Brennan v. Occupational Safety & Health Review Com'n
| Decision Date | 05 April 1974 |
| Docket Number | No. 73-1235.,73-1235. |
| Citation | 494 F.2d 460 |
| Parties | Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Vy Lactos Laboratories, Inc., Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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.
The Secretary of Labor has petitioned this court to review the decision of the 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.
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.
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 did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
The hearing examiner's use of section 17(k) of the Act as the sole basis for dismissing the citation and proposed penalty has two basic weaknesses. First, the provisions of section 17(k) relate only to determinations involving serious violations of the Act. In addition to serious violations (which must be penalized by a fine of up to $1,000.00), the Act also provides that an employer may be cited for de minimis violations (which carry no penalty) and for "violations" simpliciter (which may be penalized by a fine of up to $1,000.00). Thus the hearing examiner's section 17(k) rationale is irrelevant to any determination of whether or not the Secretary had established a violation, de minimis or simpliciter. The second basic weakness of the hearing examiner's rationale is that it addresses itself to the foreseeability of the incident as it actually occurred rather than the foreseeability of the general hazard of hydrogen sulfide accumulations. Neither the general duty clause nor section 17(k) requires any actual death or physical injury for a violation to occur. A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable "recognized hazards" that are causing or are likely to cause death or serious physical injury. Thus, even if the three deaths and two serious injuries involved here were actually the result of an unforeseeable chemical reaction, Vy Lactos may still have been in violation of the general duty clause because of its self-admitted failure to take any precautionary steps whatsoever to protect its employees from the hazard of hydrogen sulfide accumulations that is now apparent.
Pursuant to the provisions of 29 U.S. C. § 661(i) Commissioner Burch directed review of the hearing examiner's decision before the full Commission....
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