OSHRC's criteria for penalty assessments impacts chicken processing plant

Abstract

On September 13, 1997, two employees of a chicken processing plant lost their lives while dumping marinated, raw breading into the company's 40-foot long, waste breading trailer. The company revised its method of discarding the breading a few months prior to the accident due to concerns that entry into the trailer exposed employees to carbon dioxide vapors.

The new procedure used a forklift to dump plastic totes full of breading through one of three 5 x 5-foot openings in the trailer's roof. Although employees were trained on the new procedure, company management was aware that employees climbed ladders to the roof to manually dump the breading into the openings.

Question 1: Why is the confined space ruling under review?

Following an inspection of the worksite, the Secretary of Labor alleged that the chicken processing company failed to provide employees with information regarding a permit-required confined space.

After considering the standard's text and structure, the judge found that the trailer did not meet part (1) of the confined space definition because employees were not required to enter the trailer to perform assigned work. OSHRC agreed with the judge stating that in order to satisfy the definition of a confined space it must be possible, under the circumstances, for an employee to both "bodily enter" the space and "perform assigned work."

Conclusion

OSHRC held that the standard did not apply due to the absence of evidence that there was a method possible, under the circumstances, to bodily enter the trailer and perform assigned work. OSHRC also noted that the chicken processor was cited for failing to guard three openings in the trailer's roof. However, the company did not petition for review of the judge's decision on this point. In an unpublished opinion dated August 3, 2007, the U.S. Court of Appeals for the Eleventh Circuit sent the case back to the OSHRC for further proceedings with its opinion.

Question 2: How did the chicken processing company fail to comply with labeling requirements?

The Secretary alleged that the chicken processing company failed to post hazard warnings or information on or near containers holding waste breading mixed with CO2. Two citations were issued alleging violations of 1910.1200(f)(5)(i) and (ii) for failing to label, tag, or mark each container in the breading trailer area alerting employees to the health effects of CO2 and the fact that the containers had CO2 inside of them.

However, the judge concluded that the waste breading, which was transported to another facility and processed into animal feed, fell within the Food, Drug, and Cosmetic Act’s definition of “food.” He noted that the breading trailer, as well as the totes and boxes were labeled “inedible” pursuant to USDA regulations. He also noted that the USDA regulated the entire production process at the chicken processing plant. OSHRC did not agree.

Conclusion

OSHRC ruled that the Secretary established that the chicken processor failed to comply with the terms of the cited standards, which require labeling, tagging, or marking to identify CO2 and describe the hazards it presents. The Commission also concluded that the company had knowledge of the violations because the supervisors knew CO2 was a hazardous chemical and the trailer, parked in plain view in back of the processing building, obviously did not display a CO2 label or warning.

When assessing penalties, OSHRC must give consideration to the following criteria: the size of the employer’s business; the gravity of the violation; good faith; and the employer’s history of violations. Generally, the gravity of the violation is the primary element in the penalty assessment. The gravity of a particular violation depends on: (1) the number of employees exposed; (2) the duration of the exposure; (3) whether any precautions were taken against injury; and (4) the probability that an accident would occur.

In this particular case, OSHRC determined that the chicken processor is a large employer, with approximately 900 employees at its Collinsville, Alabama plant; has a history of violations at its Macon, Georgia plant; does not argue for a good faith reduction in penalty amounts; and the gravity of the labeling violation is moderately high. As a result, the Commission assessed a combined penalty of $5,000.

Full text decision

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