Koppers Co., Inc. (Commission decision, November 14, 1974)

Plain-English summary

OSHA cited Koppers Co., Inc. over employee exposure to coal tar pitch volatiles during coke-oven operations and over respirator protection. The alleged serious violation concerned the absence of feasible engineering or administrative controls and protective measures for a shift foreman and pusher man. A separate nonserious allegation concerned respirators used by a lidman and lorryman. The judge dismissed the serious citation before a hearing and treated the protective-equipment allegations as duplicative. The Commission reversed because the cited requirements involved different employees and different factual situations, then remanded the case for a hearing consistent with its decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.93(e); 29 C.F.R. § 1910.134(a)(2)
• Outcome: The judge's pre-hearing dismissal was reversed, and the case was remanded for a hearing.
• Key point: Protective-equipment allegations under different standards were not duplicative when they concerned different employees and different alleged failures.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

�������������������������������������������� Complainant,

������������������������ v.

Docket
No. 3449

KOPPERS
CO., INC.

��������������������������������������������� Respondent.

November 14, 1974

����������� Van
Namee, Commissioner:

����������� This
matter was originally consolidated with Dockets 2975 and 4349 (United States Steel Corporation) by Judge Charles K. Chaplin for purposes of argument and decision regarding a question of law common to all three cases. [1] � It arose out of two citations. � One alleged a serious violation of the Occupational Safety and Health Act of 1970 [2] (the �Act�) saying that Respondent (Koppers) failed to control the exposure of a shift foreman and a pusher man to the level specified by 29 C.F.R. 1910.93 for coal tar pitch volatiles by feasible engineering or administrative controls contrary to the requirements of 29 C.F.R. 1910.93(e). � The second citation alleged a non-serious violation of the Act saying that Koppers failed to provide a lidman and lorry-man with respirators of an approved design contrary to the requirements of 29 C.F. R. 1910.134 (a)(2).

����������� Koppers
timely filed a notice contest as to both citations. � Thereafter a complaint was filed. � The serious allegation included a statement saying that Koppers had failed to provide �protective equipment or any other protective measures� for the shift foreman and pusher man. � Koppers answered and raised no objection to the change in allegation concerning the serious citation. � Thereafter, Koppers moved to dismiss the citation for a serious violation saying the cited standard was inappropriate to coke oven operations by virtue of a decision rendered by the Secretary on September 1, 1971. [3] � By its brief filed in support of its motion to dismiss Koppers conceded the existence of the alleged non-serious violation of 29 C.F.R. 1910.134(a)(2).

����������� Judge
Chaplin granted the motion. � We reversed
in the companion U.S. Steel cases, and we do so here for the reasons given in those cases. � A copy of our decision therein is attached hereto and made a part of. � Judge Chaplin also dismissed the personal protective equipment allegation under 29 C.F.R. 1910..93 saying that it arose out of the same factual situation as the charge made under 29 C.F.R. 1910.134(a)(2). � He noted that the latter allegation had been admitted, and he dismissed it because he was of the view that an employer cannot be found in violation of two standards based on the same factual situation.

����������� His
decision dismissing the personal protective protective measure allegation under 29 C.F.R. 1910.93(e) was plain error. � Although we can conceive of many circumstances wherein the same factual circumstances will support findings of violations of two standards we need not rest reversal on such grounds. � The plain fact is that the alleged violations of 29 C.F.R. 1910.93 herein were with respect to the shift foreman and the pusher man whereas 1910.134(a)(2) allegation was made with respect to two other individuals on a different basis. � The foreman and pusher man were said not to be wearing or using personal protective measures at all. � The lidman and lorryman were said to be using inadequate equipment. � There being different factual situations involved it was plain error to dismiss allegations as being duplicative.

����������� Accordingly,
the Judge�s decision is reversed. Since his disposition was on a pre-hearing motion the matter is remanded for a hearing consistent with this decision. It is so ORDERED.

Moran, Chairman, dissenting:

����������� Judge
Chaplin�s disposition of the charge relating to 29 C.F.R. 1910.93 should be affirmed for the reasons set forth in my dissenting opinion in Secretary v. United States Steel Corporation , (Docket No. 2975/4349, November 14, 1974).

����������� The
decision below also dismissed the charge of failure to comply with the occupational safety and health standard codified at 29 C.F.R. 1910.134(a)(2). � That decision should also be affirmed.

����������� Sec.
1910.134(a)(2) requires that:

Respirators shall be provided by the
employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purposes intended�

Sec. 1910.93 provides:

To achieve compliance�feasible
administrative�controls must first be determined and implemented. � In cases where protective equipment or protective equipment in addition to other measures is used as the method of protecting the employee, such protection must be approved�.(Emphasis added).

These standards obviously overlap; both apply to
personal protective equipment. � The
decision below held that an employer cannot be found in violation of two standards based on the same factual situation. � I agree.

����������� The
Commission attempts here, however, to distinguish specific employees not protected or adequately protected by equipment. � This distinction is without merit.

����������� The
nub of both standards is that protective equipment must be supplied that is suitable to protect against the hazards contemplated therein. � Adequate protection of the one in this case satisfies the requirements to the other.

����������� This
remand, therefore, requires a trial where respondent could twice be found in violation of the Act and where an abatement of one satisfies both. � Once again we find the Commission imposing a punitive sanction with has no place in remedial type legislation, the purposes of which are �to assure so far as possible�safe�working conditions�� 29 U.S.C. 651(b).

[1] By our decision
in the U.S. Steel cases we severed this case for our decisional purposes.

[2] 29 U.S.C. 651 et. seq.

[3] 36 Fed. Reg.
18128 (September 9, 1971).