KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION v. SECRETARY OF LABOR AND ROSS BROTHERS CONSTRUCTION COMPANY
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001363-MR
KENTUCKY OCCUPATIONAL SAFETY
AND HEALTH REVIEW COMMISSION
v.
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 96-CI-01708
SECRETARY OF LABOR AND
ROSS BROTHERS CONSTRUCTION COMPANY
AND
NO.
APPELLEES
1998-CA-001443-MR
ROSS BROTHERS CONSTRUCTION COMPANY
v.
APPELLANT
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 96-CI-01708
SECRETARY OF LABOR AND
KENTUCKY OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND MILLER, JUDGES.
GUIDUGLI, JUDGE:
Ross Brothers appeals from an order of the
Franklin Circuit Court entered on May 13, 1998, which reversed
the Kentucky Occupational Safety and Health (KY-OSH) Review
Commission’s final order dismissing the citation and penalty
issued against Ross Brothers.
The KY-OSH Review Commission
appeals from the portion of the remand order instructing it to
reinstate the original citation and penalty.
After reviewing the
record, we affirm.
Ross Brothers, an industrial construction contractor,
was contracted by AK Steel Corporation Coke Plant to install a
new steam aspiration line behind and below standpipes of the coke
ovens on top of coke battery number three.
used to burn coal in order to form coke.
The coke ovens are
Gases formed by the
burning process are transferred to a collector main through
standpipes located on the top of each oven.
The standpipes are
connected to the collector main by a pullman valve, which is
opened and closed by a pullman lever.
When the coal is burned,
the pullman valve is open to allow gases to flow through the
standpipe to the collector main.
When the oven is reloaded with
coal, the pullman valve is closed and a lid on top of the
standpipe is opened to vent any gases remaining in the oven.
Gases periodically leak into the oven where they ignite and
escape by flame through the open lid on top of the standpipe.
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On November 10, 1996, an employee of Ross Brothers
accidentally raised a pullman lever, causing the pullman valve
connecting the standpipe to the collector main to open.
As a
result, gases from the collector main re-entered the oven through
the standpipe and ignited.
Flames shot out of the open lid on
top of the standpipe, as designed, and from the bottom of the
standpipe where the refractory brick had been removed by another
contractor.
A Ross Brothers employee working near the standpipe
was engulfed by the flames.
Fortunately, the employee was
wearing protective equipment and only received a first-degree
burn on his ear and a second-degree burn on his cheek.
The Secretary of Labor (the Secretary), Commonwealth of
Kentucky, issued a citation against Ross Brothers for violating
Kentucky Revised Statute (KRS) 338.031(1)(a) by failing to lock
out the pullman levers on the collector main while employees
worked near them, as required by recognized industry guidelines
set forth in American National Standards Institute (ANSI)
publication Z244.1-1982.
Pursuant to KRS 338.141(1), Ross
Brothers filed a notice to contest the citation and penalty.
The
KY-OSH Review Commission appointed a hearing officer to conduct a
hearing in accordance with KRS 338.081.
The hearing officer
dismissed the citation and penalty for failure to prove by a
preponderance of the evidence that Ross Brothers had violated KRS
338.031(1)(a).
The Secretary filed a petition for discretionary
review with the KY-OSH Review Commission.
The KY-OSH Review
Commission elected not to grant discretionary review, thus, the
hearing officer’s recommended order became the final order of the
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KY-OSH Review Commission.
The Secretary appealed the final order
to the Franklin Circuit Court.
On May 13, 1998, the circuit court found that the KYOSH Review Commission had misapplied the law and Ross Brothers
had violated KRS 338.031(1)(a).
The circuit court remanded to
the KY-OSH Review Commission with instructions to "reinstate the
citation and penalty as originally issued against" Ross Brothers.
Both Ross Brothers and the KY-OSH Review Commission appeal the
circuit court’s opinion and order.
Ross Brothers was issued a citation for violating the
general duty clause of the Kentucky Occupational Health and
Safety of Employees Act, KRS 338.031(1)(a).
KRS 338.031(1)(a)
provides:
(1) Each employer:
(a) Shall furnish to each of his employees
employment and a place of employment which are
free from recognized hazards that are causing
or are likely to cause death or serious
physical harm to his employees;
KRS 338.031(1)(a) is identical to the federal general duty clause
found in 29 U.S.C.S. § 654(1)(a).
In Nelson Tree Services, Inc.
v. Occupational Safety and Health Review Commission, 60 F.3d
1207, 1209 (6th Cir. 1995), the court stated that the Secretary
of Labor must demonstrate the following in order to establish a
violation of the federal general duty clause: "[1] A condition or
activity in the workplace presented a hazard to employees; [2]
The cited employer or the employer’s industry recognized the
hazard; [3] The hazard was likely to cause death or serious
physical harm; and [4] A feasible means existed to eliminate or
materially reduce the hazard."
Ross Brothers argues that the
-4-
circuit court erred in finding a violation of KRS 338.031(1)(a)
because the hazard which caused the injury to the employee was
not a "recognized hazard" and was not likely to, and did not,
cause a serious injury.
Ross Brothers attempts to characterize the hazard which
caused the employee’s injuries as the removal of the bricks from
the bottom of the standpipe.
In the normal operations of the
ovens, gases often leak back into the ovens and ignite, causing a
sudden burst of flames to shoot out of the open lid on top of the
standpipe.
On this particular occasion, flames not only shot out
from the lid on top of the standpipe but were able to escape from
the bottom where the brick had been removed.
Ross Brothers
contends that the removal of the bricks was a hazard which it did
not recognize nor should have been expected to recognize.
The KY-OSH Review Commission’s final order
characterized the hazard which caused the injury as the
"unexpected energizing, start-up, or release of stored
energy...."
In this case, the stored energy was the pressurized
flammable gas located in the collector main.
This type of hazard
was identified by the construction industry in the ANSI
standards.
ANSI standards are national consensus standards
developed by industry, labor and safety representatives.
This
particular ANSI standard, publication Z244.1-1982, makes
employers responsible for surveying the work area for potentially
hazardous energy sources, identifying their isolating devices,
and applying a lockout/tagout device to each energy isolating
device.
While the ANSI standard has not been legislatively
-5-
adopted by the Commonwealth, it is an industry guideline which
adequately supports the contention that this hazard was
recognized by Ross Brothers’ industry.
Ross Brothers next argues that the hazard which existed
was not likely to, and did not, cause a serious injury to the
employee.
Under KRS 338.031(1)(a), the Secretary is required to
show the recognized hazard caused or was likely to cause death or
serious physical harm to the employee.
The Secretary argues that
the employee suffered "serious physical harm" by receiving a
first-degree burn on his ear and a second-degree burn on his
cheek.
The hearing officer disagreed and found that the
Secretary failed to prove that the hazard was likely to cause
death or serious physical harm because the employee used
protective equipment.
On review, the circuit court correctly stated that the
use of protective equipment "may be considered when assessing the
probability that an injury will result from a hazard."
However,
the circuit court mistakenly found that the "probability
assessment" was only a factor used in assessing the penalty and
had no bearing on whether a violation had occurred.
If the
employee does not suffer a serious physical injury, the Secretary
must prove that the hazard was likely to cause death or serious
physical harm in order to establish a violation of KRS
338.031(1)(a).
Only after finding a violation should the
probability assessment then be used as a factor in determining
the gravity-based penalty.
-6-
The fact that this employee was engulfed in flames and
only received two minor burns is a testament to the effectiveness
of the protective equipment he was wearing and is relevant to
determining the likelihood that this hazard could cause death or
serious physical harm.
The conditions under which these
employees work are extreme.
While working on top of a battery of
ovens, which stands two stories high and burns coal at a
temperature of over 2,200 degrees, employees are required to wear
special clothing and a respirator because of the severe heat and
fumes.
After reviewing the evidence, we are not willing to adopt
the supposition that employees wearing the protective equipment
are free from the likelihood that they may be killed or seriously
injured by ignition of the pressurized flammable gas.
Because
the requirements of the general duty clause have been met, the
circuit court did not err in its determination that Ross Brothers
violated KRS 338.031(1)(a).
The KY-OSH Review Commission appeals from the circuit
court’s remand order which instructed it to "reinstate the
citation and penalty as originally issued against" Ross Brothers.
The KY-OSH Review Commission argues that the order prevents it
from exercising its statutory discretion to modify the penalty
assessment under KRS 338.071(4) and KRS 338.081(1).
This Court
believes that the KY-OSH Review Commission has misinterpreted the
remand order.
The KY-OSH Review Commission has been ordered to
reinstate the original citation and penalty, not to adopt the
citation and penalty as originally issued in its final order.
-7-
The citation and penalty must exist in order for the KY-OSH
Review Commission to exercise its discretionary authority in KRS
338.081(3).
In other words, now that the citation and penalty
have been reinstated, the KY-OSH Review Commission is free to
exercise its statutory authority under KRS Chapter 338.
For the reasons stated above, the Franklin Circuit
Court’s order is hereby affirmed.
ALL CONCUR.
BRIEF FOR KENTUCKY
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION:
BRIEF FOR ROSS BROTHERS:
C. Robert Schaub
Huntington, West Virginia
Frederick G. Huggins
Frankfort, Kentucky
BRIEF FOR KENTUCKY LABOR
CABINET:
Lori Barker Sullivan
Frankfort, Kentucky
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