RMI Company

Plain-English summary

The underlying case arose after a subcontractor employee connected a respirator to a plant compressed-air line that was being purged with nitrogen and died from asphyxiation. The ALJ had affirmed a serious hazard-communication violation under 29 C.F.R. § 1910.1200(h)(1)(ii) and assessed a $350 penalty. Before Commission review was completed, the Secretary withdrew that only remaining citation item. The Commission set aside the ALJ's decision and penalty and dismissed the case. The Commission did not decide the merits of the hazard-communication issue.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(h)(1)(ii)
• Outcome: Citation and $350 penalty set aside after withdrawal; case dismissed.
• Key point: Withdrawal of the sole remaining citation item ends the case and leaves the Commission without a merits issue to decide.

Full text (OSHRC public release)

Docket No. 89-0428

Secretary of Labor,

Complainant,

v.

RMI COMPANY,

Respondent, and

OIL, CHEMICAL, AND ATOMIC WORKERS

UNION, AFL-CIO, LOCAL 7-509,

Authorized Employee

Representative.

OSHRC DOCKET

No. 89-0428

ORDER

On March 8, 1991, the Secretary filed a Notice of Withdrawal of Citation in the
above-captioned case. The Secretary has withdrawn the only remaining item at issue in this
case, item 3 of Citation 1.

The Commission acknowledges receipt of the Secretary's Notice
of Withdrawal and sets aside the Judge's Decision and Order which affirmed item 3 of
Citation 1 and assessed a $350 penalty. There being no matters remaining before the
Commission requiring further consideration, the Commission orders the above-captioned case
dismissed.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: April 8, 1991

SECRETARY OF LABOR,

Complainant,

v.

RMI COMPANY,

Respondent,

and

OIL, CHEMICAL AND ATOMIC

WORKERS UNION, AFL-CIO,

LOCAL 7- 509,

Authorized Employee

Representative.

OSHRC Docket No. 89-0428

APPEARANCES:

Sandra B. Kramer, Esquire, Office of the 

Solicitor, U. S.
Department of Labor, 

Cleveland, Ohio, on behalf of complainant.

Thomas Barnard, Esquire, and David Somrak, 

Esquire, Duvin, Cahn and Barnard, 

Cleveland,
Ohio, on behalf of respondent.

Gary Thompson, International 

Representative, Oil, Chemical and Atomic 

Workers
International Union, Chagrin 

Falls, Ohio, on behalf of authorized 

employee representative.

Fred Ruffo, Representative for the Local 

Union, Oil, Chemical
and Atomic Workers 

International Union, Ashtabula, Ohio, on 

behalf of authorized employee
representative.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10
of the Occupational Safety and Health Act of 1970 ("Act") to contest a citation
issued to respondent ("RMI") by the Secretary of Labor ("Secretary")
pursuant to section 9(a) of the "Act.

The facts which gave rise to issuance of the citation are not
in dispute. RMI operates a plant in Ashtabula, Ohio, which manufactures sodium and
chlorine. The facility consists of 20 to 25 buildings including an evaporator building and
office building. An employee of an RMI subcontractor connected a respirator to RMI's plant
compressed air line to use for breathing purposes. He was unaware the air line was being
purged with nitrogen which caused his asphyxiation and death.

RMI's maintenance engineer authorized use of the air line by
the subcontractor. However, he was not aware the line contained nitrogen.[[1]] The
question to be resolved is whether RMI violated the hazard communication standard at 29
C.F.R. � 1910.1200(h)(1)(ii) in not informing the engineer of the presence of nitrogen in
the plant air lines.

The standard which pertains to employee information and
training provides in pertinent part that:

Employers shall provide employees with information and training
on hazardous chemicals in their work area at the time of their initial assignment, and
whenever a new hazard is introduced into their work area.

(1) Information . Employees shall be informed of:

(ii) Any operations in their work area where 

hazardous chemicals are present, . . . .

The Commission has held that, in order to establish a violation
as in this case, it is necessary for the Secretary to show by a preponderance of the
evidence that (1) the cited standard applies; (2) there was a failure to comply with the
standard; (3) employees had access to the violative condition; and (4) the cited employer
either knew or could have known of the condition with the exercise of reasonable
diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126,
1981 CCH OSHD � 25,578 (No. 78-6247, 1979); Daniel International Corp., 81 OSAHRC
71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD � 21,679 (No. 76-181, 1977).

The central issue relates to whether the standard applies. RMI
contends that the maintenance engineer, John Korb, was not an "employee" within
the meaning of the standard and the hazard was not in his "work area" as defined
by the regulation.

"Employee" is defined in 29 C.F.R. � 1910.1200(c) as "a worker who may be
exposed to hazardous chemicals under normal operating conditions or in foreseeable
emergencies." The term "work area" is defined to mean "a room or
defined space in a workplace where hazardous chemicals are produced or used, and where
employees are present."

The evidence shows that Korb's job as maintenance engineer
included estimating maintenance jobs, taking bids and awarding contracts. In this
capacity, he contracted with the Boyd E. Hart Company ("Hart") to sandblast and
paint a cooling tower support structure. The structure was located approximately 100 feet
above the evaporator building. It also shows the evaporator building was separate and
apart from the building where Mr. Korb's office was located and that he did not supervise
any RMI employees but was involved with them on various maintenance and repair jobs in an
advisory capacity. During the period in question, he had no reason to work in the
evaporator building except with the outside contractor.

RMI's contention, however, that the regulation was not violated
because Korb was not an employee with respect to the hazard or that the hazard was not
present in this work area is without merit. Mr. Korb had the authority to provide the
subcontractor's foreman with a special coupling to connect into the plant air line. He
obtained the coupling from the storeroom where he had signed out for it.

Clearly the maintenance engineer's authority to obtain tools from the storeroom and
provide them to subcontractors for use attests to his status as an employee and that he
was not restricted to a particular work area. In carrying out the responsibilities of his
position, the engineer could obviously encounter "foreseeable emergencies"
working throughout the facility.

The evidence establishes that the cited standard applies and
there was a failure to comply in not informing the maintenance engineer of the presence of
nitrogen in the plant air line. Mr. Korb, as well as other employees outside the
evaporator building, had access to the hazard of nitrogen which RMI knew about or could
have known about with the exercise of reasonable diligence.

RMI had a duty, commensurate with the responsibilities of its
maintenance engineer at the facility, to inform him of the presence of any hazardous
conditions. Although the employees in the evaporator plant were adequately informed of the
presence of the hazard, it was nonetheless incumbent on respondent to inform those
employees who were foreseeable exposed to the hazard.

An employer as in this case need not take steps to prevent
hazards which are not generally foreseeable, but it must do all it feasibly can to prevent
foreseeable hazards. The relevant test is not the foreseeability of a particular incident
but the foreseeability of the hazard. See General Dynamic Corp. v. OSHRC, 599 F.2d
453 (1st Cir. 1979).

The violation having been established, it must now be
determined whether it is of a serious nature, as alleged. For a violation to be determined
serious under section 17(k) of the Act, there must be a substantial probability that death
or serious physical harm could result therefrom. The death resulting from use of plant air
containing nitrogen is clearly serious within the meaning of the Act.

The next question determination concerns the amount of penalty
to be assessed for the violation. Under section 17(j) of the Act, the Commission is
required to find and give "due consideration" to the size of the employer's
business, the gravity of the violation, the good faith of the employer, and the history of
previous violations in determining the assessment of an appropriate penalty. The gravity
of the offense is the principal factor to be considered. Nacirema Operating Co., 72
OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD � 15,032 (No. 4, 1971). The Commission
rated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA
OSHC 1049, 1971-73 CCH OSHD � 15,188 (No. 85, 1971), that the elements to be considered
in determining the gravity are: (1) the number of employees exposed to the risk of injury;
(2) the duration of exposure; (3) the precautions taken against injury, if any; and (4)
the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the
circumstances, it is concluded that a penalty in the amount of $350 is deemed appropriate.

FINDINGS OF FACT

1. RMI Company, at all times hereinafter mentioned, operated a
   plant in Ashtabula, Ohio, which manufactured sodium and chlorine.

2. Authorized representatives of the Secretary conducted an
   inspection of the work site resulting in issuance of a citation.

3. Respondent's maintenance engineer had contracted with a
   painting contractor to sandblast and paint the cooling tower on top of the evaporator
   building at the facility.

4. The maintenance engineer, whose office was in an office
   building, did not supervise employees in the manufacturing plant but worked with them more
   in an advisory capacity. His duties also carried throughout the facility when working with
   subcontractors.

5. The engineer had authority to direct use of the plant air
   and provided the subcontractor with a coupling to tap into the line.

6. The maintenance engineer was not informed the air line was
   being purged with nitrogen, a hazardous chemical.

CONCLUSIONS OF LAW

1. Respondent, RMI Company, at all times pertinent hereto, was
   an employer engaged in a business affecting commerce within the meaning of section 3(5) of
   the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the
   parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required
   to comply with the Act and the safety and health regulations promulgated pursuant thereto.

3. Complainant's motion to vacate Items 1 and 2 of the citation
   is granted.

4. Respondent violated 29 C.F.R. � 1910.1200(h)(1)(ii) as
   alleged in the citation.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record, it is ORDERED:

Items 1 and 2 of the citation are hereby vacated. Item 3 is
hereby affirmed and a penalty of $350.00 assessed.

Dated this 9th day of May, 1990.

PAUL L.Brady

Judge

FOOTNOTES:

[[1]] At the hearing, nitrogen was shown to be a hazardous chemical within the meaning of
the standard (Exs. C-1, C-2, C-3).