SECRETARY OF LABOR,
Complainant,

v.

UNION OIL COMPANY OF CALIFORNIA,
Respondent.

OSHRC Docket No. 85-0111

_DECISION_

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The United States Court of Appeals for the Seventh Circuit has remanded
this case to us so that we may determine the penalty to be assessed
Union Oil Company of California. _McLaughlin v. Union Oil Co. of
California_, 869 F.2d 1039 (7th Cir. 1989).

The Secretary of Labor issued Union Oil two citations alleging
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651 _et_ _seq._ ("the Act"). Citation 1 alleged that Union Oil had
committed three willful violations; citation 2 alleged one serious
violation. The Secretary proposed the maximum penalties permitted under
the Act, $10,000 for each of the three willful items and $1,000 for the
one serious item. _See_ sections 17(a) and 17(b) of the Act, 29 U.S.C.
§§ 666(a) & (b).

Item 1 of citation 1 alleged a willful violation of section 5(a)(1) of
the Act, 29 U.S.C. § 654(a)(1), known as the "general duty clause." Item
2 alleged a willful violation of 29 C.F.R. § 1910.132(a). Item 3
contained six sub-items alleging violations of various subsections of 29
C.F.R. § 1910.156(c). These sub-items together allegedly constituted one
willful violation of section 1910.156(c). Citation 2 alleged that Union
Oil had committed one serious violation of section 5(a)(1).

The administrative law judge who heard the case found that Union Oil had
committed a willful violation of section 5(a)(1) and affirmed item 1 of
citation 1. He assessed a $10,000 penalty for that item.

Addressing item 2 of citation 1, the administrative law judge concluded
that the requirements of 29 C.F.R. § 1910.132(a) applied to certain
classes of Union Oil's employees but not to others. He consequently
found a violation, but only as to some of the employees covered by item
2 of citation 1. He found that the violation was willful as to the
employees covered, but he reduced the penalty from $10,000 to $4,000.

The judge affirmed five of the six sub-items of item 3. He found that
the violations alleged in sub-items 3A, 3C, and 3E were willful and
assessed a combined penalty of $6,000 for the three. The judge affirmed
sub-items 3D and 3F as serious, rather than willful, violations and
assessed a $1,000 penalty for these. He vacated the remaining sub-item, 3B.

In citation 2, the judge found that there had been a serious violation
of section 5(a)(1) and assessed the proposed penalty of $1,000. The
penalties assessed totaled $22,000.

The judge's decision was not directed for review by the Commission, and
both parties appealed to the court of appeals.

The court held that the judge had erred in limiting his finding of a
violation of section 1910.132(a) to certain employees. It said that all
the employees described in item 2 of citation 1 had to be provided with
protective equipment under that standard. The court held, however, that
the violation of section 1910.132(a) was not willful because Union Oil's
interpretation of the standard was not frivolous. The court also
disagreed with the administrative law judge's finding that item 1 of
citation 1 was willful.

Although Union Oil challenged on appeal the judge's findings with regard
to the five sub-items in item 3 of citation 1 that were affirmed by the
administrative law judge, the court did not address these items
specifically. It found that the judge committed no clear error in
finding that one group of employees was inadequately trained. The court
saw no need to discuss Union Oil's other challenges to the judge's
findings, holding that those challenges had no merit. The court
similarly rejected Union Oil's challenge to the judge's affirmance of
citation 2. The judge's disposition of item 3 of citation 1 and of
citation 2 therefore stands.

Under section 17(j) of the Act, 29 U.S.C. § 666(j), in assessing
penalties, the Commission must give due consideration to the size of the
employer, the gravity of the violation, the good faith of the employer,
and the employer's history of previous violations. Having considered
those factors, we modify the judge's decision to assess the following
penalties for the violations found non-willful by the court: $1,000 for
item 1 of citation 1 (section 5(a)(1)), and $1,000 for item 2 of
citation 1 (section 1910.132(a)). We affirm the judge's penalty
assessments for those violations not disturbed by the court: $7,000 for
item 3 of citation 1 (section 1910.156(c)), and $1,000 for citation 2
(section 5(a)(1)). We therefore assess a total of $10,000 in
penalties.[[1/]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 26, 1989

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,

v.

UNION OIL COMPANY OF CALIFORNIA,
CHICAGO REFINERY,
Respondent,

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO,
and its Local 7-517,
Authorized Employee Representative.

OSHRC DOCKET NO. 85-0111

_DECISION AND ORDER_

Child, Judge

APPEARANCES:

For the Complainant:
Richard J. Fiore, Esq., Chicago, Illinois
Lisa R. Williams, Esq., Chicago, Illinois
Mark A. Holbert, Esq., Chicago, Illinois
Peter D. Broitman, Esq., Chicago, Illinois

For the Respondent:
Mark A. Lies, II, Esq., Chicago, Illinois
Robert H. Joyce, Esq., Chicago, Illinois
Robert E. Mann, Esq., Chicago, Illinois

For the Authorized Employee Representative:
Bill Wittig, Lemont, Illinois
Gary Woods, Lemont, Illinois
Robert B. Hattendorf, Lemont, Illinois

_Statement of the Case_

This matter is before the Occupational Safety and Health Review
Commission (the Commission) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 _et_ _seq_.,
(the Act). Complainant seeks affirmance of Citation No. 1 issued to
respondent January 11, 1985, charging: one item of willful violation of
section 5(a)(1) of the Act[[1/]] for alleged failure to furnish a place
of employment free of the hazard of fire and explosion resulting from
failure to properly repair and adequately inspect for corrosion and
deterioration pressure vessels containing liquefied petroleum products
in process of production, and two items of willful violation of section
5(a)(2) of the Act for alleged failure of the respondent to comply with
various standards adopted by the Secretary of Labor having to do with
personal protective equipment and training to be provided employee fire
fighting personnel. Complainant seeks affirmance of the proposed penalty
of $30,000.00 for these allegedly willful violations.

Complainant also seeks affirmance of Citation No. 2, issued to
respondent January 11, 1985, charging one item of violation of section
5(a)(1) of the Act for alleged " . . . lack of effective emergency
evacuation procedures and education and training of personnel in said
procedures," and of the penalty proposed thereon in the sum of $1,000.00.

The matter came on regularly for hearing at Chicago, Illinois,
commencing on the 21st day of April 1987, and concluding on the 3rd day
of June 1987. The parties were permitted to submit posthearing briefs,
proposed findings of fact and conclusions of law, replies and
sur-replies as they desired. Each has submitted post-hearing briefs.
Respondent has submitted proposed findings of fact and conclusions of
law. Complainant and respondent have each submitted replies to the
other's post-hearing brief and sur-replies to the other's reply.

To the extent proposed findings of fact and conclusions of law submitted
by the respondent are consistent with those entered herein they are
accepted; to the extent they are not so consistent they are rejected.

As stated at pages 89-91 of respondent's Post-Trial memorandum the only
"affirmative defenses" claimed by the respondent are: (1) compliance
with the Illinois Boiler and Pressure Vessel Safety Act regarding
respondent's pressure vessel inspection program and the records
maintained thereof in effect preempts an action brought by the Secretary
claiming violation of the "general duty clause" of the Act (Citation No.
1, item 1), and (2) compliance with certain aspects of the complainant's
proposed evacuation program, requiring evacuation of all employees from
the operating units, would create an increased hazard (Citation No. 2,
item 1). There can be no greater hazard affirmative defense to an
alleged violation of the general duty clause. _Secretary v. Royal
Logging Company_, 7 BNA OSHC 1744, 1751 (No. 15169, 1979), affirmed 645
F.2d 822, 830 (Ninth Cir. 1981). _See_ Issue Q, _infra_.

Jurisdiction of the subject matter and of the parties has been admitted
and is not an issue.

_The Issues_:

Issues raised by the citations and the pleadings to be here determined are:

A. Was the respondent in violation of section 5(1)(1) of the Act as
alleged in Citation No. 1, item 1?[[2/]]

B. Would compliance by the respondent with the Illinois Boiler and
Pressure Vessel Safety Act, if compliance there be, constitute a bar to
complainant proceeding under section 5(a)(1) of the Act?

C. If respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue A, was that violation willful?

D. If respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue A what penalty would be appropriate?

E. Was the respondent in violation of 29 C.F.R. 1910.132(a) for failure
to provide and require the use of protective fire fighting equipment as
alleged in Citation No. 1, item 2?[[3/]]

F. If respondent was in violation of the standard as alleged in Issue E,
was that violation willful, or failing that, serious?

G. If respondent was in violation of the standard as alleged in Issue E,
what, if any, penalty would be appropriate?

H. Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) as
alleged in Citation No. 1, item 3A?[[4/]]

I. Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) as
alleged in Citation No. 1, item 3B?[[5/]]

J. Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) as
alleged in Citation No. 1, item 3C?[[6/]]

K. Was the respondent in violation of 29 C.F.R. 156(c)(2) as alleged in
Citation No. 1, Item 3D?[[7/]]

L. Was the respondent in violation of 29 C.F.R. 156(c)(3) as alleged in
Citation No. 1, item 3E?[[8/]]

M. Was the respondent in violation of 29 C.F.R. 1910.156(c)(4) as
alleged in Citation No. 1, item 3F?[[9/]]

N. If the respondent was in violation of any or all of Issues H thru M
(items 3A thru 3F), was such violation willful or failing that serious,
in whole or in part?

O. If the respondent was in violation of any or all of Issues H thru M
(items 3A thru 3F) what, if any, penalty or penalties would be appropriate?

P. Was the respondent in violation of section 5(a)(1) of the Act as
alleged in serious Citation No. 2, item 1?[[10/]]

Q. Would an evacuation plan as proposed by complainant create a greater
hazard to respondent's employees and thus become other than feasible?

R. If respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue P, above, what penalty would be appropriate?

_The Catastrophic Event_

During the afternoon shift on July 23, 1984, a vapor cloud was observed
to be coming from the vicinity of a large pressure vessel in the
Unsaturated Gas Plant of respondent's Chicago Refinery.

The vessel, known as and hereafter referred to as 12D701, was 8½ feet in
diameter and rose in excess of 53 feet above the ground. Known as the
amine absorber, 12D701 received liquefied propane and butane gas (C3-C4)
rich in hydrogen sulfide (H_2 S) at a port near the bottom of the
vessel. The liquefied propane and butane gas would rise in the vessel
through a series of perforated trays, exiting at the top relatively lean
of H_2 S. An amine solution consisting of monoethanolamine in water
(MEA) would enter the vessel at the top and, flowing downward counter to
the flow of the liquefied petroleum product through the perforated
trays, would strip the H_2 S from the liquefied propane and butane
gases. The amine solution would exit the vessel at the bottom having in
the process become rich in H_2 S.

The liquefied propane and butane gases would flow to the next pressure
vessel in the process for additional treatment involving removal of
other sulphur compounds. (Tr. 81-83, 330-331; Exhibit C-8)

At approximately 5:30 p.m. on July 23rd personnel at the Fluid Catalytic
Cracking Complex (FCC unit) received warning by telephone from personnel
from an adjacent unit of a possible leak. (Tr. 355) Upon receiving the
telephone warning, outside operator Wayne Kielma and assistant operators
Robert Gomer, George Smith and Robert Haggard left the field shelter,
referred to as the unit satellite, and observed a vapor cloud about
15-20 feet long approximately 12 feet above the ground in the vicinity
of 12D701. (Tr. 354-358, 443-447)

The vapor cloud was observed to be originating from a horizontal crack
at or near a circumferential weld of vessel 12D701. When first observed
the crack appeared to be 6 to 9 inches long. (Tr. 359) The leak at this
point was through the fixed ladder that goes up the side of the vessel
to the top of the vessel. It prevented climbing to the top of the vessel
to actuate a mechanically operated pressure relief valve. (Tr. 383, 384)

Mr. Kielma by means of the portable radio on his person informed the
inside operator on the unit of the leak and its size and location. The
inside operator had a telephone connection with the guard gate from
whence a 222 alarm would be sounded. After Mr. Kielma made his initial
report to the inside operator he heard the 222 alarm sounding. (Tr. 389,
506, 507) He then walked around the tower and determined there were no
other leaks and asked the assistant outside operators to lay out and
connect steam hoses and direct steam at the leak. (Tr. 360, 447) He also
asked one of the assistants to get a ladder.

The purpose of the ladder was to permit access to some valves elevated
on the east side of vessel 12D701. These valves if operated would permit
redirecting the flow of "product" to a different vessel, thus bypassing
12D701. The ladder, when brought, was only about an 8 foot A frame
ladder and to reach the valves Mr. Kielma had to stand on the very top
of the ladder. This left him inadequate "leverage" to open or close the
valves. (Tr. 360-362) He was unable to operate any of the four valves at
that location which, had he been successful, would have isolated the
vessel by eliminating the flow in and out. After descending from the
ladder he told one of his assistants they would have to shut the whole
unit down. (Tr. 363) By this time the crack had lengthened to the west
and now appeared to him to be 1½ to 2 feet in length. (Tr. 364)

While Mr. Kielma was attempting to thus bypass 12D701 a fire truck
arrived at the unit and Mr. Kielma saw Perry Parker, a member of the
shift fire brigade standing next to the truck approximately 12-18 feet
southwest of 12D701. Mr. Parker was wearing no fire fighting equipment
at that time. (Tr. 368, 369; Exhibit C-23) During the attempt to control
the escaping vapor by directing steam on it, Chris Watkins, another
member of the shift fire crew was observed to enter the unit wearing
only blue jeans and a flannel shirt, i.e., not wearing turnout gear.
(Tr. 452, 2197, 2201, 2216)

Mr. Kielma then told Bill Drury, cracking shift supervisor, while the
two were standing about 25 feet from vessel 12D701 that he was unable to
isolate the vessel and it would be necessary to shut down the entire
unit which would take 30-45 minutes. Mr. Drury approved and said he
would get Mr. Kielma some help. Mr. Drury took a step northeasterly
toward the control center and Mr. Kielma took a step toward the FCC side
of the complex. (Tr. 371, 372)

At this point 12D701 failed. Mr. Kielma experienced an explosion which
threw him northerly followed in 2 or 3 seconds by a wall of fire. (Tr.
372-374)

As a result of the explosion the upper portion consisting of six courses
of this seven course tower, vessel 12D701, was propelled through the air
coming to rest 3200 feet from point of origin, spewing its contents as
it went.

The explosion and following conflagration resulted in the deaths of 17
employees and lost worktime injuries to 14 other employees of
respondent. (Exhibit C-23)

The Occupational Safety and Health Administration (OSHA) conducted an
investigation into the causes of failure of vessel 12D701 and the fire,
explosion, deaths and injuries which resulted therefrom which culminated
in the issuance of the citations, subject of this action. (Tr. 3190, 3196)

Metallurgical examination of significant portions of vessel 12D701 was
conducted by the United States National Bureau of Standards after the
incident of July 23, 1984. (Tr. 853, 878, 884; Exhibit C-44) This
examination revealed that pressure vessel 12D701 had fractured along a
path adjacent to a circumferential repair weld joining Course 1 and
Course 2 performed in 1974 at the time of the replacement of Course 2.
(Tr. 928, 1031-32) This repair welding had caused a hard microstructure
to form in the area of the metal where the base metal and the weld metal
joined. (Tr. 1031, 1032) This area is referred to as the heat-affected
zone. (Tr. 930) This hard microstructure, identified as "martensite,"
developed as a result of rapid cooling of the carbon steel creating a
region of metal that was more brittle than the adjacent base metal and
therefore more susceptible to both cracking and crack propagation. (Tr.
1032)

The examination disclosed that at the time of the catastrophic rupture
of pressure vessel 12D701, there existed four pre-existing cracks
adjacent to the weld connecting courses 1 and 2 equal to approximately
forty percent of circumference of the vessel. These cracks, open to the
inside surface of the vessel, extended to depths beyond midthickness of
the one inch vessel wall. (Exhibit C-49) The surfaces of these
pre-existing cracks were blackened by deposits of iron sulfide, the
known by-product of the corrosion process produced when steel comes in
contact with hydrogen sulfide. (Tr. 921-926; Exhibit C-48) Exhibit C-49
depicts by hash marks, the general location of these pre-existing cracks
in the vessel wall adjacent to the weld connecting courses 1 and 2.

The investigation disclosed that when the deepest of the pre-existing
cracks extended through more than ninety (90) percent of the wall
thickness, the remaining 1/10 inch ligament of steel, weakened by the
absorbed hydrogen had insufficient remaining strength to contain the
pressurized liquefied propane and butane gases. This remaining 1/10 inch
ligament of vessel wall therefore broke through causing the initial
crack and resulting leak. This crack continued to tear and propagate
along the hydrogen weakened and embrittled vessel until complete
separation of the upper and lower sections of the vessel occurred. (Tr.
960-63)

_Discussion_

_Issue A:_

Was the respondent in violation of section 5(a)(1) of the Act as alleged
in Citation No. 1, item 1?

To establish a violation of section 5(a)(1) of the Act, commonly
referred to as the "general duty clause," the Secretary must prove by a
preponderance of the evidence (1) that a condition or activity in the
employer's workplace presented a hazard to employees, (2) the hazard was
recognized either by the employer or generally within the employer's
industry, (3) the hazard was likely to cause death or serious physical
harm, and (4) that feasible means existed to eliminate or materially
reduce the hazard. _See_ _Inland Steel Co._, 12 BNA OSHC 1968, 1986 CCH
OSHD ¶ 27,647 (OSHRC No. 79-3286, 1986); _Pelron Corporation_, 12 BNA
OSHC 1833, 1835 (No. 82-388, 1986); _Phillips Petroleum Co._, 11 BNA
OSHC 1776, 1984 CCH OSHD ¶ 26,783 (OSHRC No. 78-1816, 1984); _Chevron
Oil Company_, 11 BNA OSHC 1329, 1331 (No. 10799, 1983); _National Realty
& Construction Co. v. OSHRC_, 489 F.2d 1257 (1 BNA OSHC 1422) (D.C. Cir.
1973).

(1)

Due to the known flammable and explosive properties of petroleum
products, and particularly of liquefied petroleum gases which must be
maintained under pressure, petroleum refineries must necessarily be
designed and maintained in such fashion as to reduce the potential of
fire and explosion resulting from unintended escape of the product in
process of refinement. Where that product moves through vessels under
pressure, the integrity of such vessels to support the expected
pressures must be safeguarded.

Fire and explosion can result when liquefied petroleum gases are allowed
to escape into the atmosphere during the process of refinement.

Leaks of product from pressure vessels occur from cracks which are
allowed to grow. Cracks in the walls of pressure vessels are known to
occur (1) in heat affected zones adjacent to welds where a hard or
brittle condition known as martensite is allowed to occur or remain
following welding operations, and (2) where carbon steel of the type
utilized in vessel 12D701 is exposed to H_2 S, particularly where
evidence of corrosion in the form of hydrogen attack is observed.

Failure to apply recognized welding procedures or post-weld treatment to
reduce or eliminate martensite and inadequate inspection to detect the
presence or development of stress cracking or hydrogen induced cracking
would permit cracking to develop to the point of vessel failure and
increase the likelihood of fire and explosion of petroleum product to
which hazard operations personnel are exposed. See _National Realty_,
_supra_, 1 BNA OSHC at 1427. See also _Pelron Corporation_, _supra_, 12
BNA OSHC at 1835.

(2)

That the increased hazard of fire and explosion of refinery product was
preventable and could be eliminated or could be materially reduced was
recognized by the respondent is established by the existence since 1957
of an inspection department at respondent's Chicago refinery. This
department, sometimes referred to as the Corrosion and Fouling
Department, was responsible for monitoring the condition of pressure
vessels located at the refinery to assure their ability to operate
safely. (Tr. 553-54, 564, 572, 690-93, 1674, 1679, 1680, 1804-05, 3718).
Following 1975 the inspection department was intended to qualify under
and assure respondent's compliance with The Illinois Boiler and Pressure
Vessel Safety Act (hereinafter "The Illinois Act"). (Illinois Revised
Statutes, Chapter 111½, § 3201 _et. seq._, Exhibit C-59; Respondent's
Post Trial memorandum p. 3; Tr. 3607, 3625, 3626; Exhibit R-6)

From the time of its creation in 1957, the inspection department at
respondent's Chicago Refinery was guided by the recommended practices
for inspection of pressure vessels published by the American Petroleum
Institute (API). (Tr. 622, 623, 690-692; Exhibits C-61, C-62, C-63,
C-64, C-65; and API 510)

In accommodating the inspection requirements of The Illinois Act after
its adoption in 1975, The respondent as an "owner user" under that act
elected to be governed by API 510.[[11/]] (Tr. 3620, 3621; Exhibit R-6)

The Illinois Act contemplated that inspections of pressure vessels
within that state would be performed by the state's Chief Inspector or
by a Deputy Inspector or in the case of qualified owner user situations,
i.e., the respondent, by Special Inspectors.[[12/]]

Section 2.2 of API 510 contains its own set of requirements for
inspector qualifications.[[13/]]

API 510 by its terms applies to vessels after they have been placed in
service. (Exhibit C-60, p.1, section 1.1.1) However, API incorporates in
principle the provisions of the Boiler and Pressure Vessel Code
published by the American Society of Mechanical Engineers (ASME Code).
In doing so, the API states that although the ASME Code is written for
new construction, most of its requirements apply to maintenance
inspection, repair and alteration of operating vessels. Where the ASME
Code provisions do not apply, API 510 applies in lieu of strict
conformance with the ASME Code. (Exhibit C-60, p.1&2, sections 1.2.2 and
1.2.3; Tr. 802, 803)

Section V of the ASME Code is specifically referred to at Section 3.5 of
API 510 as a guide to performing many of the non-destructive examination
techniques utilized in inspection; and Section V of the ASME Code adopts
the guidelines for determining qualifications of persons utilizing
nondestructive examination methods as they appear in "Recommended
Practice for Nondestructive Testing Personnel Qualification and
Certification" published by the American Society for Nondestructive
Testing. (Exhibit 66, p.8, section T-170, footnote 3; Exhibit C-67)
____________________

Pressure vessel 12D701 was designed and fabricated in accordance with
the ASME Code which governs the fabrication of pressure vessels. It was
constructed of A516-70 carbon steel, one inch thick consisting of a top
and bottom head and seven cylindrical sections referred to as courses
all joined by circumferential welds. Designed to operate at a maximum
operating pressure of 230 psi at a maximum temperature of 140º F, 12D701
was placed in service in the spring of 1970. (Exhibits C-35, p.00622 and
C-44) As operated, the pressure was maintained at 230 psi measured at
the top of the tank with the practical result that the lower courses
exerted greater pressure on the walls of the tank due to the weight of
the product above. (Tr. 100, 105)

Commencing in 1972 and biannually thereafter 12D701 was subjected to a
turnaround inspection which involved shutdown of the operation affecting
the vessel, external and internal inspection of the vessel and its
components and repairs where necessary. (Tr. 589-591)

In the course of the 1972 turnaround, inspection disclosed corrosion
defects in the walls of 12D701 resulting from the action of hydrogen on
the A516-70 carbon steel. Hydrogen in its atomic form passes through the
steel and dissipates harmlessly into the atmosphere. However, if
hydrogen atoms in passing through the steel encounter flaws which occur
at the time of pouring and/or rolling the steel during its manufacture
consisting of inclusions of foreign material, the atomic hydrogen there
accumulates and converts to molecular hydrogen. In the process
tremendous heat and pressure is exerted causing the inclusion to become
a lamination within the steel. Where these laminations occur near the
surface of the steel they appear as blisters. Should laminations, which
generally run parallel to the surface of the steel, be joined by cracks
which tend to run at right angle to the surface, hydrogen step cracking
is said to have occurred. (Exhibits C-51 and C-52) Also, pitting can
occur on the interior surface of the vessel as a result of hydrogen
attack. Pitting and blistering were observed to have occurred on the
interior of 12D701. Notes of the inspection disclose: "The second sheet
up has a large area of dirty metal or laminations and some hydrogen
blistering has taken place." A coupon was removed through one of the
hydrogen blisters and sent to respondent's research center in Brea,
California, for observation. (Exhibits C-16 and C-34, pp. 30-31)

The coupon removed came away in two pieces, separated at the lamination.
The inner piece had a thickness of .30 inch. The research center
reported to the inspection department at respondent's Chicago refinery
in May of 1972 that its examination disclosed a large number of "opened
laminations," more appearing on the inner portion of the wall than the
outer portion. Also, the steel was found to be within specifications
with hardness ". . .well below the critical hardness at which point one
might expect hydrogen embrittlement." Finally, the report disclosed:

" . . .Most of the laminations which separated were parallel to the
walls of the vessel, although I did find several that had joined in a
direction perpendicular to the wall thickness. . . . joining of the
laminations can lower the strength of the wall;" (Exhibit C-18)

Due to the corrosion deterioration of the 2nd course of 12D701, that
course was scheduled to be replaced during the 1974 turnaround. Using
the same grade of carbon steel, to-wit: A516-70, the new replacement
second course was installed in 1974 in three pieces requiring three
vertical and two circumferential welds accomplished without dismantling
the tower and while it remained standing. The first contractor engaged
to do the repair proved unsatisfactory and the repair was cleaned up by
removing welds performed and completed by a second contractor. In
addition to the replacement of the second course, a process change was
performed on 12D701 during this 1972 turnaround. The size of the
perforations in the 9 trays were enlarged from 5/16" to 3/8" to permit
an increase in the flow or "throughput" of petroleum product treated.
(Exhibits C-15, C-17 and C-34, p.29)

Visual inspection of the balance of 12D701 during the 1974 turnaround
disclosed continuing corrosion and attack by hydrogen in the form of
numerous small hydrogen blisters on the interior of the first course of
the vessel.

After completion of second course replacement and tray perforation
enlargement the vessel was returned to service.

Ultrasonic thickness examination of the first course in October of 1975
caused the respondent's inspection department to conclude "dirty steel
bottom ring." (Exhibit C-34, p.29)

Straight beam ultrasonic (Sonoray) examination causes an ultrasonic beam
from the surface to measure the thickness of a wall of steel. An
interruption of that beam caused by meeting a place where a lamination
has occurred will cause the thickness of the wall to appear to be the
distance from the surface point of origin of the beam to the point of
the lamination. Thus false readings of wall thickness would be
interpreted as disclosing laminations, sometimes referred to as
discontinuities.

In the spring of 1976 a turnaround inspection was again done on 12D701.
This time visual inspection disclosed:

"Small 'raindrop' like blisters on top of #7 and #8 downcomers. . . .
Blistering occurring on second ring southwest side. . . . The entire
surface of shell plate, ring #1 had many blisters ranging in size from
¼" to 1" in diameter. The lamination of the blister varied from .16" to
.38". (Exhibit C-34, p.29)

Courses 3, 4, 5, and 6 are now observed to "appear to be in good
condition except that many areas have dirty metal or lamination."
(Exhibit C-34, p.28)

In order "to arrest the hydrogen attack on the plate," a monel metal
liner was welded orange peel fashion to the bottom head of the vessel
and monel metal liner was welded to the entire interior surface of the
first course, excepting only a distance of ten inches below a portion of
the circumferential weld connecting the first and second courses at
which point one of the perforated trays interfered. The vessel was again
returned to service.

By entry dated November 1977, a member of respondent's inspection
department noted on the record of vessel 12D701:

Sonoray coverage on a grid indicated hydrogen evolution to be active.
The new plate (1974) in second ring has two localized spots of
subsurface discontinuities. (Exhibit C-34, p.27)

Following the 1982 turnaround the following recommendation was entered
in the history record of 12D701:

_Recommend_: Do External UT as time permits & check ring #1 & #2 for
laminations (Ref. LWV Grid Survey 11/77). (Exhibit C-34, p.24)

Notes entered following the 1984 turnaround conducted in or around April
1984 included: "All ultrasonic thickness readings taken on shell are
above nominal thickness" and "Six scattered hydrogen blisters, ½"
diameter max., were found in feed tray area, all located within 1 foot
of circumferential weld." (Exhibit C-34, p.24) That the circumferential
weld referred to is that joining course 1 and course 2 is apparent from
the additional entry for that turnaround, "bottom head and shell below
feed tray has Monel lining." It will be remembered that the presence of
the tray prevented monel lining from being placed over a portion of
course 1 to a point 10 inches below the circumferential weld.

Inspection of vessel 12D701 during the 1984 turnaround was performed by
one of respondent's trainee inspectors, who nonetheless held the title
of "Inspection Supervisor". (Tr. 1682, 1687; Exhibit C-71, p.1)
Respondent's "Inspection Supervisor" was assisted in this inspection by
an independent inspector supplied to respondent under a contract entered
into between respondent and an independent inspection contracting company.

The head of respondent's inspection department testified that
respondent's "Inspection Supervisor" was not the "team leader" of the
two-man team that inspected 12D701 during the 1984 turnaround, (Tr.
1683) that he was in fact receiving training in inspecting 12D701 at
that time, (Tr. 1688) and that he was receiving the "expert guidance" of
the independent inspector who was working with him. (Tr. 1689) This
position on part of the respondent belies the facts.

The independent inspector who participated in the inspection of 12D701
during the 1984 turnaround was supplied under a contract which provided:

The contractor will provide experienced personnel qualified to perform
inspection of Petroleum Refinery process equipment and other field
inspection _as directed by Union Oil Company Representative. . . . This
work is to be done under the supervision of the Company Inspection
Supervisors_. (Emphasis added) (Exhibit C-75, p.1)

Also the independent inspector who participated in the inspection of
vessel 12D701 testified: that in the 1984 turnaround Mr. Granot, head of
respondent's inspection department, assigned him to work with
respondent's inspection supervisor in question; that he knew nothing of
the inspection supervisor's background or credentials; that he was told
that he was to do inspection work with respondent's inspection
supervisor; that he performed no training activities; that the
inspection supervisor would inform him what they had to do on a daily
basis; that the inspection supervisor was his contact with Mr. Granot;
that he took no notes, they were rather taken by the inspection
supervisor; that he made no recommendations with respect to repair or
alterations of any vessels; that during the three weeks he was there he
neither certified nor decertified any vessel; that they would inspect
from two to five vessels each day; and that he initialed no documents
during the turnaround. (Tr. 1878-1885)

This independent inspector has for many years been licensed by the State
of Indiana, pursuant to examination, as an Unfired Pressure Vessel
Inspector. Before retiring in 1981 he worked for Amoco Oil Refinery
where he inspected pressure vessels from 1961 until retirement. He holds
no other certifications and has taken no courses given by the American
Society of Nondestructive Testing. He considered the interior
inspections of vessels they inspected during the turnaround to be in
accordance with his understanding of good industry inspection practices.
(Tr. 1889-1891, 1902; Exhibit C-67 p.5)

Neither member of the two-man team that inspected vessel 12D701 was a
Special Inspector as that term is defined in the Illinois Act which
provides:

The inspections herein required shall be made by . . . a Special
Inspector provided for in this Act. (Exhibit C-59, sec. 10(7))

Notwithstanding the foregoing, Mr. Granot, head of respondent's
inspection department, who made no inspection of vessel 12D701 certified
to the State of Illinois as required in the Illinois Act that 12D701 was
inspected in 1984 as required by the Act. Mr. Granot was himself a
qualified Special Inspector under the Illinois Act. This procedure of
certifying to the State without having seen the vessel had also been
followed in the course of the turnaround inspections since Mr. Granot
headed up the inspection department at respondent's Chicago Refinery in
1977. (Tr. 1802-1804, 3441, 3442)
________________________

Following the repair of vessel 12D701 in 1974 respondent tested the
quality of the repair in three particulars: (1) it submitted the welds
to visual inspection, (2) it subjected the repair welds to radiography,
and (3) the vessel was hydrostatically pressure tested to 345 psi.
(Exhibits C-34 p.29, C-16 p.30061) Respondent's engineer in charge of
the inspection department at the time of the replacement of the second
course of 12D701 in 1974 has known since the 1960's that if welds in an
environment where atomic hydrogen can be generated have a Brinelle
hardness over 220, the likelihood of cracking is a possibility. (Tr.
677, 682) In the course of the 1974 repair the turnaround was delayed by
poor productivity and welding performed by the contractor first hired.
That welding was removed and re performed by a second contractor. Also
respondent's records disclose that "Very poor cuts on plates in D701
caused excessive rewelding." Notwithstanding these problems no hardness
tests were performed on the repair welds after their completion in 1974
or at any time thereafter. (Exhibits C-22 p.2, C-34 pp.24-30) Likewise
respondent appears to have given no consideration to the likelihood that
hardening of the base metal in the heat affected zone adjacent to the
extensive repair welds might have resulted from this torturously
performed field welding. No attempt was made in 1974 or at any time
thereafter to rule out the presence of "martensite."

The literature of the American Petroleum Institute as well as Chapters V
and VIII of the ASME Boiler and Pressure Vessel Code bear abundant
witness that the petroleum refinery industry recognized the potential
for hydrogen induced cracking and pressure vessel failure where hard
welds or martensite were allowed to be present as a result of field or
repair welding. Also the literature warned of permitting unrelieved
residual stresses to remain as a product of repair welds. The literature
warned that such conditions could give rise to Hydrogen Stress Cracking
where allowed to exist in an environment exposed to H_2 S and advised
methods both of avoiding the conditions and inspecting for the
existence, development or growth of hydrogen cracking. (Exhibit C-62
pp.35, 36, 47, 48; Exhibit C-63 p.4; Exhibit C-64 p.5, 6; Exhibit C-66
p.7; Appendix A, attached to Complainant's Post Trial Brief, pp.10, 12
of the 1958 Edition and pp.10, 12 of the 1970 Edition)

Particularly useful for the detection of cracks formed or in process in
the shells of pressure vessels were Magnetic Particle Testing and Liquid
Dye Penetrant Testing. Also Ultrasonic Testing was useful in detecting
cracks if angle beam, also referred to as shear beam ultrasonic testing
method, was utilized. The respondent utilized the straight beam method
of ultrasonic testing which serves only to measure wall thickness or the
depth of discontinuities or laminations. (Tr. 689)

Respondent had on hand a portable Telebrineller hardness measuring
instrument and actually measured the hardness of welds at the second
course of 12D701 in 1972. (Exhibit C-34, p.30) Respondent also had on
hand the equipment for performing the ultrasonic testing, the magnetic
particle testing and the liquid dye penetrant testing for cracks.
Notwithstanding such capability and awareness of ongoing hydrogen attack
respondent did nothing following the repair welds of 12D701 in 1974 to
either measure the hardness of the repair welds or the base metal in the
heat affected zone adjacent to those welds; nor did respondent conduct
any tests to rule out the presence of cracking in pressure vessel 12D701.
_______________________________

Respondent expresses a defense to be that it should not be responsible
for failure to detect a "microscopic" crack among 700 pressure vessels.
There is no evidence the cracks found to be present in vessel 12D701
were "microscopic." The evidence is that four cracks covering some 40%
of the circumference of the vessel in the vicinity of the horizontal
weld joining courses one and two occurred in the "microstructure" of the
metal in the weld heat affected zone which microstructure took on the
properties of martensite as a result of the welding procedures followed
in 1974. (Tr. 1032, 1044, 1055; Exhibit (C-49)

(3)

That fire or explosion and the increased likelihood thereof resulting
from undetected cracks would likely cause death or serious physical harm
is amply born out by the events at respondent's Chicago Refinery on July
23, 1984. Seventeen employees died and fourteen received injuries
resulting in lost work time as a result of the ignition of refinery
product which began its escape from an undetected crack in pressure
vessel 12D701 and which crack rapidly connected with others around the
circumference of the corrosion weakened wall.

(4)

Respondent had the feasible means of detecting cracks in the welds or
base metal of pressure vessels at its refinery from prior to 1974 and
through the time of the catastrophe on July 23, 1984. The timely
detection of hydrogen stress cracks in pressure vessel 12D701 could have
eliminated or materially reduced the likelihood of the leak of product
which resulted in the fire and explosion of July 23, 1964.

Complainant has met its burden of proof of Issue A.

_Issue B:_

Would compliance by the respondent with the Illinois Act, if compliance
there be, constitute a bar to complainant proceeding under section
5(a)(1) of the Act?

Section 18(a) of the Act addresses State jurisdiction over occupational
safety and health issues with respect to which no standard is in effect
under section 6 of the Act. In effect section 18(a) makes no
interference with the right of any State agency or court to assert
concurrent jurisdiction over occupational safety and health issues where
the Secretary of Labor acting through OSHA has promulgated no specific
regulation.

In the case before us respondent may have failed to comply with the
requirement of the Illinois Act that inspection of its pressure vessels
be performed by "Special Inspectors" commissioned by the State of
Illinois. Should the State of Illinois desire to assert jurisdiction and
proceed against the respondent for that alleged failure, section 18(a)
provides that "nothing in this Act shall prevent. . ." it from doing so.

There is nothing in the language of the Act or the legislative history
to suggest that Congress intended compliance with the standards of
applicable state law to create an exemption from the Act's general duty
clause. See _Puffers Hardware, Inc. v. Donovan_, 742 F.2d 12, 16-17
(1st. Cir. 1984), OSHRC No. 83- 1863.

The existence of the Illinois Act or compliance therewith would not act
as a bar to the Secretary proceeding under the general duty clause of
the Act as set forth in Citation No. 1, item 1.

_Issue C_:

If respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue A, was that violation willful?

In order to show a violation of section 5(a)(1) of the Act to have been
willful, the Secretary has the burden of demonstrating by a
preponderance of the evidence the employer's disregard of or plain
indifference to its statutory duty to furnish a workplace free from
recognized hazards. The evidence produced must be such that it
convincingly establishes that the employer intentionally disregarded or
was indifferent to employee safety. The Secretary may satisfy his burden
by showing aggravating circumstances such as: the employers failure to
remedy a visibly dangerous condition actually known to the employer or
its supervisory personnel, (_Central Soya De Puerto Rico v. Secretary of
Labor_, 653 F.2d 38 (1st Cir. 1981); _Kus-tum Builders, Inc._, 10 BNA
OSHC 1128, 1131 (No. 76-2644, 1981); _Babcock & Wilcox Company_, 7 BNA
OSHC 1194 (No. 77-3575-A, 1979); _St. Joe Mineral Corp. v. OSHRC_, 647
F.2d 840, 848 (8th Cir. 1981)) or the employer's deliberate disregard of
known safety requirements, (_Ensign-Bickford Co. v. OSHA_, 10 BNA OSHC
1639 (No. 78-4945, 1982), aff'd., 717 F.2d 1419 (D.C. Cir. 1983).

Respondent suggests that this case should be governed by the
Commission's reasoning in _United States Steel Corporation_, 12 BNA OSHC
1693 (No. 79-1998, 1986) which ruled the employer not guilty of a
willful violation where it had developed a strategy for dealing with the
hazard based on the judgment of its managers as to the existence of
conditions that could give rise to an explosion hazard. Here, however,
no such strategy was developed for the detection or elimination of cracks.

The record establishes that there were applicable industry safety
standards including the API Pressure Vessel Inspection Code and
Inspection Guides and that respondent had knowledge of those standards.
Respondent had in fact obligated itself to observe the API standards by
electing, as permitted by the Illinois Act, to conduct its own
inspection program in accordance with API rules and regulations
utilizing "Special Inspectors" qualified under the Illinois Act, rather
than to submit to state inspection of its pressure vessels.

Notwithstanding continued observations of ongoing hydrogen attack on
pressure vessel 12D701 over the ten year period between 1974 to 1984,
respondent failed to utilize recommended and available repair methods to
avoid the potential for cracking, or testing techniques to determine the
presence or absence of cracks in the vessel walls or welds. Furthermore,
respondent followed a course of conduct which certified to the State of
Illinois on a continuing basis that inspection of pressure vessels was
accomplished by inspectors qualified under the Illinois Act when such
was contrary to the fact. Respondent's repeated failure to test for
cracks and its misrepresentation of the quality of the inspections
performed is convincing evidence of plain indifference to employee
safety and the statutory duty to furnish a workplace free from the
recognized hazard of fire or explosion which could result from leak of
product from undetected cracks allowed to form in pressure vessels.

Complainant has met its burden of proof with respect to the willful
nature of the 5(a)(1) violation set forth in Issue A.

_Issue D_

If respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue A, what penalty would be appropriate?

Giving due consideration to the factors set forth at Section 17(j) of
the Act and by reason of the disregard shown by the respondent of the
known safety requirements of the Illinois Act, and of the various
American Petroleum Institute recommendations regarding welding repairs,
inspecting for cracks and inspections conducted by qualified inspectors,
it is here determined that the proposed penalty of $10,000 for this
willful violation is appropriate.

_Issue E_

Was the respondent in violation of 29 C.F.R. 1910.132(a) for failure to
provide and require the use of protective fire fighting equipment as
alleged in Citation No. 1, item 2?

To prove a violation of section 5(a)(2) of the Act, the complainant must
prove by a preponderance of the evidence an employer's noncompliance
with an applicable standard and employee exposure to the hazard created
by the violative condition. _Otis Elevator Co._, 6 BNA OSHC 2048, 1978
CCH OSHD ¶ 23,135 (No. 16057, 1978) The standard at 29 C.F.R.
1910.132(a) has been held to apply to the facts of a case if a
reasonable person familiar with the circumstances, including facts
unique to an industry, would recognize a hazardous condition requiring
the use of personal protective equipment. _Tube-Lok Products_, 9 BNA
OSHC 1369, 1981 CCH OSHD ¶ 25,235 (No. 16200, 1981); _General Electric
Co._, 7 BNA OSHC 2183, 1980 CCH OSHD ¶ 24,268 (No. 15037, 1980); _Lukins
Steel Company_, 10 BNA OSHC 1115, 1123 (No. 76-1053, 1981); _Puffers
Hardware, Inc_. _dba Beacon Hardware_, 11 BNA OSHC 1701 (83-267, 1983).

Evidence presented supports findings of both constructive and actual
knowledge of a hazardous condition warranting the use of fire protective
clothing by all members of the shift fire crews and operating personnel
required to contain fires and potential fires in the operations areas of
the refinery.

Complainant's expert, Mr. Lawrence Watrous, a licensed Fire Protection
Engineer, testified that because of the large amounts of fuel involved,
an oil refinery fire may develop from the incipient or small stage into
a major fire within a very short period. Thus operating personnel and
the Shift Fire Crew may necessarily be required to confront major
emergencies before the Day Fire Crew can be called in. (Tr. 2868, 2879;
Exhibit C-92) Mr. Watrous further testified that protective gear should
be provided to all personnel who may be thus faced with possible vapor
ignition. (Tr. 2871-72, 2893-95) Internal memoranda clearly demonstrate
that respondent's Fire Chief and other supervisory personnel recognized
that refinery fires were unpredictable and that the possibility of
encountering a hazardous situation always existed. (Exhibit C-86,
pp.18452, 18458-59; Tr. 2595-97)

At the time of the 1984 explosion and prior thereto, respondent had
written emergency procedures. (Exhibit C-9; Tr. 2630) Under its
policies: (1) All operating personnel at the refinery were expected to
extinguish or contain minor fires located in their work areas as part of
their regular duties. (Exhibit C-9, p.30012; Tr. 2516); (2) Fires and
potential fires beyond the capabilities of the operating personnel were
to be handled by the Day Fire Crew, volunteers trained to become
"proficient" in firefighting. (Exhibit C-9, pp. 29988, 30013; Tr. 2517,
2520); (3) Members of the Shift Fire Crew, refinery employees filling
designated refinery positions and trained to "adequately" perform
firefighting duties (Exhibit C-9, 29988; Tr. 2590), were to respond at
times when the Day Fire Crew was not present. (Exhibit C-9, pp. 29988,
29991; Tr. 2520); (4) The Shift Fire Crew was to call in the Day Fire
Crew from their homes should a fire develop beyond their capabilities.
(Exhibit C-9, p. 29991; Tr. 2524)

No protective clothing was provided for or required to be worn by
regular operating personnel. (Tr. 2519) All members of the fire crews
were required under standing orders to obtain fire protective turnout
gear consisting of boots, helmet, coat and gloves before reporting to a
fire or potential fire scene. (Exhibit C-9, pp.29989, 29991; Tr.
2525-26) However, Shift Fire Crew personnel testified that the crew
regularly responded to fire scenes without the required turnout gear.
(Tr. 2248-9, 2287, 2351, 2413, 2425-26, 2430) Respondent's records
disclose that this practice was known to respondent's Fire Chief, who
expressed concern over the likelihood of serious injury resulting
therefrom in January 1984. (Exhibit C-86, p.18458; Tr. 2794-99) On the
day of the explosion giving rise to this action, Shift Fire Crew members
who died in the ensuing events were seen to arrive at the scene of the
potential fire without turnout gear. (Tr. 368, 369, 452, 2000-01, 2197,
2201, 2216; Exhibit C-23)
_____________________________

At page 64 of its Post-Trial Memorandum respondent raises the following
defense:

Initially, this citation is legally unenforceable relating to personnel
who are assigned to the shift fire brigade, since 29 C.F.R. 1910.156,
relating to fire brigade, does _not_ require the use of personal
protective equipment for shift fire brigades who are required to respond
to "incipient" stage fires. Further, since the shift fire brigade was
only required to respond to incipient stage fires, there is no factual
basis for asserting a more general regulation (1910.132) than that which
is specifically applicable to the shift fire brigade.

Other than refuting respondent's indefensible claim that its fire
brigades were " . . .only required to respond to incipient stage fires,"
complainant makes no reply to this defense. Neither party cites any
cases or authorities in support of their respective positions. 29 C.F.R.
1910, Subpart L - Fire Protection, in pertinent part reads:

Subpart L - Fire Protection

§ 1910.155 Scope, application and definitions applicable to this subpart.

(a) _Scope_. This subpart contains requirements for fire brigades, and
all portable and fixed fire suppression equipment, fire detection
systems, and fire or employee alarm systems installed to meet the fire
protection requirements of 29 C.F.R. Part 1910.

(b) _Application_. This subpart applies to all employments except for
maritime, construction and agriculture.
*             *              *
§ 1910.156 Fire Brigades.

(a) _Scope and application_--(1) _Scope_. This section contains
requirements for the organization, training, and personal protective
equipment of fire brigades whenever they are established by an employer.

(2) _Application_. The requirements of this section apply to fire
brigades, industrial fire departments and private or contractual type
fire departments. Personal protective equipment, requirements apply only
to members of fire brigades performing interior structural fire
fighting. The requirements of this section do not apply to airport crash
rescue or forest fire fighting operations.
*             *              *
(e) _Protective clothing_. The following requirements apply to those
employees who perform interior structural fire fighting. The
requirements do not apply to employees who use fire extinguishers or
standpipe systems to control or extinguish fires only in the incipient
stage.
*             *              *
Under "protective clothing" the standard lists foot and leg protection,
body protection, hand protection, head, eye and face protection. Said
protective clothing is also referred to therein as "equipment." The
reference to "incipient stage" fires in § 1910.156(e) is viewed as
applying only to employees performing "interior structural fire
fighting" referred to also in that paragraph.

Nevertheless, the Secretary has, perhaps unwittingly, managed to give
notice in this Subpart L that in all employments except maritime,
construction and agriculture, personal protective equipment need not be
furnished to or worn by members of employer established fire brigades
unless said brigades are engaged in interior structural fire fighting
and then only if the fire is beyond the incipient stage.

Subpart L, dealing as it does specifically with fire protection and the
need for fire protective clothing for employer established fire brigades
in industries including the oil refining industry, we are constrained to
follow the Commission's reasoning in _Williams Enterprises of Georgia,
Inc._, 12 BNA OSHC 2097 (No. 79-4618, 1986), _reversed_ _Brock v.
Williams Enterprises of Georgia, Inc_. 832 F.2d 560 (11th Cir. 1987)

The general standard at 29 C.F.R. 1910.132(a) is held not to apply to
the members of respondent's fire brigades to whom respondent furnished
protective clothing. Nevertheless the standard does apply to
respondent's operation personnel who are required to handle the fire or
potential fire until allowed to evacuate by the Chief of the responding
fire crew. Respondent furnished no protective clothing to these
operations employees. Just as Scott Air Pack respirators hung on the
walls at the respective satellites, so also could have hung protective
clothing.

The complainant has met its burden of proving a violation of 29 C.F.R.
1910.132(a) with respect to operating personnel, but not with respect to
respondent's fire brigade members.

_Issue F_:

If respondent was in violation of the standard as alleged in Issue E,
was that violation willful, or failing that, serious?

In order to show a violation of a standard or regulation under 5(a)(2)
of the Act to have been willful the Secretary has the burden of proving
by a preponderance of the evidence the respondent's violative conduct to
have been voluntarily done with intentional or careless disregard for
the requirements of the Act or with plain indifference to employee
safety. See _Williams Enterprises v. Donovan_, 744 F.2d 170, 179-180
(D.C. Cir. 1984) 13 BNA OSHC 1249 (No. 85-355, 1987); _Asbestos Textile
Company, Inc._, 12 BNA OSHC 1062, 1063 (No. 79-3831, 1984); _D.A.&L.
Caruso, Inc._, 11 BNA OSHC 2138, 2142 (No. 79-5675, 1984); _Daniel
International Corporation v. Donovan_, 705 F.2d 382 (10th Cir. 1983), 11
BNA OSHC 1305 (No. 81-1714, 1983). Thus, no showing of malicious intent
or of obstinate refusal to comply with the requirements of the Act need
be shown to establish a willful violation. In _Tri-City Construction
Co._, 8 BNA OSHC 1567 (No. 77-3668, 1980) the Commission stated:

While we agree. . . "that a willful violation is established when. . .
the respondent. . . made a conscious and deliberate decision not to
comply" with a known requirement of the Act, we would also find a
willful violation when the respondent's conduct is properly
characterized as showing a _careless disregard of the requirements of
the Act or an indifference to employee safety_. (8 BNA OSHC at 1571)
(emphasis added).

A violation is said to be "serious" under the Act ". . . if there is a
substantial probability that death or serious physical harm could
result. . ." (Section 17 (k))

Applying the foregoing principles to respondent's failure to provide
fire protective clothing to its operations personnel who were first to
handle fires or potential fire emergencies on respondent's production
units and who were expected to remain at the scene until allowed to
evacuate by the chief of the responding fire crew, (Tr. 2745) we are
compelled to find that said violation on the part of the respondent was
at the least serious.

The hazard presented employees dealing with escaping flammable liquids
or gases is that in a very brief time the situation can change from a
very small fire or potential for fire to a major conflagration.

That respondent recognized this situation is apparent from its providing
its shift fire crews with fire protective clothing and training them in
the use of 2½ inch and 3 inch hoses and 2½ inch nozzles, notwithstanding
respondent's claim that its shift fire crews were expected to handle
only "incipient stage fires."

Respondent's training of operations personnel to handle incipient stage
fires and its failure to provide fire protective clothing to personnel
in the production units who might be faced with controlling escaping
flammable liquids or gases while it provided the fire crew members
expected to come to the scene with such protective clothing must be
viewed as conduct voluntarily done with careless disregard for the
requirements of the Act and with plain indifference to the safety of
operations personnel.

Complainant has proved respondent's violation of item 2 of Citation No.
1 to have been willful.

_Issue G:_

If respondent was in violation of the standard as alleged in Issue E,
what, if any, penalty would be appropriate?

Giving due consideration to the factors set forth at section 17(j) of
the Act and the fact that whereas complainant charged this violation to
have affected shift fire brigade members and unit operating personnel,
whereas it has been here found that the regulation violated was
applicable only to the unit operations personnel; it is here determined
that the sum of $4,000.00 is an appropriate penalty to be assessed
against respondent for the willful violation of item 2 of Citation No. 1.

_Issue H_:

Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) as alleged
in Citation No. 1, item 3A?

The complainant must prove by a preponderance of the evidence that
1910.156(c)(1) was applicable to the facts of this case, that respondent
failed to comply with_the standard by failing to provide adequate
training to fire brigade members and employee exposure to the hazard
created by the violative condition. _Otis Elevator Co., _supra_., Issue
E, p.44.

General knowledge and the evidence presented at the hearing compel an
awareness of the rapidity with which an incipient stage fire or even a
potential fire not yet ignited can become a major conflagration in an
oil refinery environment. (Tr. 2865-67) Flammable vapors emitted from a
leaking vessel, given a source of ignition, can ignite in an instant
enveloping personnel in the vicinity. Respondent's knowledge of the
flammable properties of its various products is beyond dispute.

Notwithstanding the foregoing, respondent claims to have required its
shift fire brigades to respond only to incipient stage fires and to have
trained them accordingly. (Tr. 4742; Respondent's Post-Trial Memorandum,
pp. 26, 64, 67, Respondent's Post-Trial Reply Memorandum p.35)

As of March 17, 1982, the Fire Protection Department at respondent's
Chicago Refinery considered its "fire suppression force" to be organized
and trained as follows:

A. PERSONNEL

1. All Refinery Employees

Each employee is expected to fight fires in his or her work area and to
be proficient in the use of the fire fighting equipment provided. This
includes portable hand held fire extinguishers, hose reels and monitors.
All employees will attempt to safely extinguish minor fires using the
above equipment or contain the fire until additional fire fighting
personnel and equipment have arrived.

2. Shift Fire Crew

The Shift Fire Crew shall provide initial control and suppression
measures during nights, weekends and holidays. The Shift Fire Crew shall
be composed of the Laboratory Personnel, Coke Handlers, Pumpers and
Shift-fitters. Training for these personnel shall be held on a
bi-monthly basis to ensure familiarity with the equipment available to them.

3. Day Fire Crew of The Fire Department

The Fire Department is composed of members who, on a voluntary basis,
have agreed to attend monthly training sessions to become proficient in
the handling of in-plant emergencies. Members of the Fire Department
will also, after a given period of membership (usually 2 years) and with
the individual's consent, attend a second monthly class to learn the
proper method of operation of all mobile firefighting equipment.

The Shift Fire Crew and Day Fire Crew and their training were further
defined:

_SHIFT FIRE CREW_

The purpose of the Shift Fire Crew is to provide fire protection when
the Day Fire Crew is not present. The Shift Fire Crew is headed by the
Petrochemical Department Shift Supervisor unless the incident involves
the Petrochemical Operating Area. In this case, the Blending and
Transfer Shift Supervisor shall assume the responsibilities as head of
the Shift Fire Crew. Whenever possible, both the Petrochemical and
Blending and Transfer Shift Supervisor shall respond, with the Blending
and Transfer Shift Supervisor assisting the Petrochemical Shift
Supervisor when both are present. The acting coordinator of the Shift
Fire Crew shall hereafter be referred to as the Shift Fire Chief.

The Shift Fire Crew is comprised of the following job classifications:

1. Pumpers

2. Laboratory Personnel

3. Coke Handlers

4. Shift Pipefitters

Training sessions for Shift Fire Crew personnel are held on a bi-monthly
basis. Classes consist of practical and classroom instruction to enable
members to adequately perform fire fighting duties.

_DAY (VOLUNTEER) FIRE CREW_

The Day Fire Crew provides fire protection during weekdays, between 7:30
A.M. and 4:00 P.M. and assists the Shift Fire Crew upon request.
Membership consists of both salaried and hourly personnel who normally
work straight days and who have volunteered for membership.

Training sessions for the Day Fire Crew are held on a monthly basis.
Additional half-day classes will be held monthly for members classified
as apparatus engineers. Apparatus engineers will be certified after
passing a comprehensive written and practical examination.

(Exhibit C-9, pp. 23988, 30012, 30013 see also pp. 30017, 30018)

It will thus be seen that the Shift Fire Crew, who were assigned as
firefighters along with their Shift Fire Crew Chiefs as part of their
refinery job description, received less and inferior training than the
Day Fire Crew, who volunteered to serve and agreed to attend monthly
training session. (Tr. 2748-49)

That respondent actually expected its Shift Fire Crews to respond to and
handle fires greater than incipient stage is manifest by respondent's
furnishing fire protective clothing to be worn by the members of said
crews. (Tr. 4825)

Respondent had a written rule in its emergency procedures plan that
protective clothing would be put on by members of the fire crews before
reporting to the scene of a fire or potential fire. (Exhibit C-9, pp.
29989, 29991, 30014; Tr. 2525-26) Respondent's Fire Chief expressed his
concern when the rule requiring the wearing of turnout gear was not
obeyed by fire crew members. (Exhibit C-86, p.18458; Tr. 2794-99)

That respondent knew its Shift Fire Crews would in all likelihood be
facing major fires rather than "incipient stage fires" is further
apparent from a review of respondent's Shift Fire Crew training records
which reveal that at eleven training sessions in 1983 alone, training
involved use of 3 inch hose, 2½ inch hose and 2½ inch nozzles. (Exhibit
C-89, 17708, 17718, 17721, 17722, 17728, 17729, 17730, 17731, 17732,
17735 and 17737)

Respondent argues:

". . . it should be noted that all employees in the refinery who worked
out in the operating units (regardless of job classification) were to
receive annual fire- fighting training, consisting of hands-on training
at the respondent's fire field at the refinery, as well as classroom
instruction in the use of handheld fire extinguishers, one and one-half
inch hoselines and fixed monitors."

(Tr. 4850-4853) (Respondent's Post-Trial Memorandum p.70)

Section 1910.155(26) defines incipient stage fires:

(26) "Incipient stage fire" means a fire which is in the initial or
beginning stage and which can be controlled or extinguished by portable
fire extinguishers, Class II standpipe or small hose systems without the
need for protective clothing of breathing apparatus.

Thus the general production employee population at respondent's Chicago
refinery, was trained to respond to "incipient stage fires."

Apart from that minimal training afforded all employees, respondent
established two classifications of Fire Brigade. The Day Fire Crew
sometimes referred to as The Fire Department was made up of volunteers
who were trained to be ". . .proficient in the handling of in-plant
emergencies." The members agreed to and were expected to attend, at
minimum, monthly training sessions. Some were expected to attend two
monthly sessions ". . .to learn the proper method of operation of all
mobile firefighting equipment." The members of this Day Fire Crew were
issued their own personal protective clothing which was kept on the Fire
Department Mobile Command Center truck. Fire Department Officers were to
be appointed by the Chief based on experience and ability. The Day Fire
Crew members were divided into squads directed by lieutenants.
Respondent's Fire Chief and Deputy Fire Chief worked the day shift.
(Exhibit C-9)

Finally, the second Fire Brigade classification established by the
respondent was the Shift Fire Crew. Although turnout gear of various
sizes was placed in the back of the pickup truck assigned to the Shift
Fire Crew Chief and members of the Shift Fire Crew were instructed to
put on turnout gear before reporting to the scene of a fire or potential
fire, these members were not assigned or furnished protective clothing
for their individual use. (Tr. 2824) Certain job descriptions, to-wit:
Pumpers, Laboratory personnel, Coke Handlers and Shift Pipefitters
carried with them the incidental requirement that the person awarded the
job would be automatically a member of the Shift Fire Crew and required
to respond to the scene of fire or potential fire when the alarm
sounded. (Tr. 2822) By job description the Petrochemical Department
Shift Supervisor became automatically the Shift Fire Crew Chief unless
the emergency was in his operating area in which event the Blending and
Transfer Shift Supervisor, who was otherwise to act as Assistant Chief,
was to assume the responsibility of head of the Shift Fire Crew. The
Shift Fire Crew was ". . .to provide fire protection when the Day Fire
Crew is not present." Training was to be bimonthly consisting of
practical and classroom instruction to enable members to "adequately"
perform fire fighting duties. (Exhibit C-9, p. 29988) Elsewhere training
for Shift Fire Crew is described " . . .to ensure familiarity with the
equipment available to them." (Exhibit C-9, p. 33012)

The refinery operated 24 hours a day, 7 days each week. A serious fire
emergency could occur during any shift at any time of the day. There was
no reason to assume that the hazard of fire or potential fire would be
greater at any given point in time be it day or night. (Tr. 2525, 2820)

Realistically, the respondent trained its Day Fire Crew to meet fire
emergencies which could arise in its Chicago refinery plant.
Unrealistically, respondent trained its Shift Fire Crew to respond only
to incipient stage fires (Tr. 4742) and then changed it with the
responsibility to ". . . provide fire protection when the Day Fire Crew
is not present." The hazards they were to face were identical. If the
Shift Fire Crew could not handle the problem, it was required to summon
the off-duty Day Fire Crew and then, in effect, hold the fort until help
arrived. That help was intended to be not merely more manpower, but
better trained personnel. (Tr. 2524)

Such a plan and strategy on the part of the respondent merely put
untrained personnel in harm's way.

Respondent failed to train and educate members of its Shift Fire Crews
commensurate with those duties and functions they were expected to perform.
Complainant met its burden of proof with respect to Issue H.

_Issue I_:

Was the respondent in violation of C.F.R. 1910.156(c)(1) as alleged in
Citation No. 1, item 3B?

The standard requires that fire brigade leaders be provided with
training and education which is more comprehensive than that provided
the general membership of the fire brigade.

Complainant alleges that in reference to the Shift Fire Crew Chiefs,
this was not done.

Respondent made an attempt to provide additional training to its Shift
Fire Crew Chiefs over and above what they would receive in attending the
bimonthly Shift Fire Crew classes.

As of 1979, all Shift Fire Crew Chiefs had attended an out-of-refinery
training class at either the Industrial Fire Training School at Texas A
and M or the Western Oil and Gas Association facility in Reno, Nevada.
There were ten Shift Fire Crew Chiefs and as of 1979 respondent had a
program to send two of these chiefs to the above mentioned outside fire
training schools each year. Thus each Fire Crew Chief was anticipated to
attend an outside training school each five years. (Tr. 4896, 4897)

One Shift Fire Crew Chief attended the Union Oil sponsored Fire Training
School at Reno the year of its inception in 1981. (Tr. 4898) In 1982 the
respondent effected a reorganization which interfered with the Fire
Department's training plans and five Shift Fire Crew Chiefs were sent to
the Reno Fire Training School that year. (Tr. 4899) Shift Crew Chiefs
from the Chicago refinery attended the Reno Fire Training School in
1983. (Tr. 4899) By the fall of 1983 every new Shift Fire Chief was to
have attended a week long out of state fire training school. (Exhibit
C-86, p. 018449) Early in 1984 the Fire Department of the respondent
commenced Shift Fire Chief classes on Monday afternoons. Each class was
repeated on four consecutive Mondays in order to allow these shift
workers each the opportunity of attending the given class. (Tr.
4894-4896) In these classes incidents which had occurred in the refinery
would be discussed and how they may have been handled differently. (Tr.
4894)

In view of the foregoing it can hardly be said that respondent's Fire
Brigade leaders were not provided training and education more
comprehensive than that provided the general Shift Fire Crew membership.

The testimony of Mr. Watrous, respondent's witness, was convincing and
established the need for more concern on the part of the respondent for
more adequate fire training. (Tr. 2892-2897) Nevertheless the facts are
that the respondent provided training to its Shift Fire Crew Chiefs
which was more comprehensive than that given the crew members. The
result may have been that the poorly trained were being led by the less
poorly trained, but complainant failed to meet its burden of proving a
violation of Issue I.

_Issue J_:

Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) as alleged
in Citation No. 1, item 3C?

The standard requires that fire brigade members be provided training
frequently enough to assure that each member is able to perform assigned
duties and functions satisfactorily and in a safe manner so as not to
endanger fire brigade members or other employees.

After becoming Fire Safety Supervisor for the respondent in 1975, Dale
T. Pirc, by letter dated May 29, 1979, called attention of his corporate
superiors to difficulties in getting Shift Fire Crew personnel to attend
fire training sessions. He pointed out that the problem had existed for
many years, and stated: ". . . The lack of attendance at trainings and
response to off-shift emergencies cannot be ignored any longer. The
potential of the loss of life and property without an efficient
off-shift fire and rescue squad is too great." (Exhibit C-86, p. 018431;
Tr. 4739)

Again, by letter dated August 7, 1979, Chief Pirc complained to his
corporate superiors, ". . . In the past we have managed to slip by with
the few capable people we have on shift and merely turning our heads the
other way with those who choose not to participate. Needless to say,
some day our luck will run out and we will suffer the consequences. . ."
(Exhibit C-86, p. 018433)

In May of 1981, Chief Pirc reported that Shift Fire Crew attendance at
training classes was up to an "acceptable" 70%. He reported that
attending personnel had for the first time been subjected to "live fire"
at the fire training field. He noted that whereas the Shift Fire Crew
Chief's had a 60% attendance, it should be 100% since they have ". .
.overall responsibility of shift fire emergencies." (Exhibit C-86, p.
018438)

Incidentally, in the above report of May 14, 1981, Chief Pirc noted that
all personnel at the training field ". . .used full protective
clothing," and that in the upcoming Shift Fire Crew classes for July
there would be a review of ". . . _2½ handline_ operations." (emphasis
added)

By letter to his corporate superiors dated December 23, 1981, Chief Pirc
expressed disappointment in the attendance of Shift Fire Crew personnel
at training sessions throughout 1981. The Shift Fire Crew Chiefs had
only a 66% attendance. Chief Pirc there noted: ". . . We have determined
that if each classification in the Shift Fire Crew achieves an 80%
attendance in each of the six annual classes, they should be able to
maintain the basic skills required for that job. . . . We believe that
attendance below this minimum greatly increases the risk of property
damage and personal injury to the members themselves." (Exhibit C-86,
p.018440)

By letter to his corporate superior dated March 25, 1983, Chief Pirc
noted that the Shift Fire Chiefs from the "North Plant" had a 0%
attendance at the March 1983 training classes. Chief Pirc noted: "The
problem is now to the point that not only I seriously question the Shift
Fire Chief's ability, but many members of the Shift Crew. . . have also
begun to ask the same question. . . . Such a lack of confidence would
prove disastrous to any progress we have made with the Shift Fire Crew
over the past few years." (Exhibit C-86, p. 018444)

Continuing neglect of training by the Shift Fire Crew Chiefs is noted by
Chief Pirc in a letter to his corporate superior, dated June 22, 1983.
(Exhibit C-86, p. 018448)

Chief Pirc's concerns were forwarded up the corporate ladder in a letter
dated June 28, 1983, wherein it was noted: ". . . Since the Operating
Department reorganization in September (1982), attendance of the Shift
Fire Chiefs as a group has averaged 33%. The last time a Shift
Supervisor from the Petrochemical Department attended a shift fire
training class was January 1983." The writer also notes: "Thus far, our
request for recommendations from the Operating Division have not
provided any significant solutions. We are putting a select group of
individuals into nonroutine, unpredictable and hazardous situations for
which training plays a major part in both effectiveness and safety of
the entire Shift Fire Crew." (Exhibit C-86, p. 018452)

By January 18, 1984, Chief Pirc noted in a letter to his superior the
attendance of Shift Fire Chiefs at training sessions had risen to less
than 50%. Shift Crew member attendance had improved and was observed to
be "marginally acceptable." (Exhibit C-86, p. 018457)

Perhaps the biggest flaw in respondent's Shift Fire Crew concept was
that although membership was mandated by job description including the
positions of Chief, participation in training or even appearance at a
sounded emergency alarm was not enforced. Chief Pirc, who had no input
in the selection of shift crew members or chiefs, (Tr. 2588) on at least
two occasions suggested that Shift Fire Crew members should be replaced
in their job classifications if they failed to have satisfactory
attendance at training sessions or failed a written competence test. He
didn't venture so bold as to suggest the same requirement of Chiefs who
held supervisory positions in operations. (Tr. 4938-40, 2442-44,
2451-53, 2590; Exhibit C-86, pp. 018454, 018456) There is no evidence in
the record that management took Chief Pirc's suggestions seriously.

That respondent gave production priority over safety fire training is
demonstrated in the closure of the Fire Training Field in 1983.
Respondent without first providing an alternative fire training site
preempted the space and constructed a new production facility thereon.
From May of 1983 until around the first of July 1984 the respondent's
Fire Department was without a live training field where it could provide
hands-on training in putting out actual fires to its fire fighting
personnel. Chief Pirc considered live firefighting drills to be a
necessary part of the training. (Tr. 2630-32)

Respondent's failure to respond effectively to the importuning of its
Fire Department Chief that more frequent attendance at fire training
sessions be required of Shift Fire Crew members and Chiefs and
respondent's disabling of the live fire training field without providing
an alternative for a period exceeding one year constituted a failure to
provide fire training to its Shift Fire Crew ". . .frequently enough to
assure that each member of the fire brigade was able to perform his or
her assigned duties and functions satisfactorily and in a safe manner so
as not to endanger fire brigade members or other employees."

Complainant has met its burden of proof with respect to Issue J.

_Issue K_:

Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) as alleged
in Citation No. 1, item 3D?

The standard requires in addition to sufficient frequency of training
that "all fire brigade members shall be provided with training at least
annually."

As of July 23, 1984, the respondent had 10 Shift Fire Crew Chiefs or
Assistant Chiefs and 65 Shift Fire Crew members. (Exhibit C-85)

Review of the training history of the 8 Shift Fire Crew members and
Shift Fire Crew Chief and Assistant Shift Fire Crew Chief who died in
the fire of July 23, 1984, discloses that one crew member had no fire
training within the year preceding the fire. (Exhibit C-10)

Complainant has thus proved that not "all" fire brigade members were
provided training "at least annually." To confront such an untrained
employee with a fire or potential fire in an oil refinery environment
where fire can escalate rapidly is to expose that employee to a
substantial probability that death or serious physical harm could result.

_Issue L_:

Was the respondent in violation of 29 C.F.R. 1910.156(c)(3) as alleged
In Citation No. 1, item 3E?

The standard requires that the training and education program for oil
refinery fire brigade members be similar to those conducted by Texas A
and M University, Lamar University, Reno Fire School or the Delaware
State Fire School.

Each of the recommended fire schools, as an essential part of its fire
training program, had a live fire field where the trainees wearing
turnout gear would get hands-on experience extinguishing fires involving
flammable liquids and flammable gases. Approximately one-half of the
time of the trainees at these schools was devoted to this practical,
hands-on training. (Tr. 4749-4757)

Respondent's Fire Chief Pirc considered live fire fighting drills to be
a necessary part of fire brigade training. Yet the respondent preempted
the live fire field to construct a production facility and left its Fire
Department without the means of offering to its Fire Crew members live,
hands-on experience in extinguishing fires for more than a year, i.e.,
between May 1983, and July 1984. (Tr. 2630-32)

Respondent thus expressed a lack of concern for safety and fire training
and rendered its fire brigade training program dissimilar to those
recommended in the standard in a major and essential respect.

_Issue M_:

Was the respondent in violation of 29 C.F.R. 1910.156(c)(4) as alleged
in Citation No. 1, item 3F?

In addition to informing fire brigade members about special hazards such
as storage and use of flammable liquids and gases, the standard requires
the employer to develop and make available for inspection by fire
brigade members written procedures that describe the actions to be taken
in situations involving the special hazards and to include these in the
training and education program.

Although the properties of the flammable liquids and gases members of
respondent's fire brigades would be coping with were undoubtedly
discussed at training sessions, respondent's Fire Chief testified that
respondent had no written preplan manual that described actions to be
taken by a fire brigade when fighting a fire at the refinery's
processing units. (Tr. 2738)

Complainant met its burden of proof with respect to Issue M.

_Issue N_:

If the respondent was in violation of any or all of Issues H thru M
(Citation No. 1, items 3A thru 3F), was such violation willful or
failing that serious, in whole or in part?

For the elements which must be proved to make a violation of section
5(a)(2) of the Act to be either "Willful" or "Serious" and cases so
holding see the discussion under Issue F, _supra_ at pp. 49-51.

Applying said principles to the facts of items 3A thru 3F of Citation
No. 1, which items were grouped for the purpose of fixing a single
penalty based on a charge of willfulness, we determine the following:

_Item 3A_: Respondent's position that it made the determination to
require its Shift Fire Crews to respond to "incipient stage fires" and
to train them accordingly does it no credit. The facts are at variance
with respondent's position held at the hearing and through its briefing.
Indeed, respondent's position seems to have been adopted, at least in
part, in order to justify a claim that it was not required to furnish or
require the wearing of protective clothing. In fact, respondent did
furnish both Day and Shift Fire Crews protective clothing. Respondent
did instruct the members of the Shift Fire Crews to wear protective
clothing. Unfortunately, it tolerated failure of the crew members to
heed its instructions. In fact, respondent did train its Shift Fire
Crews in the use of 2½and 3 inch hoses and 2½inch nozzles. Thus
respondent acknowledged that its Shift Fire Crew members may be
confronted with emergencies involving major fires, but it did not
provide training commensurate with such likelihood.

Nevertheless, respondent required of its Shift Fire Crew that it remain
at the scene and attempt to control a fire emergency beyond its training
ability until better trained help should arrive. Such a policy manifests
a plain indifference to the safety of the members of the Shift Fire
Crew. This violation was willful under the Act.

_Item 3B_: Since the training of respondent's Shift Fire Crew leaders
was here found to have been more comprehensive than that given the
members of the Shift Fire Crew, no violation was found with regard to
item 3B.

_Item 3C_: Respondent failed to adequately respond to the continued
urging of its Fire Chief and to develop a method of enforcing attendance
of Shift Fire Crew members and Chiefs at training sessions prepared and
offered by its Fire Department. Although respondent justifiably
expresses pride in the expertise and qualifications of its Fire Chief
(Respondent's Post-Trial Reply Memorandum, pp.41, 42), it nonetheless
undermined his training efforts by denying him or the fire fighting
personnel a live Fire Field for hands-on fire extinguishing for over one
year from May 1983, to early in July 1984.

Such failure to respond to the persistent urging of its Fire Chief and
deliberate removal of his essential training facility amounts to an
intentional disregard for the requirements of the Act and manifests a
plain indifference to employee safety, this violative conduct was
willful within the meaning of that term under the Act.

_Item 3D_: Although at least one of respondent's Shift Fire Crew members
did not receive at least annual training, it was clear from the evidence
presented at the hearing that respondent made a concerted effort to give
all of its production employees annual training and in addition to give
bi-monthly training to its Shift Fire Crew members. Though it failed to
accomplish the frequency of training its Fire Chief held to be
essential, it nonetheless would appear that failure of all Shift Fire
Crew members to receive at least annual training was more the exception
than the rule.

Respondent's conduct in this regard cannot be held to be willful. That
the violation was serious, however, is established by the fact that the
one Shift Fire Crew member who had received no training for more than
one year, upon which this finding of violation is based, perished in the
fire of July 23, 1984.

_Item 3E_: Respondent's violative conduct which made out a violation of
item 3E was the removal of the live fire field as a fire fighting
training facility for a period exceeding one year. Respondent thus
accommodated its production department at the expense of employee
safety. Such conduct cannot be viewed other than manifesting careless
disregard for the requirements of the Act and plain indifference to
employee safety. The violation of item 3E was willful as that term is
used in the Act.

_Item 3F_: Although respondent failed to develop written procedures and
make them available for the inspection of fire brigade members
describing the actions to be taken in situations involving the special
hazards of flammable liquids and gases or to include same in its fire
brigade training and education program, that fact only establishes a
violation of the standard at 29 C.F.R. 1910.156(c)(4).

Facts necessary to show that failure to have been willful are lacking.

Respondent's omission of this mandated requirement of the Act when taken
in conjunction with respondent's other failures found in meeting the
requirements of the various subsections of 29 C.F.R. 1910.156 compels a
finding that this violation was serious.

Respondent is thus held to be in willful violation of items 3A, 3C and
3E. Violations of items 3D and 3F are held to be serious. Item 3B should
be vacated.

_Issue O_:

What, if any, penalty or penalties would be appropriate for the willful
violations of items 3A, 3C and 3E and the serious violations of items 3D
and 3F.

Giving due consideration to the factors affecting the appropriateness of
penalties to be assessed as set forth at section 17(j) of the Act, it is
here determined that the combined sum of $6,000.00 is an appropriate
penalty to be assessed for the willful violation of items 3A, 3C and 3E
and the combined sum of $1,000.00 is an appropriate penalty to be
assessed for the serious violations of items 3D and 3F.

_Issue P_:

Was the respondent in violation of section 5(a)(1) of the Act as alleged
in serious Citation No. 2, item 1?

For the elements which must be proved to make out a violation of section
5(a)(1) of the Act and cases so holding, see the discussion under Issue
A, _supra_ at pp. 23-24.

The citation charges respondent with ". . . the lack of effective
emergency evacuation procedures and education and training of personnel
in said procedures." In the citation the Secretary proposes the
establishment and implementation of a refinery "emergency action plan"
which would include some twelve itemized elements as a minimum, all
having to do with evacuation of employees.

That the failure to institute emergency evacuation procedures
constitutes a hazard which was present in respondent's refinery and
recognized by respondent and the petroleum refining industry is clear
from the evidence presented at hearing. It is axiomatic that the
processing of petroleum products involves inherent potential dangers.
Harry McAninch, an engineering consultant for the Secretary, testified
that the failure of pressure vessels to contain hydrocarbons can result
in fires and explosions as the escaping contents mix with oxygen in the
air. (Tr. 1972-75) David White, a consultant in petrochemical refining
fire protection testifying for respondent, recognized that a refinery
vessel leak may result in the release of rapidly expanding petroleum
gases forming an invisible, flammable vapor. (Tr. 5186-90) Mr. White,
respondent's Fire Chief, and the Secretary's expert, Lawrence Watrous,
all agreed that the possibility of ignition of such vapors poses a
hazard to personnel who may be exposed to the gases. (Tr. 2911, 5026-27,
5189) Mr. Watrous testified that a preplanned evacuation procedure for
getting personnel safely out of an endangered area is a necessity to
avoid jeopardizing the lives and safety of personnel at the emergency
site and to later rescue personnel. (Tr. 2909-2912) Mr. Pirc agreed that
evacuation of personnel downwind of an unignited leak was a necessity.
(Tr. 5027) Both he and Mr. White testified that any sound emergency
response program should contain preplanned provisions for evacuation of
personnel. (Tr. 2724-25, 2734-40, 2743-44)

It is clear that the failure to preplan evacuation procedures may result
in death or serious bodily harm and that evacuation measures would
materially reduce the risk of serious bodily harm. Refinery fires
involving large quantities of flammable liquids and gases subject
employees to the dangers of asphyxiation, serious burns or death due to
the presence of those employees in areas of high gas concentrations.
(Tr. 2911-12) A procedure by which refinery employees may execute an
orderly evacuation from fire and explosion sites without confusion and
resulting loss of time clearly would increase such employees' chances of
escaping bodily harm. (Tr. 2915-2916)

Respondent argues that it is impossible to plan in advance for each and
every possible emergency which may arise in a petroleum refinery.
However, under the language of the Act, a safety measure need not
completely eliminate a recognized hazard; if such measure will
materially reduce the hazard, it may be required under 5(a)(1). See
_Litton Systems, Inc._, _Ingalls Shipbuilding Division_, 10 BNA OSHC
1179, 1182 (No. 79-900, 1981). The diversity of possible emergencies
does not prevent a refinery from developing the rudiments of an
evacuation plan, including designation of personnel to determine the
need to begin evacuation, setting of a preassigned signal to report to
such personnel and a system for accounting for all personnel.

That evacuation preplanning is feasible is demonstrated by the
testimony. Mr. Watrous testified to the institution of evacuation plans
by numerous other refineries. (Tr. 2907-09, 2855-57, 2914) Mr. White
testified that as part of his consulting business, he assisted Saudi
Arabian refineries develop their own evacuation programs. (Tr. 5158-59)
The Secretary also introduced published guidelines outlining possible
evacuation procedures. See, Fire Protection Manual For Hydrocarbon
Processing Plants, 2d ed., 1973, Exhibit C-95, p. 455. Moreover,
respondent admits the feasibility of an evacuation plan in its Surreply
Memorandum stating that it developed such a plan in 1986 to comply with
new state law. (Respondent's Surreply Memorandum at p.11)

Respondent defends, stating that even if the Secretary has established a
duty to implement an evacuation plan, he has failed to prove that
respondent's emergency procedures were inadequate to meet the
requirements of the Act.

Prior to and at the time of the July 1984 fire, respondent's methods for
dealing with fire and explosion emergencies were contained in its
Emergency Procedures (Exhibit C-9), containing respondent's 222 Alarm
System. Any employee sighting fire or potential fire was to dial 222 on
the refinery phone system. (Tr. 4869-70) A plant guard would receive the
employee's information and sound the appropriate alarm, followed by an
announcement on the public address system and the fire frequencies
giving the location and the nature of the emergency. (Tr. 4871, 4874-75)
On the sounding of the alarm, vehicle traffic and work which might
provide an ignition source was to cease (Tr. 4871-72), and nonessential
personnel, i.e., maintenance workers or independent contractors, were to
leave the battery limits of the endangered unit. (Tr. 4874) Operating
personnel were to remain and attempt to control the operations and
contain the emergency on the unit. (Tr. 4875-77) Shift operating
personnel were to remain and be under the supervision of the responding
Shift Fire Chief, who had the ultimate responsibility for determining
the necessity and manner of removing personnel from the area on an ad
hoc basis. (Tr. 2745- 47) Respondent asserts that over and above the
foregoing. "All of respondent's outside operators . . . are instructed .
. . that in any circumstance when such individual feels that he is in a
life threatening situation, that he is immediately to leave such area."
Such reliance on the instinct for self preservation is no substitute for
an emergency evacuation preplan.

Refinery personnel were trained in the function of the 222 system at
their initial orientation; the various alarm codes were tested weekly
but only during the day shift. (Tr. 4876) Several of respondent's
employees and Shift Fire Crew members testified that they were unaware
of the existence of any evacuation plan and had received no training in
that regard. (Tr. 348, 527, 2202-03, 2251-52, 2300-01, 2350, 2414-15,
2431-32) Two of the victims caught in the explosion were listed as
contract guards, non-essential personnel who under the respondent's
stated policy should have left the endangered area. (Exhibit C-23)

On the day of the explosion, there was no attempt to institute
evacuation procedures. (Tr. 120) Operating personnel on an adjacent unit
did not know whether to remain on the unit or head for the nearest exit.
(Tr. 2296-2301) Seven employees in the FCC unit control room remained at
their posts following the initial explosion while a number of
supervisory personnel entered and left; finally a day process supervisor
and a shift supervisor conferred and ordered the room cleared
approximately 45 minutes later. (Tr. 519-27)

Mr. Watrous testified that an effective evacuation plan contains
education of supervisory personnel as to when evacuation procedures
should be implemented, provisions for notifying personnel of the
necessity of evacuation, route planning for evacuation and a method of
"counting heads" to determine whether all personnel are accounted for.
(Tr. 2907-08) Respondent's Fire Chief admitted that respondent's
Emergency Procedures (Exhibit C-9) contained none of these basic
requirements. (Tr. 5032-33)

Whatever elements respondent's emergency response program did contain,
it was silent respecting evacuation other than requiring maintenance
personnel and independent contractors to leave the battery limits of the
endangered unit. Respondent's delegation of evacuation duties to the
Shift Fire Chief, who must of necessity be otherwise occupied in his
fire fighting activities at a time when the need for evacuation arises,
seems manifestly unreasonable. Such a "plan" is no plan at all and does
nothing to advance the purposes of preplanning, i.e. avoiding confusion
and delay. Moreover, it is clear that even those so called "procedures"
contained in respondent's emergency plan were inadequately communicated
to personnel, many of whom had no understanding regarding the
possibility of evacuation, how it would be carried out, or from whom
instructions would come.

Complainant met its burden of proof with respect to item 1 of Serious
Citation No. 2.

_Issue Q_:

Would an evacuation plan as proposed by complainant create a greater
hazard to respondent's employees and thus become other than feasible?

In addition to generally denying the alleged violation, set forth in
item 1 of Serious Citation No. 2, respondent raises the affirmative
defense of Greater Hazard by way of specific exception to the second
element of the Secretary's proposed emergency evacuation plan which reads:

"A feasible emergency action plan which includes . . .
*             *              *
(b) Procedures to be followed by employees who remain to operate
critical plant operations before they evacuate.

Respondent claims that an evacuation plan mandating the evacuation of
all personnel from a fire or potential fire site would leave the site
unattended, allowing the emergency situation to develop uncontrolled,
thus increasing the hazard for all refinery personnel.

Respondent's Fire Chief, Dale Pirc, testified that during a fire or
potential fire emergency, operating personnel are to remain on their
unit to isolate or block in the unit in order to contain the emergency.
(Tr. 4877) Mr. McAninch, testifying for the Secretary, agreed that in
the event of a leakage of hydrocarbons, operating personnel must be
present to segregate and depressurize a leaking vessel and disperse
escaping vapors. (Tr. 1989-91) However, as Mr. McAninch further
testified, where a situation progresses beyond the operators' control,
those operators must leave for their own safety. (Tr. 1978, 1991)

Respondent assumes that the Secretary's abatement plan calls for
essential operating personnel to abandon their posts during critical
periods as an emergency develops. The Secretary's plan calls for no such
measure. All that, is required under item (b) of the suggested plan is
the development of "[p]rocedures to be followed by employees who remain
to operate critical plant operations before they evacuate."

Respondent's Contention that because of this element an evacuation
preplan would result in an increased hazard is without merit. See _Brown
& Root, Inc._, 8 BNA OSHC 2140, 2144 (No. 76-1296, 1980); _Cerro Metal
Products Division, Marmon Group, Inc._, 12 BNA OSHC 1821 (No. 78-5159,
1986).

_Issue R_:

If the respondent was in violation of section 5(a)(1) of the Act as set
forth in Issue P above, what penalty would be appropriate?

Again, giving due consideration to the statutory requirements set forth
at section 17(j) of the Act, the penalty proposed by the Secretary in
the sum of $1,000.00 for this violation of section 5(a)(1) of the Act is
found to be appropriate.
____________________________

Now, having observed the demeanor of the witnesses and having weighed
the credibility thereof, there are here entered the following:

_Findings of Fact_

1. Respondent is, and at all times pertinent hereto was, a corporation,
with an office and place of business at 135th Street and New Avenue,
Lemont, Illinois, where, at all times herein mentioned, it was engaged
in the business of refining raw petroleum into fuels and lubricants.

2. Respondent at all times pertinent hereto was engaged in a business
affecting interstate commerce in that respondent was engaged in
producing goods a substantial portion of which were being produced for
interstate commerce and were being shipped or delivered or sold to
persons or firms in states other than the state wherein so produced and
in that respondent was engaged in handling goods which had been moved in
interstate commerce.

3. Respondent at times pertinent hereto employed approximately 680 to
700 employees at the above described workplace, known as the Chicago
Refinery, and was an employer within the meaning of the Act.

4. Facts set forth under The Catastrophic Event portion of this decision
and elsewhere herein are here incorporated by reference as though
specifically again set forth at this point.

5. Vessel 12D7016 was fabricated from A516-Grade 70 carbon steel and in
accordance with Section VIII of the ASME Boiler and Pressure Vessel
Code. (Tr. 718)

6. The respondent's inspection department conducted periodic inspections
of pressure vessels in the refinery, including vessel 12D701, during
regularly scheduled refinery shutdown periods,known as turnarounds as
well as on-stream inspections. (Tr. 3530)

7. Pressure vessel 12D701 was inspected internally at the time of
initial installation and during turnarounds in 1972, 1974, 1976, 1978,
1980, 1982 and 1984. (Tr. 667, 1897, 3578; Exhibits C-27 thru C-33)

8. During each turnaround inspection of vessel 12D701 straight beam
ultrasound thickness tests were performed on the vessel. (Tr. 3615,
3616; Exhibit C-16)

9. Scheduled refinery shutdown for inspections is a practice recognized
throughout the petroleum and oil refinery industry. (Tr. 4524, 4692)

10. Respondent maintained records of the various inspections which were
conducted of each of its pressure vessels, including pressure vessel
12D701. (Tr. 599, 614; Exhibits C-27 thru C-33)

11. Respondent conducted training of the members of its inspection
department in the conducting of inspection of its pressure vessels. (Tr.
3450, 3466, 3472-73, 3529, 3583-85; Exhibit C-71)

12. During turnaround inspections, respondent on occasion employed
inspectors from outside companies to supplement respondent's inspection
department. (Tr. 3475-3477)

13. Prior to the April 1984 turnaround inspection respondent engaged B.
Ostrofsky Associates, Inc. to provide inspectors to supplement
respondent's inspection personnel in conducting pressure vessel
inspections including vessel 12D701. (Tr. 3475-3477, 3638)

14. Mr. P. J. Krol, an inspector supplied respondent by B. Ostrofsky
Associates, Inc., conducted an internal inspection of vessel 12D701 with
and under the supervision of Mr. J. Gallagher, a member of respondent's
inspection department during the 1984 turnaround inspection. (Tr. 1801,
1897, 3862-3872)

15. The results of the inspection of vessel 12D701 during the 1984
turnaround were recorded in the file maintained by the respondent for
said vessel. (Tr. 1881; Exhibit C-34)

16. Failure to adequately inspect for the presence of cracking or cracks
in or about, field welds performed at respondent's refinery, or in the
walls of pressure vessels exposed to hydrogen environment, increased the
likelihood of fire or explosion to which respondent's employees would be
exposed.

17. The increased likelihood of fire or explosion at respondent's
Chicago Refinery from undetected cracks in pressure vessels was
recognized by the respondent and by the oil refinery industry.

18. Fire and/or explosion, if they occur, are likely to cause death or
serious physical harm to employees exposed thereto.

19. Cracks which may escape visual inspection can be detected by
Magnetic Particle Testing, Liquid Dye Penetrant Testing, or Angle Beam
Ultrasonic Testing, all. of which methods were recommended and accepted
by the industry of which respondent was a part and known to the
respondent, and respondent had the means of performing said tests.

20. Other than visual inspection respondent did nothing to detect cracks
in vessel 12D701 and respondent was in violation of item 1 of Citation
No. 1. (Issue A)

21. Respondent's violation of Citation No. 1, item 1 was willful as that
term is used in the Act. (Issue C)

22. The sum of $10,000.00 is an appropriate penalty to be assessed for
respondent's willful violation of the Act as set forth in Citation No.
1, item 1. (Issue D)

23. The respondent did not provide fire protective clothing to operating
personnel on respondent's various production units nor require use
thereof by said personnel.

24. Respondent's operations personnel were required to handle fires or
potential fires occurring in the production units of respondent's
Chicago refinery from the initial stages and until said operations
personnel were allowed to evacuate the unit by the chief of the fire
crew which responded to the fire or potential fire alarm. (Tr. 2745) In
such situations operations personnel were exposed to the same hazard of
fire or explosion as the members of respondent's fire crews who were
furnished and required to wear fire protective clothing.

25. Respondent was in violation of item 2 of Citation No. 1. (Issue E)

26. Respondent's violation of item 2 of Citation No. 1 was willful as
that term is used in the Act. (Issue F)

27. The sum of $4,000.00 is an appropriate penalty to be assessed for
respondent's willful violation of the Act as set forth in item 2 of
Citation No. 1. (Issue G)

28. Members of respondent's shift fire crews were exposed to the hazards
of fire or explosion without being provided training and education
commensurate with the duties and functions they were expected to perform.

29. Respondent was in violation of the standard at 29 C.F.R.
1910.156(c)(1) with respect to its shift fire brigades (crews) as
charged in item 3A of citation No. 1. (Issue H)

30. Respondent's fire brigade leaders and instructors were provided
training and education more comprehensive than that provided the fire
brigade members.

31. Respondent was not in violation of the standard at 29 C.F.R.
1910.156(c)(1) with respect to its fire brigade leaders and instructors
as charged in item 3B, Citation No. 1. (Issue I)

32. Respondent failed to assure that training and education of members
of its shift fire crews was conducted frequently enough to assure that
each member was able to perform assigned functions satisfactorily and in
a manner not to endanger fire brigade members or other employees.

33. Respondent was in violation of the regulation at 29 C.F.R.
1910.156(c)(2) as charged in item 3C, Citation No. 1. (Issue J)

34. Not all fire brigade members were provided training at least annually.

35. Respondent was in violation of the regulation at 29 C.F.R.
1910.156(c)(2) as charged in item 3D, Citation No. 1. (Issue K)

36. The training and education program for respondent's fire brigade
members was not similar to a substantial degree to that conducted by
Texas A and M University, Lamar University, Reno Fire School or the
Delaware State Fire School.

37. Respondent was in violation of the regulation at 29 C.F.R.
1910.156(c)(3) as charged in item 3E, Citation No. 1. (Issue L)

38. Respondent failed to develop and make available for inspection by
fire brigade members written procedures that described the actions to be
taken in situations involving flammable liquids and gases and to include
these in the training and education program.

39. Respondent was in violation of the regulation at 29 C.F.R.
1910.156(c)(4) as charged in item 3F, Citation No. 1. (Issue M)

40. Respondent's violations of items 3A, 3C and 3E of Citation No. 1
were willful as that term is used in the Act and a combined penalty of
$6,000.00 is appropriate for said violations. (Issue N and Issue O)

41. Respondent's violations of items 3D and 3F of Citation No. 1 were
serious as that term is defined at section 17(k) of the Act and a
combined penalty of $1,000.00 is appropriate for said violations. (Issue
N and issue O)

42. Failure to preplan and assign suitable responsibility for evacuation
of personnel of oil refineries handling massive quantities of flammable
liquids and liquefied petroleum gases under pressure exposes said
employees to the increased risk of serious physical harm or death from
fire or explosion which may occur.

43. The hazard of potential fire or explosion in an oil refinery and the
fact that it may occur is recognized by the respondent.

44. The need for evacuation preplanning is recognized by the oil
refinery industry of which respondent is a part.

45. Respondent on July 23, 1984, had no effective evacuation preplan
covering operations unit personnel at its Chicago Refinery.

46. Respondent's operations units personnel were exposed on July 23,
1984, to the hazard of fire and explosion and there was no preplan for
evacuation including such rudiments as an evacuation signal, assignment
of suitable individual or individuals to initiate evacuation and a
system for accounting for personnel.

47. Development and installing of an evacuation preplan is feasible and
has been accomplished by other oil refineries.

48. The consideration and inclusion of procedures to be followed by
employees who remain to operate critical plant operations before
evacuation in an evacuation preplan would not create a greater hazard to
employees. (Issue Q)

49. Respondent was in violation of section 5(a)(1) as charged in item 1
of Citation No. 2. (Issue P)

50. An appropriate penalty to be assessed for respondent's violation of
item 1, Citation No. 2 is $1,000.00. (Issue R)

_Conclusions of Law_

1. Jurisdiction of this action is conferred upon the Commission by
section 10(c) of the Act and the Commission has Jurisdiction of the
parties hereto.

2. The presence of the Illinois Boiler and Pressure Vessel Safety Act in
no way acts as a bar to the complainant proceeding against the
respondent herein under section 5(a)(1) of the Occupational Safety and
Health Act of 1970. (Issue B)

3. Respondent was in willful violation of item 1 of Citation No. 1,
issued to respondent January 11, 1985, which should be affirmed and a
penalty of $10,000.00 should be assessed.

4. The standard at 29 C.F.R. 1910.132(a) under which respondent was
charged in Citation No. 1, item 2, issued to respondent January 11,
1985, is not applicable to respondent's fire brigade members, but is
applicable to respondent's operations personnel who are required by
respondent to handle fires or potential fires in their units until
allowed to evacuate by the chief of the responding fire crew. (Tr. 2745)
Said operations personnel were not members of respondent's fire
brigades, nor were they trained as such.

5. Respondent was in willful violation of item 2 of Citation No. 1,
issued to respondent January 11, 1985, which should be affirmed and a
penalty of $4,000.00 should be assessed.

6. The standard at 29 C.F.R. 1910.156(c)(1) applied to respondent with
respect to its fire brigades.

7. The standard at 29 C.F.R. 1910.156(c)(2) applied to respondent's fire
brigades.

8. The standard at 29 C.F.R. 1910.156(c)(3) applied to respondent's fire
brigades.

9. The standard at 29 C.F.R. 1910.156(c)(4) applied to respondent's fire
brigades.

10. Item 3B of Citation No. 1, issued to respondent January 11, 1985,
should be vacated.

11. Items 3A, 3C and 3E of Citation No. 1, issued to respondent January
11, 1985, should be affirmed as willful violations of section 5(a)(2) of
the Act and a combined penalty of $6,000.00 should be assessed.

12. Items 3D and 3F of Citation No. 1 issued to respondent January 11,
1985, should be affirmed as serious violations of section 5(a)(2) of the
Act and a combined penalty of $1,000.00 should be assessed.

13. Item 1 of serious Citation No. 2, issued to respondent January 11,
1985, should be affirmed as a violation of section 5(a)(1) of the Act
and a penalty of $1,000.00 should be assessed.


_ORDER_

1. Item 1 of Citation No. 1, issued to respondent January 11, 1985, is
AFFIRMED as a willful violation of section 5(a)(1) of the Act and a
penalty of $10,000.00 is ASSESSED.

2. Item 2 of Citation No. 1, issued to respondent January 11, 1985, is
AFFIRMED as a willful violation of section 5(a)(2) of the Act and a
penalty of $4,000.00 is ASSESSED.

3. Item 3B of Citation No. 1, issued to respondent January 11, 1985, is
VACATED.

4. Items 3A, 3C and 3E of Citation No. 1, issued to respondent January
11, 1985, are AFFIRMED as willful violations of section 5(a)(2) of the
Act and a combined penalty of $6,000.00 is ASSESSED.

5. Items 3D and 3F of Citation No. 1, issued to respondent January 11,
1985, are AFFIRMED as serious violations of section 5(a)(2) of the Act
and a combined penalty of $1,000.00 is ASSESSED.

6. Item 1 of serious Citation No. 2, issued to respondent January 11,
1985, is AFFIRMED as a violation of section 5(a)(1) of the Act and a
penalty of $1,000.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: January 19, 1988


FOOTNOTES:

[[1/]] In its decision and remand, the Court of Appeals presumed that
the Commission would assess a penalty "somewhere in between the $31,000
that OSHA assessed and the $22,000 that the Commission awarded." Because
the court reduced items 1 and 2 of citation 1 from willful, which
carries a maximum penalty of $10,000, to non-willful, which carries a
maximum penalty of $1,000, the penalties we assess are necessarily less
than the amount presumed by the court.

 

[[1/]] Section 5(a)(1) of the Act:

Sec.5.(a) Each employer--
(1) shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to his employees;

[[2/]] The citation reads:

_Citation_

Section 5(a)(1) of the Occupational Safety and Health Act 1970: The
employer did not furnish employment and a place of employment which was
free from recognized hazards that were causing or likely to cause death
or serious physical harm to employees in that employees were exposed to
serious hazards including being struck, crushed, burned or asphyxiated
resulting from increased likelihood of catastrophic failure of
improperly and inadequately maintained pressure vessels. The employer
failed to establish, properly implement and manage an effective program
of pressure vessel safety including maintenance inspection, rating,
repair, alteration and/or replacement. In addition, appropriate records
necessary for informed decision making, documenting the vessel's actual
condition were not prepared, retained, or made available for inspection.
Employees working throughout the refinery were exposed to these hazards
on a daily basis including July 23, 1984, when a pressure vessel, Amine
Absorber 12D701, released hazardous quantities of flammable gases and
vapors and corrosive liquid.

A feasible and useful method of correcting these hazards related to
catastrophic pressure vessel rupture and failure is to establish and
properly implement an effective program including maintenance
inspection, rating, repair and alteration and/or replacement of refinery
pressure vessels and their associated safety devices. Such a program
must include the following elements as a minimum:

(a) Ensure that persons who are authorized to perform inspections of
pressure vessels have education and experience equal to at least one of
the following:
(1) A degree in engineering plus 1 year of experience in the design,
construction, repair, operation, or inspection of boilers or pressure
vessels.
(2) A two year certificate in engineering or technology from a technical
college plus two years of experience in the design, construction,
repair, operation, or inspection of boilers or pressure vessels.
(3) The equivalent of a high school education plus 3 years of experience
in the construction, repair, operation, or inspection
of boilers or pressure vessels.

(b) Ensure the effective internal and external inspections are performed
prior to returning pressure to use on a regular periodic basis
throughout their service life. Such inspections must include the following:
(1) Properly prepare vessels for inspection to ensure the safety of the
inspector and the effectiveness of the inspection. Among other steps,
parts and components which prevent an effective inspection must be removed.
(2) Proper inspection techniques and procedures must be used to
determine if stress corrosion cracking, hydrogen blistering and attack,
embrittlement, metal fatigue, creep, erosion, carburization,
graphitization or other form of corrosion, deterioration and defects are
present. Where pressure vessels contain amine gas treating solutions,
inspections must include the following:
(i) Proper inspection procedures and techniques must be used by
qualified inspectors to detect cracks at welds and at weld heat affected
zones of pressure vessels containing amine gas treating solutions. Dye
penetrant, magnetic particle or other equivalent inspection techniques
must be used.
(ii) Having detected cracks, qualified inspectors must use ultrasonic
angle-beam transducers to evaluate the size and depth of cracks;
(3) Prepare and maintain containing the following information as a minimum:
(i) The results of inspections including the results of tests and
measurements;
(ii) Details regarding all maintenance, repair, rating and alterations;
(iii) The identity and qualifications of personnel who have performed
maintenance, repair, rating and alterations;
(iv) Details regarding procedures used in performing maintenance,
repair, rating and alterations.
(4) Recognized engineering principles must be used to determine if the
vessel is or may become hazardous for continued operation.
(5) Remove from service any vessel which is or may become hazardous
until it has been properly repaired and reinspected.
(6) Any vessel which has been repaired must be recertified prior to
being returned to service.

In addition to the above outlined general pressure vessel hazard control
and abatement program, recognized engineering principles and practices
must be implemented to safely construct, alter, replace and/or repair
the vessels and their associated safety devices which contain amine gas
treating solutions, so that they are safe for continued operation. Such
principles and practices include the following:

(1) Utilize designs and select materials which are safe for the
containment of amine gas treating solution for operating conditions; and

(2) Utilize appropriate welding procedures and techniques, including
necessary stress relief; and

(3) Prepare and maintain records which document the actual condition of
pressure vessels containing amine gas-treating solutions and demonstrate
that the vessels were constructed, altered and/or repaired to ensure
continued safe operation; and

(4) Any pressure vessel containing amine gas-treating solution which
does not comply with subitems (1), (2) and (3) must be removed from
service until its safe operation can be established.

[[3/]] The Citation and Standard read:

_Citation_

29 C.P.R. 1910.132(a): Protective equipment, including personal
protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers was
not provided, used, and maintained in a sanitary and reliable condition
wherever it was necessary by reason of hazards of processes or
environment, chemical hazards, radiological hazards, or mechanical
irritants encountered in a manner capable of causing injury or
impairment in the function of any part of the body through absorption,
inhalation or physical contact:

(a) The employer did not assure the use of protective clothing for the
shift brigade and unit operating personnel who were required to fight
fires and provide control, suppression and extinguishing measures beyond
the incipient stage, including but not limited to the explosions and
fire at Amine Absorber 12D701 on July 23, 1984. Operating personnel,
shift fire brigade members and leaders who initially performed fire
brigade emergency activities prior to the explosions and fires and other
employees who entered the refinery to perform fire brigade activities
did not wear appropriate protective clothing, increasing exposure to
fire hazards. Appropriate protective clothing consists of at least the
following components: foot and leg protection; hand protection; body
protection; eye, face and head protection.

_Standard_

_Subpart I--Personal Protective Equipment_

§1910.132 General requirements.

(a) Application. Protective equipment, including personal protective
equipment for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or
environment, chemical hazards, radiological hazards, or mechanical
irritants encountered in a manner capable of causing injury or
impairment in the function of any part of the body through absorption,
inhalation or physical contact.

[[4/]] The Citation and Standard read:

_Citation_

3A

29 C.F.R. 1910.156(c)(1): The employer did not provide training and
education for all fire brigade members commensurate with those duties
and functions that said fire brigade members were expected to perform.
Said training and education was not provided to fire brigade members
before they actually performed fire brigade emergency activities:

(a) Shift fire brigade members and some shift brigade leaders were not
trained to be proficient in the recognition and evaluation of the fire,
explosive and related hazards associated with oil refinery industry
fires, the safe positioning of personnel at the fire site, appropriate
placement of fire apparatus and service vehicles, necessary evacuation
procedures and other training and education matters necessary and
appropriate to assure that each member is able to perform his/her
assigned duties and functions satisfactorily and in a safe manner so as
not to endanger fire brigade members or other employees.

(b) Employees were assigned to work on the afternoon and evening shifts
and during weekends and holidays on a periodic basis due to changes in
shift and job schedules. They were expected and/or required to perform
as shift brigade members without appropriate training and education. The
employer's program for the shift fire brigade involved educating and
training only those employees who routinely worked in the job
classifications which made up the brigade.

(c) Whenever a leak or a fire occurred, unit operators and other
employees in their designated work areas were required to participate
and function as fire brigade members until other fire fighting personnel
arrived at the scene and to remain at the scene to assist as necessary.
Said unit operators and other employees were not provided training and
education in the hazards associated with oil refinery fires so as to
assure that said employee is able to perform the assigned duties
satisfactorily and in a safe manner so as not to endanger fire brigade
members or other employees.

Standard § 1910.156 Fire Brigades.

(c) Training and education. (1) The employer shall provide training and
education for all fire brigade members commensurate
with those duties and functions that fire brigade members are expected
to perform. Such training and education shall be provided to fire
brigade members before they perform fire brigade emergency activities.
Fire brigade leaders and training instructors shall be provided with
training and education which is more comprehensive than that provided to
the general membership of the fire brigade.

[[5/]] The Citation reads:

_Citation_

3B

29 C.F.R. 1910.156(c)(1): Fire brigade leaders and training instructors
were not provided with training and education which was more
comprehensive than that provided to the general membership of the fire
brigade:

(a) Several of the shift brigade leaders, including one of those on duty
at the time of the July 23, 1984 explosions and fires at the Amine
Absorber 12D701, had not received the more comprehensive training and
education as required by the standard, in that they had not received
appropriate training and education in the following areas: leadership
principles; strategies and tactics for fire control, suppression, and/or
extinguishment; and rescue and evacuation.

[[6/]] The Citation and Standard read:

_Citation_

3C

29 C.F.R. 1910.156(c)(2): The employer did not assure that training and
education was conducted frequently enough to assure that each member of
the fire brigade was able to perform the member's assigned duties and
functions satisfactorily and in a safe manner so as not to endanger fire
brigade members or other employees:

(a) The employer's program did not assure that each shift fire brigade
member received the required frequent training and education. An
attendance goal of 80% was considered satisfactory for the bi-monthly
training and education sessions provided by the employer.

(b) The employer's program required attendance of only those employees
working regularly in the job classifications which make up the shift
fire brigade. Other employees, who could reasonably be expected to
function as shift fire brigade members and leaders as a result of
changes in shift or job assignment were not required to and did not
attend and participate in training and education sessions prior to fire
brigade assignment.
_
Standard_

§ 1910.156 Fire Brigades.

(c) Training and education. (2) The employer shall assure that training
and education is conducted frequently enough to assure that each member
of the fire brigade is able to perform the member's assigned duties and
functions satisfactorily and in a safe manner so as not to endanger fire
brigade members or other employees. All fire brigade members shall be
provided with training at least annually. In addition, fire brigade
members who are expected to perform interior structural fire fighting
shall be provided with an education session or training at least quarterly.

[[7/]] The Citation reads:

_Citation_

3D

29 C.F.R. 1910.156(c)(2): All fire brigade members were not provided
with training at least annually:

(a) Fire brigade members were not provided with appropriate annual
instruction and hands-on training and practice in the operation of fire
fighting equipment including field training in the control, suppression
and extinguishment of oil refinery fires.

[[8/]] The Citation and Standard read:

_Citation_

3E

29 C.F.R. 1910.156(c)(3): The employer did not provide a training and
education program for oil refinery fire brigade members which was
similar in quality to the programs conducted by Texas A & M University,
Lamar University, Reno Fire School or the Delaware State Fire School:

(a) Several shift fire brigade leaders, who were designated by the
employer to be in charge of fire ground control and suppression tactics
during initial brigade operations, were not provided with the required
training and education;

(b) Shift brigade members, who were required to provide initial control
and/or suppression measures, were not provided with the required
training and education:

(c) Unit operators and other employees, who were expected to use hand
hose lines and monitor nozzles, had not been provided with the required
training and education; and

(d) Some of the off shift employees, who participated in fire fighting
operations during the July 23, 1984 explosions and fires were not
provided with the required training and education.

_Standard_

§ 1910.156 Fire Brigades.
(c) Training and education. (3) The quality of the training and
education program for fire brigade members shall be similar to those
conducted by such fire training schools as the Maryland Fire and Rescue
Institute; Iowa Fire Service Extension; West Virginia Fire Service
Extension; Georgia Fire Academy, New York State Department, Fire
Prevention and Control; Louisiana State University Firemen Training
Program, or Washington State's Fire Service Training Commission for
Vocational Education. (For example, for the oil refinery industry, with
its unique hazards, the training and education program for those fire
brigade members shall be similar to those conducted by Texas A & M
University, Lamar University, Reno Fire School, or the Delaware State
Fire School.)

[[9/]] The Citation and Standard read:

_Citation_

3F

29 C.F.R. 1910.156(c)(4): The employer did not inform fire brigade
members about special hazards to which they might be exposed during fire
and other emergencies. The employer did not develop and make available
to fire brigade members written procedures that describe the actions to
be taken in situations involving the special hazards.

(a) An appropriate written special hazard information program was not
developed and implemented as part of the training and education of the
shift fire brigade and unit operating personnel who had fire fighting
duties. Such a program must include written procedures describing the
actions to be taken in situations involving oil refinery special
hazards, including but not limited to the failure of a pressure vessel
and the sudden massive release of flammable vapors and/or gases such as
the incident which occurred an July 23, 1984. The program must describe
actions to be taken, how to carry out fire fighting operations and the
protective equipment and clothing that must be worn during fire and
other emergencies.
_
Standard_

§ 1910.156 Fire Brigades.

(c) Training and education. (4) The employer shall inform fire brigade
members about special hazards such as storage and use of flammable
liquids and gases, toxic chemicals, radioactive sources, and water
reactive substances, to which they may be exposed during fire and other
emergencies. The fire brigade members shall also be advised of any
changes that occur in relation to the special hazards. The employer
shall develop and make available for inspection by fire brigade members,
written procedures that describe the actions to be taken in situations
involving the special hazards and shall include these in the training
and education program.

[[10/]] The Citation reads:

_Citation_

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The
employer did not furnish employment and a place of employment which was
free from recognized hazards that were causing or likely to cause death
or serious physical harm to employees in that employees were exposed to
serious hazards including being struck, crushed, burned or asphyxiated
resulting from the lack of effective emergency evacuation procedures and
education and training of personnel in said procedures.

Employees working throughout the refinery were exposed to these hazards
on a daily basis including July 23, 1984, when a pressure vessel, Amine
Absorber 12D701, released hazardous quantities of flammable gases vapors
and corrosive liquid.

A feasible and useful method of correcting these hazards is to establish
and properly implement a refinery emergency action plan which includes
the following elements as a minimum:

(a) Emergency escape procedures and emergency escape route assignments;
(b) Procedures to be followed by employees who remain to operate
critical plant operations before they evacuate;
(c) Procedures to account for all employees after emergency evacuation
has been completed;
(d) Rescue and medical duties for those employees who are to perform them;
(e) The preferred means of reporting fires and other emergencies;
(f) Names and regular job titles of persons who can be contacted for
further information or explanation of duties under the plan;
(g) An alarm and notification system adequate to alert personnel in all
areas of the need for evacuation and control procedures;
(h) Establish the types of evacuation to be used in emergency
circumstances;
(i) Before implementing the emergency action plan, designate and train a
sufficient number of persons to assist to the safe and orderly emergency
evacuation of employees;
(j) Review the plan with each employee covered by the plan at the
following times:
(1) Initially when the plan is developed;
(2) Whenever the employee's responsibilities or designated actions under
the plan change; and
(3) Whenever the plan is changed.
(k) Review with each employee upon initial assignment those parts of the
plan which the employee must know to protect the employee in the event
of an emergency.
(l) Maintain the written plan at the workplace and make it available for
employee review.

Step 1 Submit to the Area Director a written detailed plan of abatement
outlining a schedule for the implementation of the emergency evacuation
procedure and emergency evacuation procedure and the education and
training of personnel in those procedures.

Step 2 - Abatement shall have been completed by the implementation and
verification of the effectiveness of the emergency evacuation program.

[[11/]] Illinois Boiler and Pressure Vessel Safety Act:

Section 10. Inspection of Boilers and Pressure Vessels. (A) Each boiler
or pressure vessel . . . shall be thoroughly inspected as to its
construction, installation, condition and operation as follows:
*         *          *
3. Pressure Vessels subject to internal corrosion shall receive a
certificate inspection as required by rules and regulations of the
Board. However, the standards of inspection and repair of pressure
vessels in service by an owner user qualified under Section 15 shall, at
the option of such owner user, be either (1) the applicable rules and
regulations embodied in the National Board Inspection Code, 1972
Edition; or (2) the applicable rules and regulations embodied in the
American Petroleum Institute published codification known as API RP 510,
1975 Edition API Recommended Practice for Inspection Repair, and Rating
of Pressure Vessels in Petroleum Refining Service, with such revisions,
reissues, amendments and interpretations of either of the foregoing
inspection standards as are subsequently approved and adopted. (Exhibit
C-59)

[[12/]] Illinois Boiler and Pressure Vessel Safety Act:

Section 8. Special Inspectors--How Appointed--Duties. (a) In addition to
the Deputy Boiler Inspectors authorized by section 7 of this Act, the
State Fire Marshal shall, upon the request of any company authorized to
insure against loss from explosion of boilers in this State or
authorized under section 15 of this Act to self-insure against such
loss, issue to any boiler inspectors of such company commissions as
Special Inspectors, provided that each such inspector before receiving
his commission shall satisfactorily pass the examination provided for in
Section 9 of this Act, or, in lieu of such examination, shall hold a
Certificate of Competency as an inspector of boilers or pressure vessels
for a State that has a standard of examination substantially equal to
that of the State of Illinois or a Certificate as an inspector of
boilers from the National Board of Boiler and Pressure Vessel Inspectors.

[[13/]] API Pressure Vessel Inspection Code:

2.2 Inspector Qualifications

Inspectors employed by an owner-user inspection organization shall have
education and experience equal to at least one of the following:

1. A degree in engineering plus 1 year of experience in the design,
construction, repair, operation, or inspection of boilers or pressure
vessels.

2. A 2-year certificate in engineering or technology from a technical
college plus 2 years of experience in the design, construction, repair,
operation, or inspection of boilers or pressure vessels.

3. The equivalent of a high school education plus 3 years of experience
in the construction, repair, operation, or inspection of boilers or
pressure vessels. (Exhibit C-60, p.3)