Kelly Springfield Tire Co., Inc. v. Donovan

• Decision Date: 06 April 1984
• Docket Number: No. 82-4389,82-4389
• Citation: 729 F.2d 317
• Parties: 11 O.S.H. Cas.(BNA) 1889, 1984-1985 O.S.H.D. ( 26,867 KELLY SPRINGFIELD TIRE COMPANY, INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, and Occupational Safety and Health Administration, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

729 F.2d 317

11 O.S.H. Cas.(BNA) 1889, 1984-1985 O.S.H.D. ( 26,867

KELLY SPRINGFIELD TIRE COMPANY, INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, and Occupational Safety and Health Administration, Respondents.

No. 82-4389.

United States Court of Appeals, Fifth Circuit.

April 6, 1984.

Michael A. Hatchell, Harry L. Gillam, Jr., Tyler, Tex., for petitioner.

Domenique Kirchner, Atty., Dept. of Labor, F.P.L.B., Washington, D.C., for respondents.

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

Before GOLDBERG, GEE and TATE, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case Petitioner, Kelly Springfield Tire Company ("Kelly"), seeks a review of a final order of the Occupational Safety and Health Review Commission ("the Commission"). The Commission found that Kelly committed a serious violation of the Occupational Safety and Health Act's ("the Act") general duty clause. 29 U.S.C Secs. 654(a)(1) and 666(j). ¹ This court finds that the determination below is supported by substantial evidence and affirms.

I. BACKGROUND

Kelly, a subsidiary of Goodyear Tire Company, has manufactured passenger car tires in its plant in Tyler, Texas since 1962. With approximately 500 employees working three eight hour shifts, the facility turns out tires around the clock. One part of the production processes, "rib-buffing," involves the grinding away of a thin layer of rubber along the rib of a tire to reveal a white sidewall. This process produces large quantities of rubber particles from the tire's rib and white dust from the whitewall. Occasionally, the friction of the grinding stone against the tire generates enough heat to ignite the rubber particles, producing sparks and rubber embers.

A. The Machine

Kelly uses a "ventrijet dust collection system" to remove accumulations of the rubber particles and white-wall dust. Functioning like a giant vacuum cleaner, the system sucks up the refuse through pick-up nozzles connected to a sheet metal hood which fits over the grinding stone. The ground particles flow through the nozzles into a duct which leads to a large, box-like piece of equipment called the dust collector. A fan in the dust collector, capable of drawing 10,000 cubic feet of air per minute, creates the vacuum which draws the particles through the ductwork into the collector.

From the ductwork, the air enters a large chamber partially filled with water. Some of the dust particles fall into the water at this point. The air is then forced into a companion chamber through a row of "venturi tubes." The water level in the chambers is such that the air's movement through the tubes creates a disturbance, causing dust particles and water to combine. Weighted down by the water, the particles fall to the water's surface, eventually sinking to the bottom of the chamber to be removed as "sludge" by a conveyor belt. Clean air is expelled from the collector through another series of ducts.

Throughout the tire manufacturing industry, fires are common in this type of dust collection system. Suffering around 70 such fires in the last 15 years, Kelly maintains a permanent fire brigade specifically to fight rubber dust fires. Proper water level is critical in sustaining a vacuum in the system and preventing fires. With decreased vacuum pressure, dust can accumulate in the system and increase the potential that ignited rubber particles will start a fire. Dust accumulation may be minimized by maintaining proper water levels around the venturi tubes and by adhering to the manufacturer's recommendation to remove dust accumulations once a week.

B. The Incident

On May 12, 1978, a fire occurred in the ductwork at rib buffer No. 11 which, along with rib buffers Nos. 9 and 10, fed into dust collection system No. 4. The fire was quickly extinguished. A staff mechanical engineer responding to the fire alarm was advised that the water level was low in dust collector No. 4. One of Kelly's area mechanics investigated No. 4 and determined the water level was indeed low. He opened the collector's access door to investigate the cause of the low water level, which turned out to be a malfunctioning automatic water control valve. About the time he shut the door, he heard a fire alarm indicating a fire at the No. 9 rib buffer. He left the dust collector and proceeded towards the rib buffer. About 10 to 15 seconds after the mechanic had closed the access door, dust collector No. 4 exploded. The explosion blew the cast iron access doors off their hinges and bulged the sides of the collector unit. Although the dust collector was located in a work area, no one was hurt.

C. Proceedings Below

In the days following the explosion, compliance officers for the Occupational Safety and Health Administration inspected Kelly's Tyler plant. Based on the inspection, the Secretary of Labor cited Kelly ² for a serious violation of the general duty clause, 29 U.S.C. Secs. 654(a)(1) and 666(j). Kelly contested the citation and the case was assigned to a Commission Administrative Law Judge (the "ALJ"). At the hearing Kelly called as witnesses five of its own employees and one employee of Goodyear, its parent corporation. Their testimony suggested that neither Kelly nor the tire industry in general recognized an explosion hazard from the operation of the ventrijet dust collection system. Thomas I. Rutledge, a regional sales manager for the Carborundum Company, a manufacturer of dust collection systems, also testified for Kelly. He claimed that he was not aware "that there was--or is--an explosion hazard." Record, 255.

The Secretary of Labor countered by calling as a witness James Tarr, a chemical engineer specializing in air pollution abatement systems. ³ He testified that the way in which Kelly operated its dust collection system constituted a hazard. Given the history of fires at the plant, he claimed that explosions were a "foreseeable" and "predictable" consequence of Kelly's operation of its dust collection system. Record, 202-206. In addition, cross-examination of Mr. Rutledge resulted in his admission that in "a circumstance where there is a history of fires inside a water scrubber and a known problem with low water levels," he would recommend "venting panels" to protect against the dangers of an explosion. Record, 260.

After the hearing, the ALJ found that neither Kelly's management nor the industry in general recognized an explosion hazard from operation of dust collection systems like the one at Kelly. Accordingly, he vacated the citation. The Commission, by a vote of 2-1, reversed the judge's factual findings and affirmed the citation. Finding that the hazard was recognized, the majority simply credited Mr. Tarr's testimony and Mr. Rutledge's cross examination statement over contrary testimony from Kelly's experts. The Commission further found that feasible measures existed--i.e., cleaning dust accumulations from the collector and ducts and installing a "bounced air system" ⁴ to control water levels--by which Kelly could have materially reduced the hazard. Kelly now petitions this Court for review of the Commission's final order.

II. ISSUES ON APPEAL

To establish a violation of the general duty clause, the Secretary must prove that (1) the employer failed to render its workplace free of a hazard; (2) the hazard was "recognized" and (3) the hazard caused or was likely to cause death or serious physical harm. Georgia Electric Co. v. Marshall, 595 F.2d 309, 321 (5th Cir.1979); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir.1976); National Realty and Construction Co. v. OSHRC and Secretary, 489 F.2d 1257, 1265 (D.C.Cir.1973). Kelly focuses its main arguments on the second and third elements of the Secretary's burden. In its arguments concerning the second element, Kelly points to the nature of the testimony relied on by the Secretary. The company contends that the evidence adduced at the hearing is insufficient to support a finding that the hazard was recognized. With respect to the third element of proof, Kelly admits that "an explosion of the magnitude involved here has the potential to cause bodily injury." Petitioner's Brief, 18. Kelly argues, however, that this fact alone is insufficient to prove that the hazard "caused or was likely to cause death or serious physical harm." Rather, this court should impose a new standard, looking to whether the operation of the dust collector produced a "significant risk" of explosion.

III. ANALYSIS

A. Recognition of the Hazard

The broad issue that we face today is whether the Commission's findings are supported by substantial evidence. 29 U.S.C. Sec. 660(a). This court is bound by the Commission's findings on questions of fact and reasonable inferences drawn therefrom if they are supported by substantial evidence on the record, even if we could justifiably reach a different result de novo. H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir.1981); see also, NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). Furthermore, this "substantial evidence" review focuses on the Commission's final order; the Commission and not the ALJ occupies the factfinder's role under the Act. Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir.1979); Acu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir.1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976).

Establishing that a hazard was recognized requires proof that the employer had actual knowledge that the condition was hazardous or proof that the condition is generally known to be hazardous in the industry. Georgia Electric Co. v. Marshall, supra, 595 F.2d at 321. Whether or not a hazard was recognized constitutes a matter of objective determination. Id. Kelly labels the Tarr testimony as a "kitchen chemistry" approach, maintaining that Mr. Tarr testified only as to "abstract scientific principles." The company also points to Mr. Tarr's admission...