Exxon Company, U.S.A.

Plain-English summary

A corroded dead-end pipe at Exxon's Linden, New Jersey refinery was the subject of a general duty clause citation. The judge affirmed the citation for failing to inspect the pipe periodically. Commissioner Cleary would have affirmed because the corrosion hazard was recognized and a five-year inspection cycle was feasible. Chairman Buckley would have reversed because the Secretary had not shown that Exxon or its industry regarded Exxon's sampling program as inadequate. The divided Commission vacated the direction for review, so the judge's affirmance became the final order but carried only the precedential value of an unreviewed ALJ decision. The Commission stayed abatement for 60 days and, if Exxon appealed, until the court assumed jurisdiction.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Direction for review vacated; the general duty clause citation remained affirmed, with abatement temporarily stayed.
• Key point: When the Commission members divided, the judge's decision became the appealable final order without gaining Commission-precedent weight.

Full text (OSHRC public release)

Docket No. 79-2610

SECRETARY OF LABOR,

Complainant,

v.

EXXON COMPANY, U.S.A.,

Respondent.

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMAN

AND HELPERS OF AMERICA, LOCAL 877,

EXXON OIL WORKERS,

Authorized Employee

Representative.

OSHRC Docket, No. 79-2610

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C �� 651-678 ("the Act").  The Commission is an adjudicatory
agency, independent of the Department of Labor and the Occupational Safety and Health
Administration.  It was established to resolve disputes arising out of enforcement
actions brought by the Secretary of Labor under the Act and has no regulatory functions.
  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The issue on review is whether an administrative law judge erred in finding that the Exxon
Company, U.S.A. violated section 5(a)(1) of the Act,[[1]] 29 U.S.C. � 654(a)(1), at its
Linden, New Jersey refinery by failing to periodically inspect for corrosion at a dead
end, a section of pipe in which there is no product flow during normal operation.  In
order to establish a section 5(a)(1) violation, the Secretary must prove:  (1) the
employer failed to render its workplace free of a hazard, (2) the hazard was recognized
either by the cited employer or generally within the employer's industry, (3) the hazard
was causing or likely to cause death or serious physical harm, and (4) there was a
feasible means by which the employer could have eliminated or materially reduced the
hazard.  Little Beaver Creek Ranches, Inc ., 82 OSAHRC 36/A2, 10 BNA OSHC 1806,
1810, 1982 CCH OSHD � 26,125, p. 32,878 (No. 77-2096, 1982).  Commissioner Cleary
would affirm the judge's decision.  The evidence establishes that Exxon and its
industry recognized that dead ends were likely places for water to accumulate and
corrosion to occur.  He notes that the serious injuries suffered as a result of this
incident show that death or serious physical harm was likely.  See Chevron
Oil Co., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1983 CCH OSHD � 26,507 (No. 10799, 1983),
appeal filed , No. 83-4371 (5th Cir. June 17, 1983). He would find that the
Secretary's proposed method of abating the hazard by inspecting dead ends at least every 5
years was a more effective method than that of Exxon, see U.S. Steel Corp .,
81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1642 n.6, 1981 CCH OSHD

� 25,282, p. 31,250 n.6 (No. 76-5007, 1981), which inspected dead ends only when its
testing revealed corrosion in similar dead ends.  Commissioner Cleary would also find
that the Secretary's proposed abatement method of inspecting dead ends at least every 5
years was feasible.

Chairman Buckley would reverse the judge's decision because the Secretary
failed to prove that either Exxon or its industry recognized that Exxon's method of
inspecting the cited dead end was hazardous.  The judge's decision found that the
recognition element was established because a failure to "adequately" inspect
dead ends for internal corrosion is recognized as hazardous in the oil industry.
 Chairman Buckley observes, however, that this record furnishes no basis for finding
that Exxon's sampling program was recognized by Exxon or its industry as inadequate.
  See Davey Tree Expert Co ., 84 OSAHRC /, 11 BNA OSHC 1898, 1900,
1984 CCH OSHD � 26,852, p. 34,400 (No. 77-2350, 1984).  Indeed, the record refutes
such an assertion.  Exxon showed that the cited dead end was not a likely place for
corrosion to occur because the pipe was deflected from the horizontal, causing any
corroding liquid that might ordinarily be retained to drain off.  Moreover, tests
Exxon had conducted on the piping system that included the cited dead end showed
negligible corrosion.

The two Commission members are divided on whether the judge erred in his
disposition.  To resolve this impasse and to permit the parties to conclude the
litigation, the members have agreed to vacate the direction for review.[[2]]  E.g .,
Texaco, Inc ., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD � 24,634 (Nos.
77-3040 & 77-3542, 1980).  The Commission members have discretion under the Act
and the Commission's Rules of Procedure to direct review of a judge's decision.  
Section 12(j), 29 U.S.C. � 661(i); 29 C.F.R. � 2200.92.  In the absence of a
direction for review, the judge's decision becomes a final order of the Commission and can
be appealed by an aggrieved party to a United States court of appeals.  Sections
10(c), 11(a) and (b) and 12(j), 29 U.S.C. �� 659(c), 660(a) and (b), 661(i).  The
judge's decision in this case therefore becomes the appealable final order of the
Commission, but is accorded the precedential value of an unreviewed judge's decision.

Under section 10(c) of the Act, 29 U.S.C. � 659(c), abatement is not
required until the entry of a Commission final order affirming a contested citation.
  Inasmuch as the administrative law judge's decision affirmed the citation, and that
decision will be the final order of the Commission, Exxon will be required to undertake
substantial abatement measures.  The members of the Commission, however, have agreed
to stay the abatement requirement of the citation until the expiration of the 60 day
period during which appellate review of this decision may be sought under section 11(a) of
the Act, 29 U.S.C. � 660(a), and, if review is sought, until the assumption of
jurisdiction by the court of appeals.  If appellate review is sought, determination
as to whether abatement should be further stayed would be within the discretion of the
court of appeals.

Accordingly, the direction for review is vacated.  Abatement is stayed
for a period of sixty days, or if review by a circuit court of appeals is sought, until
that court assumes jurisdiction.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  AUG 30 1984

The Administrative Law Judge decisions in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 5(a)(1) states:

Each employer-

(1) shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees . . . .

[[2]] As established by the Act, the Commission is composed of three
members.  Section 12(a), 29 U.S.C. � 661(a).  Under section 12(f) of the Act,
29 U.S.C. � 661(e), official action can be taken by the Commission with the affirmative
vote of at least two members.  Presently, the Commission has two members as a result
of a vacancy.