“SECRETARY OF LABOR,Complainant,v.ASAMERA OIL (U.S.), INC.,Respondent.OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION, AFL-CIO,Authorized EmployeeRepresentative.OSHRC Docket No. 79-0949_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Following an inspection of the Asamera Oil Company’s (Asamera) refineryin Colorado, the Secretary cited Asamera for a violation of the OSHAelectrical standard, alleging that Asamera had placed unapprovedelectrical equipment in Class I, Division 2 locations. Theadministrative law judge vacated the citation, concluding that thedefinition of a Class I, Division 2 location was \”unconstitutionallyvague as applied to Asamera and unenforceable.\” The issue before theCommission is whether this conclusion of the judge is correct.The Commission faced this identical question in _Continental OilCompany_, OSHRC Docket No. 79-0570 (July 20, 1984). As in _ContinentalOil_, we find that the definition of a Class I, Division 2 location isnot unconstitutionally vague but that the Secretary failed to show thatAsamera placed unapproved equipment in such a location. Accordingly, weaffirm the judge’s disposition.Portions of OSHA’s electrical standards[[1]] were designed to keepflammable hydrocarbons and potential sources of ignition separated atthe workplace. Since electrical equipment is a potential source ofignition, the standards require that only specially designed, so-called\”approved,\” electrical equipment be used in areas of the workplace whereflammable hydrocarbons may be present. _See_ 29 C.F.R. ? 1910.307(b).The standard establishes several categories for the purpose of placingapproved electrical equipment. The first category is a Class I,Division 1 area and does not concern us in this case. The secondcategory is a Class I, Division 2 area, which includes locations wherehazardous amounts of hydrocarbons could gather in the event of a failurein the containers or systems confining the volatile liquids, vapors orgases or in case of a failure in the ventilation system.[[2]]The Secretary argues that a Class 1, Division 2 location includes theentire area within a fifty-foot radius of a potential source ofhydrocarbons. The Secretary cited Asamera for two instances in which itplaced unapproved electrical equipment within 50 feet of a potentialsource. In one instance, a smoke shack was thirty-two feet from aflange and piping valve at the end of a Fluid Catalytic Cracking Unitpipe. The other instance involved an electrical substation in aprocessing area which was thirty feet from the vapor recovery compressor.In _Continental Oil_, we rejected the Secretary’s argument that the areawithin 50 feet of a potential source is invariably a Class I, Division 2location. Instead, we held that the determination of a Class I,Division 2 location requires the application of sound engineeringjudgment, with consideration given to the factors listed in thestandard: \”the quantity of flammable material that might escape in caseof an accident, the adequacy of ventilating equipment, the total areainvolved, and the record of the industry or business with respect toexplosions or fires.\”In this case, the Secretary relies on Asamera’s placement of unapprovedequipment within 50 feet of a potential source to support the allegedviolation. However, the evidence is insufficient to show that theunapproved equipment was not placed in accordance with sound engineeringjudgment. The Secretary therefore failed to prove that Asamera violatedthe OSHA electrical standard. _Continental Oil Co._, _supra_. Accordingly, the judge’s disposition is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984CLEARY, Commissioner, concurring,I concur with my colleagues’ decision to vacate the remaining items inthe citation. As in _Continental Oil Co_., OSHRC Docket No. 79-0570(July 20, 1984), the Secretary has failed to present the kind ofevidence necessary to establish a violation of the OSHA electrical standard.At trial, the Secretary argued that any placement of unapprovedelectrical equipment within 100 feet of a potential source ofhydrocarbons is a violation of the standard. Before the Commission, theSecretary abandoned this interpretation of the standard. The Secretarynow contends that any placement of unapproved electrical equipmentwithin 50 feet of a potential source of hydrocarbons is a violation.As the Commission pointed out in _Continental Oil_, the language of thestandard does not support either of the Secretary’s interpretations ofthe standard. Whether the placement of unapproved electrical equipmentviolates the standard depends on the factors listed in the standard: the amount of vapor that might be released in an accident, theventilation, the total area involved and the record of the industry withrespect to explosions or fires.The Secretary did not present evidence on any of these factors. Instead, the Secretary based his entire case on his incorrectinterpretation of the standard. Therefore, it is impossible to say onthis record that Asamera violated the standard.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] At the time this case arose, the OSHA standard at 29 C.F.R. ?1910.309(a) incorporated by reference certain provisions of the 1971National Electrical Code (\”NEC\”). Since then, OSHA has recodified itselectrical standards, and the provisions of the NEC relevant to thiscase are now published in the Code of Federal Regulations.[[2]] The definition of a Class I, Division 2 area, now published at 29C.F.R. ? 1910.399(a)(24)(ii), is a location:(1) in which volatile flammable liquids or flammable gases are handled,processed, or used, but in which the hazardous liquids, vapors, or gaseswill normally be confined within closed containers or closed systemsfrom which they can escape only in case of accidental rupture orbreakdown of such containers or systems, or in case of abnormaloperation of equipment; or(2) in which hazardous concentrations of gases or vapors are normallyprevented by positive mechanical ventilation, and which might becomehazardous through failure or abnormal operation of the ventilatingequipment; or(3) that is adjacent to a Class I, Division 1 location, and to whichhazardous concentrations of gases or vapors might occasionally becommunicated unless such communication is prevented by adequatepositive-pressure ventilation from a source of clean air, and effectivesafeguards against ventilation failure are provided.NOTE: This classification usually includes locations where volatileflammable liquids or flammable gases or vapors are used, but which wouldbecome hazardous only in case of an accident or of some unusualoperating condition. The quantity of flammable material that mightescape in case of accident, the adequacy of ventilating equipment, thetotal area involved, and the record of the industry or business withrespect to explosions or fires are all factors that merit considerationin determining the classification and extent of each location.Piping without valves, checks, meters and similar devices would notordinarily introduce a hazardous condition even though used forflammable liquids or gases. Locations used for the storage of flammableliquids or of liquefied or compressed gases in sealed containers wouldnot normally be considered hazardous unless also subject to otherhazardous conditions.Electrical conduits and their associated enclosures separated fromprocess fluids by a single seal or barrier are classed as a Division 2location if the outside of the conduit and enclosures is a nonhazardouslocation.”