Stellar Management Group d/b/a QSI

Plain-English summary

Stellar Management employees used high-pressure, heated water to clean poultry-processing equipment without eye protection. The spray blasted and splashed bone, blood, and chicken particles from equipment while employees worked within three or four feet. The judge found a serious eye hazard and rejected the company's greater-hazard defense. The eye-protection violation was affirmed, and the proposed penalty was reduced to $2,000 based on the low probability of injury and the company's injury history.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.133(a)(1)
• Outcome: One serious eye-protection item was affirmed, with a $2,000 penalty.
• Key point: Employees need eye protection when high-pressure cleaning can send biological debris back toward their faces, even if prior eye injuries have not been recorded.

Full text (OSHRC public release)

                                  United States of America
                 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1924 Building - Room 2R90, 100 Alabama Street, S.W .
                                 Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 11-0302

Stellar Management Group d/b/a QSI,
Respondent.

Appearances:
Charna C. Hollingsworth-Malone, Esquire, Atlanta, GA
For Complainant

      Gerald S. Koenig, Esquire, McLean, VA
      Erin E. Slusser, Esquire, McLean, VA
      For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                  DECISION AND ORDER
      Stellar Management Group d/b/a QSI is engaged in sanitation cleaning. On October 20,

2010, the Occupational Safety and Health Review Administration (OSHA) conducted an
inspection at the Respondent’s jobsite in Buena Vista, Georgia. As a result of this inspection,
OSHA issued a citation to respondent on December 17, 2010. Respondent timely filed a notice
contesting the citation and proposed penalties. A hearing was held, pursuant to simplified
proceedings in Atlanta, Georgia on June 3, 2011.
At the close of the hearing, the parties made oral arguments in lieu of filing post-hearing
briefs. A bench decision was entered following the hearing. For the reasons that follow the
alleged violation of 29 CFR § 1910.133(a)(1) is affirmed and a penalty of $2,000.00 is assessed.
Excerpts of relevant transcript pages and paragraphs, including the bench decision
entered at the hearing, finding of facts and conclusions of law (Tr.182-191) are included in this
decision as follows:
 This case arose as a result of an inspection of the respondent's operation at Tyson Foods
in Buena Vista, Georgia. The case involves Stellar Management Group d/b/a QSI. The
inspection took place October 20, 2010 and as a result of that inspection, a citation was issued to
the company on December 17, 2010. A hearing was held in Atlanta, Georgia, on June 3, 2011.
Both sides were represented. We're in the NLRB hearing room in Atlanta, Georgia. The citation
alleges a violation of 29 CFR 1910.133(a)(1).

   The allegation is that respondent failed to require protective eye equipment where there

was reasonable probability of injury that could be prevented by such equipment. Specifically, on
or about October 20, 2010, in the Processing One Area eye protection was not worn by
employees pressure washing equipment, exposing employees to struck-by hazards. A penalty of
$5,000 was proposed by the Secretary for this alleged violation. The standard allegedly violated
was 29 CFR §1910.133 involving eye and face protection. Specifically, section (a) general
requirements, (1): "The employer shall ensure that each affected employee uses appropriate eye
or face protection when exposed to eye or face hazards from flying particles, molten metal,
liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light
radiation." Now, the Secretary has the burden of establishing that the employer violated the cited
standard. To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that the cited standard applies, that the employer failed to comply
with the terms of the cited standard, that the employees had access to the violative conditions,
and the cited employer either knew or could have known with the exercise of reasonable
diligence of the violative condition. That was established by the Commission in the case of JPC
Group, Inc., 22 BNA OSHC 1859 at 1861, Docket No. 05-1907, issued in the year 2009. This is
a general industry standard which applies to all employers unless a more specific standard
applies in the specific industry. This employer is engaged in sanitation cleaning at Tyson Food
Company. It's involved in the general industry cleaning process. This standard does apply to the
respondent. The issue that needs to be discussed in some great detail is whether the terms of the
standard were violated and whether the company failed to comply with the terms of the cited
standard, and we have to look at whether there was a hazard of flying particles specifically here.

   Getting to that at a later time, I want to go to elements three and four, that of employee

exposure to the violative conditions; and that is, if there was a violative condition, the employees
definitely had access to that condition. They work within three or four feet of equipment that was
being sanitized and sprayed. They were not wearing protective eyewear. I will get into the
question of whether there was a hazard of flying particles as we go on, but I do believe that
employee exposure was proved here and is truly, I don't believe, at issue. If there was a hazard,
they were in the zone of the hazard. Furthermore, I find the respondent had knowledge of the
violative condition, if there was a violative condition. The supervisors of the company knew the
employees worked in this area and condoned them working in this area and performing this work
in proximity to the machinery without wearing eye protection. They also were aware that no eye
protection was being worn during the pre-rinse process.

   Now, what is the hazard here and was there a violation of the terms of the standard

allegedly violated here? I think that has to be fleshed out in some detail; first of all, to see if
there was a hazard. This is a general standard. Eye protection must be provided and worn by
employees when they are exposed to a hazard of flying particles. Let's, first of all, look at the
process as a whole. The sanitation cleaning process as a whole takes approximately four to four
and a half hours. It begins with a dry pickup of all materials. This is being done while the
production is down at the poultry processing plant. So there are dry materials like chicken bones
and chickens and legs and breasts and whatever else on the floor that gets scattered as part of the
process. This is picked up initially in the dry pickup process. Then we go to the pre-rinse
process, the next or the first rinse process. This is done using high-pressure water and high-
temperature water. The pressure is approximately 100 pounds per square inch or psi. The water
temperature, as testimony was given, ranges between 110 to 120 degrees, possibly as high as 140
degrees. After the pre-rinse process is completed with water, then it goes to a chemical foam to
clean the equipment. The foam comes out at about maybe 50 degrees or 60 degrees in, the
temperature of tap water coming out of a tap. It's a different process that clings to the material.
When that has been put on, it is washed off with a cold rinse process and that cold rinse process
is also tap water temperature. After that, there's the sanitation process. So the entire process takes
approximately four to four and half hours. The employees, during the entire time, wore hard
hats. They wore netting for their hair. They wore like a rain jacket. They wore boots and other
protective clothing. They had protective glasses, which were worn during the chemical process
and during the final rinse process but not during the pre-rinse process. The process at issue
before me today is the pre-rinse process. That's when the water was sprayed after the dry pickup.
The equipment, the floors, and some overhead conveyor belts were cleaned. The employees
used, like I said, approximately 100 psi water coming out of the nozzle of a hose to clean racks,
conveyor belts, tables, some of overhead conveyor belts, the floor, and some of the walls, which
some parts of the walls were above the heads of the employees. The employees were within three
or four feet of the equipment being sprayed. So they weren't spraying the floors where the spray is
flowing away from the employees. They're spraying equipment where it can get bounced back or
splashed back. They were also spraying overhead where the water could come back down or parts
could come back down after being blown off the equipment.

    There's testimony by Mr. Fulcher, who is an area director for OSHA and who has been

deeply involved with the poultry industry in the last number of years, not only as a compliance
officer but his work at the regional offices of OSHA, and he's describing this process and he is
talking about, during the process, there was a spray-back of parts, bone, and skin and that this high-
pressure hose actually blasted these parts off the equipment; it just didn't wash it down gently. Once
again, these particles of bone, blood, and chicken parts splash onto the employees. The compliance
officer testified that she got blood on her clothing and she was five to ten feet away from the
employees and from where they were working. These particles of bone, blood, and chicken parts
would constitute flying particles. Without protective eyewear, these employees could get particles of
bone, blood, and chicken parts in their eyes.

    Now, Mr. Wirtz testified for the respondent and is knowledgeable about the poultry industry

and has spent approximately 25 years in that industry. He has testified that he also reviewed the
respondent's record of injuries involving employees and he found no recorded eye injuries with this
respondent in the last four years. I think it's worthy to note that respondent protects its employees
while they're using the chemical spray and the cold water rinse at 60 psi, but at the higher 100 psi and
higher temperatures of 110 to 120 degrees during the pre-rinse, there was no eye protection.

    While the probability of eye injury may be low, the gravity of such an injury could be

anywhere from low to severe. Employees getting a flying bone in their eye could lose the eyesight of
that eye. Employees worked where there was a hazard. I'm finding that there was a hazard here. The
hazard is that of flying particles in the form of bone, blood, and chicken parts. Employees were
exposed and worked in the zone of danger within three to four feet of equipment they were spraying.
They weren't spraying the floors, as I said earlier, with the spray going away from them. They're
going to get bounce-back, splash-back, and there are overhead parts that are also being sprayed. The
respondent knew and had actual knowledge that these employees worked here without the eye
protection. So I do find that the government has established a prima facie case of a serious violation
of 29 CFR 1910.133(a)(1) and I find that that is a serious violation.

      Now we move to the defense of a greater hazard. This is a very unique defense. It's a tricky

defense. The essence of such a defense is that the hazard of compliance with this standard is greater
than the hazards of noncompliance. Now it's not enough to show that compliance with the standard
creates new or other hazards. This greater hazard defense has to be shown that the specific hazard
involved with the standard would be increased by compliance as opposed to noncompliance. The
hazard here is being struck in the eye by flying particles of bone, blood, chicken parts that could do
injury to the eye. In this instance, I have to consider whether noncompliance with the standard is
basically safer regarding flying parts than compliance with the standard. Now, there is another
defense that applies which has not been pled and that would be infeasibility, the old defense of
impossibility. If compliance with the standard makes it impossible to perform the job or infeasible to
perform the job, there's a possibility that that defense could be applicable here. However, upon
repeated questioning, respondent has asserted that the greater hazard defense is what it is relying on.
Now, there is somewhat of an overlap to those two defenses, but I cannot find that the infeasibility
defense or the old impossibility defense was, in fact, tried by consent. Here, respondent is not using
other protective measures, protective measures other than what is specifically required by the
standard; that is, specifically, personal protective equipment. I don't find that I need to get to the
question of a variance, because with these two specific discrepancies, I have to find that the greater
hazard defense has not been shown.

      So I've considered a proposed penalty in this matter. Respondent has approximately 2,500

employees. The probability of an eye injury is fairly low, with no recorded injuries in the last four
years for those 2,500 employees. It could just indicate that they weren't recorded or that they, in fact,
didn't happen. I have to presume they didn't happen. The gravity and severity of the injury could be
great but it could also be low. So I'm finding that a total penalty of $2,000 is appropriate in this
matter.
 FINDINGS OF FACTS AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                        ORDER

    Based on the foregoing decision, it is hereby ORDERED:

    1. Citation No. 1, Item 1alleging a serious violation of 29 CFR § 1910.133 (a)(1) is
       affirmed and a penalty of $2,000.00 is assessed.




                                                        /s/ Stephen J. Simko, Jr.
                                                        STEPHEN J. SIMKO, JR.
                                                        Judge

Date: July 8, 2011