Arco Chemical Co., Lyondell Petrochemical Co.

Plain-English summary

These consolidated cases arose after a fire extinguisher exploded during a fire-control training exercise at Lyondell Petrochemical Company's Houston facility, killing an Arco Chemical Company employee. The ALJ granted summary judgment to both companies without stating the reasons for the rulings. After the Third Circuit remanded the Arco matter, the Commission vacated its direction for review in Lyondell and remanded both cases for assignment and further proceedings. It found that the ALJ needed to explain the rulings and resolve disputed factual issues, including control of the hazards, the companies' corporate relationship, and evidence concerning corrosion or mechanical injury. The Commission did not decide the merits of the cited fire-brigade and fire-extinguisher requirements.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.157(e)(1); 29 C.F.R. § 1910.157(e)(2); 29 C.F.R. § 1910.157(f)(4); 29 C.F.R. § 1910.156(d)
• Outcome: Both cases remanded for reasoned rulings and further proceedings on disputed factual issues.
• Key point: Summary judgment requires an explanation of the ruling and is improper when genuine issues of material fact may require a hearing.

Full text (OSHRC public release)

Docket No. 88-2484_88-2567

SECRETARY OF LABOR,

Complainant,

v.

ARCO CHEMICAL CO.,

Respondent.

OSHRC Docket No. 88-2484

SECRETARY OF LABOR,

Complainant,

v.

LYONDELL PETROCHEMICAL CO.,

Respondent.

OIL, CHEMICAL & ATOMIC

WORKERS INTERNATIONAL

UNION, LOCAL 4-227

Intervenor.

OSHRC Docket No. 88-2567

ORDER OF REMAND

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

For the reasons set forth below, the Commission hereby vacates
the Direction for Review in Lyondell Petrochemical Co., OSHRC Docket No. 88-2567,
and remands that case, along with Arco Chemical Co., OSHRC Docket No. 88-2484, to the
Deputy Chief Administrative Law Judge for assignment and further proceedings consistent
with the recent decision of the Third Circuit in Dole v. Arco Chemical 921 F.2d 484 (3d
Cir. 1990).

Both of these cases arose from a fatality inspection of
Lyondell Petrochemical Company's facility in Houston, Texas, by the Occupational Safety
and Health Administration ("OSHA") of the United States Department of Labor. A
fire extinguisher had exploded at Lyondell's facility while an Arco employee was
attempting to charge it during a fire control training exercise. The employee was killed
as a result of the explosion.

Following the OSHA inspection, the Secretary issued a citation
to Arco. The citation, as amended by the Complaint, alleged that Arco had failed to
properly inspect the fire extinguisher, in violation of 29 C.F.R. � 1910.157(e)(1), and
had failed to perform hydrostatic testing upon the fire extinguisher, in violation of �
1910.157(f)(4). Arco contested those allegations and moved for summary judgment before the
judge on the ground, among others, that it did not own or control the equipment. The
Secretary then moved to amend the Complaint to delete the � 1910.157(f)(4) item and to
allege instead a violation of � 1910.156 (d). The latter provision covers fire brigades,
and states in part that [f]ire fighting equipment that is in damaged or unserviceable
condition shall be removed from service and replaced."

The judge denied the motion to amend and granted summary
judgment to Arco, without articulating the reasoning for his rulings. He merely stated
that Arco's arguments were "well taken." The case was not directed for review.
(There were no members of the Commission then serving.) On appeal, the Third Circuit
concluded that the judge abused his discretion in failing to allow the Secretary to amend
her Complaint. It remanded the case to the Commission for further proceedings. 921 F.2d at
484-85.

Lyondell was cited for noncompliance with, among other
provisions, the fire extinguisher testing requirement at 29 C.F.R. � 1910.157(e)(2), and
the hydrostatic testing requirement at � 1910.157(f)(4). Lyondell contested the citation
and moved for summary judgment on the ground that it was not responsible because, among
other reasons, the fire extinguisher was not provided for use by its own employees. It
also argued that the � 1910.157(f)(4) charge could not be sustained because the Secretary
had not offered "new evidence of corrosion or mechanical injury," which is
required to prove a violation of that subsection. The secretary argued in opposition to
the motion for summary judgment. Without entering any findings or conclusions in support
of his ruling, the judge granted summary judgment to Lyondell. Following the Secretary's
petition, Chairman Foulke directed the case for review.

Normally, when a judge fails to state the reasons for his
decision, the appropriate course for the Commission to take is to remand the case for an
adequate statement of reasons . See, e.g., Stripe-A-Zone, Inc., 12 BNA OSHC 1192,
1193, 1984-85 CCH OSHD � 27,184, p. 35,090 (No. 79-2380, 1985). A remand also is
appropriate when there exist material factual issues which require a hearing for
resolution. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49, 106
S. Ct. 2505, 2510 (1986); Chen v. Metropolitan Ins. and Annuity Co. , 907 F.2d 566,
567-68, 570 (5th Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46, 50 (3d Cir. 1989).
Summary judgment may be granted only where "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56 (c) . See also, e.g., LTV Steel Co., 13 BNA OSHC
1090, 1986-87 CCH OSHD � 27,826 (No. 86-449A, 1987) (Commission remanded to judge portion
of case on which judge had issued partial summary judgment, and noted strong Federal
policy against confusion, overlapping decisions, and wasted effort that often result from
piecemeal adjudication of cases). See generally, 10A C. Wright, A. Miller M. Kane, Federal
Practice and Procedure , � 2725 (1983).

The Secretary has asserted that there are genuine issues of
material fact in Arco as to whether that company controlled the hazards. Arco has argued
that the Secretary failed to provide sufficient evidence of control to avoid summary
judgment. It is appropriate for a judge to expressly resolve this controversy, stating the
reasons upon which he relies. 5 U.S.C. � 557(c).

There also may be factual issues in Lyondell which require a
hearing for resolution. The Third Circuit noted that Arco and Lyondell both were
subsidiaries of Atlantic Richfield Co. at the time of the fatality, and that they occupied
adjacent plants. Arco, 921 F.2d at 485 n.1. The facts, regarding the corporate
relationship between Arco and Lyondell may be relevant to the decision.
Furthermore, as noted above, the parties dispute whether the Secretary has offered
"new evidence of corrosion or mechanical injury," regarding the �
1910.157(f)(4) item. It is appropriate for a judge to expressly resolve these matters,
stating the reasons upon which he relies.

Accordingly, the direction for Review in Lyondell is
vacated, and both Arco and Lyondell are remanded to the Deputy Chief
Administrative Law Judge for assignment and further proceedings consistent with this
decision and with the Third Circuit's decision in Arco.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: April 26, 1991