Copperhead Chemical Company

Plain-English summary

Copperhead Chemical Company faced process-safety-management citation items involving safety information for an explosive chemical product and changes to its mixing process. An earlier ALJ order had vacated three items concerning the initial compilation of process safety information because the work had been completed by the prior owner before Copperhead acquired the facility. That order left one management-of-change item unresolved because a factual dispute remained over whether use of a different pump was a process change or a replacement in kind. After the Commission granted interlocutory review, the Secretary, the company, and the authorized employee representative filed a settlement stipulation. The Secretary and union withdrew their review petitions and jointly asked for remand. The Commission granted the motion and sent the case back to the ALJ to consider the settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.119(d) and 29 C.F.R. § 1910.119(l)(2)(ii)
• Outcome: The Commission remanded the case to the ALJ for consideration of the parties' settlement stipulation.
• Key point: Withdrawal of interlocutory-review petitions allowed the Commission to return the case to the ALJ for settlement review.

Full text (OSHRC public release)


Copperhead Chemical Company 99-2198

:

SECRETARY
OF
LABOR,    :

:

Complainant,    :

:

v.    :

:
COPPERHEAD
CHEMICAL
COMPANY,    :

:

Respondent,    :

:

PACE LOCAL

2-0719,    :

:

Authorized Employee    :

Representative    :

OSHRC Docket No. 99-2198

REMAND ORDER

This
case
is
before
the
Commission
after
Petitions
for
Interlocutory
Review
filed
by
the Secretary and the Authorized Employee Representative (PACE) were
granted.
The parties have now
filed
a
Stipulation
of
Settlement,
and
the
Secretary
and
PACE
have
also
filed
a
Joint
Motion to
Remand
Matter
for
Settlement
(Joint
Motion).
In
the
Joint
Motion,
the
Secretary
and
Pace
have withdrawn their Petitions for Interlocutory
Review.

Having reviewed the record, and based upon the withdrawal of the Petitions for
Interlocutory
Review
by
the
Secretary
and
PACE,
the
Joint
Motion
is
granted.

This
case

2000 OSHRC No.
40

is remanded to the Administrative Law J udge for consideration of the Stipulation of Settlement.

So
Ordered.

Date: November 15, 2000

/s/   
Thomasina V.
Rogers

Chairman

/s/   
Gary L.
Visscher

Commissioner

/s/   
Stuart E.
Weisberg

Commissioner

99-2198

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Counsel for Regional Trial Litigation Office of the Solicitor, U.S. DOL

Room S4004

200 Constitution Ave., N.W. Washington, DC 20210

Catherine Oliver-Murphy, Regional Solicitor Myrna A. Butkovitz, Attorne y

Maria L. Spitz, Attorney

Office of the Solicitor, U.S. DOL Suite 630E, The Curtis Center 170 S. Independence Mall West Philadelphia, PA 19106-3306

W. Scott
Railton , Esq. Paul J. Waters, Esq.

Reed Smith Hazel & Thomas LLP 8251 Greensboro Drive, Suite 1100

McLean, VA
22102-3844

Joan G. Hill, Esq.

PACE International Union

P.O. Box 1475 Nashville, TN

37202

Elizabeth
Bettinger , President PACE Local

2-0719

2218
Mahantongo
Street

Pottsville, PA
1 7901

Michael H. Schoenfeld Administrative Law Judge Occupational Safety and Health Review Commission

1120 20th Street, Suite 990

Washington, D.C. 20036-3419

8 / 8

UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

V.    Docket No.
99-2198

COPPERHEAD CHEMICAL COMPANY,

Respondent.

PACE LOCAL # 2-0179,

Authorized Employee Representative.

ORDER

Respondent's Motion
For
Summary Judgment, the Secretary's opposition thereto and Respondent's reply have been considered. For the following reasons, Respondent's motion is GRANTED IN PART AND DENIED IN PART.

In the absence of a specific Commission Rule as
to summary judgment, Rule 56 of the Federal
Rules
of
Civil
Procedure
applies
by
virtue
of
Commission
Rule
2,
29
CFR
§
2200.2.
The Federal Rule provides in pertinent
part;

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as
to
any material
fact
and
that
the
moving
party
is
entitled
to
a judgment as a matter
of
law.

The inquiry is whether a
fair minded
jury could return a verdict for the [movant] on the evidence presented.
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242
(1986)
citing
Brady
v.
Southern
Ry.
Co.,
320 U.S. 476, 479-480 (1943). The Commission has long recognized that summary judgment is not appropriate
where
material
facts
are
in
dispute.
Van
Buren- MadawaskaCorp .,
13
BNA
OSHC
2157
(No. 87-214,
1989).

I Citation
l
ltems
1-3, Process Hazard
Analysis

Respondent
was
cited
under
three
subsections
of
29
CFR
§
1910.119(d)
which provides,
in pertinent
part:

Process
safety
information.
In
accordance
with
the
schedule
set
forth in paragraph (e)(l) of this section, the employer shall complete a compilation
of
written
process
safety
information
before
conducting any process hazard analysis required by the
standard.

The
three
items
allege
that
the
compilation
of
safety
informa tion
about
a
product
identified
as
SDM7 was insufficient in three specific
areas.

The standard was issued on February 24, 1992. Paragraph (e)(l) sets forth the dates by which various percentages of initial hazard process analyses were to have been completed. The requirements
culminate
in
subparagraph
(iv)
which
requires
that"[a]11
initi al
hazard
process
analyses shall be completed by May 26,
1997."

Respondent posits the following facts. Copperhead Chemical Company was created as a company
in
August
1997.
It
contracted
with
ICI
Explosives
in
October
1997
to
purchase
some
of the
assets
of
ICI.
The
purchase
was
intended
to
exclude
liabilities,
obligations
and
duties
owed
by the seller. When ICI was the owner, it had done a timely compilation of written process safety information
regarding
the
manufacture
of
a
product
known
as
SDM7.
There
is
no
dispute
that
SDM7 is
or
its
constituent
ingredients
contain
a
"highly
hazardous
chemical"
covered
by
the
process
safety management
standard
(PSM),
29
CFR
§
1910.119.
Based
on
these
facts,
Respondent
argues
that
it cannot be held to be in violation of the cited standard
because:

[t]here is absolutely no language of any kind in the PSM standard imposing
a
duty
on
a
company
that
buys
a
facility,
like
Copperhead, to
review
and
recompile
all
of
the
process
safety
info rmation
that
ICI had a duty to compile before May 26,
1997.

(Resp. Reply, p. 2). Thus, reasons Respondent, if there were any violation at all, it occurred on or before May 26, 1997 and was perpetrated by ICI. Respondent's argument is correct.

While
the
Occupational
Safety
and
Health
Act
of
1970,
29
U.S.C.
§§
651
-
678,
generally holds
a
respondent
responsible
for
safety
and
health
hazards
within
its
control
arising
from
an
earlier owner's failure to comply with applicable standards, the cited standard under consideration here required
that
the
phase
of
compiling
process
safety
information
be
conducted
and
completed
no
later

-2-

than May 26, 1987. The Secretary, in arguing that the compiling of information was not done correctly,
looks
to
an
entity
(Respondent)
which
had
no
interest
in
the
compiling
of
the
materials
nor control over its methodology at any time during its compilation. The activities required of employers
under
the
standard
were
in
fact
performed
and
completed
by
ICI
on
or
before
the
deadline set
forth
in
the
standard.
If
they
were
improperly
performed
in
violation
of
the
standard,
the
breach can
be
regarded
as
continuing
only
where
the
respondent
cited
had
the
duty
to
compile
the
material required
by
the
standard.
Once
the
activity
of
compilation
was
completed
within
the
prescribed
time period it was a completed and finalized action.
If
the process by which the compilation was performed
was
flawed
as
alleged
in
the
cited
items,
nothing
can
now
be
done
to
repeat
the
process since the deadline for its completion has long
past . This interpretation also gives meaning to the standard's
first
sentence,
describing
the
activity
as
performing
II
an
initial
process
hazard
analysis." There can be only one "initial" analysis. Re spondent does not now and never did have a duty to perform the initial process hazard analysis. This is not a case where there is a continuing duty to comply with a standard. Thus, the Commission's precedent regarding so- callled
"continuing violations"
is
not
applicable.
1
Respondent
is
correct
in
its
argument
that
"the
cited
standard
does
not require Respondent to 'recompile all of the safety processes' done by the previous owner." That duty
is
imposed
by another standard,
the
one
at
29
CFR
§
1910.119(e)(6),
which
provides:

(e)(6) At
least
every
five
(5)
years
after
the
completion
of
the
initial process
hazard
analysis,
the
process
hazard
analysis
shall
be
updated and revalidated by a team meeting the requirements in paragraph (e)(4) of this section, to assure that the process hazard analysis is consistent with the current
process.

Inasmuc h
as
Respondent
could
not
possibly
have
violated
the
subsections
of
the
standard
at 29
CFR 1910.119(d)
as
alleged
in
items
I,
2
and
3
of
Citation
1,
issued
to
it
on
or
about
October
19,
1999,
Respondent' s
motio n
for
summar y
judgemen t
a s
t o
thos e
item s
i s
GRANTE D ..

Accordingly,
Items 1, 2 and 3 of Citation 1 issued to Respondent are
VACATED.

1
Respondent's
argument
that
its
contract
with
ICI
for
the
transfer
of
assets
insulates
it
from any
OSHA
violations
which
may
have
existed
at
the
time
of
the
transfer
and
which
still
existed
at the
time
of
the
inspection
is
rejected.
An
employer
cannot
absolve
itself
of
its
responsibilities
under the
Act
by
contract.
Any
remedy
Respondent
may
have
against
ICI
must
be
found
in
another
forum.

-3-

II Citation I, Item
4,
Management
of
Change

Respondent
was
also
cited,
in
item
4
of
Citation
1,
for
an
alleged
violation
of
19
CFR
§
191
O.
l
l
9(1)(2)(ii),
in
that:

The
e mployer
made
two
changes
to
the
mixing
process
of
SDM7
premix
(different
material
pump
and
increased
mixing
time)
and
did not
have
all
of
the
information
necessary
to
fully
assess
the
impact
of
the
changes
on
the
safety
of
the
process.

The
cited
standard
requires
employers
to
"implement
written
procedures
to
manage
changes ("except for 'replacements in kind.') to
process
chemicals    "

Respondent
maintains
in
its
motion
that
no
change
in
the
process
occurred
which
would
have triggered
the
requirements
of
the
standard.
As
argued
by
the
Secretary,
however,
whether
the
use
of
a
different
pump
was
a
"change"
or
a
"replacement
in
kind"
is
an
issue
of
material
fact
not
resolved by the motion and opposition thereto. Accordingly, Respondent's motion for
summary
judgement as to Citation 1,
item
4 is
DENIED.

Dated:

8 \ 8 \ 00

Washington,
D.C.

/ s /__________

Michael H.
Schoenfeld

Judge,
OSHRC

-4-

"