the Secretary had established a serious violation of section 1910.94(d)(7)(iii) by showing the "realistic possibility" of a fire, explosion, or chemical reaction hazard in the common duct systems servicing plating operations at Pratt & Whitney's manufacturing plant in North Haven, Connecticut. We vacated the Commission's order in Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir.1981), because the test employed by the Commission "would permit this safety standard to be applied to conditions posing insignificant risks that are beyond the scope of the [OSHA] Act." Id. at 104. But we remanded the case so that the Commission could determine whether Pratt & Whitney's use of common ducts gave rise to a "significant risk" of a fire, explosion, or chemical reaction hazard. The Commission reaffirmed its prior decision and Pratt & Whitney filed the instant petition for review pursuant to 29 U.S.C. § 660(a) (1976). Pratt & Whitney complains that the Commission improperly applied the significant risk test formulated by this Court and, alternatively, argues that there is insufficient evidence to sustain the Commission's decision.

The petition for review is granted and the Commission's order, to the extent that it affirmed the citation for violation of 29 C.F.R. § 1910.94(d)(7)(iii), is set aside.

BACKGROUND

Part of Pratt & Whitney's manufacturing plant in North Haven, Connecticut is reserved for electroplating jet engine parts with various substances, including cadmium, chrome, silver, copper and nickel. There are seven separate plating lines, each line comprised of open tanks of solutions into which jet engine parts are dipped for cleaning, rinsing, plating and slushing. All seven lines contain open tanks of cyanides and acids. In addition, one plating line contains open tanks of hydrogen peroxide, concentrated acetic acid and heated slushing oil. Each plating line is serviced by an exhaust system comprised of individual exhaust ducts suspended over the open tanks which are connected by a chimney-like "plenum" to a common duct that feeds the exhaust through a stack in the roof.

After an inspection of the North Haven plant in the spring of 1975, the Secretary

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issued a citation to Pratt & Whitney alleging, in part, that the manufacturer's use of common exhaust ducts to service its plating lines constituted a serious violation of 29 C.F.R. § 1910.94(d)(7)(iii) (1982) in that the substances removed from the open tanks could combine in the common ducts to pose a fire, explosion, or chemical reaction hazard. 2 At a full hearing before an Administrative Law Judge (ALJ) in 1975, the Secretary contended that acid mists and cyanide mists could rise from the open tanks and combine in the common duct of each plating line to form hydrogen cyanide gas. This deadly gas could conceivably asphyxiate employees who were near the stacks on the roof or, if a downdraft swept the gas back into the plating department, employees who were in the plant. Hydrogen cyanide gas also poses a serious fire or explosion hazard because of its low flash point.

In addition, the Secretary maintained that at one plating line mists rising from a tank containing hydrogen peroxide could mix in the common duct with mists rising from a tank containing heated slushing oil to create a high hazard of explosion. Moreover, hydrogen peroxide mists could combine with acetic acid mists to form peracetic acid which also poses fire and explosion hazards.

The ALJ vacated the citation because the Secretary had failed to prove that the alleged hazards were likely to materialize.

Complainant's evidence does not demonstrate the existence of hydrogen cyanide gas or peracetic acid in the common duct system. It does not establish that the hydrogen peroxide and slushing oil combine in the common duct. The Secretary has presented textbook theory, without obtaining readily available information which would show whether there existed at Respondent's facility those specific conditions required for the creation of a fire, explosion, or chemical reaction hazard. He has offered nothing more than conjecture. In addition, he suggests that a hazard might arise ... by virtue of a ventilation breakdown, malfunction of the heating systems for the various solutions, spontaneous combustion caused by an employee's smoking, heat caused by mechanical failure, a down-draft of effluent or "by some yet unimagined happening." We have no showing of any reasonable likelihood of such mishaps; the Secretary might just as well have suggested the possibilities of arson or insurrection.

J.App. at 11. The Commission, however, reinstated the citation on this score.

Section 1910.94(d)(7)(iii) is violated whenever the same exhaust system is used to remove two or more substances, when either one or a combination of the substances may constitute a fire, explosion or chemical reaction hazard in the duct system. The use of the word "may" makes it clear that a violation is established whenever a hazardous combination of the substances is possible. It is not necessary to prove that the chemical reaction is reasonably likely or that the prohibited hazards actually threaten employees at the time of the inspection. The standard is directed toward the control of possible or potential hazards. Cf. Brennan v. OSHRC and Underhill Constr. Corp., 513 F.2d 1032, 1039 (2d Cir.1975).

J.App. at 18. Despite "the relatively low likelihood of an incident," the Commission concluded that the Secretary had demonstrated a serious violation of OSHA because "in the event of an incident, there is a

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substantial probability that death or serious physical injury would result." Id. at 20.

We vacated the Commission's order. While section 1910.94(d)(7)(iii) speaks in terms of possibilities, we held, in light of the Supreme Court's decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (plurality opinion), that the regulation "can properly be interpreted as proscribing an employer's use of a common exhaust system only where there exists a 'significant risk' that a combination of the substances removed will cause a fire, explosion, or chemical reaction hazard." 649 F.2d at 104; see Industrial Union Department, 448 U.S. at 641, 100 S.Ct. at 2863 ("both the language and structure of the [OSHA] Act, as well as its legislative history, indicate that it was intended to require the elimination, as far as possible, of significant risks of harm"). Because the Commission's "possibility" standard embraced conditions beyond the scope of OSHA, we set aside its order and remanded the case.

The Commission did not receive further evidence on remand. After reviewing the record in light of briefs submitted by the parties, a divided Commission reaffirmed its earlier decision on the Secretary's section 1910.94(d)(7)(iii) claim. The two Commissioners who made up the majority had participated in the earlier decision. The Chairman of the Commission, appointed after the first decision, dissented from the second decision. In reaffirming the first decision, the majority rejected the ALJ's conclusion that the likelihood of any hazard was too minimal to support a violation of the standard. Instead, it credited the testimony of the Secretary's expert witness that the industry practice is to vent separately the types of chemicals involved and the testimony of Pratt & Whitney's industrial hygienist that using exhaust ducts under the circumstances...

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