SECRETARY OF LABOR,

Complainant,

v.

CHEVRON OIL COMPANY,
Respondent.

OSHRC Docket No. 10799

DECISION

Before:   ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

The Secretary of Labor issued to Chevron Oil Company three citations alleging that Chevron had violated 29 U.S.C. 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). [[1/]]  Administrative Law Judge Henry F. Martin, Jr. vacated the citations.  The Secretary argues that the judge erred in vacating citations 1(a) and 2(a).[[2/]]
We agree.

Citation 1(a)
This citation, like citation 2(a), concerns structure A, an oil and natural gas production platform in the Gulf of Mexico off the coast of Louisiana. [[3/]]  Structure A was rectangular, measuring about 100 feet by 60 to 80 feet.  It contained various pipes that transported oil and gas under pressure.  Citation 1(a) alleged that Chevron failed to periodically inspect and test for internal and external corrosion on a four-inch diameter gas lift supply line pipe.

Judge Martin vacated the citation on the ground that the Secretary had failed to show that Chevron had periodically inspected pipes for internal and external corrosion in a manner contrary to procedures and practices engaged in by oil and gas operators in general. The judge's analysis reflected Chevron's lengthy argument at the beginning of the hearing that the citations should be dismissed because the Secretary did not claim that Chevron's inspection practices were different from that of its industry.  The Secretary argues that the judge's approach was erroneous.  We agree.

The Commission has repeatedly held that the Secretary need not prove that the cited employer or his industry recognizes the abatement measures recommended by the Secretary.  See Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417, 1422, 1982 CCH OSHD 25,957, p. 32,539 (No. 76-5255, 1982), and cases cited therein.  Because section 5(a)(1) requires that employees be furnished employment "free"--i.e., as free as feasible [[4/]] --from recognized hazards, an abatement order under section 5(a)(1) may require that work practices and safety precautions be upgraded to feasible levels, which may be greater than those taken by the employer or its industry. [[5/]]  For this reason, we agree with the Secretary that Chevron's conformity with industry practice is not a basis for vacating the citation.

To establish a violation of section 5(a)(1), the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized and likely to cause death or serious physical harm to its employees.  See Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD 26,125, p. 32,878 (No. 77-2096, 1982).  The Secretary must also demonstrate that there were feasible means available to abate or materially reduce the hazard.  Id.; National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973).  See our discussion, infra.  We conclude that the Secretary established these elements.

We first consider whether the Secretary has shown that there was a "hazard" within the meaning of the Act.  The pipes of this platform do not present an imminent explosion hazard until they have corroded to the extent that the pipe walls cannot withstand the internal pressure of their contents.  Yet, it would be erroneous to conclude that until that point is reached there is no "hazard" within the meaning of the Act.  Inasmuch as the primary purpose of the Act is to prevent injuries, it is sufficient to find, as we do here, that a condition will become hazardous if left unchecked.  It is undisputed that marine pipeline corrosion is a slow, continuous process that reduces the thickness of the pipe walls and, if unchecked, will lead to the hazard of explosion and fire from the ignition of gas or oil escaping from the corroded pipes. [[6/]]  For the purpose of brevity, we will refer to the hazard as pipeline corrosion. [[7/]]

We next consider whether the hazard was recognized.  We first note that Chevron does not take issue with the Secretary's claim that corrosion is an ever-present hazard on offshore pipelines.  Moreover, a piping manual published by Chevron's parent company, Standard Oil Company of California, and produced by Chevron during discovery, shows that Chevron's industry, if not Chevron itself, recognized the hazard of corrosion.  Among other things, the manual lists "[d]eterioration of lines through normal use--external or internal corrosion, deterioration of protective coatings, etc." as a "[p]rimary area of inspection."  The manual emphasizes the importance of maintaining the piping in a safe condition and also assigns responsibility for periodic inspections to the area supervisor and the division equipment inspector.  Moreover, the foreword to the proposed advisory standard of the National Association of Corrosion Engineers, which was submitted into evidence by Chevron, states in part that "[t]he control of corrosion on offshore pipelines is important to the oil and gas industry because of the economic need to protect capital investments in manpower and materials . . . ." This is sufficient to establish that the hazard of corroded pipes was recognized.

The next element is whether the likely consequence would be death or serious physical harm if an explosion and fire occurred.  An explosion and fire caused by the rupture of a pipe at structure A resulted in the death of seven persons. [[8/]] This evidence shows that death or serious physical harm was likely. [[9/]]

We also conclude that, despite's Chevron's efforts, the workplace was not "free" of the hazard. [[10/]]  Chevron argues that it had a program of systematic and periodic inspection of the outside of each pipe section that rendered structure A free of the hazard. Chevron employees assigned to structure A on a regular basis were instructed to look for and report any signs of external corrosion while performing their assigned duties.  Chevron also had a safety committee for each of the two work shifts; each committee visited structure A once a month for approximately one and one-half hours.  The committees' purpose was to find and prevent or correct hazards, including external corrosion.  On one occasion, Chevron had conducted a riser-by-riser inspection for external corrosion. [[11/]]  In addition, structure A was repainted every six to eight years.  Repainting of necessity included an inspection of the pipe for external corrosion. When a structure was repainted, all external corrosion was removed by sandblasting and approximately five coats of rust resistant paint were applied to the pipes.

As to internal corrosion, Chevron argues that it had an adequate program to monitor and prevent internal corrosion.  Chevron had a "corrosion coupon" at the pipeline terminal that was inspected monthly and monitored the amount of internal corrosion.  Chevron also injected a corrosion retardant chemical into the pipes.   In addition, Chevron submitted evidence that chokes located in the pipe coming from each wellhead were visually inspected weekly and were a reliable means of detecting and measuring internal corrosion.

Although these efforts were commendable, Chevron's visual inspections were haphazard and unsystematic and did not free the workplace of the hazard.  As the Secretary points out, Chevron did not visually inspect every pipe section.  Of equal importance is the fact that the frequency of these visual inspections was not determined in accordance with an estimation of the remaining safe life of each section. [[12/]] A senior construction engineer for Chevron testified that the safe life "exceed[ed] ten, possibly twenty years."  Yet, Chevron failed to implement an inspection program based on safe life calculations.  An area supervisor for Chevron testified that he had never received any directives from the head office about safe life projections.  Not only was the remaining safe life not taken into account, but Chevron also failed to maintain records of inspections, tests and corrective actions with respect to each pipe section.  This was a crucial omission.  Chevron did not have an adequate recordkeeping system whereby the information received from its various methods of detecting internal and external corrosion was centralized and analyzed in light of other tests performed to detect corrosion. [[13/]] Without such a recordkeeping system, Chevron did not have a means of comparing data so that the corrosion rate for each section could be accurately measured and monitored.  Chevron's area supervisor testified that he had not received any directives about maintenance of records of inspections, remedial work needed, or monitoring of corrosion rates. [[14/]]

Chevron's other measures also did not free the workplace of the hazard.  The chemical corrosion inhibitor was used to slow internal corrosion, not to eliminate it entirely.   Corrosion coupons showed the overall corrosion rate on the entire structure, but they could not tell Chevron which pipe had more internal corrosion and which less unless the coupon was moved to different pipe sections to isolate the more rapidly corroding section.  As the Secretary argues, inspecting chokes and corrosion coupons was of little use because Chevron had no system of recording the corrosion it did detect.   Much the same is true of Chevron's sandblasting and repainting efforts; inasmuch as Chevron did not know which pipe sections had been repainted many times and which few times, it could not have known the extent to which any pipe section had suffered such severe external corrosion that it should be replaced or carefully monitored. [[15/]]

We now turn to the crux of this case:  Are there additional steps that Chevron could take to satisfy its duty under section 5(a)(1) to render the worksite as free as feasible from the hazard?  An employer's duty under section 5(a)(1) is not an absolute one.  Although the general duty clause speaks of providing a workplace "free" of recognized hazards, an employer is not required to take steps that are not feasible.  National Realty and Construction Co., 489 F.2d at 1266-67.  At the same time, we have not required the Secretary to establish that his proposed abatement method would entirely free the workplace of the hazard.  It is enough that the prescribed abatement method would materially reduce the hazard to employees.  See Litton Systems, Inc., Ingalls Shipbuilding Div., 81 OSAHRC 101/C12, 10 BNA OSHC 1179, 1182, 1981 CCH OSHD 25,817, p. 32,270 (No. 76-900, 1981); Carlyle Compressor Co. v. OSHRC, 683 F.2d 673, 677 (2d Cir. 1982).

The Secretary proposed the following steps to materially reduce the hazard posed by excessive internal and external corrosion of pipes:  periodic and systematic visual inspection of the outside of each pipe section, ultrasonic testing and x-rays of the interiors of a sample of pipe sections, and maintenance of records of all inspections, tests and corrective actions.  We find that these are feasible and useful steps.

Chevron does not take issue with the feasibility of a program of systematic and periodic inspection of the outside of each pipe section.  Indeed, Chevron maintains that it had already instituted such a program.  Chevron argues that x-ray and ultrasonic tests would be neither feasible nor useful because the cost of testing each pipe section would be prohibitive and because each test covers only a few inches of pipe.   Chevron and Judge Martin also noted that the particular riser pipe that ruptured would have been inaccessible to testing equipment.  Yet, the Secretary has not proposed that x-rays and ultrasonic testing be used on each pipe section but only on a limited basis, i.e., on those pipe sections known or suspected from inspection records to pose a hazard of rupturing due to excessive corrosion.  Although these tests sample only a small area of pipe, and some pipe may be inaccessible, such as the gas riser that burst in this case, the tests would nevertheless be useful in determining the condition of accessible pipe sections.  As we have already said, the Secretary need not show that his proposed abatement measures would entirely eliminate the hazard.

We therefore affirm citation 1(a)'s requirements that Chevron institute a program of systematic and periodic inspection for external corrosion, that it use x-ray and ultrasonic tests in conjunction with its other methods for detecting internal corrosion, and that it couple these efforts with a comprehensive recordkeeping program. [[16/]]

Citation 2(a)
This citation alleged that Chevron "failed to provide a fire detection system that would have automatically released liferafts or personal flotation devices into the water around the 'A' structure." [[17/]]  Structure A was not equipped with such an automatic ejection system.  Employees trying to evacuate the structure to escape flames might jump as much as 20 feet from the platform into the water and would then lack liferafts and flotation devices.  Judge Martin vacated this citation because the Secretary did not show that either Chevron or its industry equipped platforms with these devices, or recognized the necessity for such equipment.  As we have said in our discussion of citation 1(a), this approach was erroneous.

Chevron does not dispute the existence of a hazard that is likely to cause death.  The only noteworthy dispute between the parties is whether the Secretary established a feasible means of reducing or eliminating the hazard.  As mentioned above, it is not necessary for the Secretary to show that the hazard can be entirely eliminated; a material reduction is sufficient.  The Secretary established that a fire detection system with automatically ejected flotation devices was feasible.  The compliance officer testified that he had worked for the Exxon Corporation and that Exxon had such fire detection systems with automatically ejected flotation devices on certain of their offshore platforms.  This evidence taken alone would show that a feasible abatement method exists that would provide protection against the hazard. [[18/]]

We have held, however, that an employer may rebut this showing by producing evidence that the use of the abatement method will cause consequences so adverse as to render their use infeasible.  See Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1751, 1979 CCH OSHD 23,914, p. 28,997 (No. 15169, 1979).  Chevron's only rebuttal testimony was that of the senior construction engineer who stated that "it could conceivably be a hazard to people jumping into the water or people already in the water could be hit by such an object as it was dispensed from the structure."  This testimony is insufficient to rebut the Secretary's showing.  The presence of flotation devices in the water would materially reduce the likelihood of an employee drowning in the water.  The benefit afforded by the use of flotation devices greatly outweighs the harm that could be caused in the unlikely event that one of these devices were to hit an employee.  On balance, we are unconvinced by Chevron's rebuttal evidence.  We therefore reverse the judge and affirm citation 2(a).

Penalty

We agree with the Secretary that the violations were serious.  For a violation to be characterized as serious under section 17(k) of the Act, 29 U.S.C. 666(j),[[19/]] there must be a substantial probability that death or serious physical harm could result if an incident occurred; the probability that an incident will occur is irrelevant.  See Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1114, 1981 CCH OSHD 25,728, p. 32,079 (No. 76-256, 1981).  It is clear enough here that in the event of an accident, death or serious harm would have been substantially probable.

We now turn to the assessment of a penalty.[[20/]]  There was no testimony as to the size of Chevron's business, but structure A was one of many platforms owned and operated by Chevron in the Gulf of Mexico.  We also take official notice that Chevron is a large employer, with approximately 1,930 employees. [[21/]]  The gravity of the violations is moderate.  As to good faith, we note that Chevron had attempted to provide protection to employees.  There is no testimony as to the history of previous violations.  We assess $500 for each violation.

Accordingly, we reverse in part the judge's decision.  Citations 1(a) and 2(a) are affirmed; a total penalty of $1,000 is assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  APR 20 1983


The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).



FOOTNOTES:

[[1/]] Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5(a) Each employer --
(1) 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.

[[2/]] Former Commissioner Moran issued a sua sponte, general direction for review.  Commissioner Cleary issued a specific direction for review of all parts of the three citations.  The Secretary's petition for review and brief address only items 1(a) and 2(a). Because neither party has taken exception to the judge's disposition of citations 1(b), 2(b), 3(a), and 3(b), and there is no compelling public interest in reviewing those items, the Commission will not review them.  Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD 20,078 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD 20,428 (No. 9507, 1976).

Chevron also argues that the citations were not issued with "reasonable promptness" as required under section 9(a) of the Act, 29 U.S.C. 658(a).  The inspection occurred in June of 1974 and the citations were issued on October 18, 1974.   Chevron argues that the Secretary had sufficient information to issue one of the two citations now before us in August, 1974.  The Commission has held that an employer must establish prejudice in the preparation of its defense in order to vacate a citation for lack of reasonable promptness.  E.g., Stripe-A-Zone, 10 BNA OSHC 1694, 1695, 1982 CCH OSHD 20,069, p. 32,781 (No. 79-2380, 1982).  The fact that the Secretary delayed the issuance of two citations for two months until the third citation was ready is not enough to establish prejudice.  Chevron has not shown how this two month delay hampered the preparation of its defense.  We therefore reject its argument.

[[3/]] Chevron had claimed under section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), that the cited working conditions were exempt
because the Department of Transportation had exercised statutory authority to adopt standards or regulations covering the conditions.  Judge Martin did not reach this issue in his original decision.  After the Commission remanded for findings on the matter, 77 OSAHRC 29/A2, 5 BNA OSHC 1118, 1977-78 CCH OSHD 21,606 (1977), the judge rejected Chevron's exemption claim on the basis of a stipulation reached by the parties.   On review, Chevron states that as a result of the stipulation, its exemption claim as to citation 1(a) is no longer in issue.  In view of this concession, we leave Judge Martin's rejection of Chevron's claim as to citation 1 undisturbed.

We discuss Chevron's exemption argument as to citation 2(a) in note 17, infra.

[[4/]] National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973).

[[5/]] Williams Enterprises, Inc., 79 OSAHRC 24/A2, 7 BNA OSHC 1247, 1250, 1979 CCH OSHD 23,478, aff'd, No. 79-1559 (D.C. Cir. June 9, 1980); Continental Oil Co., 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1816, 1978 CCH OSHD 22,903, p. 27,703 (No. 1829, 1978), aff'd, 630 F.2d 446, 449 (6th Cir. 1980), cert. denied, 450 U.S. 965 (1981); Southern Railway, 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD 20,091 (No. 5960, 1975). Our holding that hazards ought not to be defined in terms of the proposed means of abatement reflects this view. See Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417, 1422, 1982 CCH OSHD 25,957, p. 32,539 (No. 76-5255, 1982); Beaird-Poulan, 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1229, 1979 CCH OSHD 23,493, p. 28,459 (No. 12600, 1979); Wheeling-Pittsburgh Steel Corp., 82 OSAHRC 102/A2, 10 BNA OSHC 1242, 1245, 1982 CCH OSHD 25,801, p. 32,244 (Nos. 76-4807 & 76-4808, 1981)(hazard defined in terms of physical agent that would injure employees), aff'd, No. 82-3015 (3d Cir. 1982).

[[6/]] We define the hazard in terms of the physical agents that could injure employees rather than the means of abatement.  See Wheeling-Pittsburgh Steel Corp., note 5 supra.

[[7/]] The dissent states that "the 'recognized hazard' under [the general duty clause] must be defined in terms sufficiently specific to encompass conditions or practices over which the employer can reasonably be expected to exercise control."  See also the dissenting opinion in Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417, 1423-24, 1982 CCH OSHD 25,957 at pp. 32,540-41 (No. 76-5255, 1982).  We disagree with the dissent's definition of recognized hazard because it is duplicative of the requirement that the Secretary must show that a proposed means of abatement is feasible.  In order for the Secretary to show that the proposed means of abatement is feasible he must of necessity show that the employer can exercise control over the proposed abatement method.  Implicit in the use of the word "feasible" is the idea that the employer can guard against only those hazards that are preventable.  See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (1973).

The dissent also states that defining the hazard as pipeline corrosion is "overly broad . . . . "  The dissent apparently believes that because corrosion is "an inherent and unavoidable condition," it cannot be considered a hazard until it reaches a degree of corrosion which would threaten to release gas or oil.   We find this approach neither logical nor consonant with the Act.  There is no dispute that unchecked corrosion on pipelines will eventually cause the pipes to burst.   When an entire industry, such as off-shore oil producers, is confronted with a condition that is always present and will, if unchecked, create an explosion and fire, as occurred in this case, there is little doubt that a recognized hazard exists.

[[8/]] Tests conducted on the gas supply line pipe after the accident indicated that the wall of this pipe section had eroded to about 34 mils from an original thickness of about 250 mils.

[[9/]] On the meaning of "likely to cause," see R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1979 CCH OSHD 23,756 (No. 76-2690), rev'd on another ground, 620 F.2d 97 (5th Cir. 1980).  We do not reach the Secretary's additional argument that, because corrosion caused serious injury, the "causing" element of the statute was met

[[10/]] The dissent disagrees with our reading of the record with respect to Chevron's efforts to free the worksite of the hazard. However, we have examined the record as a whole and considered evidence in the context of its presentation.

For example, when discussing Mr. Falgout's testimony regarding the frequency of "inspections conducted by Chevron to determine corrosion," the dissent states that Mr. Falgout "normally checked the condition of structure A twice each week."  The implication is that there was some type of planned periodic inspection for corrosion.  However, when reviewing the transcript, it is apparent that such was not the case.  To fairly represent the evidence, the dissent should have included Mr. Falgout's testimony that, as field foreman, he was responsible for "producing and operating block 69 field" and safety considerations constituted only one reason for his visiting structure A.  There is no evidence that Falgout ever conducted formal corrosion inspections.  Mr. Falgout stated that he did not have a set schedule for visiting the structures and that before the accident he had been visiting structure A at least once a week and "mostly twice a week."  To label such a visit as an inspection for corrosion control misreads the record.

The dissent also contradicts itself when discussing the detection and prevention of internal corrosion.  The dissent states that the rate of internal corrosion is uniform regardless of pipe location.  Then, in the very next sentence the dissent notes that if a coupon detected metal loss, it would be moved upstream to locate exactly where the metal loss was occurring.  If indeed the corrosion rate was uniform, then it would never be necessary to pinpoint an area where internal corrosion was greater.

[[11/]] Chevron's senior construction engineer testified that a "riser" is that section of pipe between the Gulf floor and the upper production deck of the platform.

[[12/]] A "safe life" is the amount of time a pipe wall remains strong enough to withstand normal operating pressure.  Chevron noted that the piping manual recommended that periodic inspections for corrosion "shall be equal to one-half of the calculated safe life . . ." of the pipes on structure A.

[[13/]] We have fully considered the fact that Chevron had a recordkeeping system.  However, we believe that its system was not adequate to materially reduce the hazard of pipeline corrosion.  It is true that Chevron sent results of water samples to the field office and to the main office.  However, there is no testimony that the results of coupon testing, visual inspections, and choke inspections were also recorded and sent to a central location where the information could be used to more accurately monitor corrosion.

[[14/]] Citation 1(b), which is not on review, exclusively concerned the lack of a recordkeeping system.  In his brief on review, the Secretary discusses the lack of a recordkeeping system with respect to citation 1(a).  Chevron does not object to this and we agree with the Secretary's implicit view that recordkeeping is integrally related to citation 1(a).

[[15/]] Chevron argues that a violation may not be found here because the Secretary failed to show that Chevron knew or with the exercise of reasonable diligence could have known of the presence of the violation.  See Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD 25,358, p. 31,500 (No. 16147, 1981)( 5(a)(2) violation).  Although Chevron's argument is not sharply focused, it seems that Chevron maintains that it did not know and could not with the exercise of reasonable diligence have known of the corroded condition of the pipe that burst.   Chevron's argument is misplaced.  The violation alleged here was not the bursting of a pipe or even corrosion of a pipe; the violation alleged was Chevron's failure to inspect and test for corrosion.  Obviously, Chevron had actual knowledge of its own inspection and testing efforts.

[[16/]] Although we affirm these abatement requirements of citation 1(a), it bears emphasis that Chevron is not precluded from instituting other, equally effective methods as long as its alternative methods achieve at least as great a reduction of the hazard.  See General Electric Co., 82 OSAHRC 56/A2, 10 BNA OSHC 2034, 2040 n.6, 1982 CCH OSHD 26,259, p. 33,165 n.6 (No. 79-504, 1982).  For example, Chevron would be free to apply new technology to effectuate abatement.

[[17/]] Chevron originally claimed with respect to citation 2 that Coast Guard regulations on means of escape, life preservers, and ring life buoys on fixed offshore platforms (33 C.F.R. 143.05-5(b) and 144.10-l et seq.) covered the cited working conditions. These regulations were adopted to implement the Outer Continental Shelf Lands Act, 43 U.S.C.A. 1301-1343 (1964), which authorizes the Department of Transportation, including the Coast Guard, to adopt regulations for offshore platforms on the outer continental shelf. See 33 C.F.R. 140.01-1 ("Purpose of regulations") and 140.05-1 ("Application"; "Artificial islands and fixed structures"); 43 U.S.C.A. 1333(a) and (e)(1)(1964).  The "outer continental shelf" begins three miles from the Louisiana coast. United States v. Louisiana, 363 U.S. 1, 81, 83 (1960); 43 U.S.C.A. 1331(a), 1301(a)(2) and (b), and 1312 (1964).  Inasmuch as the record shows, and the parties agree, that structure A was less than 3 miles off the Louisiana coast, Judge Martin held that the structure was not on the outer continental shelf and hence the working conditions were not covered by the Coast Guard regulations. On review, Chevron does not directly attack the judge's ruling but instead seems to urge that the Commission approve the judge's view that the Coast Guard regulations would be preemptive for platforms on the outer continental shelf.   We decline Chevron's invitation.  It is enough to say that on the facts of this case, Judge Martin's rejection of Chevron's exemption claim was correct.

[[18/]] The dissent concludes that the Secretary failed to establish that the use of automatic ejection systems was feasible.  According to the dissent, the Secretary must show that automatic ejection systems existed and would materially reduce the hazard and he must also show that ejection systems "would have been adaptable to Chevron's structure."  However, we note that Chevron has not voiced this objection.   At the hearing, Chevron made no attempt to rebut the compliance officer's testimony and did not claim that its platforms were somehow different from Exxon's and could not be equipped with the ejection devices.  In short, the compliance officer's unrebutted testimony is sufficient to establish feasibility.

[[19/]] Section 17(k), 29 U.S.C. 17(j), states:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[20/]] Section 17(j), 29 U.S.C. 661(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

[[21/]] 1 Standard & Poor's Corp., Register of Corporations, Directors and Executives 478 (1982).