CHEVRON OIL CO.; HARVEY INDUSTRIES, INC.; and McBROOM RIG BUILDING SERVICE, INC.

OSHRC Docket Nos. 10799; 10646; 10786

Occupational Safety and Health Review Commission

March 8, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Michael J. Molony, Jr., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

These cases concern working conditions aboard an offshore oil and gas production platform in the Gulf of Mexico. Following an explosion and fire on the platform, the Respondents n1 were cited for alleged violations of 5(a)(1) n2 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). All three Respondents defended against the charges on the merits. Chevron also defended on the basis that the working conditions involved were exempt from the Act because they were regulated by other Federal agencies. n3 Judge Henry F. Martin Jr. vacated all the citations on the merits, and did not rule on the validity of Chevron's exemption defense. Complainant petitioned for review of certain aspects of the Judge's decision regarding Chevron, n4 contending that the Judge erroneously interpreted 5(a)(1). Review was directed on the issues raised in the petition, as well as other issues pertaining [*2] to the merits of the alleged violations. For the reasons which follow, we do not decide the issues directed for review, but remand to the Judge for findings on Chevron's exemption defense.

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n1 The platform was operated by Chevron, with McBroom and Harvey employed as subcontractors.

n2 Section 5(a)(1) provides:

Each employer 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 harm to his employees.

n3 Section 4(b)(1) of the Act provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Section 4(b)(1) is emexptory in nature, and the burden rests with an employer to prove it is entitled to the exemption. Idaho Travertine Corp., Docket No. 1134, BNA 3 OSHC 1535, CCH OSHD para. 20,013 (1975).

n4 Complainant does not take exception to the Judge's disposition vacating the citations issued to McBroom and Harvey although he does claim that the Judge's decision contained certain errors. He assumes that because neither party sought review and no specific issue was presented for review, that Francisco Tower Service, BNA 4 OSHC 1459, CCH 1976-77 OSHD para. 20,401 (No. 4845, 1976), controls. Therefore, the Secretary limited his argument in his brief only to issues raised in his petition for review of the Chevron case.

As there is no exception taken to the disposition, and no compelling public interest in review of the Judge's decision, we will affirm the disposition as to McBroom and Harvey without passing on any of the issues decided by the Judge. State, Inc., BNA 4 OSHC 1806, CCH 1976-77 OSHD para. 21,209 (No. 5740, 1976).

[*3]

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By the terms of 4(b)(1), working conditions over which another Federal agency exercises statutory authority to regulate occupational safety and health are exempt from the Act. Chevron claims that the working conditions for which it was cited are regulated by two Federal agencies, the Coast Guard and the Office of Pipeline Safety (OPS) of the Department of Transportation. It cites standards promulgated by the OPS pursuant to the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. 1671, and by the Coast Guard pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. 1331. Chevron contends that the standards it has cited apply to the same working conditions which are the subject of the citations alleging violations of 5(a)(1) of the Act.

As noted above, the issues directed for review concern the merits of the section 5(a)(1) violations. We believe, however, that before these issues are addressed, respondent's section 4(b)(1) argument should be answered. The issue has been litigated in this case and should be decided in order to remove uncertainty concerning the extent of Chevron's duty to [*4] comply with the Act in similar circumstances in the future. See 5 U.S.C. 554(e). We also believe that since the resolution of this issue requires factual findings, the decision should be made in the first instance by the Judge. We will therefore remand to the Judge for the purpose of making appropriate findings and resolving the 4(b)(1) issue.

We have determined previously that the Natural Gas Pipeline Safety Act was intended to affect occupational safety and health. Texas Eastern Transmission Corp., BNA 3 OSHC 1601, CCH 1975-76 OSHD para. 20,092 (Nos. 4091 & 4078, 1975). In that case, we concluded that the respondent pipeline companies had established that they were subject to the Pipeline Safety Act's coverage and that safety standards established thereunder entitled them to a section 4(b)(1) exemption. See also, Gearhart-Owen Industries, Inc., BNA 2 OSHC 1568, CCH 1974-75 OSHD para. 19,329 (No. 4263, 1975); Mushroom Transportation Co., BNA 1 OSHC 1390, CCH 1973-74 OSHD para. 16,881 (No. 1588, 1973). These decisions should guide the resolution of respondent's exemption argument. We do not, however, express any opinion at this time as to the proper resolution [*5] of the exemption issue.

Accordingly, in Nos. 10646 (Harvey Industries, Inc.) and 10786 (McBroom Rig Building Service, Inc.) the Judge's decision is affirmed. In No. 10799 (Chevron Oil Co.) the Judge's decision is set aside, and the case is remanded for further proceedings consistent with this decision.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Judge Martin's vacation of the charges in all three cases is correct for the reasons stated in his two decisions which are attached hereto as Appendices A & B. Therefore, the remand of the Chevron Oil Company case is improper as well as unnecessary.

As of March 10, 1977, these cases have been pending review before the Commission for one year. Based on past history, this remand can be expected to delay the final disposition of the Chevron case for at least another year.

The action of the majority is improper for two reasons. First, the issue may be moot. Before remanding, my colleagues should first determine whether the Judge erred in vacating the charges. If they conclude that he didn't, they should affirm his decision forthwith. Second, if they consider it necessary to address the [*6] jurisdictional issue, n5 irrespective of whether they agree or disagree with the Judge's holdings, they should do so now. Apparently, they find sufficient evidence in the record for resolving that issue because their remand "for findings on Chevron's exemption defense" does not provide for the presentation of additional evidence.

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n5 As I have previously indicated, questions involving the applicability of 29 U.S.C. 653(b)(1), are jurisdictional issues. Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568, 571 (1975) (dissenting opinion); Secretary v. Idaho Travertine Corp., OSAHRC Docket No. 1134, September 30, 1975 (dissenting opinion).

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This case should be decided forthwith. Further delay is unjustified. As the United States Circuit Court of Appeals for the Third Circuit stated in commenting on the Commission's statutory authority in Keystone Roofing Company v. OSAHRC, 539 F.2d 960, 964 (3d Cir. 1976):

"The language and method are deliberate. The Commission must have the opportunity to correct [*7] decisions of the hearing examiners. At the same time, the statute does not have the capacity to force a backlog of cases on the Commission. In short, this statutory framework furthers two laudable goals of administrative law: it encourages the Commission to achieve uniformly applied occupational safety and health standards in furtherance of the Act's overall objectives while guaranteeing as far as practicable that the administrative process will be efficient rather than protracted." (Footnote omitted.)

In the instant case, efficiency of the administrative process is being sacrificed in favor of unnecessary delay.

APPENDIX A

DECISION AND ORDER

James F. Gruben, for the Complainant

Michael F. Molony, Jr., for the Respondent

MARTIN, Judge:

This proceeding was brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), hereinafter referred to as the Act. Respondent, Chevron Oil Co., the California Company Division, seeks a review of three serious citations which were issued against it on October 18, 1974, by complainant's area director. Respondent also seeks review with reference to the notification of proposed penalty [*8] wherein a civil penalty in the amount of $600.00 each was proposed for the alleged serious violations.

The aforementioned citations and the notification of proposed penalty were issued as a result of an inspection beginning on June 16, 1974, at respondent's work place located at the Chevron Oil Co. Main Pass Block 69 "A" structure located in the Gulf of Mexico where three employees were on the platform assisting nine other employees of two subcontractors, Harvey Industries, Inc. and McBroom Rig Building Service, Inc.

Each of the aforementioned citations related to the same work place and alleged that respondent violated the provision of section 5(a)(1) n1 of the Act (commonly referred to as the general duty clause).

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n1 Section 5(a)(1) of the Act reads as follows: "Each employer 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."

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Citation No. 1 describes the alleged [*9] violation as follows:

"Failure to furnish to each employee employment and a place of employment which are free from recognized hazards that are likely to cause death or serious physical harm to his employees working on the Main Pass Block 69 "A" Structure in that:

(a) The employer failed to periodically inspect and test for pipe wall thickness reduction due to internal and external corrosion on the four-inch diameter gas lift gas supply line pipe running from the "A" structure to the "CA" structure;

(b) The employer failed to maintain records of all periodic pipe corrosion inspections and tests on the four-inch diameter gas lift gas supply line pipe running from the "A" structure to the "CA" structure.

The combination of these two violations, which occurred in the same work place, is determined to present a likelihood of death or serious physical harm)."

In citation No. 2 the alleged violation is described as follows:

"Failure to furnish to each employee employment and a place of employment which are free from recognized hazards that are likely to cause death or serious physical harm to his employees working on the Main Pass Block 69 "A" Structure in that:

(a) The employer [*10] failed to provide a fire detection system that would have automatically released liferafts or personal flotation devices into the water around the "A" structure;

(b) The employer failed to provide an emergency evacuation system for employees on the top deck of the "A" structure except for running down open stairs exposed to possible fire hazard or for jumping approximately twenty feet from the top deck into the surrounding water.

(The combination of these two violations, which occurred in the same work place, is determined to present a likelihood of death or serious physical harm)." n2

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n2 The two subcontractors, Harvey and McBroom, were also cited for the same alleged violation in Dockets Nos. 10646 and 10876. A decision was issued December 9, 1975.

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Citation No. 3 describes the alleged violation as follows:

"Failure to furnish to each employee employment and a place of employment which are free from recognized hazards that are likely to cause death or serious physical harm to his employees working on the Main Pass [*11] Block 69 "A" Structure in that:

(a) The employer failed to install functional automatic closing block valves on incoming or outgoing oil and gas pipelines to isolate the distressed "A" platform from fuel coming from the surrounding platform such as: (1) the four-inch oil pipeline running from the "CB" structure to the "A" structure, (2) the four-inch low pressure gas pipeline from the "D" to the "A" structure, (3) the six-inch low pressure gas pipeline from the "A" to the "H" structure, (4) the four-inch high pressure gas pipeline from the "1278 #12 ("CB")" to the "A" structure, (5) the six-inch bulk pipeline from the "CA" to the "A" structure, (6) the four-inch test pipeline from the "CA" to the "A" structure, (7) the four-inch high pressure gas pipeline from the "299A" structure to the "A" structure, (8) the four-inch high pressure pipeline from the "A" to the "H" structure, (9) the four-inch high pressure pipeline from the "A" to the "B" structure, (10) the six-inch high pressure pipeline from the "A" to the "H" structure, (11) the six-inch high pressure pipeline from the "D" to the "A" structure, (12) the four-inch gas lift gas supply pipeline from the "A" to the "CA" structure, [*12] (13) the four-inch oil pipeline from the "D" to the "A" structure, (14) the four-inch oil pipeline from the "H" to the "A" structure, (15) the six-inch oil pipeline from the "A" structure to the "pipeline", and (16) the six-inch bulk pipeline from the "A" to the "H" structure.

(b) The employer failed to locate the "LTX unit" rupture disk discharging vent a safe distance from the "A" structure; the discharge vent vented approximately five feet directly below the top deck of the structure.

(The combination of these two violations, which occurred in the same work place, is determined to present a likelihood of death or serious physical harm)."

Respondent, through its counsel, filed a timely notice of contest with complainant's area director in New Orleans, Louisiana, advising of its desire to contest the aforementioned serious citations and the amount of the proposed penalties. Following the filing of the complaint and answer this matter was scheduled for hearing in New Orleans, Louisiana. The hearing consumed five days beginning on June 10, 1975 and ending on August 21, 1975. No employees or union representatives sought to intervene in this matter.

The issues to be decided in [*13] this proceeding are whether respondent violated the provisions of section 5(a)(1) of the Act and if a violation occurred, whether the same was a serious violation within the meaning and intent of section 17(k) of the Act. Also, to be determined is what penalty, if any, should be assessed in the event a violation is found to exist.

An investigation by representatives of the Occupational Safety and Health Administration, begun on June 16, 1974, was precipitated by a tragic fire and explosion which occurred at approximately 1:10 or 1:15 p.m. on June 15, 1974, on respondent's production platform which has been referred to as its Main Pass Block 69 "A" structure, located some 2-1/2 to 3 miles offshore in the Gulf of Mexico within the navigable waters of the state of Louisiana. The aforementioned "A" structure is an offshore oil and gas production platform and is situated on metal pilings driven into the ocean floor in order to give it a fixed position. It has been described as an unmanned stationary platform on which there are no living quarters and on which there is no Chevron representative present more than one to three hours each day to check the wells, valves, and other instruments [*14] on the structure, with the exception of times when their employees or contract employees are on the structure engaged in construction work, installing or replacing equipment or performing other maintenance work. The upper deck of the platform is about 20 feet above the surface of the water and is built of metal plating and metal mesh materials. Located on the platform are various high pressure, low pressure, and test separators. Also, on the platform are various pipelines, varying in diameter from two to six inches, transporting crude oil and gas from producing wells and connecting up with other platforms in the same general area. Oil and gas in the pipelines is transported under pressure between the "A" structure and other platforms. The platform itself is rectangular and measures approximately 100 feet by 60 or 80 feet. At the time of the catastrophe subcontractor Harvey had eight employees engaged in doing certain contract work relative to the installation of automatic devices, valves, flanges, and other safety equipment in order to "update" the platform. Another subcontractor, McBroom, had one employee on the structure who was a contract employee assisting respondent's [*15] three employees.

On the date of the accident, shortly after the noon hour and after welding operations had ceased for the day, a loud hissing or roaring noise was noticed by one of Harvey's welders, Mr. Lajaunie, who was on the lower landing with several other employees. Within seconds he noticed a ball of fire engulfing the middle section of the "A" structure. Within four or five seconds he jumped from the boat landing into the water. Although life vests were available on the platform he did not have time to obtain or put one on prior to jumping into the water.

Another eye witness to the fire and explosion was Mr. Spohrer, a former Harvey employee, who was on the upper deck of the structure installing pipes, flanges, and valves, which work requires some welding and some "nut and bolt" operations. He testified that the workmen had worked through the lunch period and that most of the men had proceeded down the stairs to the lower level while the platform was being brought back into operation. He advised that he was 10 or 15 feet away from a line which had ruptured, making a tremendous noise or roaring sound. In the matter of seconds, not more than five to ten seconds, he observed [*16] the fire breaking out at which time he dove over the side into the water. He confirmed the testimony of Mr. Lajaunie relative to the availability of life vests on the platform.

At the outset of the hearing respondent moved to dismiss this proceeding because there were no safety or health standards covering the matters alleged in the three citations and because complainant had admitted that it was not an industry practice to carry out the measures as enumerated in the citations. Respondent also moved to dismiss on the ground that the citations were not issued with reasonable promptness as required by the wording of section 9(a) of the Act. These motions were taken under advisement.

CITATION NO. 1

This citation in substance alleges (a) that respondent failed to furnish its employees a place of employment free from a recognized hazard on Main Pass Block 69 "A" structure because it failed to periodically inspect and test for pipe wall thickness due to internal and external corrosion on the four inch gas supply line running from the "A" structure to the "CA" structure and (b) that respondent failed to maintain records of all periodic pipe corrosion inspections and tests on said [*17] line. The compliance officer testified that he was furnished no records covering corrosion inspections and tests.

Two employees of the subcontractor, Harvey Industries, Inc., (Lajaunie and Spohrer) n3 testified that they noticed some corrosion on the piping on the upper deck of "A" structure but no specific pipes were identified.

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n3 Mr. Spohrer at the time of the hearing was employed by a construction firm located in Houston, Texas

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Respondent's witnesses, two pumper-gaugers, a field foreman, and a construction engineer, testified that they noticed no significant corrosion on any of the piping on the platform of "A" structure. Considerable evidence was presented by respondent to show various measures taken to prevent external and internal corrosion on all piping and other equipment on the platform.

Subsequent to the fire and explosion and following a discussion between the compliance officer and respondent's representatives, six samples of ruptured pipe and one ruptured elbow were submitted to the Shilstone Engineering [*18] Test Laboratory in Houston, Texas, for metallurgical examination and testing. The report, received in evidence as complainant's exhibit C-4, indicates that there was some moderate to severe scaling on certain samples and severe corrosion on item 7, which was further identified as the 4 inch gas lift supply line running from the "A" structure to the "CA" structure. The report concluded that all of the samples or pipes, with the exception of item 7, ruptured because of exposure to the extremely high temperatures. Item 7, however, which was reportedly thinned by external corrosion, was found to have ruptured at ordinary operating temperatures.

With respect to subparagraph (a) of citation 1 wherein respondent was charged with the specific failure to periodically inspect n4 the 4 inch gas lift supply line for external and internal corrosion. It is here concluded that complainant's proof of this allegation is inadequate. There is no reliable and probative evidence in the record to contradict the evidence produced by respondent that at various time intervals respondent's employees conducted certain types of inspections and tests on the piping of "A" structure. Respondent's evidence [*19] shows that all piping on the platform has had five coats of rust resistant paint, vinyl, epoxy, or other substance and that the coating is expected to last from six to eight years. All employees of respondent are on notice to watch out for external corrosion while on the job at all times. n5 Visual inspections are made monthly by safety committees composed of various employees.

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n4 Complainant has not indicated precisely what is meant by the term "periodically inspect."

n5 Respondent's Safe Practices Manual which was introduced into evidence as R-6 provides as follows:

"Corrosion

a. Spotting and reporting corrosion to lines and equipment shall be every employee's responsibility. Look for signs of external corrosion where lines enter, touch, or leave either the ground or water, around metal clamps and where coating is broken or sagging. Very corrosive areas exist around burning or clean-out pits, ditches, well locations and batteries.

b. Report all leaks or pin holes immediately.

c. Report abnormally high replacement frequency of valves, fittings, or other equipment. Corrosion or erosion may be the cause."

[*20]

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Respondent's field foreman, Mr. Falgout, testified that he visited the "A" structure once a week and found the piping "as good as average" when compared with other offshore platforms. He advised that the piping on "A" structure was sand blasted and painted in 1971 pursuant to schedule. Testimony from the staff construction engineer, Mr. Gabert, revealed that visual inspections are always made prior to any major painting job or any major construction. He also indicated that respondent's chemical process group visually inspect platforms on an annual basis. He advised that during the year of 1973 the corrosion engineering group (Mr. Miller's group) scheduled the "A" structure for reconditioning in 1974. Reference is here made to respondent's exhibit R-15A relating to bids and specifications which subsequently became a part of the contract between respondent and the subcontractor, Harvey. On the date of the catastrophe Harvey was in the process of installing automatic fail-safe closing valves, master controls, flare gas covers, curbs, gutters, sumps, fire walls, and other equipment.

Complainant's [*21] action against respondent in citation No. 1 was apparently prompted by the piping manual of respondent's parent company, The Standard Oil Company of California, (see complainant's exhibit C-6 at page 240-8). The methods of inspection listed in the manual are visual, radiologic, and sonographic. It was indicated therein that the most reliable means of inspection for external corrosion is the visual type. (See also complainant's exhibit C-6 at page 240-10). According to Mr. Gabert the other two types of inspection are of limited usefulness and in his opinion would not be entirely feasible because of its limited coverage and the excessive cost which would be involved if these types of tests were applied to the many miles of piping in the offshore community.

Mr. Gabert testified that in 1972 it was noted that some risers had deteriorated and after a riser by riser inspection some 20 of them were replaced. (Tr. 561) He indicated that the four inch gas lift supply line from the "A" structure to the "CA" structure had a riser on each end.

Respondent also produced testimony that internal corrosion was checked through the injection of a Treatolite chemical n6 in all incoming and outgoing [*22] pipelines to and from the "A" structure, that the condition of the chokes at the well head was monitored, that semiannual visual inspections of the inside of the separators were conducted, and that corrosion "coupons" were inserted in pipelines at the North Pass terminal. It was reported that there was no significant amount of internal corrosion. While the parent company's piping manual has not been adopted by Chevron, it was Mr. Gabert's opinion that Chevron's inspection procedures compared favorably with those mentioned in the manual. Mr. Gabert pointed out that the four inch gas riser ruptured at a point where it penetrated the top deck of the "A" structure and that any measurement of the pipe wall thickness at that location would have been inaccessible to either ultrasonic or xray detection as suggested by the compliance officer. According to the compliance officer he was furnished no evidence that any tests had ever been run on the pipes other than a rough visual inspection and further that he was not furnished with any maintenance records or schedules pertaining to periodic corrosion inspections or tests on the four inch gas lift supply line in question. It was his view [*23] that a recognized hazard was present here.

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n6 Respondent's exhibits R-9 and R-10 show orange colored barrels of Treatolite on the top deck.

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It was admitted by complainant that there is no safety or health standard governing periodic corrosion inspections of the four inch gas lift supply line for pipe wall thickness and further that there is no standard requiring the maintenance of records on the periodic pipe corrosion tests for this gas lift line. It was further admitted that it was not a common practice in the offshore marine environment to periodically test the four inch gas lift supply line for pipe well thickness.

It is apparent from the evidence that respondent had not compiled maintenance records as to corrosion tests and inspections with reference to the gas lift supply line in question. Reference is here made to respondent's exhibit R-17 which is a copy of a proposed standard recommended by the National Association of Corrosion Engineers as drafted in January 1974, entitled "Control of Corrosion on Offshore [*24] Steel Pipelines." Section 10 thereof provides for the retention of records, documenting the design, installation, operation, maintenance, and effectiveness of corrosion control measures. Section 9 also states that all piping should be inspected and maintained for protection from corrosion and the results of surveys and inspections should be recorded and retained. Undoubtedly corrosion has been a problem in the offshore oil and gas industry for many years; however, a standard has never been adopted by the Labor Department. It has not been established by reliable and probative evidence that the lack of such a formalized record would be considered to be a recognized hazard in the offshore production community which could be expected to cause death or serious physical harm. As pointed out in the case of National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257 (D.C. Cir. 1973) a recognized hazard is a condition that is known to be hazardous and is known, not necessarily by each and every individual employer, but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard [*25] is "recognized" is a matter for objective determination; it does not depend upon whether the particular employer is aware of it. The court there stated that the standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question. The record here is silent as to the general practice in the offshore oil industry as to the matter of record keeping of corrosion surveys or inspections. Accordingly, it is concluded that there is no evidence in the record to establish that the failure of respondent to maintain a permanent record of corrosion inspections and tests would cause the loss of life or serious physical harm to its employees.

CITATION NO. 2

As previously indicated respondent was charged with a failure to furnish its employees with a place of employment free from recognized hazards because (a) of its failure to provide a fire detection system which would have automatically released life rafts or personal flotation devices and because (b) it failed to provide an emergency evacuation system for employees on the top deck of "A" structure, in addition to the possibility of running down an open stairway or jumping [*26] into the water. It was the compliance officer's opinion that respondent's failure to provide for these two systems constituted a recognized hazard to its employees. He called attention to the probability of being burned if a worker sought to use the stairs in the event of an emergency and mentioned the possibility of being injured by striking some portion of the platform when jumping over the side or the probability of drowning when striking the water 20 feet below.

Egress from the platform is by means of two stairways situated at either end of the platform, leading from the top deck to the lower level about five or six feet above the water. There is a boat landing on the lower level where a crew boat was tied up. The "A" structure has been referred to as an unmanned platform in that employees do not work there on a permanent or continuous basis. When work is performed on the "A" structure, or when production equipment is being regulated or checked, the workmen are transported by boat from Chevron's "Lima" platform where there are living quarters for Chevron employees or any subcontractors' employees who might be working under contract for Chevron.

At the time of the explosion [*27] Mr. Lajaunie was at the boat landing and intended to get into the boat but instead jumped into the water. He did not have on his life vest at the time he dove into the water; however in view of the short interval between the time of the escaping gas and explosion he did not have sufficient time to obtain his vest. Mr. Spohrer who was on the top deck at the time of the catastrophe dived over the side in order to escape being burned. In view of the fact that the fire broke out within a few seconds of the explosion it is doubtful whether or not he would have been able to have reached or used the stairway. It was also pointed out that an enclosed stairway might jeopardize the structure during hurricane winds and that it might not be practical in view of the shortness of the stairway. (Tr. 611)

The compliance officer testified that his investigation indicated that flotation devices had been available to employees on the platform but that in all probability they had been consumed by the fire. He indicated further that it is generally the practice in the industry to have flotation devices available. Also, respondent had a policy of requiring the wearing of approved work vests or [*28] life jackets by all personnel during over water transfers or when working near or over water where there are no hand rails.

It has been admitted that there is no industry standard which would require flotation devices to be automatically discharged upon the happening of an emergency and no industry standard requiring an emergency evacuation system from unmanned offshore production platforms other than open stairways leading from the upper deck. It has also been admitted that employers in the oil and gas industry who operate unmanned stationary platforms in the offshore environment do not as a common practice provide for fire detection systems which would automatically release life rafts or flotation devices nor do they provide an emergency evacuation system other than stairways.

It was also admitted by complainant that gas and oil producers who operate unmanned platforms in the offshore marine environment do not as a common practice provide a geronimo line as an emergency evacuation system for employees on the top deck of an offshore platform. It was further admitted that said employers do not as a common practice provide Whittaker or similar survival systems to provide for the [*29] emergency evacuation of employees. Complainant has admitted that it is a common practice of employers in the oil and gas industry to operate unmanned platforms in the offshore marine environment with open stairs from the top desk of the structure to a boat landing or platform near the water line for the evacuation of personnel.

Although the evidence shows that on June 15, 1974, respondent did not provide a fire detection system which would have released flotation devices into the water and did not equip the unmanned platform with an emergency evacuation system, it is concluded that respondent did not thereby subject its employees to a recognized hazard within the meaning and intent of section 5(a)(1) of the Act. There has been no showing that other offshore oil and gas producers have equipped their unmanned platforms with these devices nor that the offshore oil and gas community recognizes the necessity for such equipment on an unmanned platform. n7

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n7 The compliance officer testified that he had seen fire detection systems in use in "isolated cases" (Tr. 121).

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Mr. Gabert testified that even if an automatic floation device was released from the platform it would take some 35 or 40 seconds for it to begin to function and further that the operation of the same might constitute a hazard to persons who might already be in the water.

In order for complainant to establish a serious violation it is necessary to show that there is a substantial probability of death or serious physical harm that could result from its practices or operations unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. n8 There has been no showing here that respondent was aware of the fact that it would be guilty of subjecting its employees to a recognized hazard by not furnnishing the items referred to in this citation. Complainant had admitted that it is not a common practice in the offshore oil and gas industry to provide these systems on an unmanned platform such as the "A" structure. No evidence has been presented to show that the Whittaker Survivor Capsule has been commonly used on offshore unmanned platforms. Neither has it been shown that a [*31] geronimo line has been used on offshore unmanned platforms such as the "A" structure. It is apparent from the evidence that open stairways are common in offshore oil and gas platforms.

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n8 Section 17(k) of the Act provides as follows: "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."

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It is clear from all of the evidence in the record that complainant has failed to prove that on the date of June 15, 1974, that respondent subjected its employees to a hazard that was either recognized by it or recognized as a hazard in the offshore petroleum industry. n9 It would appear that this matter is an [*32] example of Monday morning quarter-backing where the compliance officer after some four months of investigation, interviews and conferences with area and regional officials decided that in view of the casualties involved a citation should be issued because the platform would have been "safer" with the addition of automatic fire detection devices and an emergency evacuation system.

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n9 See Brennan v. Occupational Safety and Health Review Commission and Raymond Hendrix dba Alsea Lumber Co., 511 F. 2d 1139 (9th Cir. 1975); Brennan v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., 494 F. 2d 460 (8th Cir. 1974); National Realty Construction Co. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257 (D.C. Cir. 1973); and Cape and Vineyard Divisions of the New Bedford Gas and Light Co., v. Occupational Safety and Health Review Commission, 512 F. 2d 1148 (1st Cir. 1975).

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In many decisions of the Review Commission it has been stated that [*33] the occurrence of an accident or catastrophe does not necessarily mean that a violation of the law has taken place. It cannot be concluded that a recognized hazard was present in the industry simply because complainant's compliance officer felt that these systems would have made the platform safer than it was. After carefully weighing the evidence it is concluded that respondent cannot be found to have violated the letter or spirit of section 5(a)(1) of the Act based upon the items referred to in this citation.

CITATION NO. 3

This citation alleges (a) that respondent violated the general duty clause by reason of its failure to install functional automatic closing block valves on all incoming and outgoing oil and gas pipe lines to isolate the distressed "A" platform from fuel coming from the surrounding platforms with respect to 16 different four inch and six inch pipelines and alleges (b) that respondent failed to locate the LTX unit rupture disc discharge vent a safe distance n10 from the "A" structure; the rupture disc vented approximately five feet below the top deck of the structure. It was stated that a combination of these two violations resulted in a likelihood of [*34] death or serious physical harm.

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n10 The citation uses the term "safe distance"; however, this terminology has not been defined.

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The allegation in subsection (a) above has not been established by complainant. It has been admitted that it is not a common practice among employers in the oil and gas industry who operate offshore unmanned platforms within the jurisdiction of Louisiana to install automatic closing valves on incoming and outgoing pipelines to isolate the platform from fuel coming from surrounding platforms. The evidence here shows that a contractor, Harvey Industries, had been on the "A" structure for several weeks prior to June 15, 1974, and was engaged in installing firewalls, automatic closing valves and devices on various pipelines in order to "update" the entire structure. (Tr. 316, 565) This work was being done pursuant to contract and specifications (see respondent's exhibit R-15A and also complainant's exhibit C-9). The invitation to bid was mailed out on January 16, 1974, and was entitled "Invitation [*35] to Bid, Upgrade Critical Facilities, Main Pass Block 69 'A' Structure". The compliance officer was aware of the fact that this work was being done at the time of the fire and explosion with the intention of respondent to bring the platform up to U.S. Geological Survey standards. (Tr. 138) The installation of automatic equipment consisting of various safety valves, flanges, firewalls, etc. on the "A" structure was estimated to be approximately 85 percent complete as of the date of the catastrophe.

Relative to subsection (b) of the citation it was the opinion of the compliance officer that the location of the rupture disc vent more than five feet away from the LTX unit would have been a "safer" operation and that he felt that there was a recognized hazard likely to cause death or serious physical harm to employees working in the vicinity of the venting disc underneath the platform. It was admitted by complainant that there is no industry standard or regulation requiring the venting of this disc more than five feet from the LTX unit. It was also admitted that insofar as the investigation was concerned employers in the oil and gas industry who operate unmanned platforms in the offshore [*36] marine environment do not as a common practice locate the "LTX" rupture discharging vent more than five feet below or away from the top deck of the structure. Respondent's witness, Mr. Falgout, indicated that the location of the vent on the "A" structure is comparable to the location of the vent on other offshore platforms. He testified that he found the rupture disc intact after the explosion. No evidence has been presented to show that respondent knew that the location of the aforementioned rupture disc vent five feet below the top deck of the platform would consitute a hazard to its employees. It is here concluded that complainant's evidence does not establish a violation of subsection (b) of citation No. 3.

After considering carefully all of the evidence in the record it is concluded that complainant has failed to establish that the conditions described in each of the three citations are "recognized hazards", taking into account the knowledge of informed persons familiar with industry safety programs. As previously pointed out none of the matters referred to in the citations are covered by specific standards promulgated by the Secretary of Labor. There has been no showing [*37] that respondent's method of operating a small offshore unmanned platform was contrary to procedures and practices engaged in by oil and gas operators in general. Although it was the opinion of the compliance officer that the items as alleged in the citations would have made the platform a safer place to work and might have saved some lives, it cannot be found that a recognized hazard was thereby established. The actual loss of life on the "A" structure was due to the fire and explosion and although the investigation consumed several months it cannot be determined from this record as to what ignited the escaping gas.

As previously noted there are various safety standards with reference to certain protective equipment such as safety shoes, life vests, goggles, and such items as fire extinguishers, fire watches, railings, and other items; however, respondent was not charged with violating any specific regulation promulgated by the Secretary of Labor. In fact the compliance officer rated respondent's on-going safety program as good. He stated that he believed respondent was doing "as much as they could" at that time to provide a safe and healthy work place except for the items referred [*38] to in the citations. In view of the decision reached herein, it is unnecessary to rule upon the various motions made by respondent.

FINDINGS AND CONCLUSIONS

1. That respondent, Chevron Oil Co., the California Company Division, at all times referred to herein, was engaged in a business affecting commerce within the meaning and intent of section 3(5) of the Act and the Review Commission has jurisdiction over the parties and subject matter herein.

2. That on June 15, 1974, respondent had a work place commonly referred to as the Main Pass Block 69 "A" structure, located near Venice, Louisiana, approximately 2-1/2 to 3 miles offshore in the Gulf of Mexico, where it had three employees engaged in performing certain duties in conjunction with nine other workers who were employed by subcontractors to install certain safety equipment, valves, and gauges.

3. That on June 15, 1974, respondent was not in violation of section 5(a)(1) of the Act as alleged in citation No. 1(a) issued on October 18, 1974, in that it was not established by reliable and probative evidence that respondent failed to periodically inspect, and test for pipe wall thickness due to internal and external corrosion, [*39] the four inch gas lift supply line from the "A" structure to the "CA" structure.

4. That on the aforementioned date respondent was not in violation of section 5(a)(1) as alleged in citation No. 1(b) in that it was not established by reliable and probative evidence that respondent's failure to compile and maintain records of all types of corrosion inspections and tests on the aforementioned four inch gas lift supply line constituted a recognized hazard in the industry.

5. That on the aforementioned date respondent was not in violation of section 5(a)(1) as alleged in citation No. 2(a) and (b) issued on October 18, 1974, since it was not established by reliable and probative evidence that respondent's failure to provide a fire detection system which would automatically release flotation devices, and its failure to provide an emergency evacuation system for the use of employees on the top deck of the unmanned offshore platform, constituted a recognized hazard in the industry.

6. That on the aforementioned date respondent was not in violation of section 5(a)(1) as alleged in citation No. 3(a) since complainant did not prove that respondent failed to install automatic closing block [*40] valves on all incoming and outgoing gas pipelines to isolate the platform from fuel coming from other surrounding platforms; on said date respondent's subcontractor was engaged in installing automatic closing valves and other safety equipment in order to update the platform and said work was 85 percent complete.

7. That on the aforementioned date respondent was not in violation of section 5(a)(1) as alleged in citation No. 3(b) in that complainant's proof was insufficient to establish that the location of the LTX unit ruptured disc vent five feet below the top deck of the platform constituted a recognized hazard likely to cause death or serious physical harm.

8. That on the aforementioned date it has not been established by reliable and probative evidence that respondent committed a serious violation of section 17(k) of the Act because it has not been shown that respondent knew or by reasonable diligence would know of the presence of a violation in connection with the conditions set forth in the three citations.

ORDER

Based upon the foregoing findings and conclusions and the entire record it is ORDERED that the three citations for serious violations issued on October 18, [*41] 1974, and the notification of proposed penalty issued to respondent on October 21, 1974, be and the same are hereby vacated. It is further ORDERED that the complaint be and the same is hereby dismissed.

HENRY F. MARTIN, JR., JUDGE

DATED: February 9, 1976