“Docket No. 79-0949 SECRETARY OF LABOR,Complainant,v.ASAMERA OIL (U.S.), INC.,Respondent. OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION, AFL-CIO, Authorized Employee Representative.OSHRC Docket No. 79-0949DECISION Before:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Following an inspection of the Asamera Oil Company’s (Asamera) refinery inColorado, the Secretary cited Asamera for a violation of the OSHA electrical standard,alleging that Asamera had placed unapproved electrical equipment in Class I, Division 2locations. The administrative law judge vacated the citation, concluding that thedefinition of a Class I, Division 2 location was \”unconstitutionally vague as appliedto Asamera and unenforceable.\”\u00a0 The issue before the Commission is whether thisconclusion of the judge is correct.The Commission faced this identical question in Continental Oil Company,OSHRC Docket No. 79-0570 (July 20, 1984).\u00a0 As in Continental Oil, we find thatthe definition of a Class I, Division 2 location is not unconstitutionally vague but thatthe Secretary failed to show that Asamera placed unapproved equipment in such a location.\u00a0Accordingly, we affirm the judge’s disposition.Portions of OSHA’s electrical standards[[1]] were designed to keep flammablehydrocarbons and potential sources of ignition separated at the workplace.\u00a0 Sinceelectrical equipment is a potential source of ignition, the standards require that onlyspecially designed, so-called \”approved,\” electrical equipment be used in areasof the workplace where flammable hydrocarbons may be present.\u00a0 See 29 C.F.R.? 1910.307(b).The standard establishes several categories for the purpose of placingapproved electrical equipment.\u00a0 The first category is a Class I, Division 1 area anddoes not concern us in this case.\u00a0 The second category is a Class I, Division 2 area,which includes locations where hazardous amounts of hydrocarbons could gather in the eventof a failure in the containers or systems confining the volatile liquids, vapors or gasesor in case of a failure in the ventilation system.[[2]]The Secretary argues that a Class 1, Division 2 location includes the entirearea within a fifty-foot radius of a potential source of hydrocarbons.\u00a0 The Secretarycited Asamera for two instances in which it placed unapproved electrical equipment within50 feet of a potential source.\u00a0 In one instance, a smoke shack was thirty-two feetfrom a flange and piping valve at the end of a Fluid Catalytic Cracking Unit pipe.\u00a0The other instance involved an electrical substation in a processing area which wasthirty 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 2 location. \u00a0Instead, we held that the determination of a Class I, Division 2 location requires theapplication of sound engineering judgment, with consideration given to the factors listedin the standard:\u00a0 \”the quantity of flammable material that might escape in caseof an accident, the adequacy of ventilating equipment, the total area involved, and therecord of the industry or business with respect to explosions or fires.\”In this case, the Secretary relies on Asamera’s placement of unapprovedequipment within 50 feet of a potential source to support the alleged violation. \u00a0However, the evidence is insufficient to show that the unapproved equipment was not placedin accordance with sound engineering judgment.\u00a0 The Secretary therefore failed toprove that Asamera violated the OSHA electrical standard. Continental Oil Co., supra.\u00a0Accordingly, the judge’s disposition is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984 CLEARY, Commissioner, concurring,I concur with my colleagues’ decision to vacate the remaining items in thecitation.\u00a0 As in Continental Oil Co., OSHRC Docket No. 79-0570 (July 20,1984), the Secretary has failed to present the kind of evidence necessary to establish aviolation of the OSHA electrical standard.At trial, the Secretary argued that any placement of unapproved electricalequipment within 100 feet of a potential source of hydrocarbons is a violation of thestandard.\u00a0 Before the Commission, the Secretary abandoned this interpretation of thestandard. The Secretary now 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 of the standard.\u00a0Whether the placement of unapproved electrical equipment violates the standarddepends on the factors listed in the standard:\u00a0 the amount of vapor that might bereleased in an accident, the ventilation, the total area involved and the record of theindustry with respect to explosions or fires.The Secretary did not present evidence on any of these factors.\u00a0Instead, the Secretary based his entire case on his incorrect interpretation of thestandard.\u00a0 Therefore, it is impossible to say on this record that Asamera violatedthe standard.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 1971 National ElectricalCode (\”NEC\”).\u00a0 Since then, OSHA has recodified its electrical standards,and the provisions of the NEC relevant to this case are now published in the Code ofFederal 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 gases will normally beconfined within closed containers or closed systems from which they can escape only incase of accidental rupture or breakdown of such containers or systems, or in case ofabnormal operation of equipment; or(2) in which hazardous concentrations of gases or vapors are normallyprevented by positive mechanical ventilation, and which might become hazardous throughfailure or abnormal operation of the ventilating equipment; or(3) that is adjacent to a Class I, Division 1 location, and to whichhazardous concentrations of gases or vapors might occasionally be communicated unless suchcommunication is prevented by adequate positive-pressure ventilation from a source ofclean air, and effective safeguards against ventilation failure are provided.NOTE:\u00a0 This classification usually includes locations where volatileflammable liquids or flammable gases or vapors are used, but which would become hazardousonly in case of an accident or of some unusual operating condition.\u00a0 The quantity offlammable material that might escape in case of accident, the adequacy of ventilatingequipment, the total area involved, and the record of the industry or business withrespect to explosions or fires are all factors that merit consideration in determining theclassification and extent of each location.Piping without valves, checks, meters and similar devices would notordinarily introduce a hazardous condition even though used for flammable liquids orgases.\u00a0 Locations used for the storage of flammable liquids or of liquefied orcompressed gases in sealed containers would not normally be considered hazardous unlessalso subject to other hazardous conditions.Electrical conduits and their associated enclosures separated from processfluids by a single seal or barrier are classed as a Division 2 location if the outside ofthe conduit and enclosures is a nonhazardous location.”