Docket No. 76-5014

SECRETARY OF LABOR,
Complainant,

GULF OIL CORPORATION,
Respondent.

OSHRC Docket No. 76-5014

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners

BY THE COMMISSION:
Before the Commission is a citation issued by the Secretary of Labor ("Secretary") to Respondent, Gulf Oil Corporation ("Gulf"), which alleges that Gulf committed two repeated violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). With respect to the first item of the citation, Administrative Law Judge Harold O. Bullis found that Gulf did not violate the Act by failing to comply with the standard at 29 C.F.R. ї 1910.22(b)(l).[[1/]] The judge also denied the Secretary's motion to amend this item to allege a violation of the standard at 29 C.F.R. ї 1910.22 (a)(1).[[2/]] With respect to the second item, the judge found that Gulf failed to comply with 29 C.F.R. 1910.134(b)(3).[[3/]] The judge classified this violation as other than serious and assessed a penalty of $300. Both the Secretary and Gulf filed petitions for review of the judge's decision. For the reasons that follow, we vacate both items of the citation.

I.

During his inspection of a fluid catalyst cracking unit area at Gulf's Port Arthur, Texas refinery, an Occupational Safety and Health Administration ("OSHA") industrial hygienist observed a walkway protected by wooden guardrails that was twenty feet above the ground and extended around three sides of a precipitator. The walkway was obstructed by pipes, boards, and other items that previously had been used for scaffolding, and there was a six-inch-wide hole in the floor of the walkway. An assistant operator for Gulf was observed working in the area, and two employees on each of three shifts normally worked near the walkway. The obstructed walkway was cited as constituting a violation of 29 C.F.R. ї 1910.22(b)(1).

In Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD І 20,588 (No. 6286, 1976), the Commission held that the standard at 29 C.F.R. ї 1910.22(b)(1) is applicable only to aisles and passageways where employees operate mechanical handling equipment. Judge Bullis, noting that the Secretary showed only that obstructions in the walkway posed a tripping hazard, vacated the alleged section 1910.22(b)(1) citation, citing Love Box Co. as precedent. The judge also denied the motion in the Secretary's reply brief to amend the citation to allege a violation of the standard at 29 C.F.R. ї 1910.22 (a)(1). The judge pointed out that Gulf at the hearing relied on the Secretary's failure to prove the violation as alleged in the complaint and did not put on a defense. The judge concluded that it would be unjust to require Gulf to defend against the amended charge in an additional hearing, which would be necessary if the amendment were allowed.

The Secretary on review contends that an amendment to section 1910.22(a)(1) should be allowed and Gulf should be found in violation of that standard. [[4/]] The Secretary argues that both parties tried the issue of whether there was dismantled scaffolding on the walkway and whether the scaffolding constituted a hazard. Since in his view Gulf consented to trial of all issues relevant to the amended standard, the Secretary maintains that Gulf would not be prejudiced by an amendment. Gulf, however, asserts that it would have introduced evidence concerning this item if the amendment had been proposed before or during trial [[5/]] Therefore, Gulf claims it would be prejudiced by an amendment.

Rule 15(b) of the Federal Rules of Civil Procedure, made applicable to Commission proceedings by section 12(g) of the Act, 29 U.S.C. ї 661(f), governs amendments of pleadings to conform to the evidence. Under Rule 15(b), amendment of the pleadings to conform to the evidence is permissible when the parties have expressly or implicitly consented to the trial of the unpleaded issue. Rodney E. Fossett, 79 OSAHRC 92/D2, 7 BNA OSHC 1915, 1979 CCH OSHD І 23,989 (No. 76-3944, 1979). In this case, we conclude that Gulf did not expressly or implicitly consent to try an alleged violation of section 1910.22(b)(1).

Chairman Rowland would not permit an amendment of the pleadings based on consent unless the parties squarely recognized at trial that they were trying an unpleaded issue. Farmers Cooperative Grain & Supply Co., 82 OSAHRC ____, 10 BNA OSHC 2086, 1982 CCH OSHD І 26,301 (No. 79-1177, 1982). He notes that the Commission issued its decision in Love Box Co., holding that section 1910.22 (b)(1) was applicable to aisles and passageways where employees operate mechanical handling equipment, fifteen months before the hearing was held. Hence, the Secretary was on notice of the applicability of section 1910.22(b)(1). However, the Secretary did not seek an amendment in this case until he filed his posthearing reply brief, even though it was evident at the hearing that hazards to employees operating mechanical handling equipment was not in issue. Moreover, the evidence adduced at the hearing, including whether there was scaffolding on the walkway and whether the scaffolding constituted a hazard, whether the party opposing amendment had a fair opportunity to prepare and present its case on the merits, including whether additional evidence could be offered if the case were tried on a different theory. Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD І 25,293 (No. 9850, 1981), aff'd, 676 F.2d 1065 (5th Cir. 1982).

The parties dispute whether the Respondent would be prejudiced by the proposed amendment in this case. Judge Bullis apparently concluded that the Respondent would be prejudiced, stating that "[i]f the amendment were allowed, fairness would require an additional hearing giving Gulf an opportunity to defend against the amended charge."[[6/]]

The evidence presented by the Secretary in support of his prima facie case on the pleaded charge is also relevant to the unpleaded charge. However, because the evidence introduced was relevant to both pleaded and unpleaded legal issues, it cannot be concluded that the Respondent's failure to object to its introduction constituted consent to trial of the unpleaded issue. Accordingly, in Commissioner Cottine's view, the question is whether the Respondent was prejudiced by a lack of opportunity to introduce additional evidence or present alternative defenses had the amendment been made before or during the hearing. See Usery v. Marquette Cement Mfg. Co., supra; Rodney E. Fossett, d/b/a Southern Lightweight & Concrete Co., 7 BNA OSHC at 1917 n.8, 1979 CCH OSHD І 23,989 at p. 29,117 n.8.

The Commission decision in Love Box Co., was issued on April 7, 1975, approximately five months before the inspection in this case, six months before the citation was issued, and a full fifteen months before the hearing was held. Nevertheless, it was not until after the hearing was complete that the Secretary attempted to amend the charge. The Respondent relied solely on a valid legal defense, based on Commission precedent, that the cited standard was not applicable to the cited conditions and did not present evidence in rebuttal to the Secretary's prima facie case or to establish defenses that may otherwise be relevant to the unpleaded issue. See note 5 supra. Commissioner Cottine cannot conclude that the defenses the Respondent would be precluded from pursuing, particularly those raising matters relevant to employee exposure and alternative protective measures, are totally without merit. See Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). Accordingly, Commissioner Cottine concludes that the judge did not err in denying the amendment.

II.
A.

During the inspection, Gulf assistant operators Long, Hayes, and Touche were observed using half-mask respirators while emptying precipitator hoppers, unloading catalyst cars, and checking for leaks in the fluid catalyst cracking unit at the refinery. Three days before the inspection employees had been instructed to check out half-mask respirators from the storehouse and to wear them when emptying the precipitators or unloading the "cat cars" underneath the "cat bin." These tasks took thirty to forty minutes to complete and employees performed them twice a day. The half-mask respirators were to protect against flue gases and catalyst dust present in these areas. Gulf also had full-face respirators available in the event of an emergency. Prior to the provision of half-mask respirators, Gulf had made available at the worksite a respirator with an attached oxygen tank, and before that another type of "canister" respirator had been made available. There were signs over the precipitators warning about flue gases and "carbon monoxide potential."

Long and Hayes had not been instructed by Gulf in the use, care, or limitations of the half-mask respirator, but Hayes had received about one-half hour training concerning use of a full-face respirator. Touche had received training concerning the half-mask respirator. The chairman of the union's safety committee, a boilermaker, testified that sometime within the nine months prior to the inspection one of Gulf's senior safety instructors had been assigned to set up a program to train all operators in the use of all types of respirators.

OSHA industrial hygienist Nickey Lee Nicholas postulated that the flue gases might contain carbon monoxide, sulfur dioxide, or hydrogen sulfides. However, she did not test for these gases, and Gulf declined to supply her with its own monitoring results. Nicholas obtained samples of the catalyst dust, which was found to contain from 2.4 to 7.3 per cent quartz, but not to contain cristobalite, tridymite, or arsenic. The amount of respirable catalyst dust in the samples was within the limits set by OSHA, according to Nicholas. She stated that the direction of the wind affected the test results, since on the day of the inspection the employees stood upwind and received less exposure to catalyst dust.

Nicholas testified that chronic exposure of employees to quartz present in catalytic dust could result in silicosis and that the complications from silicosis could be fatal. She also stated that if an employee entered an atmosphere without checking the respirator or with improper training, the employee could have a false sense of security. Nicholas had heard of cases where improper training concerning respirators had resulted in fatalities. Nicholas also stated that training concerning a full-mask respirator would not necessarily make an individual competent to use a half-mask respirator, since there are different flooder valves, different adjustments to be made, and different tests to be performed.

Long, who had worked at the refinery for twenty-six years, testified that flue gases at one time were so bad that it was necessary to obtain respirators. He also stated that at one time a few employees at the unit had been exposed to gas because the outside plate on the carbon monoxide boiler was in disrepair, and he thought that one employee had died. Hayes stated that on occasion he had been choked by flue gases.

Judge Bullis found that Gulf had failed to comply with 29 C.F.R. ї 1910.134 (b)(3) in that it had not implemented a sufficient respirator training program, since at the time of the inspection two assistant operators had not received any training in the type of respirators they were using. Judge Bullis also rejected Gulf's argument that the alleged section 1910.134(b)(3) violation should be vacated because the Secretary had not proved the existence of a hazard requiring the use of respirators. The judge concluded that Gulf's posting of signs warning of the danger of carbon monoxide and flue gases and its requirement that employees use respirators when emptying precipitators or unloading cat cars showed that Gulf recognized the existence of a hazard to its employees. The judge also referred to Hayes' testimony that he had been choked by flue gases. Judge Bullis concluded that Gulf would not have taken the steps it did to protect its employees if no hazard existed. The judge classified the violation as other than serious and assessed a penalty of $300.

On review, Gulf argues that the alleged section 1910.134(b)(3) violation should be vacated, because the evidence does not establish that its employees were exposed to any hazard contemplated by that standard. Gulf argues that a violation cannot be based on employee exposure to catalyst dust, since tests conducted by OSHA showed that atmospheric quartz levels were within permissible limits. Further, Gulf maintains that the Secretary's failure to offer objective proof of the composition and degree of danger posed by flue gases prevented the finding of a violation based on the presence of those gases. Gulf also argues that its posting of warning signs cannot be relied on as proof that the hazards actually existed.

The Secretary contends that he need not show through accurate objective measurements that air contaminant concentrations exceed permissible limits. In his view, the requirements of 29 C.F.R. ї 1910.134(b)(3) are triggered by a "recognized nexus between respirators and employee health" rather than by excessive employee exposure to a toxic substance. The Secretary maintains that Gulf recognized a health hazard requiring respirators when it posted warning signs and required employees to wear respirators in the areas in question. The Secretary therefore asserts that Gulf should be found in violation of the cited standard because it failed to institute an effective respirator training program.

We agree with the parties' logical inference that the standard does not require training concerning respirators absent employee exposure to hazardous air contaminants. Therefore, we hold that a hazard requiring the use of respirators must be shown before an employer is obligated to provide respirator training.[[7/]]

The Secretary contends that the testimony regarding the presence of catalyst dust, coupled with testimony that employees exposed to catalyst dust could contract silicosis and other respiratory diseases, is sufficient to establish the presence of a health hazard. However, the Secretary's tests showed that the concentration of quartz in the catalyst dust in the area where the employees worked was within permissible limits and the catalyst dust contained no cristobalite, tridymite, or arsenic.[[8/]] There was no showing that exposure to catalyst dust at monitored levels is hazardous to employees, or that employees became ill as a result of exposure to catalyst dust. Cf. Mahone Grain Corp., 81 OSAHRC 108/B8, 10 BNA OSHC 1275, 1982 CCH OSHD І 32,316 (No. 77-3041, 1981) (serious violation of ї 1910.134 established where employees exposed to grain dust contracted histoplasmosis) (lead and dissenting opinions).[[9/]] Further, there is no evidence of a possible emergency situation occurring as a result of a sudden excursion above a TLV. See Snyder Well Servicing, Inc. (lead and dissenting opinions). We therefore find that the Secretary failed to establish the existence of a health hazard due to catalyst dust at Gulf's worksite.

We also conclude that the Secretary failed to show that concentrations of flue gases at Gulf's worksite constituted a hazard. The Secretary did not test these gases or offer evidence regarding their composition. Although two employees testified that they had experienced difficulty breathing as a result of exposure to flue gases, their testimony was not adequate to draw any inferences regarding the hazard. Therefore, the evidence fails to establish by a preponderance that exposure of employees to flue gases at Respondent's worksite presented a health hazard requiring the use of respirators.

Finally, we decline to infer that a health hazard requiring respirators was present based upon Gulf's posting of warning signs concerning flue gases and carbon monoxide, and Gulf's requirement that employees wear respirators when performing certain job functions. An employer's voluntary safety measures may be relevant to determine an employer's awareness of a hazard at its worksite. However, Chairman Rowland concludes that an employer's own safety precautions, absent other evidence, do not establish that the employer believed that such precautions were necessary in order to comply with a particular standard. S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1284 (5th Cir. 1981); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978); Cape & Vineyard Division v. OSHRC, 512 F.2d 1148, 1154 (1st Cir. 1975); Ulysses Irrigation Pipe Co., No. 78-799 (Mar. 24, 1983) (dissenting opinion). In his view, a prudent employer might supply respirators to employees even though it does not believe that a health hazard is present. In Commissioner Cottine's view, absent some probative evidence regarding actual or potential employee exposure to dangerous levels of toxic substances, see Con-Agra, Inc., supra, Gulf's warning signs and respirator requirement alone do not establish the existence of the hazard.

Because we conclude that the Secretary has failed to prove a health hazard requiring the use of respirators, we reverse the disposition of Judge Bullis and vacate the item of the citation alleging a violation of section 1910.34(b)(3).

III.
Accordingly, we affirm Judge Bullis's decision with respect to item one of the citation and order that the alleged violation of 29 C.F.R. ї 1910.22(b)(1) be vacated and the proposed amendment to 29 C.F.R. ї 1910.22(a)(1) be denied. The judge's disposition of item two of the citation is reversed, and we order that the alleged violation of 29 C.F.R. ї 1910.134(b)(3) be vacated.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

CLEARY, Commissioner, concurring in part and dissenting in part:

I concur with the majority's affirmance of the judge's vacation of the item alleging noncompliance with ї 1910.22(b)(1). As does the majority, I conclude that Gulf did not expressly or implicitly consent to try an alleged violation of ї 1910.22(a)(1). In fact, Gulf expressly objected to trying the ї 1910.22(a)(1) issue by moving to vacate at the end of the Secretary's case on the basis that the cited standard was inapplicable.

I dissent from the majority action vacating the item alleging a failure to comply with ї 1910.134(b)(3). In general, the majority concludes that training in the use of respirators is not required, absent some probative evidence regarding actual or potential employee exposure to dangerous levels of toxic substances, and that an employer's own safety precautions, absent other evidence, do not establish that respirators were necessary. The majority concludes that the Secretary failed, therefore, to prove a health hazard requiring the use of respirators, and thus training under ї 1910.134(b)(3) was also not required.

I agree that the Secretary failed to establish that the respirable dust contained quartz in excess of the limits permitted by ї 1910.1000, and that the Secretary failed to determine either the level or the composition of the flue gases. Respondent has been charged, however, not with a failure to comply with the provisions of ї 1910.1000, but rather with noncompliance with ї 1910.134(b)(3). A violation of ї 1910.134(b)(3) can exist without evidence of an excursion of levels above those prescribed in ї 1910.1000. For example, respirators may be required on entry of employees into an oxygen deficient atmosphere. Under ї 1910.134(a)(2) (which predicates the requirements of the cited standard), respirators must be provided whenever necessary to protect the health of employees regardless of whether a TLV set forth in ї 1910.1000 is exceeded. Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1982 CCH OSHD І 25,943 (No. 77-1334, 1982). Section 1910.134, as does ї 1910.1000, favors accepted engineering control measures in preference to respirators (ї 1910.134(a)(1)), but in my opinion the requirements of ї 1910.134(a)(2) are independent of ї 1910.1000, and are superseded by that standard only when TLVs are exceeded. Under somewhat analogous circumstances this Commission has found a violation of section 5(a)(1) of the Act where an employer has failed to test for toxic substances. Con Agra, Inc., 83 OSAHRC 5/C7, 11 BNA OSHC 1141, 1983 CCH OSHD І 26,420 (No. 79-1146, 1983). We said, "The failure to test in a confined atmosphere before possible exposure of employees to toxic substances is a violation distinct from a continued exposure to known quantities of substances listed in section 1910.1000." 11 BNA OSHC at 1145, 1983 CCH OSHD І 26,420 at p. 33,527. Similarly, a requirement for respirators in an atmosphere with potential exposure to toxic substances can exist independently of a violation of ї 1910.1000.

The preceding, of course, does not answer the majority position that there must be evidence of potential employee exposure to dangerous levels of toxic substances. But there are several salient items of evidence in this case which, in my view, dictate that respirators should have been provided and required. It follows from this that training should also have been required. The first such evidence is that one of Respondent's employees, Elton Hayes, Jr., testified that he had occasionally been choked by the flue fumes. Hayes wore a half-mask respirator, but received no training in its proper use. Another employee also testified that he experienced difficulty breathing as a result of exposure to flue gases. Further, Respondent provided respirators and required their use.

Based on the testimony of the two employees alone, I would find that respirators were required to protect the health of employees independently of testing, or indications of toxic levels above those prescribed in ї 1910.1000. Moreover, Respondent provided respirators and required that they be used. While this could be construed as a precautionary measure against the contingency of the presence of toxic gases, if the contingency were realized, the use of respirators without proper training could be useless, or worse than useless, if employees were deluded into thinking they were protected whereas, in fact, they were not. In the recent case of Blocksom & Co., 83 OSAHRC 10/A2, 11 BNA OSHC 1255, 1983 CCH OSHD І 26,452 (No. 76-1897, 1983), we vacated a citation which alleged a violation for failing to train employees in the proper use of respirators. We held that the mere presence of respirators on a job site does not trigger the training requirement, and at the time of the alleged violation, Blocksom no longer intended that the respirators be used, but had a policy to evacuate the plant in the event of a fire beyond immediate control. Since the respirators were essentially not available to employees for use, it was concluded that training was not required. In the instant case, the opposite is true. The respirators are available and their use is required, and I conclude that under these circumstances, training is also required.

I agree that the Secretary might have made a stronger case had he tested for carbon monoxide, sulfur dioxide, or hydrogen sulfides. However, the testimony of the two employees is probative evidence which, in my opinion, established a prima facie case. Based on this record, I would find a violation of the citation as alleged.

The Administrative Law Judge decision 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 ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] The standard provides:

ї 1910.22 General requirements.
(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

[[2/]] The standard provides:

ї 1910.22 General requirements.

* * *
(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

[[3/]] The standard provides:

ї 1910.134 Respiratory protection.

* * *
(b) Requirements for a minimal acceptable program.

* * *
(3) The user shall be instructed and trained in the proper use of respirators and their limitations.

[[4/]] The Secretary also urges the Commission to overrule its holding in Love Box Co. and find Gulf in violation of ї 1910.22(b)(1). The Secretary maintains that the reference to "mechanical handling equipment" applies only to the first sentence of ї 1910.22(b)(1) and that the second sentence of that standard applies to employees in general. We adhere to our holding in Love Box Co. See Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1661-62, 1981 CCH OSHD І 25,359 at p. 31,508-09 (No. 13401, 1981).

[[5/]] Gulf states that it would have produced evidence concerning: (1) alternative routes to avoid tripping hazards; (2) the dimensions of the scaffolding alleged to be obstructive; (3) accident history in the particular place; and (4) other protective measures to prevent tripping and falls to the ground.

[[6/]] In declining to permit amendment to allege noncompliance with ї 1910.22(a)(1), the judge also noted that the amended charge would be merely duplicative of a separate ї 1910.22(a)(1) violation that was not contested.

[[7/]] Chairman Rowland notes that 29 C.F.R. ї 1910.134(a)(1) requires respirators to be used pursuant to the requirements of 29 C.F.R. ї 1910.134. Section 1910.134(a)(2) requires respirators to be provided "when such equipment is necessary to protect the health of the employee." Since the cited standard, 29 C.F.R. ї 1910.134(b)(3), applies to the use of respirators, Chairman Rowland concludes it does not apply unless it is shown that respirators are necessary to protect the health of the employee. In order to show such equipment is necessary, the Secretary must show whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment. Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1982 CCH OSHD І 25,943 (No. 77-1334, 1982) (dissenting opinion). For the reasons given in the text, infra, Chairman Rowland concludes a reasonable person would not recognize the existence of a hazard.

[[8/]] Exposure limits for quartz, cristobalite, tridymite, and arsenic are contained in the air contaminants standard at 29 C.F.R. ї 1910.1000.

[[9/]] Commissioner Cottine also notes that, unlike the record in Con Agra, Inc., 83 OSAHRC____, 11 BNA OSHC 1141, 1983 CCH OSHD І 26,420 (No. 79-1146, 1983), there is no evidence in this case of potential employee exposure to dangerous quantities of toxic substances.