SECRETARY OF LABOR,
PHILLIPS PETROLEUM CO.,
OSHRC Docket No. 78-1816
Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.
BY THE COMMISSION:
In this case, the Commission must determine whether Phillips Petroleum Company ("Phillips") violated 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 F. Daley Abels found that a violation was established. The case is before the Commission under 29 U.S.C. § 661(i) by direction of former Commissioner Barnako. For the following reasons, we reverse the judge's decision.
The events that led to the issuance of a citation to Phillips are set forth in Judge Abels' decision as follows:
On March 10, 1978, a 1/2-inch pipe nipple broke on a pump in a compressor building at Phillips' refinery in Kansas City.... The pump was part of a piping system running through the compressor building. This system piped and pumped liquid hydrocarbons. The leak resulting from the broken nipple allowed liquid hydrocarbons and hydrocarbon vapors to accumulate in the building. Approximately 15 minutes after the leak was discovered, the accumulated vapors were ignited by an unknown source, causing an explosion and fire which injured 17 employees.[[2/]]
The failure of the pipe nipple was attributed to metal fatigue. There was no prior indication that the pipe was corroded or defective. Following an inspection, the Secretary issued to Phillips a citation that alleged three separate violations of section 5(a)(1), as follows:
1. The audible alarm system provided for the gas plant area was not used to warn and evacuate employees non-essential to the controlling of a hazardous situation which developed in building number 55B10, compressor building, located in the gas plant area, thereby exposing these employee(s) to the hazard of fire and/or explosion.
2. Equipment designed to monitor and control flammable vapor concentration in building number 55B10, compressor building, while the building is closed up, was not provided, thereby exposing employee(s) to the hazard of fire and/or explosion.
3. The ventilation system provided for building number 55B10,
compressor building, a building in which Class I liquid was pumped and which also had pits
into which flammable vapors could travel, failed to prevent the accumulation of flammable
vapors therein, thereby exposing employee(s) to the hazard of fire and/or explosion.[[3/]]
Following a hearing, Judge Abels affirmed the violations alleged in items one and two and assessed a $200 penalty for each violation. The judge vacated the violation alleged in item three. On review, Phillips takes issue only with the judge's affirmance of item two.
The compliance officer who inspected Phillips' worksite, Joseph Anthony,[[4/]] testified that abatement of the hazard resulting from excessive accumulation of flammable vapors could be achieved by the installation of a continuous monitoring device to measure the accumulation of flammable vapors in the compressor building. When the lower explosive limit of the flammable vapor was reached, electrical impulses would be generated by this monitor to perform the following four functions: (1) sound an alarm to warn personnel in the area, (2) shut off the electricity in the building, (3) close down the hydrocarbon source, and (4) activate a ventilation system to remove the accumulated vapor.[[5/]] Anthony testified that he had seen this type of monitoring device installed in the maintenance buildings of two refineries and in the combined storage and maintenance area of a third refinery that he had inspected prior to his inspection of Phillips' plant. On further questioning, it was established that the device seen by Anthony during prior inspections was a gas monitoring device that would activate an alarm and shut off electric power in a building, but the device was not designed to activate a ventilation system or shut off the flow of hydrocarbons. Anthony conceded that he had never seen the proposed abatement device installed in a compressor building. He also conceded that the only similarity between the compressor building and other buildings where he had seen the device was that the buildings were enclosed. He further stated that the essential elements of the proposed device were commercially available, but it would have to be engineered or "tailor made" for installation in Phillips' compressor building.
Jack McKenna, a safety consultant for the refining industry, testified on behalf of Phillips that it was not the refinery industry's practice to install a monitoring device in a compressor building. The only place that McKenna had ever seen a gas monitoring device that would activate a ventilation system was in a control house in which computerized equipment was located. He also testified that while such a system would theoretically work in a compressor building in a refinery, in practice it would be infeasible. He added that, if the thirty-six compressors at the facility where he worked were shut down by this type of system, the plant would blow up.
Carl Baker, Phillips' director of safety, fire protection, and equipment inspection, testified that Phillips had gas monitors and alarm systems at some of its unmanned pump stations. He also stated that, as far as he was aware, no member of the refining industry used monitoring and control or ventilation equipment in compressor buildings.
Chester Klunick, safety manager for Continental Oil Company ("Conoco"), testified that none of Conoco's refineries in the United States used the vapor monitoring, control, and ventilation equipment described by Anthony. However, in its chemical facilities Conoco had gas detection equipment without explosion suppression devices. Conoco also used gas monitoring devices aboard ships during loading and unloading. Klunick explained that Conoco did not have vapor monitoring, control, and ventilation equipment in its refineries because it would be an impractical system for refineries. He stated that these systems are unreliable and that, when he last checked such a system, he found "it was 23 percent off as far as accuracy [was] concerned." He also noted that Conoco has found it very difficult to maintain gas monitoring devices on ships. He stated that it was unusual for pipes like the one in Phillips' compressor building to fail. He also testified that it would be difficult to determine where to properly place the proposed monitors in the compressor building so that they would detect pipe failures. Klunick added that the system would be unreliable and impractical because of the large number of pumps that would have to be monitored and the difficulty of maintaining the many monitoring devices that would be needed.
Both McKenna and J. W. Scarborough, Phillips' refinery manager, testified
that the accumulation or confinement of flammable vapors and the possibility of ignition
or explosion of such vapors was a recognized hazard within the refinery industry.
McKenna, Klunick, and Scarborough testified that the ventilation system in the compressor
building was adequate to eliminate the small amount of vapor normally produced in
operation of that facility but was inadequate to eliminate the undue or abnormal
accumulation of vapors that existed on the day of the explosion. Baker, who was an
engineer, testified that larger pipes in the compressor building were as likely to break
as a pipe nipple, and that, in order to adequately ventilate the released hydrocarbon
vapor in the event of the failure of the larger pipes, a fan twenty-eight feet in diameter
would be required. Baker noted that the compressor building would have to be
partially rebuilt to house such a fan. Baker further testified that the nipple that
ruptured was four to five times stronger than necessary, consistent with industry
In affirming the violation alleged in item two of the citation, Judge Abels found that the undue accumulation of flammable vapors in an enclosed building was a recognized hazard in the petroleum refining industry. With respect to the feasibility of a monitoring device as an abatement measure, the judge found: "[T]here is sufficient material and credible evidence to show that once the vapors began to unduly accumulate, accumulation to the point of ignition and explosion could have been prevented by the use of a monitoring device to control the concentration of the flammable vapors in the compressor building." In concluding that the monitoring device was a feasible method of abatement, Judge Abels relied on the compliance officer's testimony that he had observed such a device in use at other facilities. Although the compliance officer "had never seen or heard" of a monitoring device installed in a compressor building, the judge noted that Phillip's witnesses indicated that monitoring devices were used in some refinery operations and that such a device would work in Phillips' compressor building, even though it would be subject to daily maintenance.
In its petition for review, Phillips argues that the judge's finding of a violation was based on an improper characterization of the recognized hazard. Phillips further contends that the judge erred in finding that the "[u]se of a monitoring and control system to prevent the undue accumulation of flammable vapors in a compressor building is technologically feasible." Specifically, Phillips argues that the judge's finding that the compliance officer had seen the proposed monitoring device in structures similar to the compressor building is unsupported by the record. Phillips contends that the device seen by the compliance officer, a gas monitoring device, was not the same as the proposed monitoring device and notes further that the facilities where the compliance
officer saw these devices were far different and much less complex than Phillips' compressor building. Phillips also argues that the judge ignored evidence that the monitoring device was not a reliable instrument and its use might be dangerous.
The Secretary argues that the judge properly defined the hazard as the undue accumulation of flammable vapors in the compressor building. The Secretary also contends that the compliance officer's testimony establishes a prima facie showing of feasibility and Phillips did not rebut this showing. According to the Secretary, the compliance officer's failure to testify as to the detailed specifications and capacities of the proposed abatement measure is immaterial because the Secretary is not required to actually design the abatement measures.
In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1982 CCH OSHD ¶ 26,125 (No. 77-2096, 1982).
In this case, we conclude that the Secretary has failed to establish the existence of a recognized hazard. There is no dispute that Phillips was aware of a hazard associated with the accumulation of flammable vapors in the compressor building under normal operating conditions and that the compressor building was adequately ventilated to eliminate vapor leakage that accumulated under such conditions. The hazard at issue in this case, however, does not involve the accumulation of flammable vapors under normal conditions. Rather, the hazard of which recognition must be shown here is excessive accumulation of flammable vapors in the compressor building. We find no evidence that this hazard was recognized by Phillips or the petroleum refinery industry.
We also conclude that the Secretary has failed to prove that there was a feasible means by which Phillips could have eliminated or reduced the hazard. "A violation of the general duty clause cannot be sustained unless the Secretary is able (1) to establish the type of employer conduct necessary to avoid citation under similar circumstances and (2) to demonstrate the feasibility and likely utility of such conduct." Cargill, Inc., Nutrena Feed Division, 82 OSAHRC 11/A2, 10 BNA OSHC 1398, 1982 CCH OSHD ¶ 25,935 (No. 78-5707, 1982); see also National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). The abatement proposed by the Secretary consisted of a monitoring and control device capable of: (1) sounding an alarm, (2) shutting off the electricity in the building, (3) closing off the source of hydrocarbon, and, (4) activating a ventilation system. The only evidence presented by the Secretary with respect to the feasibility and likely utility of the proposed abatement was the testimony of compliance officer Anthony.
According to the compliance officer, the devices he observed during his three prior refinery inspections were not monitoring and control devices but gas analyzing equipment. This equipment shut off the electricity in the facilities where it was installed but, unlike the proposed monitoring device, did not close off the hydrocarbon source or activate a ventilation system.[[6/]] There is no evidence that the equipment in the compressor building was similar to the equipment in the maintenance areas where the compliance officer had seen gas monitoring equipment. The compliance officer admitted that the only similarity between the compressor building and those buildings in which he had seen monitoring devices was that all were enclosed. There also is evidence suggesting that an automatic shut-off of the piping in the compressor building may itself be hazardous.
We also agree with Phillips' argument that the judge failed to take account of evidence that the proposed monitoring device was inaccurate and unreliable. Klunick testified that a monitoring device such as the one proposed by the Secretary "was 23 percent off as far as accuracy is concerned." He also stated that a system based on such a device would be unreliable and difficult to maintain. McKenna also testified that such a system would be infeasible. The Secretary offered no evidence to rebut this testimony. It is apparent that, if the monitoring device were inaccurate and unreliable, it would be likely to trigger false alarms and shut off electricity and the flow of hydrocarbons when vapors were at a safe level, or to not activate when vapors reached a dangerous level. We, therefore, conclude that the evidence does not establish that the proposed devices could feasibly be installed in Phillips' compressor building.
Having determined that the Secretary failed to establish either the existence of a recognized hazard or the feasibility and likely utility of the proposed abatement method, we reverse the judge's finding of a violation and vacate item two of the citation. The $200 penalty assessed by the judge is vacated.
FOR THE COMMISSION
Ray H. Darling, Jr.
DATED: JAN 31 1984
CLEARY, Commissioner, dissenting:
I disagree with the majority both on the question of the recognized hazard and on the feasibility of abatement.
The majority finds no evidence that the hazard of excessive accumulations of flammable vapors in the compressor building was recognized by Phillips or the petroleum refining industry. Let us examine this non-evidence. Phillips' own experts testified that ignitable vapor accumulations are a recognized hazard in the industry. The fact that metal fatigue is nearly undetectable and capable of causing catastrophic breakdown was disputed by no one. The fact that any building, including compressor buildings, can become a lethal chamber if vapors accumulate at a greater rate than they are dispersed is obvious. This is underscored by the fact that Phillips' compressor building was specially designed to allow for dissipation of "normal" leakage.
What the majority is saying is that there is no evidence that the industry
actually contemplated the events as they happened in this case: that vapor
accumulations could reach ignitable levels [a fact] in an enclosed space [a fact] if the
leak resulted from equipment failure due to metal fatigue [a fact]. The purpose of
the Act is to upgrade employee safety and health to the extent feasible. Its purpose
is not to give binding effect to industry custom and practice. Yet it should be
apparent that a hyper emphasis on what is unique or specific in a given case renders
virtually all hazards sui generis; only conditions and practices that are regarded as
unsafe by the industry will come within the purview of the general duty clause. This
is not what was intended by Congress and I cannot accede to it. On the record in
this case I would find that the Secretary did establish that both the industry and
Phillips recognized the hazard of excessive accumulations of flammable vapors in the
I also conclude the Secretary has established the feasibility of abatement. The issue on review, with respect to abatement, is whether the Secretary has established the feasibility of a monitoring and control system which would consist of a "head" to detect excessive accumulations of hydrocarbon vapors in Phillips' compressor building and an automatic shut-off of hydrocarbons and electrical power in the event excessive levels of hydrocarbons are detected. The control system would also have an automatic alarm.
In analyzing the evidence on this issue, I begin with the fact that the technical feasibility of a gas monitoring and control system has been conceded by Phillips' own expert witnesses. Both Jack McKenna, a safety consultant and member of the National Fire Protection Association, and Chester Klunick, safety manager for Conoco, expressly conceded that such a system is technologically feasible, that it could perform the desired function, and that they had actually seen similar systems in place in computer buildings.
Although both witnesses expressed numerous reservations about such a system,
their reservations are not of a type to establish infeasibility. McKenna testified
that if all 36 compressors at the plant where he is employed (not Phillips) were shut down
at once, the "whole plant" would blow up. But the fact is that Phillips'
compressor building had only four compressors--two inoperative--and McKenna admitted that
he had "no idea" what would happen if these four compressors were shut down.
Not only is this testimony inconclusive, it appears to conflict with Klunick's
testimony that the leaking pump should have been shut down immediately.[] Indeed,
Klunick suggested that the employees were negligent in failing to shut down the pump as
soon as the leak was discovered.
Klunick testified that in his opinion a monitor and control system was impractical for two reasons: cost and unreliability. He testified that the system would be unreliable because it would "probably" not be installed in the proper location to detect the vapor accumulation. This is inconsistent with McKenna's testimony that the explosion occurred not because the vapors accumulated in any one place inside the compressor building, but because the vapors filled the entire building. In any event, having admitted that a monitor could be properly placed to perform effectively, Klunick's fears that proper placement "might not" occur carry little weight. Klunick argued that placing the monitoring system at floor level would probably require daily inspection, thus rendering the system "impractical." But Spencer, Phillips' controlman, testified that he inspected the compressor building four times a day, or every two hours, during his shift alone. Respondent submitted no evidence that the system could not be checked during one of these routine inspections. Moreover, monitoring systems are utilized in other types of facilities, such as computerized control room, chemical facilities, aboard ships, and unmanned stations on a pipeline. Apparently the systems are not deemed impractical as to these facilities, yet they are alleged to be impractical in a compressor building. No persuasive reason is advanced to distinguish the utility of this device in some facilities, but not in the compressor room. It would also seem apparent that daily inspections are not conducted of monitoring devices at unmanned stations.
Klunick also testified that although Conoco does in fact use gas monitoring
systems in computer buildings and elsewhere, he does not consider them reliable. He
stated that the last time he checked one of Conoco's monitors it was "23 percent off
as far as accuracy is concerned." I find it inconceivable that a large and
sophisticated operation like Conoco would go to the trouble of installing safety equipment
that is no more than 75 percent accurate, particularly in installations as valuable as
computer housing. In
the absence of specific supporting evidence for Klunick's assertion, I accord it very little weight.
Klunick also testified that Conoco had buildings similar to Phillips' compressor building, and that these buildings were not equipped with monitor and control systems to protect against a pump failure such as occurred at Phillips'. It is well established that industry custom and practice, although relevant, are not the final determinants of an employer's obligations under the Act. National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973); Peter Cooper Corp., 81 OSAHRC 101/A2, 10 BNA OSHC 1203, 1982 CCH OSHD ¶ 25,795 (No. 76-596, 1981). Moreover, Conoco's practice cannot be the standard by which we measure the adequacy of Phillips' efforts because the circumstances at the two companies were significantly different.
According to Klunick, Conoco took several measures not taken at Phillips to
protect against such failure as is at issue here. Conoco had a continuous inspection
program of pumps inside its buildings, including pumps inside those buildings similar to
Phillips' compressor building. It had backup systems so that the line could be
switched to another pump if the primary pump failed. It trained employees so they
would know what to do in emergency situations. Phillips, on the other hand, never
inspected the pump from the day it was put in operation until the day of the explosion.
Phillips submitted no evidence that it had a backup system which the employees
could have switched to or that it conducted training programs covering situations such as
the one that occurred. Nor did Phillips submit any evidence that the action of its
employees after discovering the leaks was in any way in vio- lation of the training they
The need for a monitor and control system must be assessed in context. If Conoco has, by instituting a greater number of safety precautions than has Phillips, freed its workplace of the hazard, the further abatement may be necessary at Phillips, but not at Conoco. See Chevron Oil Co., OSHRC Docket No. 10799 (Apr. 20, 1983); General Electric Co., 82 OSAHRC 56/A2, 10 BNA OSHC 2034, 1982 CCH OSHD ¶ 26,259 (No. 79-504, 1982).
The majority attaches significance to the fact that there is no evidence that Phillips' compressor building was similar to the maintenance areas where the compliance officer observed gas monitoring equipment and that the monitoring equipment he did observe elsewhere did not include an automatic gas shut-off feature. Whatever significance this might have had has been rendered nugatory by Phillips' own expert testimony that hydrocarbon monitoring and control technology does exist, that it could be installed at this site, and that it is capable of performing the desired function. Even if the compliance officer's testimony, alone, was insufficient to establish feasibility of abatement, it does not follow that feasibility has not been shown. In determining whether feasibility has been established, we will look to the record as a whole. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD § 22,481 (14249, 1978).
In sum, the majority finding that there was no evidence that the hazard of
excessive accumulation of flammable vapors was recognized by Phillips or the petroleum
industry is rather startling. One would have to conclude that the industry would be
justifiably unconcerned about a serious leak of flammable hydrocarbons, and that there are
no reasonable measures to prevent such an occurrence or protect employees. The
industry practice as presented by Phillips seems to be to simply accept explosions such as
occurred in this instance. If this does bespeak industry practice, I do not agree
that it could do no more.
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[[1/]] Section 5(a)(1) of the Act, 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/]] Phillips' compressor building was a single level brick structure, approximately 130 feet long. The building housed 4 compressors. Two trenches or pits, approximately 42 to 48 inches deep, ran the length of the building. The pump to which the nipple in question was connected drew condensate or liquid off a vessel located outside of the building and transferred the liquid to another part of Phillips' process also located outside the compressor building. The explosion blew out a portion of the roof. One employee lost time from work as a result of injuries incurred in the explosion. His injuries resulted, however, from a fall when he tripped while running away from the compressor building. The remaining 16 employees were treated for cuts and scratches in Phillips' infirmary and then returned to work.
[[3/]] In his complaint, the Secretary amended the citation to delete from each item the concluding phrase "thereby exposing employees to the hazard of fire and/or explosion."
[[4/]] At the time of the hearing, Anthony had been employed as a compliance officer for a period of five years. He had previously served as a base safety officer in the military. Mr. Anthony had "no knowledge of the refining processing" from his military experience, but had inspected three refineries while with OSHA. The Phillips inspection was his first inspection involving a fire or explosion at a refinery.
[[5/]] We note that item three of the citation alleged that Phillips' failure to provide an adequate ventilation system was a violation of section 5(a)(1). The evidence shows and the judge found that Phillips would be required to partially rebuild the compressor building to install the ventilation system. Based on this finding, the judge concluded that the proposed ventilation system was infeasible and he vacated item three. The Secretary does not take issue with this finding. With respect to item one, we note that the judge affirmed a serious violation based on his finding that Phillips failed to use its alarm system to warn its employees of the situation that existed in the compressor building. Phillips does not take issue with this finding. Thus, the only item remaining in contest is item two, alleging failure to install a monitoring and control device in the compressor building.
[[6/]] Although one of the functions of the proposed device was the activation of a ventilation system, item three of the citation separately alleged that Phillips failed to provide a ventilation system adequate to prevent the accumulation of flammable vapors. The evidence shows and the judge found that Phillips would be required to partially rebuild the compressor building to install such a ventilation system. Based on this finding, the judge concluded that the proposed ventilation system was infeasible and vacated item three. The Secretary did not seek review of this holding. Thus, it has already been determined that one of the four functions that the proposed monitoring and control device was to perform is not feasible.
[] The compressor cannot operate without a functioning pump to draw off
liquids. Therefore, if the pump is shut down the compressor must also be shut down.