Question: Titanium Metals produces titanium ingots in Nevada. Titanium is a highly flammable substance during processing and can be ignited by heat, sparks, friction, or striking other small particles. To minimize dust accumulation, the company installed a collecting tube on its machines and periodically washed the entire area surrounding the machines. One day, while a machine operator was using the machine in the normal way, an explosion and fire erupted and another employee was burned to death. The company was served with two OSHA violations:

(1) for failure to provide nonsparking tools and equipment and

(2) for allowing flammable accumulations of titanium.

The company claims that the hazard posed by the metal is not a recognized hazard, which would trigger the employer's general duty. The titanium industry is still in its infancy (less than 30 years old) and no precise standards exist respecting the appropriate levels of dust accumulation. Also, never in its eight-year history had the company had such an explosion, so it was unprepared and it would have never expected death or serious injury. Are these acceptable defenses? [ Titanium Metals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978).]

- Lactos Laboratories is an interstate manufacturer of animal feed concentrates. In the course of its manufacturing process, the company uses fish parts that are treated with sulfuric acid when packaged. One night, a truck delivering the fish parts deposited the mixture into a Lactos tank, which overflowed into an adjacent room in the basement and filled it to a depth of 31 inches. The company used a pump to get rid of most of the overflow but ordered the employees to enter the room when the level had decreased 3 to 4 inches to clean up the remaining debris and to repair some pumps. The employees who entered were almost immediately overcome by hydrogen sulfide gas (caused when the sulfur came into contact with iron sulfide particles that had fallen from the ceiling), as were those who tried to help them. Lactos had no emergency equipment available and had taken no safety precautions to cope with accumulations of the gas. In the end, three employees died and two were seriously injured. Lactos defended itself against violations cited by OSHA by claiming that the sulfide gas was an unforeseeable hazard. Do you agree? [ Brennan v. OSHA Review Commission, 494 F.2d 460 (8th Cir. 1974).]