Proving Significant Employee Hazards: Secretary of Labor v. Con Agra Flour Milling Co., Occupational Safety and Health Review Commission, Docket No. 88-2150, April 22, 1993

Date: May 01, 1999

The Occupational Safety and Health Administration (OSHA) standard on personal protective equipment (PPE) requires that employers provide personal PPE when they identify hazards that may cause injury to employees "by reason of processes or environment, chemical hazards or mechanical irritants . . . capable of causing injury or impairment. . . ." The revisions to the standard in 199_ require that employers assess their operations, select the appropriate equipment and provide training to employees in the proper use of the equipment. Similarly, the requirement in the First Aid standard to provide quick drenching facilities is imposed when "the eyes or body of any person may be exposed to injurious corrosive materials. . . ." The question of when a hazard is of sufficient significance to require the use of PPE or eyewashes and showers is illustrated in the Con Agra case.

Con Agra milled wheat into flour at its Martins Creek facility. As with most industrial manufacturing facilities, electrically powered industrial trucks were used throughout the facility. One employee serviced the trucks, charging them daily, and checking electrolyte levels weekly, topping off the cells with water using a funnel when necessary. He did not use electrolyte for the routine maintenance of water levels. OSHA's inspector testified that, in his opinion, it was possible for electrolyte to splash out of the batteries, or to drip from the funnel. Thus, he said, it was necessary for the employee to use PPE, including faceshield, apron, gauntlets, and gloves. He also testified that he had seen employees performing the same job at other companies.

The inspector's testimony was supported by testimony from an OSHA safety supervisor, who couched his opinion in words suggesting there was a "possibility" that electrolyte might be in the funnel, because it would touch the electrolyte in the battery, and there would "always" be a "little bit" on the funnel, unless the employee was very careful. This witness also testified that, as a forklift operator, he had used eye protection and rubber gloves when filling batteries, and that he was aware of similar practices at other employer's facilities.

Neither OSHA witness observed any batteries being filled, nor were aware of any injuries resulting from that activity Nevertheless, the OSHA witnesses testified that a hazard existed, and that the PPE was necessary. In addition, the inspectors believed that a plumbed emergency eyewash and shower was also necessary, relying on the National Safety Council's (NSC) data sheet on lead-acid storage batteries. This document specified 25 feet as the maximum distance between a battery charging room and an eyewash facility. The nearest eyewash/shower at Con Agra's plant was in another building.

Con Agra's employee testified that he never filled the batteries to the point that the funnel was touching the electrolyte and that he did not feel PPE was necessary, because he did not think a hazard existed. No employees had ever been injured in the job by the electrolyte, and the safety supervisor corroborated the testimony of the operator.

OSHA agreed that Con Agra had to have constructive or actual knowledge of the hazard for the citation on PPE to be sustained, and that the violation for failure to provide the eyewash was valid because the nearest one was in another building. Con Agra disputed the allegation that a hazard existed, citing earlier cases in which the totality of the circumstances supported the employers conclusion. The Commission agreed with Con Agra.

The Administrative Law Judge (ALJ) properly stated the test for determining whether a hazard existed that would require the employer to provide PPE and the eyewash. However, said the Commission, the mere possibility of injury is insufficient to support the conclusion that a hazard existed. Rather, the OSH Act is intended to "guard against significant risks, not ephemeral possibilities.[emphasis added]" OSHA has to show that there is more than a mere possibility of injury, and show the existence of conditions that lead to or create the hazard.

Here, OSHA failed to rebut the testimony of the person most knowledgeable about the activity. Calling the OSHA witnesses testimony speculative and hypothetical, the Commission noted that generally, when employees testify from their own experience about their specific work activities, their testimony should be given greater weight than that of others who do not have "first-hand" knowledge of the facts. The lack of injuries supported the conclusion of a lack of hazard, but was not determinative, and while custom and practice in a trade or industry are useful evidence, they too are not controlling. Accordingly, the Commission ruled, the ALJ incorrectly concluded that a real possibility of injury existed. The Commission then vacated the citations.

This case illustrates the situation in OSHA standards where the application of the standard depends on whether a particular kind of hazard exists. Ordinarily, OSHA need only show that the standard applies, and does not need to prove the existence of the hazard as part of its case. But with the PPE standard, the employer first has to determine if a hazard exists, and OSHA must therefore prove that the employer failed to identify a hazard that would require PPE under the standard. Thus, the question becomes highly situation specific, and evidence of widespread recognition of a hazard, including that of expert opinion, custom and practice in the trade, or generally accepted voluntary guidelines, is important. As this case shows, OSHA cannot presume that such standards apply to individual employers, but must prove that the employer's circumstances create a real and significant hazard for employees.

This article appeared in Compliance Magazine (May 1999) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.