CONTINENTAL OIL COMPANY

OSHRC Docket No. 13750

Occupational Safety and Health Review Commission

June 12, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor, U.S. Department of Labor

John Gallinger, for the employer

E. Taylor, Chairman Oil, Chemical & Atomic Workers, International Union, (AFL-CIO), Local No. 2-470

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: A decision of Administrative Law Judge John A. Carlson is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). At issue is whether the judge erred in finding the Respondent, Continental Oil Company ("Continental Oil"), in violation of the Act for failure to comply with the occupational safety standards at 29 C.F.R. 1910.23(d)(1)(iii) and 29 C.F.R. 1910.106(b)(2)(vii)(a).

Continental Oil's Conoco oil refinery, located in Billings, Moutana, was inspected on May 13-15, 1975, by an authorized representative of the Department of Labor. On May 28, 1975, one citation alleging 20 nonserious violations of the Act was issued to the Respondent. Continental Oil contested two subitems included in item 4 of the citation and the single allegation contained [*2] in item 6 of the citation. In his May 4, 1976 decision Judge Carlson affirmed both items, assessing penalties of $35 from item 4 and $65 for item 6. Continental Oil petitioned the Commission for review of the judge's affirmance of these items and review was granted by Commissioner Barnako on the issues raised by the petition. n1

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n1 Former Commissioner Moran also directed that the case be reviewed, but his direction for review did not specify any issues for consideration by the Commission.

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Item 4 -- 29 CFR 1910.23(d)(1)(iii) n2

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n2 1910.23 Guarding floor and wall openings and holes.

* * *

(d) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified in paragraph (d)(1)(i) through (v) of this section, the width of the stair to be measured clear of all obstructions except handrails:

* * *

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

[*3]

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Subitems 3 and 4 of item 4 allege that two stairways located in Continental Oil's petroleum product tank farm "were not provided with standard stair railings on each side to help prevent employees from falling." The two stairways in issue are built over approximately 5-foot-high earthen dikes that surround the tank farm. The stairways are used by employees for access to the tank farm. They are raised 6 inches above the level of the dikes and follow the slope of the ground. Each of the stairways has five risers with a width less than 44 inches and a railing on only one of the two open sides.

Judge Carlson affirmed the violation, rejecting Continental Oil's contention that the applicability of the standard is limited by the heading of 1910.23, "Guarding floor and wall openings and holes," to stairways leading to or from floors or walls. The judge concluded that the plain meaning of the standard prevails over any heading that might otherwise limit its meaning. Inasmuch as 1910.23(d)(1) specifically applies to "[e]very flight of stairs," the judge determined that the standard is applicable to the [*4] cited stairways in this case despite the narrow scope of the heading. On review Continental Oil reiterates its applicability argument. n3

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n3 Continental Oil also argued below, as well as on review, that the cited stairways are not "fixed industrial stairs" within the meaning of 29 C.F.R. 1910.24(a), and that the guardrail requirements of that standard are also inapplicable. Because the judge determined that the cited standard applies, he found it unnecessary to determine whether the cited stairways are "fixed industrial stairs." We agree.

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The Commission recently considered a similar issue and concluded that reliance on a heading to determine the scope and application of a standard is inconsistent with the usual rule of statutory construction. Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), appeal filed, No. 78-3597 (6th Cir. Nov. 6, 1978). Wray Electric relied on Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad Company, [*5] 331 U.S. 519 (1947), for the proposition that titles and headings are useful tools for resolving doubt as to the interpretation to be accorded a standard or regulation, but cannot be used to limit or alter the meaning of the text. Accordingly, we conclude that the judge properly rejected Continental Oil's argument for the reasons he assigned.

In his decision Judge Carlson also noted that although the configuration of the stairways in issue would not involve the hazard of a vertical drop over the open sides, the need for guarding was not eliminated. The judge referred to testimony of the compliance officer that railings were necessary as handholds to preserve balance and to prevent falls down the stairways. In support of this position, the judge referred to 29 CFR 1910.23(d)(1)(v), which requires handrails down the center of wide stairways as well as on open and enclosed sides.

Although we agree with the judge in finding that Continental Oil failed to comply with the requirements of the cited standard, we conclude that the violation is de minimis in nature and accordingly abatement will not be required. Ordinarily, a hazard is presumed when the terms of a specific standard [*6] are violated. Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977). However, where the record establishes that the violation has only a negligible relationship to employee safety and health, the Commission is authorized to classify the violation as de minimis and neither assess a penalty nor order abatement. Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978); National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD P21,114 (No. 7987, 1976); Van Raalte Co., Inc., 76 OSAHRC 48/b8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976).

The evidence clearly establishes that the stairways in issue were not in compliance with the requirements of 1910.23(d)(1)(iii). However, as the judge noted, the hazard of a vertical drop from the open sides of the stairways is not present in this case. In addition, although stairway handrails are a means of preserving balance and preventing a fall down the stairs, the availability of single railings on stairways less than 44 inches wide composed of only five risers substantially reduces the [*7] hazard of falling down the stairs. Furthermore, the record contains no evidence indicating any injuries resulting from the violative condition. n4 We conclude that the safety of Continental Oil's employees has not been diminished by the existence of the noncompliant condition. Accordingly, we modify the judge's decision and affirm a de minimis violation.

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n4 As noted in Van Raalte Co., Inc., supra, the absence of injuries is not controlling as to whether a violation is de minimis. A hazard requiring abatement may exist in the absence of recorded injuries. Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1978). However, the absence of injuries in this case supports our conclusion that any hazard associated with the stairway is trifling.

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Item 6 - 29 CFR 1910.106(b)(2)(vii)(a) n5

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n5 1910.106 Flammable and combustible liquids.

* * *

(b) Tank storage --

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(2) Installation of outside aboveground tanks --

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(vii) Drainage, dikes, and walls for aboveground tanks -- (a) Drainage and diked areas. The area surrounding a tank or a group of tanks shall be provided with drainage as in subdivision (b) of this subdivision, or shall be diked as provided in subdivision (c) of this subdivision, to prevent accidental discharge of liquid from endangering adjoining property or reaching waterways.

(b) Drainage. Where protection of adjoining property or waterways is by means of a natural or manmade drainage system, such systems shall comply with the following:

(1) A slope of not less than 1 percent away from the tank toward the drainage system shall be provided.

(2) The drainage system shall terminate in vacant land or other area or in an impounding basin having a capacity not smaller than that of the largest tank served. This termination area and the route of the drainage system shall be so located that, if the flammable or combustible liquids in the drainage system are ignited, the fire will not seriously expose tanks or adjoining property. [emphasis added]

(3) The drainage system, including automatic drainage pumps, shall not discharge to adjoining property, natural water courses, public sewers, or public drains unless the discharge of flammable or combustible liquids would not constitute a hazard, or the system is so designed that it will not permit flammable or combustible liquids to be released.

[*8]

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This allegation involves the adequacy of the drainage system provided for an "L" shaped section of Continental Oil's tank farm that contains 16 tanks used for the storage of flammable and combustible liquids. n6 The facts are largely undisputed. Each of the 16 storage tanks rests on a 2 foot high earth and gravel "berm" or platform that slopes to the ground at approximately a 45 degrees angle. The topography of the land results in natural drainage in a southeasterly direction towards a series of dikes and ditches at the periphery of the tank farm that in turn carry the drainage to a storage pond. In addition, one area in the northern portion of the tank farm could drain to a northern ditch. Continental Oil's employees work within this tank farm. Furthermore, a group of buildings and facilities are located near the northwest corner of the tank farm, the closest work area being 35 feet from one of the storage tanks.

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n6 The "L" shape configuration is created by the presence of a diked area in the southeast corner of the tank farm that sections off a portion of the otherwise rectangular tank farm. This item concerns only the undiked portion of the tank farm or tank area.

[*9]

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The cited standard, 1910.106(b)(2)(vii)(a), requires that "[t]he area surrounding a tank or group of tanks" be provided with drainage in accordance with 1910.106(b)(2)(vii)(b) or be diked as provided by 1910.106(b)(2)(vii)(c). Where drainage is used as the method of protection, a minimum slope of 1% from the tank toward the drainage system must be provided. In addition, the route of the drainage system must be located so that adjacent tanks or adjoining property will not be endangered by flammable or combustible spillage. Where diking is used, "[e]ach diked area containing two or more tanks shall be subdivided preferably by drainage channels or at least by intermediate curbs in order to prevent spills from endangering adjacent tanks within the diked area. . . ." 1910.106(b)(2)(vii)(c)(7).

Continental Oil argued before the judge that the standard permits a common drainage system around a group of tanks, and does not require a separate drainage system for each tank within the tank farm. Continental Oil maintained that its drainage system, consisting of a series of dikes and ditches surrounding [*10] the perimeter of the cited area, complies with the requirements of the cited standard.

Judge Carlson determined that the drainage system provisions of the cited standard require that drainage within and among a group of tanks be so designed as to prevent flammable spillage from endangering adjacent tanks. He found that the Secretary had failed to establish that a minimum slope of 1% toward the drainage system was not provided as required by 1910.106(b)(2)(vii)(b)(1). n7 However, the judge also found that the natural southeasterly drainage of the tank farm permitted spilled flammables to travel close enough the base of other tanks to create a fire hazard. Accordingly, he affirmed the alleged violation on the ground that Continental Oil's drainage system failed to comport with the requirements of 1910.106(b)(2)(vii)(a) and (b)(2).

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N7 In his brief on review, the Secretary states that the judge erred in noncluding that the Secretary failed to establish that Continental Oil violated the 1% slope requirement. The Secretary does not, however, request reversal of the judge's conclusion on this issue. In fact, the Secretary urges the Commission to affirm the judge's decision. Where a party does not seek reversal of a judge's decision, but only takes exception to certain findings or conclusions of the judge, the Commission will not address the issues unless they raise questions of compelling public interest. Bethlehem Steel Corp.,     OSAHRC    , 7 BNA OSHC 1053, 1979 CCH OSHD P23,287 (No. 13799, 1979); Union Camp Corporation, 77 OSAHRC 166/A2, 5 BNA OSHC 1799, 1977-78 CCH OSHD P22,103 (No. 12203, 1977). We find no compelling public interest that would warrant Commission review of the judge's conclusion regarding the minimum slope allegation in this case.

[*11]

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Judge Carlson reasoned that the diking and drainage requirements were designed to accomplish the same degree of protection. To adopt Continental Oil's interpretation of the drainage requirements would mean that a higher degree of protection is required when employers choose to use dikes rather than a drainage system because the diking provisions specifically require that areas containing two or more tanks shall be subdivided by drainage channels or curbs. Therefore, the judge concluded that the "route of the drainage system" in 1910.106(b)(2)(vii)(b)(2) includes the course of flow of liquids throughout a tank area. Citing Continental Oil Co., 75 OHAHRC 65/B4, 3 BNA OSHC 1225, 1974-75 CCH OSHD P19,717 (No. 1829, 1975), remanded on other grounds, No. 75-1961 (6th Cir. Oct. 17, 1977), decision on remand, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (1978), n8 the judge also concluded that, even though the standard is primarily directed toward protecting adjoining property and waterways, n9 employee safety is affected by the cited standard because employees work throughout the [*12] tank area.

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n8 In Continental Oil Co., supra, the Commission held that containment of spillage would protect employees outside the containment area and therefore compliance with the standard promotes employee safety.

n9 On December 13, 1977, the Secretary of Labor published in the Federal Register a list of general industry standards proposed for revocation, accompanied by an Interim Enforcement Policy stating that pending enforcement actions involving listed standards would be reviewed and reduced to de minimis where there is no direct or immediate relation to employee safety or health. 42 Fed. Reg. 62,734 (1977). The standard in issue in this case was among those proposed for revocation. On July 18, 1978, the Commission requested the parties to brief what, if any, effect the Interim Enforcement Policy should have on the disposition of this item. Briefs were received from both parties. This issue has been mooted by a subsequent publication in the Federal Register in which the Secretary indicated that "[u]pon reexamination of the evidence, OSHA has determined that in the best interest of worker protection," this standard should not be revoked. 43 Fed. Reg. 49733 (1978).

[*13]

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In its brief to the Commission, Continental Oil reiterates its arguments made before the judge, maintaining that the provisions of 1910.106(b)(2)(vii)(a) and (b) distinguish between the area from the tanks to the drainage system and the drainage system itself. The Secretary's brief argues in support of the judge's interpretation of the standards, noting that the primary purpose of the standards is to ensure that liquid spillage is conducted away from other tanks and that a drainage system encompasses the entire flow of liquids in and around a tank area.

We agree with the judge that the cited standard requires a drainage system to be maintained within a tank farm, as well as around its perimeter. n10 It is clear that both the diking and drainage provisions are designed to prevent ignited spillage from reaching adjacent tanks. The diking provision achieves this goal by isolating the spillage and the drainage provision achieves this by draining spillage away from other tanks. Accordingly, we conclude that the judge properly interpreted and applied the cited standard and we adopt the judge's decision [*14] as to item 6 for the reasons he assigned. n11 Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n10 We specifically reject Continental Oil's assertion that "[t]he sloped area from the tanks [in the plural] to the drainage system is not part of the drainage system as the standard is written" [emphasis added] because 1910.106(b)(2)(vii)(b)(1) requires that "[a] slope of not less than 1 percent away from the tank [in the singular] toward the drainage system shall be provided" [emphasis added].

n11 We have not reviewed that portion of the judge's decision that involves the 1% slope allegation. See note 7, supra.

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We have considered the appropriateness of the $65 penalty assessed by the judge in light of the criteria set forth in 17(j) of the Act, 29 U.S.C. 661(i), n12 and the parties' stipulation that the penalty is appropriate. We affirm the judge's assessment.

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n12 Section 17(j) of the Act provides the following:

(j) 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.

[*15]

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Accordingly, item 4 of the citation is affirmed as a de minimis violation and no penalty is assessed. Item 6 and the penalty of $65 are affirmed.

IT IS SO ORDERED.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, concurring in part and dissenting in part:

I agree with my colleagues in affirming the two contested subitems included in item 4 as de minimis violations, but my reasons for applying the cited standard to the stairways in question differ from those set forth in the majority opinion. Also, while I agree in affirming item 6, my reasons materially differ, and I moreover would hold the violation to be de minimis, requiring no abatement, and would assess no penalty. Accordingly I concur in part and dissent in part.

The Stairway Item

As my colleagues state, Continental Oil has argued throughout the proceedings that the applicability of the cited standard, 29 C.F.R. 1910.23(d)(1)(iii), n1 is limited by the heading of 1910.23, "[g]uarding floor and wall openings and holes," to stairways leading to or from, or in some way related to, floor and wall openings and holes. Continental [*16] Oil reasons that otherwise the heading of 1910.23 fails to give adequate notice respecting the cited standard's applicability.

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n1 29 C.F.R. 1910.23(d)(1) provides the following:

Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified in paragraphs (d)(1)(i) through (v) of this section, the width of the stair to be measured clear of all obstructions except handrails[.]

Paragraph (iii) provides the following:

On stairways less than 44 inches wide having both sides open, one stair railing on each side.

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My colleagues reject this argument upon the basis that this, or any heading cannot be used to limit or alter the plain meaning of the text of a standard. They hold that a heading is only an aid to resolving an ambiguity in the interpretation of a standard's text, citing their opinion in Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), appeal filed, No. 78-3597 (6th Cir., [*17] Nov. 6, 1978). I disagreed with that holding in my separate opinion therein.

As I stated, the employer is entitled to rely upon the headings under which standards appear, for otherwise he would be required to guess which standards may apply. In guessing, the employer would incur the risk of a later finding of violation respecting a standard which the employer could not reasonably have anticipated would apply to his operation. Accordingly I disagree with my colleague's rationale in this case.

However in my opinion the headings provide adequate notice to Continental Oil that its stairways are covered by the cited standard. The heading immediately preceding 1910.23(d) in which the cited standard appears is "[s]tairway railings and guards." This heading is clear and unambiguous and supports the conclusion that the cited standard applies to Respondent's stairways unless some matter extraneous to the heading leads to a contrary result.

As noted previously Respondent argues that the heading for 1910.23 limits the application of 1910.23(d) to stairways in some way related to floor and wall openings and holes. I do not agree. The heading of 1910.23 is entitled "[g]uarding floor [*18] and wall openings and holes.' These subjects are exhausted in 1910.23(a) and (b). Subsection (a) covers "[p]rotection for floor openings" and subsection (b) applies to "[p]rotection for wall openings and holes." In 1910.23(c), entitled "[p]rotection of open-sided floors, platforms, and runways" and 1910.23(d), entitled to pertain to stairways, 1910.23 explicitly reaches other types of walking or working surfaces not mentioned in the title of 1910.23. Such subjects, while outside the scope of the heading for 1910.23, are nevertheless clearly within the subject of the overall subpart of which they are a part, entitled "[w]alking-working surfaces."

Although I believe an employer is entitled to rely upon the topic headings in a standard, he should not be permitted to escape responsibility for compliance by reliance upon one heading when it is clear from the heading of the cited subsection as well as other headings in the standard and the overall structure of the standard that the Secretary intended the employer's activities to be included within the standard. The headings of the subsections of 1910.23 give explicit notice that the guarding of surfaces other than floor [*19] and wall openings is covered in 1910.23. Moreover, the heading of 1910.23(d) expressly refers to stairways. Therefore, I conclude that the heading of (d) supplies the lack of reference to stairways in the heading of 1910.23, and thereby gives sufficient notice that the standards in (d), including the cited standard, pertain to stairways in general. n2

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n2 As a part of its argument that 1910.23(d)(1)(iii) does not apply, Continental Oil has argued that its two stairways do not constitute "fixed industrial stairs" within the meaning of 1910.24(a), which provides the following:

Application of requirements. This section contains specifications for the safe design and construction of fixed general industrial stairs. This classification includes interior and exterior stairs around machinery, tanks, and other equipment, and stairs leading to or from floors, platforms, or pits. This section does not apply to stairs used for fire exit purposes, to construction operations in private residences, or to articulated stairs, such as may be installed on floating roof tanks or on dock facilities, the angle of which changes with the rise and fall of the base support.

Continental Oil made this argument apparently because 1910.24(h) makes the provisions of 1910.23 applicable to fixed industrial stairs. Section 1910.24(h) provides the following:

Railings and handrails. Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of 1910.23.

29 C.F.R. 1910.5(c) provides that "[i]f a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process." Accordingly where a particular standard appears specifically applicable in lieu of the cited general standard, the Commission must reach the issue of the applicability of the particular standard. Nevertheless, here any issue respecting the applicability of 1910.24(h) need not be reached since 1910.24(h) refers to 1910.23 in which the cited standard appears, and 1910.23(d)(1)(iii), the cited standard, applies to stairways generally. Accordingly my colleagues are correct in not reaching the issue of the applicability of 1910.24, but they incorrectly merely give as their reason 1910.23(d)'s general applicability.

[*20]

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The Drainage Item

My colleagues find that Continental Oil violated 29 C.F.R. 1910.106(b)(2)(vii)(a) (hereinafter (a)). n3 They conclude Continental Oil failed to comply with 1910.106(b)(2)(vii)(b)(2) (hereinafter (b)(2)), n4 incorporated by reference in (a), because the company did not provide a separate drainage system from each tank in the tank farm. My colleagues reject Continental Oil's argument that (a) and (b)(2) permit a common drainage system around a group of tanks. They analogize (b)(2) to provisions in 1910.106(b)(2)(vii)(c) (hereinafter (c)) n5 respecting diked areas for above ground tanks. They reason, in agreement with the judge, that (b)(2) must require a separate drainage system from each tank just as (c)(7) requires drainage channels or curbs to subdivide diked areas containing two or more tanks, because otherwise the diked area standards would be illogically more stringent than the drainage standards.

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n3 29 C.F.R. 1910.106(b)(2)(vii)(a) provides the following:

Drainage and diked areas. The area surrounding a tank or a group of tanks shall be provided with drainage as in subdivision (b) of this subdivision, or shall be diked as provided in subdivision (c) of this subdivision, to prevent accidental discharge of liquid from endangering adjoining property or reaching waterways.

n4 29 C.F.R. 1910.106(b)(2)(vii)(b)(2) provides, in pertinent part, the following:

The termination area and the route of the drainage system shall be so located that, if the flammable or combustible liquids in the drainage system are ignited, the fire will not seriously expose tanks or adjoining property.

n5 See 29 C.F.R. 1910.106(b)(2)(vii)(c)(7), which provides, in pertinent part, the following:

Each diked area containing two or more tanks shall be subdivided preferably by drainage channels or at least by intermediate curbs in order to prevent spills from endangering adjacent tanks within the diked area. . . .

[*21]

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I disagree that (b)(2) can properly be analogized to (c)(7). First, as I will discuss more fully later, the standards are not intended to protect employees, and it is meaningless to speak of designing drainage and diking systems that will provide comparable employee protection. In any event, it is also apparent that the two systems cannot be compared, for they function in entirely different ways. A drainage system conveys a spill of flammable or combustible liquid entirely away from the tanks into a remote area or basin. n6 The one percent slope required from a tank to the drainage system is obviously intended to expedite the flow away from the tanks. n7 A diking system, however, works in exactly the opposite way; it is intended to assure that the spilled liquid does not leave the area of a tank, but is instead retained there.

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n6 See the first sentence of 29 C.F.R. 1910.106(b)(2)(vii)(b)(2), which provides that "[t]he drainage system shall terminate in vacant land or other area or in an impounding basin having a capacity not smaller than that of the tank served."

n7 29 C.F.R. 1910.106(b)(2)(vii)(b)(1) (hereinafter (b)(1)) provides the following:

A slope of not less than 1 percent away from the tank toward the drainage system shall be provided.

[*22]

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If a dike surrounding a group of tanks is not subdivided, any spilled liquid will simply accumulate around all of the tanks in the group. Thus, a dike that is not subdivided provides no protection to adjacent tanks. However, a drainage arrangement that does not contain intermediate curbs and drainage channels to prevent spilled liquid from traveling near adjacent tanks nevertheless provides considerable protection to those tanks simply by virtue of the fact that the spilled material is soon conveyed out of the entire area. As noted above, the one percent slope accomplishes this objective. Thus, it is certainly not so obvious as my colleagues think that a separate drainage system for each tank is necessary to achieve protection for adjacent tanks equal to that a diking system would provide.

Moreover, as Continental Oil points out, the plain language of the standards evidence an intent to permit a common drainage system in the area surrounding a group of tanks such as it provided. According to (a), "[t]he area surrounding a tank or group of tanks shall be provided with drainage. . .," (emphasis [*23] added), and (b)(1) distinguishes the area surrounding a tank from that containing the drainage system, in that the standard requires a slope" away from the tank toward the drainage system." Thus, when (b)(2) refers to "the route of the drainage system," it does not refer to the land that serves to drain liquid from each individual tank but instead refers to the system that is intended to protect adjoining property and waterways by collecting any liquid spilled anywhere on the facility and carrying it to the impounding basin. The drainage system here would be the system of ditches that Continental Oil provided around the periphery of the farm.

To summarize, Continental Oil provided a drainage system in the area surrounding the group of tanks, and the provisions respecting drainage do not require separate drainage for each tank in a group, as the Secretary contends. This conclusion follows from both the language and the purpose of the standards. Accordingly, I would reverse the judge in his finding of noncompliance with (b)(2) for failure to provide separate drainage for each tank.

Having rejected the judge's rationale for concluding Continental Oil violated the standard, I now [*24] turn to the Secretary's alternative argument that the company was in violation for failing to maintain a one percent slope from each tank to the drainage system as required by (b)(1) and incorporated by reference at (a).

Two witnesses, the Secretary's compliance officer and Continental Oil's environmental engineer, testified that the terrain of the tank farm appeared to be relatively flat. There was also evidence that water puddles existed at various locations on the site. A contour map of the farm introduced into evidence shows a maximum difference in elevation of three feet over the entire area containing the tanks at issue. The overall dimensions of the area are approximately 850 feet north to south, and 600 feet east to west.

Continental Oil presented as a witness a surveyor, who testified that the average slope from each tank to the ditch to which a spill from that tank would drain exceeded one percent. He calculated these slopes by computing the difference in elevation between the base of each tank and the bottom of the ditch, and dividing this figure by the distance from the tank to the ditch.

Before the judge, the Secretary argued that the standard requires a continuous [*25] one percent slope, that is, the slope had to equal or exceed this amount at each point along the flow path of the liquid. The Secretary asserted that only in this way could reliable drainage be achieved. Relying on the contour map and the testimony describing the terrain as flat, the Secretary contended that this minimum was not achieved at each point. Continental Oil, however, argued that the one percent requirement referred to the average slope and, relying on its surveyor's testimony, asserted it achieved this average for all tanks.

Judge Carlson did not accept either position. He noted that land sloped at one percent would appear relatively flat, so that the description of the land as being flat did not prove the violation. He found the presence of puddles to lack probative value because "puddling on an earthen surface could scarcely be eliminated by the most conscientious grading effort." He further found that the contour map did not establish that the minimum slope was not present as to any particular area. The judge, however, also specifically found unpersuasive the testimony of Continental Oil's surveyor. He rejected the surveyor's calculations on the basis that they [*26] did not take into account the slope of the intervening terrain between each tank and the drainage ditch. Thus, the judge's finding that Continental Oil did not violate the one percent requirement was based solely on his conclusion that the Secretary failed to sustain his burden of proof.

On review, the Secretary reiterates his argument that the one percent requirement is a minimum that must exist at each point along the path of the liquid, and he relies primarily on the contour map to show that this was not achieved. Although Continental Oil does not explicitly argue the point on review, it presumably maintains the position it argued to the judge; that the one percent requirement is an average and that the surveyor's calculations show it to be in compliance.

I need not however resolve this dispute. As indicated below, Continental Oil's evidence respecting its survey reveals a violation of (b)(1) even if the standard merely requires an average slope of one percent. Consideration of whether a violation also exists under the Secretary's theory for calculating the one percent slope requirement would therefore only be necessary to provide guidance to Continental Oil respecting the [*27] manner of abatement required by the standard. Since, as indicated below, I would not enter an abatement order respecting a violation of (a) for noncompliance with (b)(1), it therefore is unnecessary that I determine whether (b)(1) requires a continuous one percent slope or merely an average slope of one percent. n8

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n8 Although both parties have advanced differing theories regarding calculation of the one percent slope requirement, I note that the record is devoid of any evidence on this point and neither party has cited any law of physics or authoritative source material in support of his theory. Thus the parties have asked us to adopt a test based upon mere supposition, unsupported by even the scantest evidence.

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In basing my conclusion that Continental Oil failed to comply with (b)(1) based upon computations of an average slope, I note at the outset that the average slope calculations made by Continental Oil's surveyor are incorrect because he included in his calculations the depth of the drainage ditch. Plainly, [*28] the depth of the ditch bears no relation to the effectiveness with which the liquid would flow from a tank to the ditch. Moreover, (b)(1) refers to the slope away from a tank to the drainage system. As the ditch is part of the drainage system, the plain language of the standard precludes the use of its depth in calculating the relevant slope. Thus, I would recompute the slope calculations by correcting the surveyor's calculations for the depth of the ditch, and upon doing so, I find that the slope with respect to at least some of the tanks is less than one percent.

For example, I refer to tanks 48 and 10, each of which Continental Oil's surveyer discussed in testimony for the company. Tank 48 is located in the northwest quadrant of the tank farm and in the southwest crner of the quadrant. In this position, it is, according to the surveyor's testimony, approximately 315 to 325 feet from the south drainage ditch. This ditch is eighteen inches (1.5 feet) deep, and the elevation at the bottom of the ditch is $80.15" feet, according to the surveyor. Thus, corrected to give the elevation at the top of the ditch, the elevation at the drainage system is approximately "80.15" plus [*29] 1.5 feet, or 81.65 feet. The surveyor's elevation at the bottom of the tank is "83.43." The difference between this elevation and the corrected drainage-system elevation is 1.78 feet. n9 Thus this means that over approximately 315 to 325 feet the elevation varies only 1.78 feet. The slope for this decline in elevation is at best .56% (1.78/315 X 100 = .56%) which is, of course, less than 1%.

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n9 Each tank rests on a two-foot berm composed of earth and gravel. Because my computations set forth above herein reveal a violation even if the elevation of the berm is used as the elevation at the tank, I do not decide whether the elevation of the berm is a part of the area mentioned in (b)(1) "from the tank toward the drainage system."

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Tank 10 is located in the northwest quadrant immediately to the east of tank 48, at the same distance from the south drainage ditch, i.e., 315 to 325 feet. According to the surveyor, the difference in elevation of the bottom of this tank and the bottom of the south drainage ditch is the [*30] same as for tank 48. Hence, the corrected slope is also .56%, less than 1%.

In view of the fact that at least some of the tanks failed to comply with (b)(1), I would conclude that Continental Oil violated (a), and I accordingly would affirm the item. n10

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n10 Inasmuch as I would not enter an abatement order for the reasons discussed later in this opinion, it is not necessary for me to determine exactly which tanks failed to comply with the one percent requirement. It is sufficient to observe that at least some tanks failed to comply.

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However, although I would conclude that Continental Oil violated the standard, I would find that the violation is unrelated to the safety of Continental Oil's employees, and would therefore classify the violation as de minimis.

It cannot be disputed that a spill of a large quantity of flammable liquid presents serious danger. This is vividly illustrated by a prior case involving this same employer. Continental Oil Co, 75 OSAHRC 65/B4, 3 BNA OSHC 1225, 1974-75 CCH OSHD P19,717 [*31] (No. 1829, 1975), remanded, No. 75-1961 (6th Cir. 1977). (Continental Oil I). There, a spill occurred on a tank farm when an automatic delivery system failed to shut off at the proper time. Flammable liquid collected in a diked area around the tank, and the vapors from this liquid ultimately found a source of ignition. The resulting explosion killed the only employee present at the tank farm, and was so powerful that it also killed two employees of another employer on an adjacent facility.

It is important to recognize, however, that the drainage and diking standards involved in this case do nothing to prevent this type of accident. n11 These standards will not prevent the spillage of flammable liquids; they will not prevent spilled liquids from emitting vapors; and they will not prevent a source of ignition from igniting the vapors. Instead, by their explicit terms, the standards are directed at protection of property and waterways. n12 The standards are not intended to protect employees, and co cliance with them may have the opposite effect, for there may be a trade-off between the safety of employees and the safety of property or waterways. Any benefit to employee safety [*32] or health that a conforming drainage or diking system produces is purely fortuitous.

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n11 In Continental Oil I, the Secretary cited Continental Oil for allegedly violating several of the drainage and diking standards in 1910.106(b)(2)(vii). This evidence showed that Continental maintained dikes that conformed to the standards, and the Commission vacated those citations.

n12 See n. 4, supra.

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This point is also illustrated by Continental Oil I. There, the company surrounded its tanks with a diking system that complied with the standards at 1910.106(b)(2)(vii)(c). Thus, when the liquid from one tank overflowed, it remained on the tank farm. This undoubtedly accomplished the purpose of the standard to protect adjoining property or waterways. However, it also meant that an explosion, if one occurred, would have its greatest effect within the tank farm, thereby endangering any employees who were there at the time. Had Continental Oil instead drained the spilled liquid to a remote location, the danger to [*33] the employees might have been considerably less.

Although, in addition to protecting adjoining property and waterways, the standards seek to prevent a fire or explosion from endangering tanks other than the one from which a spill occurs, protection of such other tanks will not necessarily benefit employee safety. As Continental Oil I demonstrates, employees near an area in which a fire or explosion occurs are exposed to a hazard whether or not other tanks are also endangered. And in seeking to protect other tanks from the fire or explosion, it may be necessary, under the majority's abatement order, to design a drainage or diking system that prevents spilled liquid from endangering other tanks by draining or retaining it closer to the work stations of the employees, thus creating an additional hazard to them should the liquid or its vapors be ignited. Of course, it may also be that a drainage or diking system could be designed that would protect employees as well as tanks, adjoining property, and waterways. The standard, however, does not require employee safety to be considered and, by stressing the protection of property and waterways, it is drafted to assure that any necessary [*34] compromises favor property and waterway protection over that of employees.

On October 10, 1972, the Secretary issued an interpretation of 1910.106(b)(2)(vii), n13 in which he recognized that the primary purpose of the section was to protect property and waterways, and concluded:

Therefore, paragraph 1910.106(b)(2)(vii) is not intended to apply where its requirements do not have a substantial relationship to the safety and health of employees. Each case will have to be considered on its own merits.

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n13 The interpretation is reprinted as Appendix B to Continental Oil I, supra.

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In this case, the Secretary contends that "compliance with the standard would diminish exposing employees to the risk of multiple tank fires or explosions. . . . For these reasons, the Secretary has concluded that this is a case where compliance with the standard directly effects (sic) employees' health." n14 The Secretary, however, does not elaborate on why this case differs from the typical situation to which the standard applies [*35] and as to which he has declared the standard has no relationship to employee safety. Although the Secretary has stated that each case must be considered on its own merits, he does not attempt to explain why a danger exists to Continenal Oil's employees under the facts here but merely informs us that he has reached a conclusion that there is such a danger. I am not persuaded.

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n14 The Secretary makes this argument in his response to the supplemental briefing order mentioned in n. 9 of the lead opinion.

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Equally unpersuasive is the Secretary's statement, in deciding to retain these standards, that they should not be revoked "in the best interest of employee protection." See n. 9 of the lead opinion. Again, the Secretary has not explained how the standard will benefit employees, or why the express purpose of the standard to benefit property and waterways should be ignored. See Skidmore v. Swift & Co., 323 U.S. 134, 164 (1944).

One final point deserves mention. Footnote 8 of the lead opinion states that, in [*36] Continental Oil I, the Commission held that "containment of spillage would protect employees outside the containment area and therefore compliance with the standard promotes employee safety." That is incorrect for two reasons. First, that was solely the opinion of Chairman Cleary, and not a holding of the Commission. Second, the conclusion does not follow from the premise. Undoubtedly, containment of spillage provides some protection to persons outside the containment area. However, it correspondingly endangers persons near the containment area. Thus, as a general matter, whether the location of the containment area protects employees is again purely fortuitous. The facts of this case are illustrative. At present, Continental Oil's drainage system removes spilled liquids to a containment area outside the tank farm. Conceivably, although the record does not address the point, that location does not endanger either Continental Oil's employees or other persons. Continental Oil could, however, comply fully with 1910.106(b)(2)(vii) by diking its tanks so as to retain spilled material within its tank farm. Such a result would clearly endanger the very employees the Secretary [*37] asserts are endangered by the present drainage system: those who work in proximity to the tanks.

In conclusion, because the purpose of the standard is to protect property and waterways rather than employees, and in the absence of any indication that an abatement order would benefit employee safety, I would find the violation to be de minimis, assess no penalty, and not order abatement. n15

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n15 Arguably 1910.106(b)(2)(vii) is not a valid occupational safety and health standard because it is not "reasonably necessary or appropriate to provide safe or healthful employment" within the meaning of 29 U.S.C. 652(8). However, the Commission has held that it lacks the power to declare a standard invalid on this basis. Van Raalte Co., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976). Instead, in the absence of any relationship to employee safety or health, the Commission can find that a violation is de minimis, thereby requiring no abatement and assessing no penalty. Id.

[*38]

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