BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

WITEG SCIENTIFIC
14235 Commerce Drive
Garden Grove, CA 92846

 

                              Employer

 

 

Docket No.

97-R3D1-3115, 3123,
3125 and 3126

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above-entitled matter by Witeg Scientific [Employer], makes the following decision after reconsideration.

JURISDICTION

On April 23, 1997, a representative of the Division of Occupational Safety and Health (the Division) conducted a referral safety inspection at a place of employment maintained by Employer at 14235 Commerce Drive, Garden Grove, California (the site). On October 20, 1997, the Division issued to Employer a citation for a willful/serious violation of section1 5164(a) [substances not separated] with a proposed civil penalty of $40,000. On that same date, the Division also issued to Employer the following citations2:

 

Citation Item Section Classification Penalty
1 5 5144(c) General $260
    [respirator training]    
         
1 8 5192(q)(1) General $175
    [emergency response plan]    
         
9   5192(q)(6) Serious $1,000
    [hazard response training]    
         
11   5192(q)(10) Serious $1,000
    [protective clothing]    


Employer filed timely appeals contesting the existence and classification of the alleged violations and the reasonableness of each proposed civil penalty.

A hearing was held before Jack L. Hesson, Administrative Law Judge (ALJ), in Anaheim, California. Bill Knocke of Health & Safety Specialists, represented Employer. Katherine R. Wolff, Staff Counse, represented the Division.

The ALJ issued a decision denying Employer's appeals.3

On August 16, 2000, Employer filed a petition for reconsideration. The Division filed an answer. On October 5, 2000, the Board granted Employer’s petition as to Citation No. 1, Items 5 and 8 and to Citation Nos. 9, 11, and 12.4

BACKGROUND

Employer manufactures glass products and sells chemicals at the site. The Garden Grove Fire Department [GGFD] made referrals to the Division concerning Employer’s storage of chemicals at the site. The Division began its inspection on April 23, 1997, and returned to the site on September 12, 1997, at which time it ordered Employer to move what it considered to be incompatible chemicals. On October 20, 1997, the Division issued the above citations.

LAW AND MOTION

On April 23, 1997, and on September 12, 1997, Division Inspector Samuel L. Richardson [Richardson], Associate Industrial Hygienist, conducted an inspection at the site and at hearing he testified as to the existence of the violations on each of the inspection dates.5 Employer raises a statute of limitations argument as to the violation6 of section 5164(a) on the ground that the Division was aware of the alleged violation as early as March 31, 1997. It argues the issuance of the citation on October 20, 1997 was beyond the six-month limitations period.

Employer’s argument that the statute of limitations bars finding a violation of section 5164(a) is without merit. We find that this citation is not barred by the statute of limitations because it is not the Division’s knowledge of the violation that controls the statute of limitations clock but rather the existence of the violation itself. (See, Metro-Young Construction Co., Cal/OSHA App. 82-674, Decision After Reconsideration (Apr. 24, 1986).) Labor Code section 6317 provides, in relevant part: “No citation … shall be issued by the division for a given violation or violations after six months have elapsed since occurrence of the violation.” [Emphasis added] Since this violation, which Employer contends is barred by the statute of limitations, existed within the six-month period immediately preceding the issuance of the citation, there is no statute of limitations bar.

Docket No. 97-R3D1-3126
Citation 12

EVIDENCE

Employer was cited for a willful/serious violation of section 5164(a) alleging that “(o)n … April 23, 1997, and again on September 12, 1997, the employer failed to ensure that substances which, when mixed, react [in a dangerous manner] shall be separated from each other in storage … .”

In its petition for reconsideration, Employer acknowledges that it was issued an order from the Garden Grove Fire Department [GGFD] on March 28, 1997 requiring it to segregate and isolate incompatible materials. The containers holding the chemicals were labeled and Employer had Material Safety Data Sheets [MSDS] for each chemical it was storing.

Richardson testified that on April 23, 1997, he observed large quantities of acids with large quantities of bases, and oxidizers stored next to magnesium. He stated that, in particular, hydrochloric acid was stored next to cyanide and sodium hydroxide was stored near sulfuric acid. On April 23, 1997, Richardson testified that he told Marc Grozinger (Grozinger), Employer’s Vice President, that the chemicals needed to be separated. Richardson further testified that a concurrent spill of these chemicals could produce violent and deadly chemical reactions. Richardson identified the employees exposed to the hazardous substances storage as Roman Paulin (Paulin), an employee, Roberto Martinez (Martinez), his supervisor, and Grozinger, all of whom were identified as involved in the dispensing of the chemicals in the storage area.

Martin LaBenz [LaBenz], a member of the Society for Hazard Evaluation, retained by Employer as a consultant, testified on Employer’s behalf. He admitted that mixing cyanide and hydrochloric acid would be deadly.

GGFD Captain Steve Shirley [Capt. Shirley] testified that Grozinger was told verbally and then in writing on March 28, 1997, to cease dispensing chemicals immediately. Capt. Shirley further testified that on April 21, 1997, he observed Grozinger dispensing chemicals from his bulk stock into smaller containers in the storage area of the site.

Richardson testified that he returned to the site on September 12, 1997 as a result of a call from the Fire Department. He determined that the hazard had escalated because there were more chemicals present than were stored on his first inspection on April 23, 1997. He insisted that the chemicals be moved or he would shut down Employer’s business. Later that day (September 12, 1997), Employer separated the incompatible chemicals from one another.

ISSUE

Was a willful/serious violation of section 5164(a) established?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division Established a Violation of Section 5164(a).

Employer asserts that it was not in violation of section 5164(a) because it accomplished the required separation of the hazardous substances that it stored by keeping such materials in their original Department of Transportation [DOT] containers. Employer does not deny that it stored the subject materials in close proximity to one another. It argues that it provided protection against the likelihood of accidental damage to the storage containers by keeping the stored chemicals away from high concentrations of activity and personnel. Employer also barred forklifts from the area where the chemicals were stored.

Section 5164(a) provides:

Substances which, when mixed, react violently, or evolve toxic vapors or gases, or which in combination become hazardous by reason of toxicity, oxidizing power, flammability, explosibility, or other properties, shall be separated from each other in storage by distance, by partitions, or otherwise, so as to preclude accidental contact between them.
Note: Some typical examples of such incompatible substances are: Mineral acids and oxidizing agents; mineral acids and cyanides; oxidizing agents and combustible materials; acids and alkalis.

This regulation states, without exception, that the described hazardous substances shall be separated. It further requires that they be separated by distance, by partition, or otherwise. Employer does not assert that the chemicals it stored were separated by distance or by partition, but rather that the retention of the chemicals in their original DOT containers constituted appropriate separation. It also claims that the storage in an isolated area and the barring of forklifts from that area constituted compliance with the “or otherwise” provision of section 5164(a).

Robert Conger (Conger), Employer’s consultant, testified that he considered original DOT shipping containers to be safe as long as they were unopened but pointed out that incompatible materials are never shipped together in order to prevent the consequences of a concurrent spill. We find that storing hazardous substances in their original DOT containers alone does not satisfy the separation requirement of section 5164(a) because of the inherent danger created by the substances accidentally mixing (if such containers should break). Storage of the containers in close proximity to one another creates the hazard that section 5164(a) attempts to avoid. We also find that the placement of the stored chemicals together in a low-traffic location and the barring of forklifts from the chemical storage area do not constitute measures sufficient “to preclude accidental contact.”

To establish a violation the Division must also prove that there was employee exposure to a violative condition addressed by a safety order. (See Moran Constructors, Inc., Cal/OSHA App. 74-381, Decision After Reconsideration (Jan. 28, 1975).) To find “exposure” there must be reliable proof that employees were endangered by an existing hazardous condition or circumstance. (Huber, Hunt & Nichols, Inc., Cal/OSHA App. 75-1182, Decision After Reconsideration (Jul. 26, 1977).)

Richardson testified that Grozinger was an exposed employee of the corporation. This was corroborated by Capt. Shirley’s testimony that he observed Grozinger dispensing chemicals in the storage area on April 21, 1997. Employer did not deny exposure, it merely asserted that any exposure was not significant.

The Violation was Properly Classified as Serious.

In order to establish that a serious violation exists the Division must prove that there is a substantial probability that death or serious physical harm could result from a violative condition in a place of employment, unless an employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. [Labor Code § 6432(a)7; California Agri-Systems, Cal/OSHA App. 78-431, Decision After Reconsideration (Nov. 17, 1980).] “Substantial probability” refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation. [Labor Code § 6432(c); § 334(c)(3)8]. To show Employer could have known of the violative condition by exercising reasonable diligence, the Division has to prove the violation occurred at a time and under circumstances providing Employer with a reasonable opportunity to have detected it. (Lights of America, Cal/OSHA App. 89-400, Decision After Reconsideration (Feb. 19, 1991).)

Employer knew what chemicals were in the containers it stored because those containers had labels affixed. Employer knew the properties of the chemicals it stored because it had MSDS sheets for those chemicals. Conger provided Grozinger with a list of the incompatible chemicals Employer was storing and discussed with him as early as January 3, 1997 the need to separate those chemicals. Richardson testified that cyanide combined with an acid is deadly. LaBenz admitted that mixing cyanide and an acid, chemicals that Employer stored without separation, would be deadly.

We find that a serious violation of section 5164(a) is established based upon testimony given by the Division’s witnesses and Employer’s consultants that should an accident result from the storage of these incompatible materials, death or serious physical harm would result.

A Willful Violation was Established.

Employer asserts that the violation was not willful. It argues that the Division never directed Employer to separate the chemicals that the inspector observed on the first inspection, April 23, 1997. Although Richardson did not issue written direction to Employer to separate the chemicals, he testified that he told Grozinger that the chemicals needed to be separated.

A willful violation is defined in section 334(e) as:

“[A] violation where evidence shows that the employer committed an intentional and knowing, as contrasted with inadvertent, violation, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law; or, even though the employer was not consciously violating a safety law, he was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition. [§ 334(e), emphasis added.]

Under section 334(e), the Division may establish the willfulness of a violation by showing by a preponderance of the evidence that: (1) an employer intentionally violated a safety law; or (2) an employer had actual knowledge of an unsafe or hazardous condition, yet did not attempt to correct it. [See, generally, E&G Contractors, Cal/OSHA App. 81-825, Decision After Reconsideration (Mar. 27, 1987).]

Under section 334(e), the appropriate standard on intent to support classifying a violation as willful requires “the Division to prove by a preponderance of the evidence that the employer committed a voluntary and volitional, as opposed to an inadvertent, act, or, in other words, that the act itself was the desired consequence of the actor’s intent, and that the employer was conscious that its act violated a safety order.” (Rick’s Electric, Inc. v. California Occupational Safety & Health Appeals Board (2000) 80 Cal.App.4th 1023, 1037)

The evidence supports the conclusion that Employer committed a willful violation under the first test of section 334(e). At his first inspection on April 23, 1997, Richardson told Grozinger to separate the stored chemicals because they were incompatible substances. At that time, he did not consider the violation to be willful. However, when he returned on September 12, 1997, as found by the ALJ, the amounts of chemicals stored had increased and Employer still had not separated the incompatible substances.9 At that point, Richardson determined the violation was willful. Despite Employer’s denial that the amounts of stored chemicals increased after April 23, 1997, we find that the amounts of stored incompatible substances increased as of Richardson’s second inspection on September 12, 1997.

Under the second test of section 334(e), an employer commits a willful violation when it is aware of a hazardous condition but fails to make reasonable efforts to remove the condition. [Owens-Brockway Plastic Containers, Cal/OSHA App. 93-1629, Decision After Reconsideration (Sep. 25, 1997).] We find that on March 28, 1997, Employer had knowledge that the stored chemicals constituted a hazardous condition. In addition to the directive of Richardson on April 23, 1997, the GGFD had issued an order to separate the chemicals and testimony by Capt. Shirley confirmed that Employer was told of the danger created by its chemical storage. Employer did nothing until September 12, 1997 when Richardson insisted the chemicals be moved or the business would be ordered shut down. Only then did Employer act.

We find, based upon the above, that a willful violation of section 5164(a) is established under both tests of section 334(e) and that the proposed $40,000 penalty is reasonable.


Docket Nos. 97-R3D1-3123 and 3125
Citations 9 and 11

EVIDENCE

Employer was cited for a serious violation of section 5192(q)(6) for failing to train its emergency response team10 based on the duties and functions to be performed by each responder. Richardson interviewed employee Paulin and his supervisor Martinez, who told him that they received about one hour in-house training in which Grozinger told them not to spill, not to mix, and not to get any chemicals on them. Richardson testified that Employer had no training records for its emergency response team at the time of his inspection on April 23, 1997.

Employer was also cited for a serious violation of section 5192(q)(10) for failing to ensure the protective clothing and equipment supplied to Employer’s HAZMAT team members met the requirements of subsections (g)(3) through (g)(5) of section 5192. Specifically, Employer did not have a positive pressure self-contained breathing apparatus or positive airline respirators equipped with an escape air supply to be used when chemical exposure levels present would create a substantial possibility of immediate serious illness or injury, impairing the ability to escape. The evidence established that Employer had such chemicals on site including, among others, hydrofluoric acid, potassium cyanide, and hydrochloric acid. Employer’s consultant, LaBenz, testified that mixing cyanide and hydrochloric acid would be deadly.

Richardson testified that untrained employees attempting to control a chemical spill are in danger of serious injury. For instance, an attempt to wipe up an oxidizer with a paper towel could result in the towel catching fire, and water poured on magnesium could explode.

ISSUE

Did the Division establish serious violations of section 5192(q)(6) and section 5192(q)(10)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer concedes that it planned to respond to releases of hazardous substances. Grozinger testified that Employer would limit its response to a chemical spill of ten gallons. Employer argues that “it will handle only incidental responses,” and consequently, it is outside the scope of section 5192. Employer asserts that where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, it is not considered to be an emergency response. Further, it contends that section 5192 is inapplicable because it demonstrated that there was no reasonable possibility of employee exposure to safety or health hazards.

The scope of section 5192 is contained in subsection (a)(1) which provides that its scope includes coverage of clean-up operations or hazardous substance removal and emergency response operations for releases, or substantial threats of releases, of hazardous substances without regard to the location of the hazard, unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility of exposure to safety or health hazards.

Since we have found a willful/serious violation regarding Employer’s failure to properly separate hazardous substances in storage, we find that Employer’s argument that a chemical spill does not involve a reasonable possibility of employee exposure to safety or health hazards to be without merit. We find that Employer’s operation is within the scope of section 5192. We also find that Employer’s intention to respond only to incidental releases does not excuse it from training its response team in the duties and functions to be performed at a spill. Employer’s direction not to spill, not to mix, and not to get chemicals on themselves does not satisfy the training requirements of section 5192(q)(6). Thus we find that the Division has established a serious violation of section 5192(q)(6) and that the proposed penalty of $1,000 is reasonable.

There is no dispute that Employer failed to provide the required self-contained breathing apparatus for its HAZMAT team members. We likewise find that the Division has established a serious violation of section 5192(q)(10) and that the proposed penalty of $1,000 is reasonable.

Docket No. 97-R3D1-3115
Citation 1, Item 8

EVIDENCE

Employer was cited for a general violation of section 5192(q)(1) with a proposed civil penalty of $175 for failure to develop and implement an emergency response plan to handle anticipated emergencies prior to the commencement of emergency response operations.

ISSUE

Is a general violation of section 5192(q)(1) established?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

In its supplemental petition for reconsideration, Employer admits the violation of section 5192(q)(1). Consequently, we find that a violation of section 5192(q)(1) is established and that the proposed penalty of $175, calculated in accordance with sections 333 through 336 is reasonable. Employer seeks reduction of the $175 proposed penalty on the basis of its “abatement efforts and the financial cost for the business losses.” It further states, “(a)s of November, 2000 the employer has never regained its clientele and virtually has no business in this industry.”

We address Employer’s plea for penalty relief infra since its request is not limited merely to Citation 1, Item 8.

Docket Nos. 97-R3D1-3115, 3123, 3125 and 3126
Citation 1, Item 8; Citations 9, 11 and 12

PENALTY RELIEF

In its supplemental petition for reconsideration Employer requests that the Board “… consider further reducing the penalty for the employer’s abatement efforts as well as the financial cost for the business losses.”

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board cannot permit the reduction of penalties arising from an established violation by an employer’s claim of financial hardship without looking to the objectives of the Act. Eagle Environmental, Inc., Cal/OSHA App. 98-1640, Decision After Reconsideration (Oct. 19, 2001). In The Bumper Shop, Inc., Cal/OSHA App. 98-3466, Decision After Reconsideration (Sep. 27, 2001), we provided an approach to financial hardship claims for penalty relief for employers which insures due consideration of the objectives of the Act and the deterrent purposes of the penalty citation system.

Where a willful violation is established employers should not expect penalty relief as such a violation demonstrates a lack of concern for providing a safe work place. Witeg had only to move the incompatible chemicals away from one another when the GGFD ordered it to do so on March 28, 1997. Instead, ignoring Richardson’s direction on April 23, 1997, it waited until September 12, 1997 when, under threat of business closure, it took the step to separate the chemicals as required by section 5164(a) to correct that violation.

In support of its request for penalty relief, Employer submitted financial records that indicated that it was suffering a downturn in business revenues. Employer did not, however, establish that the payment of the penalties would put it out of business.

In The Bumper Shop, supra, at pg. 6, we said:

… an employer with an on-going business must have addressed and corrected the health and safety violations which are the subject of the penalty. Any claimed financial hardship must be related, both in time and costs incurred, to correcting those violations. To allow otherwise would simply and impermissibly elevate financial hardship (which may be due to any number of economic influences and conditions) over the clear purposes of the Act.

The financial hardship asserted is not related, either in time or costs, to correcting the violations. Employer’s submitted financial records show that it spent $82,246 refurbishing the site in order to get GGFD approval to store large quantities of toxic chemicals. The Division required separation of incompatible chemicals, which Employer accomplished on September 12, 1997 with virtually no expenditure of any monies.

In light of the above, we decline to grant Employer any further penalty relief.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision, denies Employer’s appeals and assesses civil penalties of $42,175.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 21, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations. “Decision After Reconsideration” is referenced in the footnotes as “DAR”.
2 Employer withdrew its appeal from Citation 1, Items 1, 2, 3, 5, 6, & 7.
3 The ALJ granted Employer’s appeal from Citation 1, Item 4, for violation of section 5144(a) [respirator use] on statute of limitation grounds because Employer had ceased its operation that required the respirator more than 6 months before the citation was issued.
4 On the same date the Board also granted Employer leave to file a supplemental petition for reconsideration. Employer filed its supplemental petition on November 8, 2000. The Division filed an answer to Employer’s supplemental petition on November 29, 2000.
5 He did not, however, consider the violation alleged in Citation 12 to be willful on the first inspection, April 23, 1997. It was considered willful by the inspector on September 12, 1997 when he re-inspected the site because Employer was told on April 23, 1997 that failure to segregate the incompatible chemicals was an unsafe or hazardous condition and the continued failure to segregate them almost five months later was willful.
6 Employer also includes in this argument Citation 1, Item 5 [§ 5144(c)], however, Employer withdrew its appeal from this item and it is therefore barred from consideration here. [§ 364; Provigo Corp., Cal/OSHA App. 91-1209 Denial of Petition for Reconsideration (2-10-93).]
7 For conditions cited as having occurred after January 1, 2000, changes to Labor Code section 6432(a) reverse the burden of proof on the “knowledge” element of a serious classification. For violative conditions occurring prior to January 1, 2000, the Division carries the burden of establishing these elements by a preponderance of the evidence. (Howard J. White, Inc., Cal/OSHA App. 78-741 DAR (Jun. 16, 1983).
8 “Probability” is something likely to occur while “substantial probability” is something more likely to occur than not. [Abatti Farms/Produce, Cal/OSHA App. 81-256, DAR (Oct. 4, 1985).]
9 The ALJ’s findings, based on witness credibility are entitled to great weight because he was present during the taking of the testimony and was able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand. [See, Garza v. Workmen’s Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Metro-Young Construction Co., Cal/OSHA App. 80-315, DAR (Apr. 23, 1981).]
10 Grozinger told Richardson that he, and employee Roman Paulin, and his supervisor, Roberto Martinez, would respond to chemical spills and testified that they would only respond to spills that they could handle in-house.