Brennan v. Occupational Safety & Health Review Com'n, No. 73-1235.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMEHAFFY, , MOORE, Senior Circuit , and WEBSTER, Circuit
Citation494 F.2d 460
PartiesPeter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Vy Lactos Laboratories, Inc., Respondents.
Decision Date05 April 1974
Docket NumberNo. 73-1235.

494 F.2d 460 (1974)

Peter J. BRENNAN, Secretary 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 Circuit.

Submitted November 12, 1973.

Decided April 5, 1974.


494 F.2d 461

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

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

Before MEHAFFY, Chief Judge, MOORE,* Senior Circuit Judge, and WEBSTER, Circuit Judge.

MEHAFFY, Chief Judge.

The Secretary of Labor has petitioned this court to review the decision of the

494 F.2d 462
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 report and order that had vacated a citation and proposed penalty issued by the Secretary to Vy Lactos for an alleged serious violation of the Occupational Safety and Health Act's general duty clause, 29 U.S.C. § 654(a)(1). The Secretary argues that the Commission's decision is based on an erroneous construction of the general duty clause and that we should therefore reverse the decision and reinstate the citation and proposed penalty. For the reasons stated below, we agree that the Commission's decision must be reversed, but on the basis of the record before us we feel compelled to remand the matter for further administrative proceedings

I. The Incident.

Respondent Vy Lactos Laboratories is an interstate manufacturer of animal feed concentrates. In the course of the manufacturing process at its Des Moines, Iowa plant 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 plant.

On the evening of July 15, 1971 a truck delivered a full load of fish slurry into one of the basement tanks of the Vy Lactos plant 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 then directed to enter the basement room in order to clean up the remaining slurry and repair some pumps that had been submerged under the overflow. The employees who entered the basement were almost immediately overcome, apparently by hydrogen sulfide gas, as were those who tried to come to their assistance. Vy Lactos had no emergency breathing apparatus available in the plant and had taken no safety precautions to cope with accumulations of hydrogen sulfide gas. The men who had been overcome were extricated by the fire department rescue squad. Ultimately three of the employees died and two were seriously injured.

II. The Hearing Examiner's Report.

After an inspection and investigation of the foregoing incident the Secretary issued Vy Lactos a citation for a serious violation of the general duty clause of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(1), and assessed a proposed penalty of $750.00. Vy Lactos contested the citation and proposed penalty, and a hearing was subsequently held before an OSHRC hearing examiner. At the hearing the Secretary proceeded on the theory that the lethal accumulation of hydrogen sulfide gas was the foreseeable result 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 between the acid in the slurry and iron 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.

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

* * * the employer
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31 practice notes
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 6 Mayo 1981
    ...the particular employer or generally known in the industry. Marquette Cement, 568 F.2d at 910; Brennan v. OSHRC (Vy Lactos Laboratories), 494 F.2d 460, 463-64 (8th Cir. 1974). We believe the record supports the finding that St. Joe had both actual and constructive knowledge 6 of the danger ......
  • Stephenson v. R.A. Jones & Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • 8 Julio 1986
    ...See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 909-10 (2nd Cir.1977); Brennan v. Occupational Safety & Health Review Comm'n, 494 F.2d 460, 463-64 (8th Cir.1974). At trial, Sunshine's safety director testified that OSHA regulations Page 216 mandated that its cartoner machines have a s......
  • S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, Nos. 79-2358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Octubre 1981
    ...of actual knowledge, a remand would be required in order to permit the Commission to complete the factfinding process. Brennan v. OSHRC, 494 F.2d 460, 464 (8th Cir. 1974). Because we hold that a finding of actual knowledge would not be supported by substantial evidence in the record of eith......
  • Mason v. Texaco, Inc., Civ. A. No. 78-1337.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 6 Julio 1990
    ...health standards promulgated under this Act. 29 U.S.C. § 654(a) (emphasis added); Brennan v. Occupational Safety & Health Review Comm'n, 494 F.2d 460, 464 (8th Cir. 1974) ("recognized hazard" refers to hazards actually known by employer as well as those generally recognized in employer's in......
  • Request a trial to view additional results
31 cases
  • St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n, No. 79-1873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 6 Mayo 1981
    ...the particular employer or generally known in the industry. Marquette Cement, 568 F.2d at 910; Brennan v. OSHRC (Vy Lactos Laboratories), 494 F.2d 460, 463-64 (8th Cir. 1974). We believe the record supports the finding that St. Joe had both actual and constructive knowledge 6 of the danger ......
  • Stephenson v. R.A. Jones & Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • 8 Julio 1986
    ...See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 909-10 (2nd Cir.1977); Brennan v. Occupational Safety & Health Review Comm'n, 494 F.2d 460, 463-64 (8th Cir.1974). At trial, Sunshine's safety director testified that OSHA regulations Page 216 mandated that its cartoner machines have a s......
  • Mason v. Texaco, Inc., Civ. A. No. 78-1337.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 6 Julio 1990
    ...health standards promulgated under this Act. 29 U.S.C. § 654(a) (emphasis added); Brennan v. Occupational Safety & Health Review Comm'n, 494 F.2d 460, 464 (8th Cir. 1974) ("recognized hazard" refers to hazards actually known by employer as well as those generally recognized in employer's in......
  • S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Com'n, Nos. 79-2358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Octubre 1981
    ...of actual knowledge, a remand would be required in order to permit the Commission to complete the factfinding process. Brennan v. OSHRC, 494 F.2d 460, 464 (8th Cir. 1974). Because we hold that a finding of actual knowledge would not be supported by substantial evidence in the record of eith......
  • Request a trial to view additional results

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