Petition for review of an order of the Occupational Safety and Health Review Commission which affirmed citations for several serious and non-serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976). Petition for review is granted in part and denied in part, and the case remanded to the Commission for further proceedings.
Before Feinberg, Chief Judge, and Lumbard and Meskill, Circuit Judges.
Petitioner, Pratt & Whitney Aircraft, Division of United Technologies Corporation (Pratt & Whitney), seeks review of a final order of the Occupational Safety and Health Review Commission (OSHRC or the Commission), holding the company in violation of the Occupational Safety and Health Act of 1970 (OSHA or the Act), 29 U.S.C. §§ 651-678 (1976), and certain regulations promulgated thereunder. The petition for review is granted in part and denied in part, and the case remanded to the Commission for further proceedings.
A. The Regulatory Framework
This case presents the complex and often bewildering regulatory framework of OSHA. In this case, the Commission found that Pratt & Whitney had breached the "general duty" clause of the Act and had violated several of the regulations promulgated by the Secretary of Labor (the Secretary). See 29 C.F.R. §§ 1900-2000 (1980). The "general duty" provision, § 5(a)(1) of the Act, provides:
(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.
29 U.S.C. § 654(a)(1) (1976). This section is intended as a catchall provision to cover dangerous conditions of employment not specifically covered by existing health and safety standards promulgated by the Secretary of Labor under the Act. See Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988, 990 (1973). "To prove a violation of the general duty clause, "the Secretary must prove (1) that the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm.' " Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d Cir. 1977) (quoting National Realty & Construction Co. v. OSHRC, 160 U.S. App. D.C. 133, 489 F.2d 1257, 1265 (D.C.Cir.1973)).
The violations in this case have been classified as both "serious" and "non-serious." Section 17(k) of the Act sets forth the requirements for a serious violation:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
29 U.S.C. § 666(j)(1976). Whether a violation of any of the health and safety standards promulgated by the Secretary may be deemed serious depends upon whether any accident that would result from the violation would present a substantial probability of death or serious physical injury. See Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131 (6th Cir. 1978); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975); Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438 (8th Cir. 1973). It would appear, however, that any condition at a place of employment that violates the general duty clause would have to be deemed serious, since an element of a general duty violation is that the condition is "likely to cause death or serious physical harm." There seems to be little distinction between "substantial probability" as employed in § 17(k) and "likely" as employed in § 5(a)(1). With this background in mind, we turn to the facts of the case.
In the spring of 1975, OSHA compliance officers inspected the Pratt & Whitney plant located in North Haven, Connecticut. More than 4,500 employees work at the facility, which has over one million square feet of manufacturing space. Citations were issued to Pratt & Whitney for two serious violations and several non-serious violations of the Act. Several of the citations for non-serious violations were set aside after a full hearing conducted before the administrative law judge, Abraham Gold. Judge Gold also vacated the citation issued to Pratt & Whitney for its serious violation of 29 C.F.R. § 1910.94(d) (7)(iii) (1980), a regulation which proscribes the use of a common exhaust system that poses a risk of fire, explosion, or hazardous chemical reaction. Judge Gold affirmed the citation issued to Pratt & Whitney for its serious violation of the general duty clause.
Both the Secretary and Pratt & Whitney appealed to the OSHRC for review of Judge Gold's decision. Moving at a glacial pace, the OSHRC rendered its decision three and one-half years after briefs were filed by the parties. The OSHRC reinstated the serious violation of 29 C.F.R. § 1910.94(d)(7)(iii) (1980) which had been vacated by Judge Gold, affirmed the citation for the serious violation of the general duty clause, and vacated several of the citations for non-serious violations.
Pratt & Whitney seeks review of the serious and non-serious violations affirmed by the OSHRC. The Secretary does not challenge the portions of the OSHRC's decision which vacated citations for several of the non-serious violations. For the purpose of clarity, we treat each of Pratt & Whitney's challenges to the citations separately.
C. The General Duty Clause Violation
During the course of the inspections at the North Haven facility, OSHA compliance officers discovered that Pratt & Whitney was storing large quantities of acids and cyanides in a common, indoor, bulk-chemical storage area. The parties agree that, if acid were to come in contact with the cyanides, a lethal gas, hydrogen cyanide (HCN), would be formed. The storage shed was about 40 feet long and 32 feet wide, and was partitioned lengthwise by a very hard asbestos-like substance. The partition was approximately seven feet high, and atop of it there was a chain-link fence which extended to the ceiling of the storage shed. On one side of the partition, the wet-side, acids were stored; on the other, the dry-side, potassium cyanide and sodium cyanide pellets were stored. The storage shed had only one drain, which was located on the dry-side about two feet from the partition. About 1/4 inch of space was left between the bottom of the partition and the floor so that liquids could pass to reach the drain.
The petitioner's expert, Mr. Doyle, testified that the likelihood of HCN gas being formed was "very remote," because such an occurrence would require "a series of disconnected events." A. 437-38. Notwithstanding that several acid spills had in fact occurred, Mr. Doyle testified that it would take approximately one and one-half hours for the most corrosive acid stored in the shed to eat through the steel drums containing the cyanide compounds. Petitioner's expert also claimed that the drain would have to be plugged and two containers of acid would have to spill for the acid to reach the cyanides. Furthermore, Mr. Doyle noted that the otherwise readily detectable fumes of such an acid spill would have to go undetected for the length of time necessary for the acid to corrode the cyanide drum.
The Secretary's expert, Mr. Padden, testified that he had visited 300 to 400 plants which stored acids and cyanides and that he had observed only two that had used a common drain. He added that those two plants "corrected the situation immediately" after being urged to do so. Mr. Padden stated that all of the other plants he ...