SECRETARY OF LABOR,
Complainant,

v.

ASAMERA OIL (U.S.), INC.,
Respondent.

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO,

Authorized Employee
Representative.

OSHRC Docket No. 79-0949

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Following an inspection of the Asamera Oil Company's (Asamera) refinery in Colorado, the Secretary cited Asamera for a violation of the OSHA electrical standard, alleging that Asamera had placed unapproved electrical equipment in Class I, Division 2 locations. The administrative law judge vacated the citation, concluding that the definition of a Class I, Division 2 location was "unconstitutionally vague as applied to Asamera and unenforceable."  The issue before the Commission is whether this conclusion of the judge is correct.

The Commission faced this identical question in Continental Oil Company, OSHRC Docket No. 79-0570 (July 20, 1984).  As in Continental Oil, we find that the definition of a Class I, Division 2 location is not unconstitutionally vague but that the Secretary failed to show that Asamera placed unapproved equipment in such a location.  Accordingly, we affirm the judge's disposition.

Portions of OSHA's electrical standards[[1]] were designed to keep flammable hydrocarbons and potential sources of ignition separated at the workplace.  Since electrical equipment is a potential source of ignition, the standards require that only specially designed, so-called "approved," electrical equipment be used in areas of the workplace where flammable hydrocarbons may be present.  See 29 C.F.R. 1910.307(b).

The standard establishes several categories for the purpose of placing approved electrical equipment.  The first category is a Class I, Division 1 area and does not concern us in this case.  The second category is a Class I, Division 2 area, which includes locations where hazardous amounts of hydrocarbons could gather in the event of a failure in the containers or systems confining the volatile liquids, vapors or gases or in case of a failure in the ventilation system.[[2]]

The Secretary argues that a Class 1, Division 2 location includes the entire area within a fifty-foot radius of a potential source of hydrocarbons.  The Secretary cited Asamera for two instances in which it placed unapproved electrical equipment within 50 feet of a potential source.  In one instance, a smoke shack was thirty-two feet from a flange and piping valve at the end of a Fluid Catalytic Cracking Unit pipe.  The other instance involved an electrical substation in a processing area which was thirty feet from the vapor recovery compressor.

In Continental Oil, we rejected the Secretary's argument that the area within 50 feet of a potential source is invariably a Class I, Division 2 location.   Instead, we held that the determination of a Class I, Division 2 location requires the application of sound engineering judgment, with consideration given to the factors listed in the standard:  "the quantity of flammable material that might escape in case of an accident, the adequacy of ventilating equipment, the total area involved, and the record of the industry or business with respect to explosions or fires."

In this case, the Secretary relies on Asamera's placement of unapproved equipment within 50 feet of a potential source to support the alleged violation.   However, the evidence is insufficient to show that the unapproved equipment was not placed in accordance with sound engineering judgment.  The Secretary therefore failed to prove that Asamera violated the OSHA electrical standard. Continental Oil Co., supra.  Accordingly, the judge's disposition is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUL 20 1984

CLEARY, Commissioner, concurring,

I concur with my colleagues' decision to vacate the remaining items in the citation.  As in Continental Oil Co., OSHRC Docket No. 79-0570 (July 20, 1984), the Secretary has failed to present the kind of evidence necessary to establish a violation of the OSHA electrical standard.

At trial, the Secretary argued that any placement of unapproved electrical equipment within 100 feet of a potential source of hydrocarbons is a violation of the standard.  Before the Commission, the Secretary abandoned this interpretation of the standard. The Secretary now contends that any placement of unapproved electrical equipment within 50 feet of a potential source of hydrocarbons is a violation.

As the Commission pointed out in Continental Oil, the language of the standard does not support either of the Secretary's interpretations of the standard.  Whether the placement of unapproved electrical equipment violates the standard depends on the factors listed in the standard:  the amount of vapor that might be released in an accident, the ventilation, the total area involved and the record of the industry with respect to explosions or fires.

The Secretary did not present evidence on any of these factors.  Instead, the Secretary based his entire case on his incorrect interpretation of the standard.  Therefore, it is impossible to say on this record that Asamera violated the standard.


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]] At the time this case arose, the OSHA standard at 29 C.F.R. 1910.309(a) incorporated by reference certain provisions of the 1971 National Electrical Code ("NEC").  Since then, OSHA has recodified its electrical standards, and the provisions of the NEC relevant to this case are now published in the Code of Federal Regulations.

[[2]] The definition of a Class I, Division 2 area, now published at 29 C.F.R. 1910.399(a)(24)(ii), is a location:

(1) in which volatile flammable liquids or flammable gases are handled, processed, or used, but in which the hazardous liquids, vapors, or gases will normally be confined within closed containers or closed systems from which they can escape only in case of accidental rupture or breakdown of such containers or systems, or in case of abnormal operation of equipment; or

(2) in which hazardous concentrations of gases or vapors are normally prevented by positive mechanical ventilation, and which might become hazardous through failure or abnormal operation of the ventilating equipment; or

(3) that is adjacent to a Class I, Division 1 location, and to which hazardous concentrations of gases or vapors might occasionally be communicated unless such communication is prevented by adequate positive-pressure ventilation from a source of clean air, and effective safeguards against ventilation failure are provided.

NOTE:  This classification usually includes locations where volatile flammable liquids or flammable gases or vapors are used, but which would become hazardous only in case of an accident or of some unusual operating condition.  The quantity of flammable material that might escape in case of accident, the adequacy of ventilating equipment, the total area involved, and the record of the industry or business with respect to explosions or fires are all factors that merit consideration in determining the classification and extent of each location.

Piping without valves, checks, meters and similar devices would not ordinarily introduce a hazardous condition even though used for flammable liquids or gases.  Locations used for the storage of flammable liquids or of liquefied or compressed gases in sealed containers would not normally be considered hazardous unless also subject to other hazardous conditions.

Electrical conduits and their associated enclosures separated from process fluids by a single seal or barrier are classed as a Division 2 location if the outside of the conduit and enclosures is a nonhazardous location.