UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2128
MOBIL OIL COMPANY,
Respondent.

February 6, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioner.

BARNAKO, Chairman:

The issue in this case is whether Respondent (Mobil) violated 29 U.S.C. § 654(a)(1) with respect to a natural gas heater used at its oil refinery at Paulsboro, New Jersey. Complainant alleges that the procedures established by Mobil to relight the heater exposed Mobil’s employees to a recognized hazard likely to cause death or serious harm. Judge Donald K. Duvall held that the evidence failed to establish a violation. We have reviewed the entire record, and conclude that the Judge properly disposed of the alleged violation of 29 U.S.C. § 654(a)(1) for the reasons he assigned.

Mobil’s employees were represented in these proceedings by the Oil, Chemical, and Atomic Workers International Union, AFL-CTO, and its Local 8–831 (OCAW). OCAW has filed a brief before the Commission, arguing that a violation should be found based on Mobil’s alleged inadequate implementation of its relighting procedures. At the hearing, however, the parties agreed that the substance of the alleged violation was the inadequacy of the procedures, and not any failure in their implementation. OCAW did not object to this formulation of the issue, and the case was tried on that basis. We cannot, under these circumstances, find a violation based on a different theory. ‘It is patently unfair for an agency to decide a case on a legal theory or set of facts which was not presented at the hearing.’ National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267, n. 40 (D.C. Cir. 1973).

Accordingly, the Judge’s decision is affirmed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: FEB 6, 1976

CLEARY, Commissioner, DISSENTING:

The majority opinion notes that the issue before the Commission is whether respondent’s relight procedures exposed its employees to a recognized hazard likely to cause death or serious physical harm. Administrative Law Judge Duvall and the majority conclude that the relight procedures were not a ‘recognized hazard.’ I must respectfully disagree.

Respondent maintains as part of its Paulsboro, New Jersey, petroleum refinery a propane de-asphalting (PDA) unit. This unit is comprised of a number of components, including a natural draft gas-fired process (PDA-BB2) heater. The heater, installed in 1950, was cylindrical in shape with a 16-foot diameter. It was approximately 80 feet high, and was estimated to weigh between 20 and 30 tons.

The PDA process begins with the pumping of residual stock oil into a tower. Propane gas is then injected. The propane is necessary to separate (‘split’) the asphalt from the oil. Shortly thereafter, the propane and oil mixture is pumped through the PDA-BB2 heater. When the mixture reaches the required temperature, the propane and asphalt mix and split from the oil.

Heat for this process was provided by four gas burners, analogous to those of a gas stove. They were located at the base of the PDA-BB2 heater about eight feet off the ground. These burners were supplied gas by individual lines that were regulated by valves (termed cock-valves). The lines were connected to a main gas line that was controlled by a header valve system located approximately 35 feet from the burner.

On the morning of October 26, 1973, at about 11 o’clock, the propane gas compressors of the PDA unit failed. Because of this failure, the PDA-BB2 heater was shut down. The shutdown consisted only of turning off the main valve and checking its bypass at the header valve system. The cock valves were not closed at this time.

Shortly after 3 o’clock on that day, the signal was given by respondent’s foreman to prepare the PDA-BB2 burner for relighting. Direct testimony reveals that respondent’s employee closed the four cock valves under the furnace while a second employee obtained a bucket of kerosene for the torch. The torch was a pencil-thin piece of wire with an asbestos rag attached. The burner was purged with steam for at least one-half hour according to company regulations. After the steam purge was completed, two employees prepared to light the heater. One employee, a second operator, positioned himself at the header valve system while the second employee, also a second operator, positioned himself below the burners. The latter operator lit the torch and hung it by its hook to the rim of a burner. He then used a pipe wrench to ‘beat open’ the cock valve below the burner; turned to the second operator; and signaled for release of gas to the prepared burner. The block valve on the ‘down stream’ side of the regulator at the header valve system was opened to about 30 percent capacity. Almost immediately, the PDA-BB2 heater exploded. The explosion seriously injured the second operator standing next to it.

Respondent’s sentor operator testified that it was important to the safe relighting of the heater that all valves be opened slowly and just a little at a time. He testified that the technique for properly opening these valves was learned through trial and error and experience.

The valves to the burners and the main valves were very difficult to operate. To move virtually any valve, it would have to be hammered with a pipe wrench or a piece of pipe. The valves could be made to open more easily. During biannual turn-around maintenance the valves were put back into proper operating condition. In the interim, exposure to the elements and the corrosive refinery atmosphere caused them to stiffen considerably.

Respondent maintains as part of its operating manual a one page set of instructions titled, General Safety Precautions To Be Observed When Lighting Off Gas-Fired Process Heaters. These instructions, last revised in 1963, are available to all employees required to light the PDA-BB2 heater. The instructions require employees to open the main valve before the first cock valve is opened. (The reverse procedure was used on the day of the explosion.) Item 7, of the instructions, with its accompanying note, and Item 8 provide the following specific warnings:

7. Slowly open the gas burner valve, the gas should ignite immediately. If it does not, shut the gas valve and purge the furnace before attempting to light the burner again.

NOTE: It is extremely important to open gas valve slowly because the ignition of gas will cause a seven-fold increase in volume. Thus if a large volume of gas is rapidly ignited the low draft obtained during the startup may be insufficient to pull the flame into the firebox resulting in a flash back. This is particularly true on ring-type gas burners.

8. When adding fuel to the burner by use of the hand valve at the burner, continue to open the valve very slowly. Even though the burner is lit, a substantial increase in gas flow may still cause a flash back.

The decision to issue the citation was based on the file compiled by the compliance officer who made the inspection, and the recommendation of a second compliance officer who had specialized knowledge in the area of gas heaters. The latter compliance officer testified that his recommendation was based on the . . . lack of adequate combustion safeguards,’ even when whose required by respondent’s instructions were considered.

The compliance officer suggested several combustion safeguards that would have heightened employee safety. These included a remote furnace ignition system or pilot light system, as well as flow meters to monitor the gas-air mixture joint to the burners. He was very specific that respondent’s ‘torch’ was inadequate.

The compliance officer noted that the language of respondent’s instructions recognized and acknowledged in at least two places, the hazard of lighting a PDA-BB2 heater. Moreover, the heater operating instructions used by respondent were substantially the same as those used generally throughout the petroleum refinery industry.

Respondent’s expert testified with respect to the undesirability of both remote control and pilot-light furnace ignition systems.

As is noted at the outset of my opinion, the theory of complainant’s case was that respondent’s relight procedures were violation of § 5(a)(1) of the Act. Thus, the citation alleged the following:

P.D.A. Furnace Near #1. T.C.C.

The employer failed to furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

Adequate safety devices for protection of employees lacking. Remote control furnace ignition system or adequate pilot ignition system with sufficient combustion safeguards not provided (emphasis added).

Respondent’s expert witness successfully rebutted the testimony of complainant’s compliance officer on the desirability of a remote-control furnace ignition system or pilot-light system. Respondent’s expert established that an ‘uncomplicated’ manual ignition system would be preferred over an automatic system, the reliability of which could not be assured. But, ‘uncomplicated’ is not necessarily synonymous with primitive. ‘Primitive’ is the exact word used by the compliance officer to describe respondent’s relight procedure. To cite just one example of the inadequacy of respondent’s procedure, I note the following short colloquy between counsel for complainant and the compliance officer who had the specialized knowledge of gas heaters:

What’s a reliable ignition source?

Well, in the 20th Century it’s not a kerosene torch (emphasis added).

Moreover, the lack of flow meters required respondent’s employees to estimate, on the basis of past experience, the proper flow of gas. Finally, both the main and cock valves were so ‘stiff’ that to move them the operator was generally required to strike them with a piece of pipe or a pipe wrench.

There was no reference in respondent’s relight instructions to free the valves before relighting. Yet it was acknowledged that it was critical that they be opened slowly. Respondent’s employees could not accurately measure the rate of flow of gas to the burners. The instructions did not advise them to do so. It is reasonable to infer that respondent’s employees were not asked to measure the rate of flow to the burners because of the absence of flow meters.[1] The compliance officer’s objections to these deficiencies and his strong objection to respondent’s ‘torch’, are unrebutted on the record. It is clear that respondent had not updated its relight procedures for at least ten years before the explosion at its Paulsboro facility. it is equally clear that on the date of inspection, safety measures were available that would have provided a safer method for lighting respondent’s heater.

For the foregoing reasons I would conclude that the Judge erred in holding that compliance with respondent’s operating instructions did not result in a violation of section 5(a)(1) of the Act.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2128
MOBIL OIL COMPANY,
Respondent.

FINAL ORDER DATE: November 23, 1973

DECISION AND ORDER

APPEARANCES:

Francis V. LaRuffa, Esq., Regional Solicitor by: Stephen D. Dubnoff, Esq., Assistant Solicitor, and Samuel Gorin, Esq., Deputy Regional Solicitor, U.S. Department of Labor, New Yowk, New York Attorneys for Complainant

Gordon E. Meske, Esq., and John E. Blay, Esq., Philadelphia, Pennsylvania Attorneys for Respondent

James J. Cronin, Esq., Associate General Counsel, and Steven Wodka, Legislative Aide, Attorneys for Authorized Employee Representative

STATEMENT OF CASE

Donald K. Duvall, Judge, OSHRC:

This is a proceeding pursuant to Sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a Citation and Notification of Proposed Penalty in the amount of $900 relating to an alleged serious violation of Section 5(a)(1) of the Act. Complainant’s Citation, issued to Respondent on January 2, 1973, on the basis of an inspection conducted on November 3, 1972, at Respondent’s oil refinery located at Billingsport Road, Paulsboro, New Jersey, described the alleged violation as follows:

‘P.D.A. Furnace Near #1, T.C.C.

The employer failed to furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

Adequate safety devices for protection of employees lacking.

Remote control furnace ignition system or adequate pilot ignition system with sufficient combustion safeguards not provided.’

The Citation was contested by Respondent on January 26, 1973, and by letter dated March 6, 1973, from its representative, Oil, Chemical and Atomic Workers International Union, the Authorized Employee Representative elected party status in this matter. In its Answer to Complainant’s Complaint Respondent denied any 1973, moved for dismissal of this 1973, moved for dismissal of matter and vacation of the Citation and proposed penalty on the grounds that the Complainant failed to comply with the requirements of Section 8(f)(1) of the Act respecting the employees’ notice of violation (Complaint letter) which prejudiced Respondent and the reasonable promptness requirement of Section 9(a) of the Act respecting issuance of the Citation. By order dated April, 16, 1973, the undersigned Judge to whom this matter was assigned, denied Respondent’s motion to dismiss without prejudice. A hearing of this matter was duly held at Philadelphia, Pennsylvania, on April 19–20, and 24, 1973, before the undersigned Judge. At the outset of the hearing, Respondent renewed its motion to dismiss on which judgment was reserved by the Judge pending receipt of evidence and briefs on the issues it raised, with the exception of that issue alleging that the Complaint letter in this matter was not made by any employees or representatives of employees as provided in Section 8(f)(1) of the Act, which issue was decided adverse to the Respondent and thereby excluded from further consideration of the motion to dismiss (Tr. 18–42). Subsequently, Respondent submitted a brief with proposed findings of fact and conclusions of law.

The factual context of the Citation herein may be summarized as follows. As part of its petroleum refinery in Paulsboro, New Jersey, Respondent operates a propane deasphalting (PDA) unit, comprised of component units, including a natural draft gas fired process (PDA BB2) heater. This PDA BB2 heater, installed in 1950, was cylindrical in shape and mounted vertically on supports above ground and out of doors. The base of the heater contained four gas burners each of which was supplied gas fuel through individual cock-valves, which were connected to a main gas line controlled by a main header valve approximately 35 feet away. According to Respondent’s operating procedures manual (hereinafter called operating instructions) ignition of this heater was accomplished by opening the main leader valve which permitted gas to flow to the individual burner cock-valves, affixing a lighted torch to the first burner to be ignited, and then slowly opening the corresponding burner cock-valve to achieve burner ignition. A similar procedure was prescribed for igniting each of the other three burners, in turn.

On October 26, 1972, the PDA BB2 heater was being prepared for start-up after the entire PDA unit had been shut-down earlier in the day due to a mechanical failure unrelated to the PDA BB2 heater. After steam purging the heater, an assigned employee (Thomas Gray) attempted to ignite a single burner on the heater by affixing a lighted torch to the burner and opening the corresponding burner cock-valve being supplied gas from the main header valve which was opened by another employee (E.G. Levan). Before ignition, an explosion occurred in the heater, toppling it and injuring Mr. Gray. On November 3, 1972, and OSHA Compliance Officer conducted an inspection of the worksite, as requested by his office on the basis of a written Complaint letter from the employee representative, received by Complainant on November 3, 1972, but not transmitted to Respondent until November 17, 1972. Thereafter, Complainant issued its Citation and Proposed Penalty to Respondent on January 2, 1973, requiring immediate correction of the alleged violation and payment of a proposed penalty of $900.

The issues for decision herein are: (1) whether Complainant’s failure to provide Respondent-employer or his agent with a copy of the Complaint letter sent by affected employees’ representative no later than at the time of inspection constitutes such a violation of Section 8(f)(1) of the Act and/or is so prejudicial to Respondent as to deny him due process of law and require dismissal of the Citation and Proposed Penalty herein; (2) whether Complainant’s issuance of the Citation and Notification of Proposed Penalty herein almost 60 days after inspection of Respondent’s worksite constitutes reasonable promptness in accordance with Section 9(a) of the Act; (3) whether or not Respondent violated Section 5(a)(1) of the Act as alleged; and (4) whether the proposed penalty is appropriate under Sections 17(b), (j) and (k) of the Act.

DISCUSSION

Complaint Letter

Respecting the notice of violation issue (1), Section 8(f)(1) of the Act provides as follows:

‘Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.’

It is an undisputed fact of record that a copy of affected employees’ letter of complaint, dated October 31, 1972, and signed by the Director of the Citizenship-Legislative Department, Oil, Chemical and Atomic Workers International Union, representing the Authorized Employee Representative, was first provided to Respondent under cover of a letter dated November 17, 1972, from Complainant (received by Respondent on November 21, 1972), which was 14 days after Complainant’s November 3, 1972, inspection of Respondent’s workplace (Memorandum of Law in support of Respondent’s motion to dismiss, Exhibits 1A and 1B, Case File at J–1; Tr. 187–189, 235–236).

Respondent contends that Section 8(f)(1) of the Act constitutes a mandatory requirement that ‘a copy (of the notice of violation) shall be provided the employer or his agent no later than at the time of inspection’ and that a similar requirement is contained in Section 1903.11(a) of the OSHA Regulations and Procedures (29 CFR Section 1903.11, 36 FR 17852, September 4, 1973); that Complainant’s failure to comply with these provisions of the Act and its own regulations renders the inspection jurisdictionally defective and invalidates the Citation and Proposed Penalty based thereon. Respondent further contends that Complainant’s failure to provide a copy of the notice of violation in compliance with the statutory and regulatory requirement was prejudicial and denied it due process of law in two respects: (1) the notice of violation contained disparaging misrepresentations of fact prejudicial to the objectivity of the inspection, of which Respondent had no knowledge until it received the notice two weeks after the inspection; and (2) Respondent was precluded from taking timely action, such as court challenge or refusal to permit inspection, respecting the legal sufficiency of the notice of violation, specifically whether it was properly signed, as required by law, by employees or representative of employees (Tr. 32–34, 39–40).

Complainant takes the position that the pertinent provision of Section 8(f)(1) is not mandatory, but directory only since it was intended not to limit the Secretary’s right to enter and inspect (which he can do on his own volition without a notice of violation under Section 8(a)) in order to effectuate the rights of affected employees (Tr. 26–31).

The pertinent legislative history appears substantially to support Complainant’s position on this issue. The Senate Committee report on S.2193, which was subsequently enacted by the Congress, provides in pertinent part as follows:

‘A further provision, section 8(f)(1), entitles employees or a representative of employees who believe that a health or safety violation exists which threatens physical harm or that an imminent danger exists, to request a special inspection by giving notification to the Secretary, setting forth the basis of the request. If the Secretary determines upon receipt of the notification that there are reasonable grounds to believe that a violation or imminent danger exists, he shall make a special inspection as soon as practicable. If the Secretary determines there are no reasonable grounds to believe that a violation or imminent danger exists he shall so notify in writing those making the request.

‘By requiring that the special inspection be made ‘as soon as practicable,’ the committee contemplates that the Secretary, in scheduling the special inspection, will take into account such factors as the degree of harmful potential involved in the condition described in the request and the urgency of competing demands for inspectors arising from other requests or regularly scheduled inspections.

‘While the bill provides that a request for a special inspection shall be reduced to writing, the committee intends that notification may first be made by telephone, and that where an immediate harm is threatened, such as in an imminent danger situation, the Secretary should not await receipt through the mail of the written notification before beginning his inspection.’ Report of Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 152 (June 1971).

The individual views of Senator Javits respecting inspections on demand further clarifies the legislative intent:

‘As a result of this amendment the provisions of the bill requiring an inspection to be conducted by the Secretary as soon as possible upon receipt of a notice from employees alleging a violation of standards or imminent danger were modified to require such an inspection as soon as practicable only if the Secretary determines there are reasonable grounds to believe that an alleged violation or danger exists. This will ensure that inspections are not required in response to groundless complaints, and will permit the Secretary to schedule such inspections more flexibly.’ Individual Views of Mr. Javits, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong. 1st Sess. 189 (June 1971).

The subsequent statement of the Managers on the Part of the House reporting on the House and Senate Conference on the disagreeing votes of the two Houses states with respect to special inspections as follows:

A special inspection was required by the Senate bill as soon as practicable where an employee alleges the violation of a standard in writing, and the Secretary finds probable cause to believe that a violation exists. In case of a refusal to conduct an inspection or if any inspection results in a finding that no violation exists, a notification of that decision must be provided the employee in writing. The House receded. Where during any inspection or prior to a scheduled inspection an employee alleges a violation in writing, the Senate bill required a written explanation of a negative finding. An informal review process was in the latter instance also provided for. There were no comparable provisions in the House amendment. The House receded with amendments requiring the employer to be given notice of the request for an inspection and deleting the requirement that failure to find a violation be explained in writing (emphasis added).’ Statement of the Managers in the Part of the House, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 37–38 (June 1971).

Although the legislative history appears silent on the purpose of requiring the employer to be given notice of the request for inspection, it seems logical to accept Respondent’s assertion that such provision was made in the interest of due process and fairness (Respondent’s Brief, p. 14). However, it seems clear from the legislative history, on balance, that Congress did not intend the copy of notice of violation to employer requirement to preclude special inspection by the Secretary as soon as practicable once he determines upon receipt of such notification that there are reasonable grounds for believing that a serious violation of a safety and health standard or an imminent danger exists. Indeed, Section 8(f)(1) requires the Secretary to act expeditiously to inspect such an alleged violation or danger consistent with the systematic conduct of his inspection program and the rights of employees. Thus, in the House debate on the conference report, Representative Steiger, one of the principal architects of the Act, stated that in implementing Section 8(f)(1)

‘it is expected that the Secretary will use his good judgment in determining whether there are reasonable grounds to believe that a violation exists and will not permit this procedure to be used as an harassment device.’ Cong. Rec.—House, December 17, 1970, Legislative History of the Occupational Safety and Health Act of 1970–1919 (June 1971).

In the present case, the record establishes that on the basis of a letter notice of violation dated October 31, 1972, received from a representative of Respondent’s employees, the Complainant-Secretary apparently determined that there were reasonable grounds to believe that such violation existed, and to expedite an inspection, on November 2, 1972, directed Compliance Officer Schultz, who was in or near the area wherein Respondent’s refinery was located, to make such inspection (Tr. 186). At the time of his inspection on November 3, the Compliance Officer informed Respondent’s refinery manager and safety director that his inspection was based on a complaint of which he did not have a copy, but concerning which they all could make inquiry from Mr. Harry Bailey, the local union safety officer, which they did (Tr. 187–189).

While Mr. Bailey did provide some information concerning the basis of the alleged violation he had only limited knowledge of the actual complaint letter (Tr. 173, 174–176) and therefore could not apprise Respondent of the specific content and form of the notice of violation. Under these circumstances Respondent contends that it was denied the opportunity of seeking a pre-inspection administrative or judicial determination of whether the notice of violation met the legal requirements of Section 8(f)(1). Even if this did constitute a significant denial of due process, it must be deemed to have been within the contemplation of the Congress when, as previously noted, they construed Section 8(f)(1) to permit flexible and reasonable administration by the Secretary to effect the purposes of the Act. Actually, even without knowing the form or content of the notice of violation, Respondent could probably have brought a cause of action or refused to permit the inspection on the basis of Complainant’s failure to produce a copy of the notice at the time of inspection. By failing to do this or to insist that it be informed at least by telephone from the OSHA New York office of the specific content of the notice of violation, it may be deemed to have waived any right of pre-inspection protest or have acquiesced in the procedure followed.

This proceeding itself constitutes quasi-judicial review of the inspection procedures followed by the Secretary in this case. Chapters V and VI of the Secretary’s Compliance Operations Manual (January 1972) contains instructions and guidelines for implementation of Section 8(f)(1) of the Act and 29 CFR Section 1903.11 of the OSHA regulations respecting inspections and complaints. Chapter VI 4.a. prescribes that the complaint should be evaluated to determine whether there are reasonable grounds to believe that the violation or danger complained of exists and that, in most cases, the submission of a properly completed complaint should be sufficient for evaluation purposes. Chapter VI A.2. sets forth the formality requirements for a complaint as (a) be reduced to writing, (b) allege that a violation of the Act exists in the workplace, (c) set forth with reasonable particularity the grounds upon which it is based, and (d) be signed by one or more employees or their representative.

The complaint letter in this case, dated October 31, 1972, was addressed to Mr. Alfred Barden, Regional Administrator of the United States Department of Labor at New York City and stated as follows:

‘On October 26, 1972 at 4:45 PM a fire and explosion at the PD Furnace near #1 T.C.C. in the Mobil Oil Refinery in Paulsboro, New Jersey injured one worker. The worker, Mr. Tommy Gray, suffered a broken ankle when he was trapped under debris from the explosion.

‘Mr. Gray is a member of OCAWIU Local 8–831 which represents the workforce at that refinery.

‘We request that you initiate an immediate accident investigation into the causes of the explosion and fire. Citation and penalties against the company are definitely in order. We further request that your investigation produce recommendations as to how such accidents can be avoided in the future.

‘The designated employee walk-around representative for this investigation is Mr. Harry Bailey, home phone number (609) 845–5230.

‘Please send copies of all citations, notice of proposed penalties, and the inspector’s report to this office. Release of this information to us is guaranteed by the Freedom of Information Act.

‘Our request for an immediate investigation also takes into account:

1) The extreme ‘luck’ in this situation in view of the force of the explosion and the close proximity of highly volatile materials;

2) Mobil Oil’s extremely poor health and safety record;

3) Mobil’s common practice quickly covering up the evidence of an accident as soon as possible—making investigations by independent groups difficult; and,

4) the history of OSHA’s involvement with health and safety matters at this refinery.

This letter shall serve as follow-up to phone calls placed by my assistant, Mr. Steven Wodka, to Mr. Carl Meyers of your office on October 30, 1972 and earlier today.

It appears from these conversations that Mr. Meyers failed to respond to the gravity of the situation at Mobil. As you know, there have been a series of accidents at the Paulsboro refinery since the initial inspection. This fact alone should have dictated that inspectors be assigned to this situation immediately.

‘It is my hope that you will convey to your staff the continuing problem at Mobil and the need to respond quickly to accident situations as they arise at this plant.

‘This letter may be released in entirety to the employer.’

The letter was on the letterhead of the Oil, Chemical and Atomic Workers International Union and signed by Anthony Mazzocchi, Director Citizenship-Legislative Department of the International Union, with copies to Mr. Richard Meyer, President of Local 8–831, Mr. R.R. Rogowski, Director of District 8, and Mr. Ed Steiger, International Representative.

Respondent’s motion to dismiss is based in part on its claim that Mr. Mazzocchi was not an employee or representative of employees within the meaning of Section 8(f)(1) of the Act. At the hearing I ruled against Respondent on that particular claim, but since the claim is still asserted in Respondent’s brief I will explain my prior ruling in more detail. Chapter VI, A.2.d.(2) of Complainant’s Compliance Operations Manual states that for the purposes of submitting a complaint under Section 8(f)(1), a representative of employees may be:

(a) Any authorized representative of the employee bargaining unit, such as a certified or recognized labor organization;

(b) An attorney acting for an employee; and

(c) Any other person acting in a representative capacity; for example, a member of the employee’s family.

The record herein clearly establishes that the President of the Independent Oil Workers at Paulsboro, New Jersey, affiliated with Oil, Chemical and Atomic Workers International Union, A.F. of L.—C.I.O., Local 8–831, after contacting the members of the local union’s safety committee, authorized Anthony Mazzocchi of the International Union in Washington to write a complaint letter to OSHA based on the explosion at the refinery in which a member of the local union had been injured (Tr. 177–179). On the basis of the testimony of the local union president (Richard A. Meyer), the complaint letter itself and the earlier arguments of counsel at the hearing (Tr. 22–42), I reaffirm my ruling that Mr. Mazzocchi’s signature of the complaint letter here satisfied the requirement of Section 8(f)(1) of the Act since he signed as an authorized representative of Respondent’s employee bargaining unit (Tr. 5–6, Authorized Employee Representative’s Statement in Opposition to Motion to Dismiss under cover of letter submission dated April 11, 1973, being Item J–6 in the Case File).

But Respondent further contends that the complaint or notice of violation contained prejudicial disparaging misrepresentations of fact which compromised the objectivity of the inspection since, not having a copy of or full information concerning the notice, Respondent was precluded from denying or rebutting such misrepresentations or taking legal action at the time of the inspection. Assuming but not deciding that the notice of violation did contain such misrepresentations (not proven of record), it seems doubtful that they influenced the compliance officer’s inspection since he had not seen a copy of the notice and had practically no information concerning it other than what he gleaned from Mr. Bailey (Tr. 187–188), which Respondent’s safety director (Mr. Christie) was equally privy to. Short of insisting on a copy of the notice or a telephone communication of its content at the time of inspection, which Respondent chose not to do, it could have corrected or rebutted the alleged misrepresentations by written communication to OSHA after November 21, 1972, when it received a copy of the notice of violation, which was well before issuance of the citation. In any event, the record suggests that neither the compliance officer who conducted the inspection and who made no recommendation that a citation should issue, nor Mr. Palmieri, the Compliance Officer who reviewed and contributed to the report upon which the citation was ultimately based were influenced by the notice of violation (Tr. 211–212, 262–263, 287–288). In any event, Respondent was immediately aware of the heater explosion so that its late receipt of the Complaint letter did not delay or inhibit its prompt investigation of the accident (Tr. 385).

I conclude from the foregoing analysis that in the circumstances of this case the Complainant’s non-provision of a copy of the notice of violation to Respondent at or before the time of inspection was neither a violation of Section 8(f)(1) of the Act nor a prejudicial denial of due process such as to require vacation of the Citation and Proposed Penalty herein.

The further question arises as to whether Complainant’s mailing of the notice of violation to Respondent on November 17, 1972, two weeks after the inspection was consistent with the provisions of Section 8(f)(1), interpreted in the light of its legislative history, or a denial of due process by reason of prejudice. While the Secretary may not in appropriate cases, such as here, be bound to provide a copy of the notice of violation to the employer no later than the time of inspection, his usual practice is to do so (Tr. 253; Compliance Operations Manual, Chap. V, E.1.(d); VI, A.4.f.). Indeed, the Secretary’s procedures are to encourage the submission of complaints in writing and to make a copy available to the employer before the inspection, even in cases where the complaint is received during an inspection (Compliance Operations Manual, Chap. V, G.2.). Where the Secretary appropriately does not make a copy of the complaint available at the inspection, in my opinion, he has a continuing obligation to do so as soon as reasonably possible. There is no showing on the record of this case why it took Complainant two weeks to send Respondent the notice of violation and absent any showing of extenuating circumstances precluding it, Complainant should have mailed a copy of the notice to Respondent on November 3 or the next work day at the latest. Each day that elapsed following this inspection in which the employer was not provided a copy of the notice of violation increased the risk of prejudice to the Respondent since it progressively reduced the time in which Respondent could make appropriate response or take prudent action with respect to said notice, if necessary or desired, for Complainant’s consideration prior to possible issuance of a Citation and Proposed Penalty. However, in the circumstances of this case, including the elongated review period (until January 2, 1973) before the citation herein was issued, I do not consider this procedural deficiency to be of sufficient magnitude to vitiate the legal basis of the Cication and Proposed Penalty herein. Nor do I, for reasons previously discussed, consider this procedural deficiency to have resulted in any substantial prejudice to Respondent.

Finally, Respondent argues that the special inspection in this case was illegal because in not providing a copy of the notice of violation at the inspection Complainant failed to comply with its own regulations and procedures, namely, 29 CFR 1903.11. Consistent with the cases cited as legal authorities by Respondent in its Brief (p. 14), the aforestated regulation, like Section 8(f)(1) of the Act to which it relates, must be applied as interpreted or intended by the Congress. Thus, as previously demonstrated, the word ‘shall’ in Section 8(f)(1) insofar as it relates to providing the employer with a copy of the notice of violation no later than at the time of the inspection is directory and not mandatory in cases such as this one. Since the language of Section 8(f)(1) of the Act and Section 1903.11 of the regulations do not make this clear on their faces (indeed, appear mandatory giving the usual meaning to the word ‘shall’), the question is whether Complainant’s promulgated regulations and published procedures (Compliance Operations Manual) fairly implement Section 8(f)(1) of the Act, as intended by Congress and construed herein, with reasonable accuracy and clarity and, furthermore, whether Complainant followed its own regulations and procedures consistent with the requirements of administrative due process. Respecting the regulations, Part 1903 of Title 29 of the Code of Federal Regulations appears to be the principal body of OSHA regulations relating to inspections, citations and proposed penalties and Section 1903.11 of that Part appears to be the only regulatory section concerned with complaints by employees and it largely paraphrases the statute (Section 8(f)(1)). Turning to the Compliance Operations Manual, Chapter VI covers complaints which are received at the Area Director’s office before an inspection (this case). The procedures for handling such complaints which meet the formality requirements of 29 CFR Section 1903.11 (this case) are: (a) the complaint should be evaluated to determine whether there are reasonable grounds to believe that the violation or danger complained of exists; and (b) if it is determined that there are reasonable grounds for believing that the violation or danger exists, an inspection shall be scheduled as soon as practicable (Manual, Chap. VI, A.4.). Reference is made to the inspection priorities in Chapter IV, which give castastrophe and/or fatality first priority and complaints second priority, out of four categories of priorities (Manual, Chap. IV, B.2.).

The inspection instructions relating to complaints state in pertinent part as follows:

‘b. Complaints.

(1) Complaints must be acted upon as soon as possible based on priorities and procedures contained in Chapters IV and VI.

(2) The Area Director will establish priorities regarding the action to be taken on complaints. Complaints alleging the existence of an imminent danger shall be accorded the higher priority in accordance with the instructions in Chapter IX. High priority shall also be given to complaints alleging conditions which appear to be serious.’ (Manual, Chap. IV, B.3.).

Based on the definition of imminent danger and the procedure to be followed in such situations (Manual, Chap. IX, A. and B.), it appears that Complainant in this case properly gave high priority to an inspection based on a complaint alleging serious conditions rather than an imminent danger situation. It is noted that the Complaint letter refers to a fire and explosion at the ‘PD Furnace near #1 T.C.C.’ at Respondent’s Paulsboro Refinery resulting in one injured employee, alleges citation and penalties against Respondent are ‘in order,’ and requests an immediate accident investigation as to the causes and how such accidents can be avoided in the future, taking into account (1) the force of the explosion and the close proximity of highly volatile materials; (2) Respondent’s ‘extremely poor health and safety record’; (3) Respondent’s ‘common practice quickly covering up the evidence of an accident as soon as possible—making investigations by independent groups difficult’; and (4) ‘the history of OSHA’s involvement with health and safety matters at this refinery.’ Substantial evidence of record supports contentions (1) and (4) above (Tr. 131–133, 164, 174–175, 177–178, 189–190; 204–205; 394–395). There is a conflict in the evidence respecting contention (2) (Tr. 336–337), and no substantial evidence of record to support contention (3). Compliance Officer Schultz testified that it was his understanding that the reasons for his being directed to make an inspection before he had a written complaint in his possession were to ascertain the facts as soon as possible after the explosion, the fact (which he later learned) that the Complaint letter requested immediate inspection, and the fact that he was the available compliance officer closest to the workplace at the time (Tr. 256–257).

Once an OSHA area office determines that reasonable grounds exist to justify an inspection, OSHA procedures state that the inspection should be conducted in accordance with the provisions of Chapter V of the Compliance Operations Manual (Manual, Chap. VI, A.4.d.). Chapter V (General Inspection Procedures), E. (Opening Conference), 1.d. instructs the compliance officer to furnish to the employer a copy of complaint ‘if appropriate’. There is no explanation or reference to any other provision as to what circumstances or factors determine appropriateness. Presumably the ‘if appropriate’ limitation relates to the directory as distinguished from mandatory nature of Section 8(f)(1), although this is nowhere stated in the Manual. The limitation may also relate to certain circumstances when the compliance officer receives a complaint during an inspection, specifically, when a hazardous condition is alleged orally (i.e., no formal complaint) and when an imminent danger situation may be involved (Manual, Chap. V, G.4. and 5.). Neither of these circumstances existed in the present case; indeed this entire section G. is clearly not applicable to the present case which involved receipt of the complaint at the Area Director’s office before an inspection, a situation covered exclusively by Chapter VI as far as complaint procedures are concerned (Manual, Chap. VI, A.1.).

Yet even in the situation where the complaint is received during an inspection, the compliance officer is generally instructed to give a copy of the complaint to the employer even if it requires making a copy of the complaint, advising the complaining employee of his additional rights if he submits a complaint meeting formal requirements, offering a copy of the OSHA-7 Form, and, if necessary, assisting the employee in filling out the form (Manual, Chap. V, G.2. and 3.). Even in catastrophic or fatal accident situations, such as accidents involving previous complaints alleging imminent danger or serious conditions, the investigation procedures incorporate by reference the same opening conference procedure contained in Chap. V, E., including furnishing a copy of the complaint if appropriate (d) (Manual, Chap. VI, C.3.c.). Even in an imminent danger situation Chap. IX, C.2. of the Manual prescribes in pertinent part as follows:

‘a. Any inspection of an imminent danger situation shall be conducted in accordance with the requirements of the Act, the regulations and the provisions of Chapter V of this Manual. For example, an opening conference, walkaround, and a closing conference are requirements of such an inspection.

‘b. However, considering the urgent nature of imminent danger situations, all such procedural steps should be taken as expeditiously as possible.’

While provision b. above might reasonably permit omission of the general requirement that a copy of the complaint be given to the employer at the inspection, it is perhaps significant to note the emphasis given to adhering to the general requirements governing inspections and complaints even in the imminent danger situation.

The aforestated emphasis on adhering to the general rule of furnishing a copy of the complaint is reinforced by the provision in the procedures for handling complaints meeting the formality requirements of 29 CFR Section 1903.11 which states that at the opening conference with the employer, a copy of the complaint ‘should’ be given to the employer (Manual, Chap. VI, A.4.f.).

On balance, I conclude that Complainant’s regulations, particularly 29 CFR Section 1903.11, and procedures, particularly Compliance Operations Manual Chaps. IV, V, VI, and IX, pertaining to furnishing a copy of the complaint to the employer at the time of inspection, where the complaint meets the statutory validity requirements, is received by OSHA prior to the inspection, and is determined to constitute reasonable grounds to believe a violation of a safety or health standard or imminent danger exists, are unreasonably vague, unclear and confusing. I further conclude that the pertinent regulations and procedures, by reason of their vagueness and imprecision, are inaccurate and misleading to the extent they fail to implement the meaning of Section 8(f)(1) of the Act as intended by Congress. They manifestly failed to apprise the Respondent herein that in the conduct of a special inspection in the circumstances of this case the Secretary was not legally obligated to provide the employer with a copy of the written complaint at the time of inspection. Employers must be presented with discernible regulations and procedures by which they can guide their own conduct, and the requirements of such regulations and procedures must be apparent upon a reading thereof by an ordinary prudent employer. Cf. Secretary of Labor v. Ryder Truck Lines, Inc., OSHRC Docket No. 391 (8–16–73) (Dissenting Opinion).

The requirements of due process and fairness make it incumbent upon every governmental agency, including OSHA, to promulgate rules, regulations, and procedures that implement and elucidate the applicable law in a reasonably clear and accurate manner. However, given the Congress’ directory interpretation of the complaint aspect of Section 8(f)(1) of the Act notwithstanding the mandatory language of that Section, and given the inherent difficulty of drafting regulations and procedures which are not so precise as to circumscribe unduly that very inspection flexibility which the Congress clearly intended the Secretary to retain to achieve the purposes of the Act, I cannot find as a matter of law in the circumstances of this case that the pertinent regulations and procedures promulgated and published constitute a substantial denial of due process or fairness within the meaning of the Federal Constitution (Fifth Amendment) as interpreted by the courts. At the same time, Complainant is on notice from the date of this decision of the deficiencies perceived in the existing applicable regulations and procedures which it is charged with promulgating and implementing on a continuing basis consistent with the governing law as construed and interpreted by proper adjudicatory bodies. While I agree that ‘An employer has the right to expect the complainant (Secretary) to adhere to the provisions of the Act and Regulations applicable to his conduct . . .’ (Respondent’s brief, page 14, citing Secretary of Labor v. Accu-Namics, Inc., OSHRC Docket No. 477 (November 27, 1972)), in this case the inspection procedures followed by Complainant were substantially in accord with Section 8(f)(1) of the Act as intended by Congress. Similarly, Complainant substantially adhered to its own published procedures, notwithstanding their vagueness and imprecision.

Citation

Issue (2) herein and the alleged second reason in support of Respondent’s motion to dismiss, is Respondent’s contention that the elapse of two months’ time after the inspection on November 3, 1972, before issuance of the Citation on January 2, 1973, constituted an unreasonable delay in violation of the ‘reasonable promptness’ requirement of Section 9(a) of the Act, which provides in part as follows:

‘If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . .’

Section 9(c) of the Act, also pertinent, provides as follows:

‘No citation may be issued under this section after the expiration of six months following the occurrence of any violation.’

Respondent contends that under all the circumstances of this case Complainant’s issue of the Citation (and Notification of Proposed Penalty) 60 days after the inspection does not constitute ‘reasonable promptness’ as required by the Act (Respondent’s Brief, p. 19). In support of its position, Respondent cites pertinent legislative history, Section 10(a) of the Act, and undue prejudice as warranting vacation of the Citation and dismissal of this matter. Respondent essentially relies on the Conference Report on the Senate bill which was enacted, particularly that part which states:

‘After an inspection or investigation, a citation may be issued for a violation of any safety or health requirement of the Act. In the Senate bill, this citation had to be issued ‘forthwith.’ The term, ‘forthwith,’ lent itself to an interpretation that would require the issuance of a citation on-the-spot before leaving the premises. The conference committee, however, changed this procedure to require the issuance of a citation with ‘reasonable promptness’ after the completion of an investigation. The ‘reasonable promptness’ standard will allow an investigator, before he issues a citation, to refer to regulations and guidelines issued by the Secretary, consider what is an appropriate abatement period in light of precedent, and consult with other officials about the facts of the case. The period, however, should be a brief interval between an inspection and the issuance of a citation, normally not exceeding 72 hours. The change brings the present language more in line with the citation provisions contained in the House bill.’ Conference Report on S.2193, Occupational Safety and Health Act of 1970, Legislative History of the Act, Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. 1219 (June 1971).

Similarly, the Statement of the Managers reads in pertinent part:

‘The Senate bill provided that if, upon inspection or investigation, the Secretary or his authorized representative ‘determines’ that an employer has violated mandatory requirements under the Act, he shall ‘forthwith’ issue a citation. The House amendment provided that if on the basis of an inspection or investigation the Secretary ‘believes’ that an employer has violated such requirements, he shall issue a citation to the employer. The conference report provides that if the Secretary ‘believes’ that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector.’ Statement of the Managers on the Part of the House, p. 38, Legislative History of the Act, S. Committee on Labor and Public Welfare, 92d Cong., 1st Sess. 1191 (June 1971).

The reasonable promptness mandated by the Act for issuance of a Citation is not an absolutely fixed time period from the date of inspection; it may be interpreted differently in each case depending upon the individual merits of the case, the length of delay, and proof of prejudice or harm to the party. Borton, Incorporated, OSHRC Docket No. 1482 (April 2, 1973); Chicago Bridge and Iron Co., OSHRC Docket No. 744 (January 5, 1973, ordered for review February 2, 1973). But see dissenting opinions of Chairman Moran in Silver Skillet Food Products, OSHRC Docket No. 497 (February 23, 1973); Pleasant Valley Packing Company, Inc., OSHRC Docket No. 464 (January 4, 1973), which assert the 72 hour requirement in the absence of exceptional circumstances.

In Borton the 128 day delay in issuance of the citation was held not to constitute reasonable promptness because the record presented no exceptional circumstances which could justify a delay of that length and Respondent proffered proof of prejudice in that one of its employees, a key witness in the case, was no longer employed or available to testify. The record in the instant case presents some exceptional circumstances which reasonably explain the 60 day delay in issuance of the citation. Compliance Officer Schultz filed his report on November 8 and thereafter the review process included consultation with Compliance Officer Palmieri, who had more experience with the type of heater unit involved; two reviews by the Regional Office and review by the Solicitor’s Office (Tr. 254–256, 264–265, 320–323). Special attention was given to citations of Mobil because of extensive OSHA experience with that employer (Tr. 321). In addition to two intervening holidays (Thanksgiving and Christmas), the responsible Area Director died during the interim period resulting in further delay (Tr. 323). I find no unreasonable delay in Complainant’s investigation, which clearly is within the purview of the ‘reasonable promptness’ requirement. Secretary of Labor v. Julius Nasso Concrete Corporation & Beach Concrete Company, Inc., OSHRC Docket No. 2123 (August 31, 1973) (under review by Commission).

Respondent’s chief contention respecting the Citation is that its issuance after 60 days with an immediate abatement requirement prejudiced Respondent in that the heater unit involved was an essential part of a major processing unit which normally was in continuous operation, 7 days a week, 24 hours a day, and thus economically required quick replacement (Tr. 324–326). The record herein indicates that the delayed issuance of the Citation did not substantially prejudice Respondent, legally or economically. There is no indication of record that Respondent’s presentation of its case in contesting the Citation, including testimonial evidence, has been prejudiced in any way. The fact that Respondent made a contractual commitment by ordering a new heater on November 3, 1972, the very day of the inspection, suggests that Respondent was not economically prejudiced by issuance of the Citation on January 2, 1973 (Tr. 372). Complainant’s telephonic notification of Respondent at the end of November 1972 that an unspecified citation would probably issue apparently caused no economic prejudice (Tr. 328–330, 397–398). Respondent seems to be on firmer ground when it suggests unfairness in being required to abate immediately an alleged serious condition which Complainant took 60 days to investigate (Respondent’s Brief, p. 20). However, as stated by Mr. Palmieri, it is the practice of OSHA to issue amended citations in cases of timely and reasonable requests for extension of time for abatement (Tr. 325–326). The record herein does not indicate that Respondent has ever requested a modification of the abatement period.

On balance I conclude that Complainant’s motion to dismiss should be denied as based on inadequate and unconvincing legal grounds, viewed singly or collectively.

Section 5(a)(1) Alleged Violation

To sustain the Citation issued in this case, Complainant has the burden of proving by reliable, probative, and substantial evidence that on October 26, 1972, Respondent did not furnish his employees at the Paulsboro refinery employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that the PDA BB2 heater which exploded on that date lacked adequate safety devices for protection of the affected employees, specifically, remote control furnace ignition system or adequate pilot ignition system with sufficient combustion safeguards.

Complainant contends that the normal operation of the heater in question constituted the alleged violation of Section 5(a)(1) of the Act (Tr. 44). The heater is one of at least two heaters (the other being a smaller BB1 reaffinate heater) and other vessels, towers and exchanges which make up the total PDA unit at the Paulsboro refinery (Tr. 50–52). The heater itself was a cylindrical, natural draft gas-fired heater (Tr. 410–411). A mixture of asphalt and propane entered and flowed through the heater in tubes and the gas fuel to fire the four burners came into the bottom of the heater through pipes from the source unit (Tr. 51). It is characteristic and normal procedure for this type of refinery heater to remain in continuous operation, 24 hours a day, 7 days a week for a two-year period (Tr. 74, 413) and this particular heater was shut-down and started-up approximately 20 times since 1950 when the heater was first put on stream (ignited), the last time prior to the accident herein being in February or March 1972, for a regular maintenance check (Tr. 53, 72, 400).

The normal procedure for start-up of the heater was to establish the oil flow in the tubes, steam purge the heater for 30 minutes to rid it of any residual gas, open the main gas valve to bring gas up to the four closed valves of the four burners, ignite an asbestos, kerosene-dipped torch and thrust it up into a burner hole, open that burner valve until the burner gas ignites, and then repeat the procedure for each of the other three burners (Tr. 54–55, 78–81). Thereafter, adjustments are made on the gas flow to each of the burners in order to establish the right operating temperature (500 degrees F.) (Tr. 55). The existence and size of flame is determined by visual perception through the port-hole on each burner and experience with each particular burner and its valve (Tr. 60).

This start-up operation is normally performed by two men: one under the heater to work the burner valves and make ignition and one at the main gas valve, the latter being subject to the commands of the man underneath the burner (Tr. 56). The main gas valve is opened slowly by a handle until the flow of gas can be heard (Tr. 57). The main gas valve on this heater was opened about 30% in order to get a full flow of gas, based on trial and error experience (Tr. 58). The burner valves were about 5 or 5–1/2 feet off the ground and were each operated by a handle (Tr. 120). These valves varied in the amount of gas flow they permitted with a given degree of turn and their tightness usually required hammering with a wrench (Tr. 60, 87–87). Heater operating instructions were posted about 10 feet from the heater and were kept in the desk in the unit control room (Schultz Report, p. 7, Tr. 60–61, 90, 236) and were received by the operators (Tr. 70), but no official (as distinguished from on the job) training on heater ignition was given (Tr. 70).

The heater was originally equipped with a pilot ignition system which was used after the changeover from oil to gas fuel but not within the past three years at least, apparently because the system coked up so that the gas would not pass through, resulting in their being plugged up and not used (Tr. 92–93, 204). The written general precautions or operating instructions (Case File, J–5) also provided that the operator should wear a face shield, gloves and long sleeved shirt during light-off, but First Operator Hogan testified that he did not follow those guidelines because he considered them more hazardous (Tr. 84–85).

On October 26, 1972, the heater was shut down together with the entire PDA unit due to compressor problems in the propane gas area (Tr. 69). Prior to start-up, Second Operator Levan closed the four burner valves and purged the heater with steam for a half-hour or better (Tr. 126–127), having obtained First Operator J. Frank’s permission to start-up (Tr. 143). Levan stationed himself some 30–35 feet away at the main header valve to control the flow of gas to the burners. Second Operator Tom Gray lit a kerosene-soaked torch underneath the heater and inserted it up into the number one (northwest) burner (Tr. 128, 159). Since he could not at first open the valve on the burner he hung the torch on the side of the burner while he best the valve open with a pipe wrench. At this point Gray signaled Levan to open the main valve, which he did, to permit gas to flow to the burner. Gray indicated that he was not getting gas since the burner did not ignite and at once the heater exploded, sending bricks flying and knocking over the heater. Levan immediately shut off the main valve and sought to assist Gray, who was injured by the explosion (Tr. 131–133, 164).

There was no apparent deficiency in the purging process, whereby 190 pounds of steam pressure goes up through the heater and out the stack thus purging the heater of any residual gas (Tr. 127–128, 137–138). Mr. Levan had 2–1/2 years experience as Second Operator on this PDA unit and over 20 years with Mobil (Tr. 122). Mr. Gray had three to six years experience as a Second Operator on this PDA unit and over 20 years with Mobil (Tr. 150–151, 154, 205). Mr. James Frank, the First Operator on the unit at the time, had 23 years experience at this process, but being in the control room at the time, he did not witness the explosion (Tr. 216). Levan testified that the burner valves were closed prior to the steam purge and he never touched them thereafter (Tr. 147). Thereafter, Gray did not check the burner valves before attempting to ignite the northwest number one burner and, in fact, opened that burner valve before Levan opened the main header valve, although he and Levan admitted normal procedure (as set forth in the booklet entitled General Safety Precautions To Be Observed When Lighting Off Gas-Fired Process Heaters which was in the desk near the unit) would be to check the valves to make certain they were all closed before opening the main header valve (Tr. 140–141, 162–163, 165–166). Levan explained that the normal procedure was not followed because of the difficulty in opening the burner valve (Tr. 140). At the time of the explosion, Gray was wearing safety glasses, but no face shield (Tr. 165).

Respecting past performance of the heater, First Operator J.A. Hogan, Jr., testified that since 1950 during the time he was on duty there were two mishaps, both involving oil spills (overflow from burners) and fire before the heater was converted to gas fuel (Tr. 63–64). He also stated he had never experienced a flashback on this unit (Tr. 84). According to the member of the Union Safety Committee (Mr. Bailey) who participated in the walkaround, the Complaint which led to the Citation was based in part on Respondent’s failure to make necessary repairs, such as stuck valves on this particular heater, which were requested but never made (Tr. 175). This specific allegation was not rebutted at the hearing (Tr. 176), although the record indicates that considerable maintenance, including lubrication of valves and replacement of tubing, was performed on the heater during the bi-annual turnaround, the last one having been performed in February or March 1972 (Tr. 72–76, 238, 400–402). The condition of the brick in the heater, also complained of by Mr. Bailey, could not be ascertained by the compliance officer in his inspection (Tr. 204–205, Compliance Officer Schultz’s Report, Commission File J–16, pp. 607).

In his report, Mr. Schultz found no evidence of equipment failure, unless further investigation disclosed defective shut-off cocks on the burners allowing the fire chamber to fill with gas before ignition, and he expressed the opinion that human error was involved (Schultz Report, Commission File J–16, p. 7). He suggested that such error may have consisted of the burner valves being open beforehand or there being too much gas pressure (Tr. 235). During the closing conference, Respondent’s refinery manager, Mr. Neiderstadt, indicated to Mr. Schultz that the company’s continuing investigation would include removal and examination of the burner valves for defects in the presence of a union representative (Tr. 208, Schultz Report, supra at 7). The results of that investigation, if completed, are not a matter of record herein, nor was any further investigation at the workplace made by OSHA respecting this matter (Tr. 246). In his report, Mr. Schultz reached no conclusion respecting a possible violation for the reason that he had no knowledge of any violation of a standard (Tr. 208, 211–212). In fact, he reported that Respondent had an effective safety and health program and was in compliance (OSHA Safety and Health Report, p. 1, Commission File J–16; Tr. 212–213, 248–249). Mr. Schultz also indicated at the closing conference that he would suggest to his area director that there be a more intensive investigation by someone with more experience with this type of alleged violation (Tr. 246, 250; Schultz Report, p. 7).

Subsequently, in consultation with Mr. Palmieri, a compliance officer in the Newark area office with more knowledge concerning furnaces, Mr. Schultz reviewed his report in the light of certain provisions of the National Fire Protection Association Code and agreed with Mr. Palmieri that they would be applicable and, presumably, that they would support issuance of a citation for violation of the general duty clause (Tr. 209–210, 240–241).

Recognized hazard

In any alleged violation under the general duty clause (Section 5(a)(1)) of the Act, the threshold question to be determined is whether the alleged violation constituted a ‘recognized hazard’ causing or likely to cause death or serious harm to Respondent’s employees. Secretary of Labor v. Vy Lactos Laboratories, Inc., OSHRC Docket No. 31 (February 21, 1973).

It is also well established that:

‘A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every employer but is known taking into account the standard of knowledge in the industry. Legislative History of the Occupational Safety and Health Act of 1970, Senate Committee on Labor and Public Welfare, 92d Cong., 1st Session 1007 (June 1971) (Statement of Congressman Daniels).

Thus, the critical question is whether the hazard was recognized by the industry of which Respondent is a part. Secretary of Labor v. Vy Lactos Laboratories, Inc., supra; Secretary of Labor v. Republic Creosoting Co., Division of Reilly Tar and Chemical Corp., OSHRC Docket No. 22 (February 9, 1973); OSHA Compliance Operations Manual, VIII—2 (January 1972).

The hazard alleged in this case was Respondent’s normal operation of the PDA BB2 heater under its standing operating instructions, without sufficient combustion safeguards, including remote control furnace ignition system or adequate pilot ignition system. Thus, the question here is whether Respondent’s normal operation of the heater under its operating instructions was a recognized hazard in the petroleum industry on or about October 26, 1972.

Paradoxically, the record in this case shows, as discussed in this Decision, that on October 26, 1972, Respondent’s employees did not operate the heater strictly in accordance with Respondent’s operating instructions and the normal practice and procedure in certain important respects. It is arguable that the broad language of Section 5(a)(1) requiring a place of employment ‘free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees’ makes relevant and probative evidence of any condition or circumstance, such as employee error or negligence, reasonably related to the actual operation of the cited heater (without the cited combustion safeguards), whether or not such condition or circumstance was in accordance (compliance) with the standing operating instructions and the normal operating procedure and practice. Such a broad view of the scope of the matter here in issue would be consistent with established general rules of construction respecting remedial statutes and the specific purposes and objectives of this Act. Such a view is reinforced here by the complaints of Respondent’s affected employees, to wit, the alleged inadequate training and supervision of Respondent’s employees and the malfunctioning of or defects in the valves and brick-lining of the heater, and by testimony of Respondent’s employees, in effect, that they did not comply with Respondent’s operating instructions with respect to closing the burner valves before opening the main gas valve and wearing protective clothing and face shield.

However, while I have considered such factors insofar as they might reasonably relate to the central issues in this case as defined above, the Citation and Complaint in the case, as framed and interpreted by Complainant, appear to exclude from their ambit or thrust all evidence essentially relating to any issue other than the one defined above, namely, whether the heater (without the cited combustion safeguards), operated in accordance with Respondent’s normal operating instructions, was in violation of Section 5(a)(1). Thus, even if the record herein contained reliable, probative and substantial evidence that the heater was in violation of Section 5(a)(1), not because of inadequate combustion safeguards as cited, but because of defects in the construction or mechanical functioning of the heater as designed and/or because of the failure of Respondent’s employees to operate the heater in compliance with the operating instructions, and Respondent knew or, with the exercise of reasonable diligence, could have known of such defects or failure, the requirements of established practice and procedure and of due process would preclude me from reaching a decision favorable to Complainant under the Citation and Complaint as narrowly drawn and issued in this case. To do otherwise would contravene Section 9(a) of the Act, which requires each citation to be in writing and describe with particularity the nature of the violation; as well as Section 5 of the Administrative Procedure Act (5 U.S.C.A. 554(b)), which provides that persons entitled to notice of an agency hearing shall be timely informed of the matters of fact and law to be asserted. See Secretary of Labor v. Utah-Idaho Sugar Company, OSHRC Docket No. 764 (September 27, 1973), p. 40–41, citing Rodale Press Inc. v. F.T.C., 407 F.2d 1252, 132 U.S. App. D.C. 317 (1968).

In this connection it is noteworthy that much of the evidence of record respecting non-compliance by Respondent’s employees with the operating instructions was developed by Respondent’s counsel on cross-examination of Complainant’s witnesses (Tr. 84–85), presumably for the purpose of attempting to prove possible proximate causes of the heater explosion other than the heater itself as designed and operated normally in accordance with the operating instructions.

Complainant’s affirmative position on the recognized hazard issue, as framed, is based essentially on (1) the heater operating instructions posted, issued and distributed by Respondent to its employees, which specifically or by necessary implication referred to such hazards as explosion and flashback, (2) the testimony of certain of Respondent’s employees as to the hazardous nature of their duties as operators of the heater under the operating instructions, (3) testimony of Compliance Officer Palmieri (no experience with working petroleum refineries) and industrial hygienist Barrett (limited reading about and inspections of working petroleum refineries) that in their opinion, based on their knowledge and experience (with ovens and furnaces in the chemical and metal working industries), the heater operating instructions used by Respondent were substantially the same as those used generally throughout the petroleum refinery industry; and (4) the provisions of Article 86A (Standard for Ovens and Furnaces) and Article 500 series of the National Fire Protection Association consensus standards, which require a reliable ignition source or pilot system (NFPA 520–8) and supervisory cocks (NFPA 520–9) and are applicable to operation of this heater in the petroleum industry.

Respondent’s negative position on the question of recognized hazard is bottomed on its contention that the NFPA standards, which have not been adopted as occupational safety and health standards under the Act, are not applicable to the petroleum industry, based on the testimony of the refinery operations manager (Mr. McIntyre—over 7 years employment with Mobil) and a consulting engineer (Mr. Lockwood) with 38 years experience in engineering and design of petroleum refineries, including 17 years working in a refinery (Mobil) as chief operator and start-up operator; design and construction work on new refineries in the United States and abroad, and membership and participation in the work of substantive committees of the NFPA and the American Petroleum Institute, including the NFPA Committee for Prevention of Boiler Furnace Explosions and API Committee on Fire Protection Engineering (Tr. 406–410). It was stipulated by the parties that the testimony of a second expert witness (Mr. Prussing), who was unable to attend the hearing, would parallel that of Mr. Lockwood. Mr. Prussing’s qualifications (Respondent’s Exhibit R–2) qualify him as a professional and consulting engineer principally in the petroleum industry.

NFPA Code Applicability

The applicability of the cited NFPA provisions to the subject heater in the petroleum industry is a key issue on the question of industry recognition of the cited hazard because of the disputed differences in design and operation between manually fired natural draft heaters in the petroleum industry and ovens and furnaces used in the metal working and other industries, the limited familiarity and expertise of Messrs. Palmieri and Barrett with such heaters in the petroleum industry, and the considerable expertise and experience in that industry of Messrs McIntyre and Lockwood (and Mr. Prussing), each of whom gave unrebutted testimony as to significant differences, ignition-wise, between heaters and operating procedures in the petroleum industry and those in other industries (Tr. 376–377, 383, 411–414). Respondent’s experts also testified that manual ignition of natural draft gas-fired process heaters, without pilot or remote control ignition, was standard practice within refineries the world over, including the United States; that to the best of their knowledge and belief that practice and procedure was more reliable and safer and complied with all known standards, including those of the American Petroleum Institute (API) and general practice and knowledge within the petroleum industry (Tr. 414–418).

While the pertinent NEPA standards (NFPA No. 86A—1971, Chap. 5) do not on this record appear to have been adopted as occupational safety and health standards promulgated under Section 6 of the Act (Tr. 302), they clearly are national consensus standards within the meaning of Section 3 (9) of the Act and have been designated as such by the Secretary of Labor (29 CFR Part 1910, preface; 36 F.R. 10466, May 29, 1971). And in the absence of an applicable specific occupational safety and health standard promulgated under Section 6 of the Act, applicable national consensus standards may be considered as persuasive evidence on the question of whether a particular hazard is a recognized hazard within the pertinent industry. Cf. Secretary of Labor v. Hidden Valley Corp., OSHRC Docket No. 11 (February 8, 1972); and see Morey, ‘The General Duty Clause of the Occupational Safety and Health Act of 1970’, 86 Harv. L. Rev. 988, 1002 (1973).

Respondent argues that the NFPA standards relied on by Complainant, including NFPA No. 86A, Articles 520–68, 9; 550–2; and 560–14, are not applicable to the petroleum industry for the reasons that:

(1) the scope of NFPA No. 86A, as set forth in its Foreword and Article 100–1, excludes the BB2 type heater since (a) the Class A ovens or furnaces to which the standard applies relates only to ovens and furnaces processing ‘flammable volatiles from material in the oven . . ., i. e., flammable volatiles from paints and other finishing processes such as dipped or sprayed material, impregnated material, coated fabrics, etc.’ and (b) the standard applies to ‘new installations or alterations or extensions to existing equipment’ (Tr. 419–420).

(2) the NFPA develops and recommends standards on a careful, deliberative, balanced basis involving representatives of all industries affected by the particular standard under consideration, and no representatives of the petroleum industry participated or were invited to participate in the development and recommendation of the NFPA standard here involved (Tr. 355, 421–422).

(3) current equipment and practice respecting BB2 heaters in the petroleum refinery industry, including all refineries in the United States and abroad, do not require or use the supervisory cocks, remote control or pilot ignition, flow-meters and other combustion safeguards provided in the NFPA standard here involved (Tr. 414–418; 422).

(4) utilization of and compliance with the NFPA standard here involved would create operational problems and possibly hazardous conditions in the petroleum refinery industry (Tr. 423–424; 431–432).

(5) requiring compliance with the NFPA standard here involved would, in the circumstances of this case, contravene the purpose and provisions of Section 6 of the Act prescribing elaborate procedures for promulgation of occupational safety and health standards (Respondent’s Brief, pp. 30–34).

As to Respondent’s point (1), the evidence of record is inconclusive, in my opinion. The NFPA Article 86A Foreword definition of Class A ovens or furnaces refers to ‘an explosion hazard from either, or a combination of, the fuel in the use of, flammable volatiles from material in the oven or catalytic combustion system;’, thus suggesting that the fuel in use, as distinguished from the volatiles, was an alternative hazard contemplated (Tr. 304). Such a hazard was present in the subject heater, even though it was of tubular type, i.e., the asphalt-propane mixture was contained in metal tubes as it passed through the heater and was not directly exposed to the heat as flammable volatiles from paint and other finishing processes are. Also, while there is some authority that standards adopted as occupational safety and health standards do not include time limitations specified in the industry standards (Secretary of Labor v. Diesel Construction Co., OSHRC Docket No. 827 (February 20, 1973); accord, U.S. v. J.M. Rosa Construction Co., Inc., U.S.D.C. (Conn.), B–637 April 2, 1973, 1 OSHC 1188, BNA/OSH Rep.; and see Tr. 310), I would find it difficult, if not unfair in the circumstances of this case to apply the NFPA standard here invoked with respect to the heater here involved, which was installed in 1950, unless it was clearly shown that the changeover from oil to gas fuel, followed by discontinued use of the pilot ignition system, constituted an alteration of existing equipment within the meaning of NFPA Article 100–1.

Respondent’s point (2) is well taken. That NFPA standards, as national consensus standards, are carefully developed in consultation with interested industries to assure balance and comprehensiveness is well established (1NFPA Annotated OSHA Regulations, vii (NFPA, 1971); Tr. 420–422). And expert witnesses for both Respondent and Complainant testified that there were no petroleum industry representatives on the NFPA committee which drafted the ovens and furnaces standard (Tr. 355, 421–422).

Respecting Respondent’s point (3), American Petroleum Institute standards (which have not been designated as national consensus standards) do not require remote control ignition or pilot ignition or a supervisory cock system on natural draft processing heaters in petroleum refining, according to the unrebutted testimony of Mr. Lockwood (Tr. 422). The fact that the American Petroleum Institute has been the major association of the oil companies and refineries since 1919, performing such representative and protective functions as standard-setting, tends to establish the petroleum industry as a clearly defined and distinctive industry (Judicial Notice; American Petroleum Institute, Publications & Materials, Foreword (1973)).

There is conflicting testimony of record with respect to Respondent’s point (4). Despite the persuasiveness of the logic of Mr. Palmieri’s explanation of how the combustion safeguards specified would improve the safety of working with Respondent’s heater (Tr. 270–281), I am inclined to give greater weight to the testimony of Messrs. McIntyre and Lockwood based on their superior expertise in the operation of this heater in the petroleum refining industry. Mr. McIntyre testified that manual lighting of the heater was more reliable than a pilot system by virtue of visual supervision and control in an outdoors atmosphere (Tr. 383). Mr. Lockwood testified that manual ignition of this heater was safer because of the self-supervisory requirements of a two-year continuous operating cycle (Tr. 431–434).

Despite considerable study by OSHA and Respondent, the cause of the explosion of the heater has not been clearly defined in this record, thus making any ascertainment of proper corrective measures dependent upon more technical analysis and careful weighing of the variable factors involved, including possible human error and the relative capabilities and defects of the particular equipment suitable for the petroleum industry. Such a technologically competent analysis, evaluation and study, likely to affect operations or practice of an entire industry, can more effectively and fairly be achieved through the rule-making procedure for promulgating standards prescribed in Section 6 of the Act rather than by an adjudicatory process based on the specific facts of a single case tried before a Judge with no technical expertise in the petroleum industry beyond that contained in the case record. I am therefore inclined to agree with Respondent’s contention that to permit Complainant to use Section 5(a)(1) of the Act as a means to enforce an NFPA standard in the circumstances of this case would circumvent all the elaborate procedures set forth in Section 6, would be inconsistent with the overall purpose of the Act, and give a wider effect to the Act’s general duty requirement than Congress intended (Respondent’s Brief, p. 33, citing Peter v. Hobby, et al., 349 U.S. 311; Secretary of Labor v. Aro, Inc., OSHRC Docket No. 465, and Chairman Moran’s dissenting opinion in Secretary of Labor v. Somerset Tire Services, Inc., OSHRC Docket No. 44 (March 29, 1973). The point is even when an industry recognizes a hazard, it should be given time to take corrective steps and specific, confirmed knowledge of the hazard should be required, not a mere suspicion or theory that there is a hazard. Morey, ‘The General Duty Clause of the Occupational Safety and Health Act of 1970,’ 86 Harv. L.Rev. 988, 995–996, 1002 (1973).

There is conflicting evidence on this record even respecting the specific complaints of Respondent’s affected employees as represented by Mr. Bailey. None of Respondent’s employees with heater operational duties were shown to have substantial training deficiencies (Tr. 47, 70, 89–91, 95–96, 106–107). Even if loose brick in the heater construction could have been demonstrated, there was convincing testimony that an accumulated pocket of hazardous gas around or behind such bricks following the prescribed usual half-hour steam purge would not be possible (Tr. 424–425). While the burner valves were so tight that they had to be hammered with a wrench to operate, with the resultant risk of imprecise over- or under-turning (Tr. 87–89), there was also testimony that this close tolerance and tight fit of the burner valves, given their operational duration and outside exposure to the elements, was designed and desirable (Tr. 399–402).

At the same time, a preponderance of the evidence tends to show that, contrary to standard operating instructions, more than one burner valve was open at the time the northwest burner was being lit-off (Tr. 375–376, 390–391), thus suggesting the possibility of human error or negligence as a major cause of the heater explosion—a cause which Complainant contends could have been eliminated or minimized by Respondent had the heater been equipped with a supervisory cock and automatic pilot system. As to that contention, Respondent asserts that it did not and could not with the exercise of reasonable diligence know that Mr. Gray, a trained Second Operator with 6 years’ experience (Tr. 154) would deviate from the standing operating instructions which required closing all burner valves before opening the main valve for light-off (Respondent’s Brief, pp. 29–30). This assertion is made in support of Respondent’s no recognized hazard claim as well as its additional claim that the alleged violation here was not a serious violation within the meaning of Section 17(k) of the Act. This appears to be a reasonable assertion on this record, although somewhat weakened by Mr. Gray’s admission that he did not comply fully with the protective clothing and equipment (hard hat and face mask) requirements of the standard operating instructions (Tr. 165). Respondent’s apparent laxity in not enforcing compliance with those provisions of the instructions (Tr. 84–85) suggests the possibility of similar laxity in enforcing compliance with other provisions of the instructions, including the one prescribing burner valve procedure on light-off, of which Respondent might be chargeable with notice.

However, Mr. Gray testified that his normal practice in that respect is to follow the operating instructions (Tr. 165–166), and the record does not reveal any other similar heater explosions at all, much less any attributable to comparable human error or malfeasance on the part of Mr. Gray or any other employee of Respondent. Indeed, based on Mr. Lockwood’s unrebutted testimony, the accident records show few cases of explosions similar to this one in the petroleum refinery industry over all the years such heaters have been in use (Tr. 433–434).

On balance, I conclude that Complainant has not sustained its burden of proving his contention that the NFPA standard invoked is applicable to Respondent’s cited heater.

Operating instructions

Complainant also contends that the very operating instructions issued by Respondent for the subject heater constitutes evidence of Respondent’s recognition of the cited hazard, and of industry recognition of the hazard to the extent that essentially the same operating instructions are used throughout the industry (Tr. 333–335). This is a somewhat specious argument for the reason that these instructions which recognize the potential hazard of explosion and flashback purport to prescribe operating procedures to control or minimize that potential hazard and cannot fairly be deemed an admission by Respondent that operation of the heater in accordance with the instructions (and without the combustion safeguards, such as supervisory cocks, remote control or pilot system, specified by Complainant) constitutes a hazard in violation of Section 5(a)(1). Respondent clearly regarded the heater, operated in accordance with its standing operating instructions, as in compliance with all applicable OSHA and industry standards (Testimony of Mr. McIntyre, Tr. 397–398; of Mr. Lockwood, Tr. 418, 422).

Mr. Palmieri’s feeling or theory that the petroleum industry should be adding combustion safeguards to the BB2 type heaters by up-grading as they alter and buy new equipment is based on his inspections of ovens and furnaces in industries other than the petroleum industry and the premise, disputed by Respondent’s petroleum industry experts (Tr. 412–414), that the heaters used in those other industries (chemical, utilities, smelting, anneal and general industrial) are of the same fundamental type as the natural draft gas fired process heater cited herein (Tr. 334–335, 341). Based on the unrebutted testimony of Mr. McIntyre and Mr. Lockwood, neither the replacement heater ordered by Respondent nor essentially similar heaters recently designed for installation in new petroleum refineries elsewhere in the United States have the combustion safeguards deemed essential by Complainant for compliance with the Act (Tr. 397–398, 416–418).

While it is conceivable that the state of the knowledge of the petroleum industry should be such as to support Complainant’s contention that the cited hazard is recognized by that industry, the present existence of such industry knowledge or recognition has not been proven of record. As previously indicated, substantial evidence of the requisite degree of industry knowledge or recognition could, if available, be more fully and appropriately adduced in a promulgation proceeding under Section 6 of the Act.

Serious Violation

Respondent’s separate argument that Complainant has failed to sustain its burden of proof of a serious violation under Sections 5(a)(1) and 17(k) of the Act is also persuasive. Section 5(a)(1) outlaws ‘recognized hazards that are causing or are likely to cause death or serious physical harm to employees’. Section 17(k) defines a serious violation as one which exists where there is ‘a substantial probability that death or serious physical harm could result from a condition . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation’. Under OSHA procedures, a citation for a violation of Section 5(a)(1) is not issued unless the violation is serious, willful or repeated. (OSHA Compliance Operations Manual, Chap. VIII, Sec. A.2.d.). The Citation herein alleges a serious violation of Section 5(a)(1).

In making the determination of the probable consequence of a condition under this section of the Act, two factors must be considered: (1) the likelihood of an accident resulting from the hazardous condition and (2) the likelihood of death or serious harm resulting from the accident (OSHA Compliance Operations Manual, VIII–4). Apart from Mr. Palmieri’s reference to ‘Murphy’s Law’—that what can happen will happen (Tr. 269), the only evidence of record tending to show the likelihood of an accident resulting from operation of the cited heater under Respondent’s standing operating instructions and procedures (including a reasonable allowance for human action and error which is inherent in and contemplated by those instructions and procedures) is the testimony of witnesses confirming the single instance of explosion of the cited heater. Mr. Schultz, the only Compliance Officer to inspect the actual worksite and circumstances of the accident, concluded in his report that human error rather than equipment failure was involved in the accident (Mr. Schultz’s Report, p. 7, Commission File J–16; Tr. 234–235). There is no probative evidence of record showing any prior accidents involving this particular heater (other than oil spills prior to the conversion to gas fuel, Tr. 63–64) nor any other heater of the same type in the petroleum industry. A showing of statistics on loss time accidents in the industry directly related to the hazard here cited would be relevant to the probability determination. See Secretary of Labor v. Spencer Foods, Inc., OSHRC Docket No. 450 (September 12, 1972). Even Mr. Palmieri admitted that his belief that there was mechanical failure was based on pure speculation (Tr. 342), and his testimony regarding a possibility rather than probability that death or serious physical harm could result from the alleged violation was ambiguous (Tr. 289, 343). Respondent’s petroleum expert (Mr. Lockwood) testified that the petroleum industry accident records reveal ‘very few cases in all the years of fired heaters where there has been an explosion of the type that happened at Paulsboro’, but it does happen occasionally (Tr. 433). He further indicated that reliance upon employees in the operation of this type heater has not been a safety problem to any degree within the petroleum industry (Tr. 433).

In the circumstances of this particular accident, wherein Second Operator Gray admitted failing to check on the closure of the burner valves before opening the main gas valve in accordance with the operating instructions (Tr. 163), Respondent contends that such non-compliance with the instructions by such an experienced employee was completely unanticipated and an unexpected human error (Respondent’s Brief, p. 29–30). Apart from Mr. Gray’s further admission that he did not comply with the protective face shield and gloves provisions of the same operating instructions, there is no evidence of record tending to show a previous pattern of conduct by Mr. Gray or other employees operating the heater which could have put Respondent on notice of a degree of hazard with respect to the heater sufficient to increase substantially the likelihood of an accident. Indeed, Mr. Gray testified that his normal procedure is to follow the instructions prescribed with respect to checking the burner valves before opening the main valve (Tr. 163, 165–166).

With respect to the second factor, likelihood of death or serious harm resulting from an accident due to the alleged hazardous condition seems substantial based on the photographs of the force of the explosion in this case (Complainant’s Exhibits C1–7). While Mr. Gray’s injuries in this particular accident may not have constituted serious physical harm as defined by OSHA (OSHA Compliance Manual, VIII–5), he was hospitalized 40 days (Tr. 164) and probably considered himself most fortunate to have survived such an explosion, which toppled the 20–30 ton heater he was standing under (Tr. 394).

On balance, the evidence of record, in my opinion, does not establish a substantial probability that death or serious physical harm could result from operation of the cited heater under Respondent’s operating instructions and procedures (without the combustion safeguards specified by Complainant). Nor does the record prove that Respondent knew or with the exercise of reasonable diligence could have known of the presence of the alleged violation (employee error or negligence) within the meaning of Section 17(k) of the Act.

However, consistent with the purposes of the Act, I am constrained to observe that Respondent’s heavy reliance on the human element involved in the implementation of its operating instructions and procedures respecting operation of the BB2 heater (Tr. 58–60, 62) imposes an equally heavy obligation on Respondent respecting the training and supervision of its employees in the enforcement of its own standing instructions for operating said heater. In my opinion, the evidence of record indicates a certain degree of laxity by Respondent in the training or supervision of its employees in the operation of the heater in accordance with its instructions (Testimony of Mr. Gray, Tr. 162–163, 165–166; Mr. Schultz, Tr. 205; Mr. Hogan, Tr. 70, 84–85, 89–91, 95–96, 100, 106–107; Mr. Hartzell, Tr. 120; and Mr. Palmieri, Tr. 268–270). In these respects Respondent does not appear to be carrying out its obligation to maintain a safe place of employment to the fullest extent reasonably possible, thus tending to increase the probability of an accident resulting in death or serious harm to its employees to a point perhaps approaching legal liability under the Act.

Accordingly, as a prudent employer, Respondent might be well advised to review its instructions and procedures respecting operation of the heater in relation to the actual functioning of its equipment, particularly the burner valves of the heater. More specifically, Second Operator Levan testified that Mr. Gray, contrary to Respondent’s operating instructions and the normal procedure, had opened the burner valve before the main valve ‘because it was hard to hold the torch in the awkward position and take one hand with the pipe and try to beat that cock open’ (Tr. 140, 129). While the burner valves were deliberately designed to be tight-fitting for apparently valid engineering reasons (Testimony of Mr. McIntyre, Tr. 399–400), this condition was part of the affected employees complaint as a safety hazard (Tr. 175) and the results of Respondent’s investigation of possibly defective burner valves is not disclosed on this record (Tr. 208). Similarly, both Mr. Gray and Mr. Hogan testified that they did not comply with the protective clothing and equipment guidelines in the operating instructions because to do so would, in Mr. Hogan’s opinion, have created a greater hazard (Tr. 84–85, 165). Assuming good faith, such testimony suggests the need for thorough investigation, perhaps by Respondent and its employees’ Safety Committee on a joint basis, so as to afford enforceable practical protection to affected employees, bearing in mind that Mr. Gray suffered burns of the face, arms and back (Tr. 164). In short, the total evidence in this case suggests that Respondent should at least analyze and review its entire heater safety program in terms of the three elements of safety engineering (engineering revision, education and enforcement) referred to by Mr. Palmieri (Tr. 271).

In view of my analysis above of the determinative issues of recognized hazard and serious violation, discussion of the appropriateness of the related penalty herein is unnecessary. Suffice it to say, that were the foregoing determinative issues to be resolved in favor of Complainant, I would agree that a penalty of $900.00, as proposed herein, would be appropriate, taking into consideration the gravity of the alleged violation (severe), the size of Respondent’s business ($1 billion net worth, over 1000 employees), Respondent’s good faith (compliance with numerous citations), and Respondent’s history of previous violations of the Act at its Paulsboro refinery (approximately 90 violations cited, including four serious violations) (Tr. 289–292, 336–338).

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is a New York corporation having a place of business, namely an oil refinery, located at Paulsboro, New Jersey, which uses materials from and ships manufactured products to points outside of New Jersey (Complaint, p. 2, Case File item 5; Hearing Transcript Tr. 16).

2. Respondent is a large corporation employing over 1000 employees at this refinery, with a 1971 net worth in excess of one billion dollars (Tr. 16–17).

3. On October 26, 1972, the PDA BB2 heater unit at Respondent’s Paulsboro refinery, exploded and toppled over, injuring Thomas Gray, the second operator of the heater, who was standing under the heater at the time in the process of lighting one of four burners of the heater following a temporary shut down (Tr. 152–153).

4. The PDA BB2 heater, which had been installed in 1950, was a natural draft gas-fired manually ignited heater, cylindrical, 16 feet wide (diameter) and 82 feet tall, constructed of steel shell lined with fire brick, and containing tubing though which flowed a mixture of asphalt and propane gas which was processed by heat from four gas fueled burners at the bottom of the heater, which was elevated about 8 feet off the ground (Mr. Schultz’s Report, Case File item J–16).

5. The processing function performed by the heater was in the middle of a larger process of refining oil for use as lubricants, involving a number of other different units in close proximity to the heater located out-doors. The process heater, once lighted, ran a continous cycle 24 hours a day for periods as long as two years, when turnarounds (periodic shut downs for maintenance and repair) occurred. Sometimes more frequent shut downs were required for emergency reasons, as on October 26, 1972, when the heater was shut-down with other PDA units due to a faulty compressor not connected with the heater (Tr. 369, 413).

6. The normal procedure for relighting or ‘lighting-off’ the heater was contained in operating instructions entitled ‘General Safety Precautions To Be Observed When Lighting Off Gas Fired Process Heaters’ which were given to each employee when he was assigned to the heater and a copy kept in the desk of a nearby enclosed control room (Tr. 192–193, 54–60; Case File item J–5).

7. The essential procedure prescribed in the operating instructions and the normal practice followed for lighting-off the heater was to (1) purge the inside of the heater with steam thoroughly so as to clean out any residual gas or hydrocarbon; (2) make certain all gas burner valves are closed before opening the header valve (which controls flow of gas to burner valves); (3) light the torch (kerosene-soaked rags or asbestos with handle) and place it in front of or above the burner being lit so that the flame is in the path of the gas flow; (4) slowly open the gas burner valve; if the gas does not ignite immediately, shut the gas valve and purge the heater before attempting to light the burner again; (5) when adding fuel to the burner after it is lit continue to open the burner valve very slowly; and (6) follow the same ignition procedure to ignite each of the other burners on the heater.

The instructions pointed out that keeping the gas burner valves closed before opening the header valve was to prevent any hydrocarbon from entering the firebox and creating an explosion mixture. The danger of a flashback if the burner valve is not opened slowly was also noted, since the low draft obtained during start-up may be insufficient to pull the flame into the firebox when a large volume of gas is rapidly ignited.

8. Essentially the same operating instructions and procedure (without the cited combustion safeguards) are used in the operation of PDA BB2 type heaters throughout the petroleum industry (Tr. 415–416, 432).

9. The main header valve was located about 35 feet away from the heater; there was also a by-pass valve used to control the gas flow until the process stablized, and an automatic valve which cut off the gas flow when the pressure or rate of flow became too low (Mr. Schultz’s Report, p. 5, Case File item J–16; Tr. 426, 434). The burner valves were designed to be tight-fitting and were turned by wrench handles which frequently had to be hammered to operate the valves (Tr. 87–89, 400).

10. On October 26, 1972, the heater was shut down to accommodate repairs to another unit at which time all burner valves were closed. From about 4 to 4:30 the same day the heater was steam purged. About 4:30 p.m., having gotten permission to light-off from First Operator James Frank, who was in charge in the control room at the time, Second Operator Thomas Gray lit a kerosene-soaked asbestos torch and hung it by the northwest burner, the valve of which he hammered open, at the same time signaling Second Operator Levan, who has standing by the header valve, to open the main header valve and thus start the gas flow to the burner. Mr. Levan opened the main valve about 1/3 of the way, but Mr. Gray signaled no gas since he saw no ignition of the burner and almost immediately the heater exploded through its southeast side and collapsed off its foundation (Tr. 126–132).

11. Mr. Gray, the injured employee, was an experienced second operator with some six years’ experience in the ignition of this and similar heaters, but on October 26, 1972, he did not follow Respondent’s operating instructions for igniting the PDA BB2 heater in that he failed to check to determine that the four burner valves were closed before opening the main gas valve in attempting to ignite a single burner, Also, Mr. Gray did not wear all the protective clothing and equipment prescribed by the operating instructions (Tr. 163, 165).

12. On November 3, 1972, at the direction of the Newark Area Office of OSHA, Compliance Officer Herman Schultz made an inspection of Respondent’s refinery, particularly the circumstances of the heater explosion. The inspection was made on the basis of a complaint letter received by the OSHA regional office from the Director, Citizenship-Legislative Department of the Oil, Chemical and Atomic Workers International Union at the request of the Safety Committee and President of the Independent Oil Workers at Paulsboro, New Jersey, affiliated with Oil, Chemical and Atomic Workers International Union, A.F. of L.-C.I.O., Local 8–831, which represented Respondent’s employees.

Mr. Schultz was directed to make the inspection since he was on a trip in the area at the time and the complaint had stressed the need for immediate inspection. A copy of the complaint letter was transmitted to the Respondent for the first time on November 17, 1972. Mr. Harry Bailey, a member of the Local Union’s Safety Committee accompanied Mr. Schultz on his walkaround inspection, together with Respondent’s representatives, and informed him that the complaint included allegations that the heater’s firebricks were in disrepair, allowing pockets of gas to accumulate, and that Respondent’s employees on the heater received inadequate training.

The complaint letter itself, dated October 31, 1972, requested immediate accident investigation of the causes of the heater explosion which caused injury to Mr. Gray and asserted that ‘Citation and penalties against the company are definitely in order’, taking into account (1) the extreme ‘luck’ in this situation in view of the force of the explosion and its close proximity to highly volatile materials; (2) Respondent’s ‘extremely poor health and safety record’; (3) Respondent’s ‘common practice (of) quickly covering up the evidence of an accident as soon as possible . . .’, and (4) the history of OSHA involvement in safety and health matters at Respondent’s refinery (Tr. 185–208; Complaint letter, Case File item J–1).

13. Compliance Officer Schultz’s inspection report, submitted to his Area Director on November 18, 1972, found Respondent ‘in compliance’ and evaluated its safety and health program as ‘effective’, and stated that in Schultz’s opinion human error was involved. Later in November, after consultation with Compliance Officer Palmieri, Mr. Schultz agreed that certain provisions of the National Fire Prevention Association Code relating to gas-fired furnaces were applicable to Respondent’s heater. Thereafter, the Citation in this matter was prepared by Mr. Palmieri, reviewed by the OSHA Regional Office and Solicitor’s Office, and issued on January 2, 1973 (Mr. Schultz’s Report, Case File item J–16; Tr. 208–218, 232–257).

14. The Citation issued to Respondent on January 2, 1973, alleges violation of Section 5(a)(1) of the Act in that Respondent failed to furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees, by failing to provide adequate safety devices on the PDA BB2 heater, specifically, remote control furnace ignition system or adequate pilot ignition system with sufficient combustion safeguards (Citation, Case File item 1).

Thus, the hazard cited was the operation of the heater in accordance with Respondent’s normal operating instructions (without the specified combustion safeguards) which, allegedly, was a recognized hazard causing or likely to cause death or serious physical harm to Respondent’s employees (Tr. 18, 21–22, 42, 269–270, 282, 285, 333–335, 365).

15. There are no occupational safety and health standards promulgated under Section 6 of the Act and no standards prescribed by the American Petroleum Institute or any other regulatory body which are applicable to the PDA BB2 heater and its operation and which require the cited combustion safeguards for operation of said heater within the petroleum industry (Tr. 414–415, 422).

16. The Notification of Proposed Penalty relating to the Citation herein, issued to Respondent on January 2, 1973, proposed a penalty of $900.00 taking into consideration the gravity of the alleged violation, Respondent’s size, good faith, and history of past violations of the Act (Tr. 289–292, 336–338).

CONCLUSIONS OF LAW

1. Respondent was and is at all times material hereto an employer engaged in a business affecting commerce within the meaning of Section 3 (5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein.

2. Respondent was and is at all times material hereto subject to the requirements of the Act.

3. The fact that a copy of the complaint letter or notice of violation was not provided to Respondent before or at the time of inspection did not, in the circumstances of this case and for the reasons set forth in this decision, constitute a violation of Section 8(f)(1) of the Act.

4. Under the circumstances of this case and for the reasons set forth in this decision, the Citation herein was issued with reasonable promptness within the meaning of Section 9(a) of the Act.

5. On October 26, 1972, Respondent’s operation of its PDA BB2 heater at its Paulsboro refinery in accordance with its normal operating instructions (without the cited combustion safeguards) was not a recognized hazard within the petroleum industry within the meaning of Section 5(a)(1) of the Act.

6. On October 26, 1972, Respondent’s operation of its PDA BB2 heater at its Paulsboro refinery in accordance with its normal operating instructions (without the cited combustion safeguards) was not likely to cause death or serious physical harm to its employees within the meaning of Section 5(a)(1) of the Act.

7. On October 26, 1972, there was not a substantial probability that death or serious physical harm could result from Respondent’s operation of its PDA BB2 heater at its Paulsboro refinery in accordance with its normal operating instructions (without the cited combustion safeguards) within the meaning of Section 17(k) of the Act.

8. Respondent’s Employees, Thomas Gray and E.G. Levan, did not strictly comply ?? Respondent’s applicable normal operating instructions when they lighted-off Respondent’s PDA BB2 heater on October 26, 1972. Those acts of said non-compliance by Respondent’s said employees which were critical to the safe operation of the heater (e.g., opening the burner valve before opening the main header valve) very likely could have resulted in death or serious physical harm, but were probably not known, and could not with the exercise of reasonable diligence have been known by Respondent within the meaning of Section 17(k) of the Act.

9. Respondent’s Motion to Dismiss, as stated at the hearing just prior to Respondent’s presentation of its case in chief, should be granted.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. The transcript of the hearing in this matter, specifically, the testimony of Respondent’s witness, Mr. Norman Lockwood, at page 423 of the transcript, is amended to read in pertinent part as follows:

‘With the type of operation that we have, the supervisory cock system would create many many problems for us, due to the fact that the furnace is operated for two to six years, and it’s impossible to test out the system to make sure it is always functioning. The possibility of its being in improper operation would be minimal.’

2. Respondent’s Motion to Dismiss, as finally stated at the hearing in this matter, is granted.

3. The Complaint herein is dismissed and the Citation and Notification of Proposed Penalty issued by Complainant to Respondent on January 2, 1973, are hereby vacated.

DONALD K. DUVALL

Judge, OSHRC

Dated: October 24, 1973

Washington, D.C.

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[1] It is surprising that the woefully inadequate system used to relight the PDA-BB2 heater has allowed any of the employees who work near it to survive long enough to gain through ‘trial and error’ the experience necessary to successfully relight the heater.