“SECRETARY OF LABOR,Complainant,v.CONTINENTAL OIL COMPANY,(DENVER REFINERY), a corporation, Respondent,OSHRC DOCKET NO. 79-0570-EOIL, CHEMICAL, AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO,Authorized Employee Representative.Appearances: Phyllis K. Caldwell, Esq. and Donald R. McCoy, Esq.,of Denver, Colorado, for Complainant,Eiberger, Stacy & Smith, of Denver, Colorado for Respondent, Robert E.Wages, Esq.. of Denver, Colorado for the Authorized Employee Representative.DECISION AND ORDER Cronin, Judge, OSHRC:On October 3, 1978, a major fire and explosion occurred at ContinentalOil’s refinery (CONOCO) killing three employees, hospitalizing twelvepersons and causing extensive damage to the Conoco plant and surroundingarea. Representatives of the Secretary of Labor commenced theirinvestigation into this matterS:\\1984\\Processed\\79-0570-E\\00000000\\04.tif\”on October 3rd and concluded it on January 12, 1979. As a result of thisinvestigation, the Secretary issued three citations to Conoco under theOccupational Safety and Health Act of 1970 (29 U.S.C. ?651 et seq.;hereafter called the Act) alleging 13 serious violations, two other thanserious violations, and one willful violation of the Act. Penalties inthe amount of $16,480.00 were proposed.On February 1, 1979, the Secretary issued an amended citation amendingone serious violation to willful and proposing an additional penalty of$10,000.00. On February 2, 1979, respondent filed its notice of contest,conceding three violations, paying proposed penalties in the amount of$360.00, and contesting all other violations and penalties.Prior to the hearing, Conoco agreed to withdraw its notice of contest tothree serious violations; the Secretary agreed to dismiss four otheritems of the citations. The provisions of this agreement will beincorporated into this order (See Judge’s Exhibit J-D).The hearing in this case commenced on October 22, 1979 and closed onNovember 16, 1979. On January 7, 1980, the Commission accepted theSecretary’s interlocutory appeal of this judge’s ruling of November 16,1979. The Commission, on April 27, 1981, upheld the November 16th rulingand remanded this case for further proceedings. Extensive briefs andreply briefs were filed by the parties September 21 and October 15, 1981.IssuesThe alleged violations remaining at issue are Items 2, 3, 5 and 11 ofCitation No. 1. and Items 1 and 2 of Citation No. 2. Each of thesealleged violations will be addressed in order.Citation No. 1, Item 2As amended, this item charges Conoco with failing to provide emergencyescape respirators on its sour water stripper tower and hydrogen sulfideabsorber tower inS:\\1984\\Processed\\79-0570-E\\00000000\\05.tif\”violation of 29 C.F.R. ?1910.134(a)(2), which provides in pertinentpart: (2) Respirators shall be provided by the employer when such suchequipment is necessary to protect the health of the employee. Theemployers shall provide the respirators where applicable and suitablefor the purpose intended…Summary of EvidenceThe record reflects that both towers contained hazardous concentrationsof hydrogen sulfide (H2S) in a closed system (Tr. 802-805, 813). It alsois undisputed that employees were required to go onto the platforms ofthese towers in the course of their duties. According to the Secretary’scompliance officer, however, these employees were not actually exposedto a H2S contaminated atmosphere under normal working conditions (Tr.49-50, 294, 2264, 2278). Conoco did not locate emergency respiratora oneither tower or require employees to carry such respirators on theirperson. Conoco, however, positioned an H2S monitor on the first level ofthe sour water tower due to the possible presence of H2S at thatlocation (Tr. 2286). Other uncontradicted evidence establishes that noConoco employee has ever been exposed to H2S when working on either ofthe t~ in question. Further, there is no indication in the record thatthere has ever a release of H 2S from these towers (Tr. 2270).H2S is a highly toxic gas which can cause immediate unconsciousness anddeath, even at relatively low concentrations (Tr. 40; Ex. C-1, p.7).Exposure to H 2S isa universally recognized hazard in the petroleum industry, and itspotentially fatal effects are recognized by Conoco in its safety manual(Tr. 47-48; Ex. C-7, p.14). The Secretary’s witness, Mr. Quinlivan,testified that the accidental releaseof H2S in a petroleum refinery is a \”possibility\” and a \”fairly commonoccurrence\” (Tr. 799-800). In his opinion, the sour water stripper towerand the H2S absorber tower are sources of H2S releases (Tr. 801). Mr.Quinlivan testified that the flanged joints, control instruments, andthe reflux drum on the sour water stripper towerS:\\1984\\Processed\\79-0570-E\\00000000\\06.tif\”and the flanged joints on the reboiler, and the vapor line and processcontrol instruments on the H2S absorber tower, might be susceptible toaccidental releases Of H2S due to the corrosion (Tr. 805, F16).On direct examination Mr. Quinlivan was asked to assume that propermaterials were used to inhibit corrosion and regular inspections made todetect the possibility of corrosion on these towers. He then was askedwhether any possibility of an H2S release existed. He answered \”Yes.\”Although asked for his opinion on how this possibility would arise, henever gave it (Tr. 808-809). Later, on cross-examination, Mr. Quinlivanconceded that the possibility of an H2S release resulting from corrosionwould be eliminated by the use of materials to inhibit corrosion,regular inspections to detect corrosion, and proper record-keeping (Tr.943). Although the record is silent on whether materials to inhibitcorrosion were used, Conoco does inspect the towers for corrosion\”onstream\” on an annual basis and internally every other year, and keepsrecords of these inspections (Tr. 2255-2257). No evidence was introducedto establish that Conoco’s practices in this regard were inadequate.Conoco employees were informed about the dangers of exposure to H2S, andInstructed to warn the control room and other employees when H2S isdetected. Signs warning of the possible presence of H2S and H2S alarmmonitors were located throughout the refinery. Employees were instructedto immediately vacate an area when an alarm is sounded (Tr. 2262-2263).When required \”to enter the system\” on these towers or expose the\”internals\” of the towers to the atmosphere, employees must obtain anentry permit. When entering the system an employee also must be a memberof a 2-man work team and use a supplied air system. A stand-by rescueworker with a separate air source also must accompany the 2-man workteam (Tr. 2265, 2301).When first testifying on direct examination, Compliance Officer Bakewellreferenced only one emergency escape respirator which he felt suitableand capable ofS:\\1984\\Processed\\79-0570-E\\00000000\\07.tif\”eliminating exposure to H2S on the towers – the Robert Shaw air capsulerespirator (Tr. 41-43; Ex. C-2). This respirator is approved forrespiratory protection during escape by the Natlonal Institute forOccupational Safety and Health (NIOSH.), but only for temperatures above20*F (Tr. 297-298; Ex. C-2). Both Officer Bakewell and Mr. Quinlivanadmitted that the Robert Shaw respirator is unsuitable for year rounduse at Conoco’s Denver refinery because the temperature frequently fallsbelow 20* in Denver (Tr. 297-298, 947-948).Later in the hearing, the Secretary recalled Officer Bakewell to testifyon direct that following his initial testimony he called NIOSH andquestioned a Mr. Terry, who said he was a chemist with the NIOSHrespirator section, concerning the availability of escape respiratorsthat will work below 20*F. In response, Mr. Terry read several inventorynumbers from a list; Mr. Bakewell wrote down two of these numbers (Tr.1180-1181). Officer Bakewell is unacquainted with the referencedrespirators and does not know if these respirators have any uselimitations imposed by NIOSH (Tr. 1188- 1189).Officer Bakewell testified that emergency escape respirators should beplaced on the platforms of the two towers (Tr. 301). He also testified,however, that the preferable method would be for an employee to carry arespirator on his belt (Tr. 240-241, 303-304). He admitted he does notknow how long it takes to don the Robert Shaw respirator or whether anemployee exposed to an H2S release could put it on before being overcome(Tr. 240-241, 302). In Officer Bakewell’s opinion an escape respirator\”is no good\” for a \”massive leak\” of H2S. only for a \”minimal leak\” (Tr.243).Discussion This standard requires an employer to provide respirators\”when such equip ment is necessary to protect the health of theemployee.\” Conoco first argues that to prove that respiratory protectionwas \”necessary\” the Secretary must establishS:\\1984\\Processed\\79-0570-E\\00000000\\08.tif\”that the permissible limits for H2S, which are prescribed in 29 C.F.R.?1910.1000 (Table Z-2), were exceeded on the two towers in question BothConoco’s interpretation of the standard and its view of the Secretary’sburden of proof under the standard are too narrow and completely ignorethat ?1910.134 contemplates the use of respirators when \”dangerousatmospheres…..might be encountered in normal operation…\” (emphasissupplied; See ?1910.134(e)(3)). Clearly, the requirements of?1910.134(a)(2) are intended to apply when employee excessive exposureis foreseeable. Therefore, proof of actual exposure is unnecessary toestablish a violation of this standard.The standard at issue is read to require employers to providerespirators whenever employees may be foreseeably exposed to acontaminant in excess of the limits provided in ?1910.1000 (Table Z-2)or foreseeably exposed to an oxygen-deficient atmosphere. The Secretarymust prove potential excessive exposure to H2S because actual exposureto H2S is permitted within certain prescribed limits.The evidence is insufficient to prove that Conoco employees, foreseeablyexposed to an impermissible level of H2S on the two towers, were notprovidedwith respirators by Conoco. The record does establish that Conocoemployees entering the tower systems and working on lines and flangescontaining H2S might encounter an H2S atmosphere in excess ofpermissible limits. But those employees were provided by Conoco with asupplied air system and stand-by rescue worker which eliminated thepossibility of an exposure to an excessive hazardous concentration ofH2S (Tr. 2264-2265, 2301).Conoco also recognized that accidental releases Of H2S on these towerswere possible in the event of corrosion. This possibility of exposure,however, apparently I\/Section 1910.1000 (Table Z-2) provides for a maximum ceilingconcentration of 20p.p.m. and a maximum exposure of 50p.p.m. in a single10 minute period, provided no other exposure occurs.S:\\1984\\Processed\\79-0570-E\\00000000\\09.tif\”was eliminated by Conoco’s inspection procedures to detect corrosion andleaks due to the corrosion (Tr. 300-301, 2255-2257, 2269). There was noevidence to the contrary. The Secretary’s expert, Mr. Quinlivan,suggested that accidental releases of H2S in the towers could occur for\”other reasons\” besides corrosion, but he failed to either identify orsubstantiate these other possibilities. It also is unrefuted that noemployee has ever been exposed to H2S on the two towers and that neithertower has ever experienced an accidental release of H2S. Conoco’s safetysupervisor, Mr. Bradley, did admit that the presence of H2S was possibleon the first landing of the sour water stripper structure. Noexplanation of what would cause the presence of H2S at that location,however, was ever given, or whether employees working on the two towersmight encounter an excessive concentration of H2S coming from thatlocation which would require the use of emergency respirators.Unable to find that unprotected employees were foreseeably exposed toexcessive concentrations of H2S during normal operations, no violationof this standard can be affirmed.An additional reason requires vacation of this item. The standard alsois read to require an employer not only to provide respirators but toprovide respi rators capable of protecting employees from dangerousatmospheres. For a violation of the standard to be established,therefore, it is necessary to prove that there are respirators\”applicable and suitable for the purpose intended ….,\” and the burdenof proving this element is on the Secretary.The Secretary’s witnesses conceded that the referenced Robert Shawrespirator was unsuitable for year-round use in Denver, and OfficerBakewell’s hearsay testimony that respirators are available and suitablefor use below 20* temperatures, standing alone, is consideredinsufficient to establish this critical element.S:\\1984\\Processed\\79-0570-E\\00000000\\10.tif\”Citation No.1 Item 3IntroductionAs amended by the complaint, Item 3 of Citation No. 1 charges Conocowith violation of Section 5(a)(1) of the Act \”in that the employer didnot provide adequate training and instruction to employees who wereemployed as operators of the new catalytic, polymerization unit in thatduring the 8-hour training session given, much of the valvework andpiping was not in place on the unit causing employees to be unfamiliarwith the full unit in case of an emergency.\”Several months prior to the anticipated start-up date of Conoco’s newcatpoly fractionation section. members of Conoco’s management, includingPhil Nelson, process superintendent, Greg Lorimar, operationssuperintendent, Leonard Brandt, heavy oil division supervisor, and GlennLepard, training supervisor, met for the purpose of designing a trainingcourse for operators of the new unit (Tr. 2057-2058). After reviewingthe prior experience and training of the operators involved and thematters to be covered, the group jointly decided upon a one-day trainingcourse, consisting of a classroom session and \”hands-on\” field work (Tr.1959-1961, 2057- 2058, 2074-2075).As an aid to the training course, a cat-poly operating manual, ExhibitC- 8, was prepared by Leonard Brandt and Jimmie Rhodes, senior designengineer (Tr. 1957). This manual was distributed to all participantsapproximately two weeks to a month prior to the scheduled training inJuly, 1978, and they were instructed to study and become familiar withits contents (Tr. 2064-2065, 2112). The Secretary’s employee witnessestestified they read the manual prior to the training class.At the beginning of each class each employee was given a 10-questionwritten quiz to test his familiarity with the operating manual (Tr. 2067).S:\\1984\\Processed\\79-0570-E\\00000000\\11.tif\”There were 4 seperate training sessions, July 10, 12, 14, and 17, 1978(Tr. 2059). There were approximately 5 to 7 employees in each trainingsession, and instruction was provided by Mr. Lepard, Conoco’s trainingsupervisor, and Mr. Rhodes, a senior process engineer and designer ofthe new cat-poly unit.The classroom training lasted approximately three hours and covered thesubjects listed in the agenda of June 28, 1978 (Exhibit R-11): sectionsof the operating manual (Tr. 2071-2072), differences between the old andnew cat-poly fractionation sections (Tr. 676) and the process flow andinstrumentation diagrams in the manual (Tr. 2067). The training programdid not take up the specific characteristics of the \”cascade controlsystem\” (Tr. 2090-2091). After rest breaks, Mr. Rhodes would answerquestions (Tr. 2068).In the afternoon session, the class participants were taken to the newunit for the purpose of familiarizing themselves with the equipment andto \”field crace\” the flow scheme of the unit (Tr. 2068). After threehours in the field the group would reconvene in the classroom and eachemployee was given a test (Tr. 2067, 2077- 2078). All operators passedthe test with a mark of 70% or more except Ronny DeHerra (Tr. 2079-2080).Each class was told that the operators should continue studying themanual and field tracing the unit (Tr. 2084).Testifying in support of the Secretary’s charge under this item wasOfficer Bakewell and Mr. HcAninch, along with five Conoco employees whoattended one of the training sessions in July, 1978.Mr. Donald Kapus, a chief operator at the time of the start-up, hadpreviously been a helper and operator in the old cat-poly unit (Tr.511-512). In his opinion he did not feel that the training was adequate\”in terms of the practical aspects\” (Tr. 513). Mr. Kapus testified thatthe cascade control system was covered in the training session;according to him they were told \”how it worked.\” He does not recallS:\\1984\\Processed\\79-0570-E\\00000000\\12.tif\”being told what to do if the cascade control system did not work (Tr. 556).Another chief operator on the heavy oil side, Mr. George Martel,testified that prior to the training class the students were given thecat-poly training manual and requested \”to absorb the information.\” Theyalso were given flow sheets and told to review them before the unitstart-up (Tr. 374). In his view the field training was \”difficult\”because \”a lot\” of the piping and control systems were missing. He couldnot estimate \”percentage wise\” how much of the system was missing (Tr.378). In his view the field training was \”worthwhile\” to \”lowexperienced people\” (Tr. 378). He believes it important for an operatorto be familiar enough with the unit so that he can \”react inemergencies\” (Tr. 381). According to Mr. Martel, an operator must have a\”pretty good idea of the flow and location of the specific controlsystems, in order \”to handle emergencies\” (Tr. 381-382). In order tocontrol or eliminate a pin hole leak in vessel W-55 an operator wouldhave to know the function and position of perhaps a dozen valves (Tr.384). After he completed his eight hour training session, Mr. Martel didnot \”feel competent\” to handle the new cat-poly unit (Tr. 385). He didnot feel his training was adequate because he did not \”have\” thephysical location of all of the piping and control systems involved andthe basic knowledge of the systems internal action \”in my own mind\” (Tr.385). Mr. Martel also testified that the cascading control system ismore sophisticated than a \”straight system\” and was not adequatelycovered in the training system (Tr. 387).On cross-examination, Mr. Martel, testified that he had a chance totrace the pipes in the new cat-poly unit prior to start up (Tr.458-459). He indicated that \”management\” told the operators to try toget familiar with the piping \”as time allows\” (Tr. 459). At anotherpoint, however, he could not recall whether they were told by asupervisor or whether it was simply a discussion among the operators(Tr. 466).S:\\1984\\Processed\\79-0570-E\\00000000\\13.tif\”Mr. David Judish, another participant in a July, 1978 training class,testified that after the training class, he did not feel that he wasqualified to handle an emergency on the cat-poly unit (Tr. 602). Hestated that he had let his supervisor, Leonard Brandt, know that he\”wasn’t really sure of myself\” (Tr. 603-604). According to Mr. Judish,Mr. Brandt indicated that there would be no more training, that Mr.Judish had passed the test, and that Mr. Judish should be able to handlethe situation (Tr. 604).Prior to start-up Mr. Judish went out to the unit and traced the linesof the new unit (Tr. 629-630). By the time of start-up Mr. Judish had\”no problem\” understanding how the unit operated (Tr. 630).On redirect, Mr. Judish testified that Mr. Lepard, the class instructor,was unable to answer certain questions. He does not remember what thesequestions were but he obtained satisfactory answers to those questionsprior to start-up (Tr. 633).Mr. Michael Carey testified that he felt the training was adequate forhim (Tr. 641-642, 664-666). He did not know, however, the location ofall the lines at the time of the class (Tr. 641-642). According to Mr.Carey, approximately 90%of the lines and equipment was in place at the time of the trainingsession (Tr. 666). Mr. Ronald D. Branson, an FCC operator, testifiedthat he was present foronly 4 hours of his training class in July, 1978 (Tr. 678). He does not\”feel\”his training was adequate (Tr. 678). He asked Leonard Brandt, the heavyoils supervisor, and Mr. Glenn Lepard for more training. They respondedthat they would \”catch me later.\” But they never did (Tr. 680). Hetestified that he asked Mr. Brandt twice for extra training, once beforethe unit started up and once after it was started up (Tr. 680).According to Mr. Branson. Mr. Brandt responded the \”same\” both times(Tr. 680). After the start-up. he was left alone in charge of thecontrol board of the new cat-poly unit on several occasions (Tr. 681,694, 704-705, 707).S:\\1984\\Processed\\79-0570-E\\00000000\\14.tif\”he indicated that he told Mr. Brandt that he had been left alone on thecontrol board when he asked for additional training the second time (Tr.701, 707-708). He testi fied he did not \”call\” Mr. Brandt, however totell him this or request additional train ing (Tr. 701).On cross-examination Mr. Branson testified that he could operate \”theinstruments inside\” because \”that is all I was trained to do\” (Tr. 698).He further testified that he did not know enough to shut the unit downin the event of an emergency because he had \”no idea\” of the location of\”a lot of the valves\” (Tr. 690, 699\”. After the training class he wentout to the new unit on a single occasion to try and trace the lines buthe was immediately called back to the control room (Tr. 687).Mr. Brandt testified the major part of a shut down of the fractionationunit is done outside on the unit – shutting down valves, pumps – gettingthe gas out of the unit, depressurizing and steaming it out (Tr. 711).Mr. Brandt also testified that he told Mr. Lepard on the day of theclass that he had not had enough training time. According to Mr. Brandt,Mr. Lepard responded not to worry about it or something to that effect,\”[W]e are going to take a test\” (Tr. 710).Officer Bakewell knows of no standard practice in the petroleum refineryindustry for training operators for catalytic polymerization units (Tr.309-311). His opinion that the operators training was inadequate wasbased solely on the opinions of the operators that their training wasinadequate because they did not know the \”physical characteristics\” ofthe system (Tr. 250-251, 312). He conceded he really didn’t analyze thetraining program\” (Tr. 315). Officer Bakewell had no personal knowledgeconcerning the operation of the cat-poly unit nor any knowledgeconcerning the prior training experience of the employees taking theirtraining course (Tr. 314-318).In Mr. McAninch’s opinion Conoco could not have adequately trained theoperators in \”eight hours\” to operate the cat-poly unit because thecontents of the operationsS:\\1984\\Processed\\79-0570-E\\00000000\\15.tif\”manual could not have been covered in eight hours (Tr. 1090, 1137). Heretreated from his opinion concerning the inadequacy of this part of theprogram, however. when informed that the operators were provided withthe training manuals 2 to 6 weeks before the class and then tested todetermine whether they had read the manual (Tr. 1143-1144).In Mr. McAninch’s view there are two general purposes to an operators’training program, safety and efficiency (Tr. 1136). He was unable toconclude that Conoco’s training was inadequate from the standpoint ofsafety because \”I don’t know what the Conoco program consisted of\” (Tr.1136-1137). He further agreed that he was not in a position to saywhether the Conoco training of the operators created a hazard ofphysical injury or death (Tr. 1137).Mr. Brandt, Conoco’s heavy oil division supervisor, testified that as ofJuly 7, 1978, 95% of the fractionation system of the cat-poly unit hadbeen completed and installed. According to Mr. Brandt, the reactor’sback pressure control valve, the reactor line to this valve, thecompressuring line, the line from the splitter to the de-ethanizer, theline from butane to storage, and the lines from propane to storage andpoly- gasoline to storage, were missing (Tr. 1965). In his view the onlymissing piece of equipment that an operator should know the location ofwas the reactor back pressure controller (Tr. 1966, 1969).According to Mr. Brandt the operators were assigned to the cat-poly unitapproximately 6 days prior to the start-up and were involved in\”steaming out\” the lines.This process requires that the lines be traced out, bleeders closed, andthe entire system be checked for leaks (Tr. 1971).Mr. Brandt stated that Mr. Branson complained in July, 1978 that he hadnot been present for the entire training session. Mr. Brandt told Mr.Branson at that time \”we’d catch up with that training\” when Mr. Bransonwas required to assume the position of a chief operator (Tr. 1973).S:\\1984\\Processed\\79-0570-E\\00000000\\16.tif\”Mr. Brandt agrees that one man should not be responsible for all thecontrol panels (Tr. 1974). Mr. Brandt does not recall Mr. Branson makinga second complaint about his training or informing him that Mr. Bransonhad been left in the control room alone (Tr. 1977).According to Mr. Lepard, the class instructor, part of the test given tothe class at the end of the session was to fill in the process flowlines and the process control points on a diagram with the new equipmentdrawn in (Tr. 2077- 2078). According to Mr. Lepard, a control valve wasnot in place when the operators went into the field to trace the lines(Tr. 2107). Mr. Lepard testified that Mr. Branson never complained tohim about the training course or claim that he did not know how tooperate the unit (Tr. 2083).According to Mr. Lepard, Mr. Rhodes discussed the emergency proceduresection of the operations manual (Tr. 2096-2097). Mr. Lepard testifiedthat the manual did not explain the operation of cascade pressurecontrol system and he does not recall whether Mr. Rhodes went intodetail about this system (Tr. 2101). Mr. Lepard previously had not seensuch a system (Tr. 2114).Mr. Kenard Taylor, Conoco’s expert on training, described the oldfractionation section of the cat-poly unit as follows: the product ofthe reactor went to the deethanizer, then to the de-propanizer, and thento the stabilizer. In the new fractionation section the product went tothe stabilizer, then to the de- propanizer, and finally to thede-ethanizer (Tr. 2163). From the standpoint of the individual operator,the operating conditions, tower pressures and temperatures, and theprocess flow, were different between the old and the new fractionationsections (Tr. 2163). In his view, the training program on the new unitshould cover the differences between the operating conditions and thephysical equipment differences (Tr. 2164).S:\\1984\\Processed\\79-0570-E\\00000000\\17.tif\”Mr. Taylor was of the opinion that sufficient equipment was in place inJuly, 1978, to provide operators with a \”meaningful and sufficient\”physical inspection and tracing of the equipment (Tr. 2180-2181).In his view, approximately one third of the information in the manualwas new to the operators, and all sections except section one shouldhave been covered \”in order to permit a safe operation of the newfractionating section\” (Tr. 2189).Mr. Taylor testified that in shutting down the new fractionatingsection, the procedures would be the same; the valves, however, would bedifferent (Tr. 2194).Mr. Taylor would have made two changes in the existing training course.He would have tried to have the training closer to the start-up line asan aid to retention, and he would have inserted a \”process controlsection\” which he considers \”independently significant\” to the trainingof an operator (Tr. 2202, 2208). Or, cross-examination Mr. Taylortestified that if any of the operators with operating responsibilitiesdid not have exposure or experience with a cascade pressure controlsystem, the cascade system should have been covered, and that if it wasnot covered \”it could have created a problem within the unit\” (Tr. 2210).When major oil companies require employees do their own field training,there’s a \”follow-up\” to that training by \”supervision\” to determine ifthe employees have done their field training according to Mr. Taylor(Tr. 2212). It was his understanding that Conoco did not formally followup to determine after the training session whether the operators hadtraced the lines (Tr. 2213). In his view, however, observations bysupervisors would have teen sufficient to determine whether operatorswere capable (Tr. 2213-2214). According to Mr. Taylor, it is customaryfor industry to take further action to determine whether additionaltraining is necessary when an operator expresses a lack of confidence inhis training (Tr. 2214-2215).Mr. Taylor is of the opinion that Conoco’s training program wasadequate, did not create a recognized hazard of physical injury ordeath, and that it was safe forS:\\1984\\Processed\\79-0570-E\\00000000\\18.tif\”Conoco te start the new fractionation section and operate it with theoperators. (Tr. 2200-2201).DiscussionBy a preponderance of the evidence the record establishes a violation ofSection 5(a)(1) of the Act resulting from Conoco’s inadequate trainingof Mr. Ronald Branson.Although not a model of clarity, the complaint identifies the allegedrecognized hazard as Conoco’s failure during the 8-hour training sessionto adequately familiarize operators of the new cat-poly fractionationunit with the valvework and piping on the unit so as to enable theoperators to deal with an \”emergency.\” The hearing record, however,reflects that the parties tried a much broader theory of recognizedhazard: whether any of the operators assigned operating duties on thecat-poly unit were inadequately trained by Conoco so as to create arecognized hazard likely to cause death or serious physical injury.Because both parties plainly tried this alternative theory of recognizedhazard, it has been treated in all respects as if it had been raised bythe pleadings. 2\/The Secretary’s conclusion that Conoco’s training was inadequate wasbased in part on Officer Bakewell’s and Mr. McAninch’s opinions that thetraining manual could not be learned in a one-day training course. Afterlearning, however, that the training manuals were distributed and readby the operators and then tested to determine whether they had read themanuals, Officer Bakewell admitted that the length of the classroomtraining was not the basis for the citation (Tr. 251). Mr. McAninchindicated that if the operators were provided with the manuals prior tothe class, tested to determine their knowledge of their contents, andachieved at least a passing grade 2\/Both parties introduced evidence on this issue, and Conoco’s brief, atpp.64 and 65 acknowledged that the question presented is far broaderthan the issue presented by the complaint.S:\\1984\\Processed\\79-0570-E\\00000000\\19.tif\”of 70 percent, a one-day training course was \”adequate\” (Tr. 1143-1144).Conoco’s expert witness, Mr. Kenard Taylor, also concluded that Conoco’sone-day training format was adequate under the circumstances (Tr. 2149-2150, -2152, 2190, 2195), and above average based on his knowledge ofindustry practices and customs (Tr. 2195, 2203-2204). on this record, itcannot be found that the eight hour training session was inadequate dueto its length.Another of the Secretary’s apparent objections to Conoco’s trainingprogram involves Conoco’s failure to adequately cover the subject of the\”cascade pressure control instrumentation.\” It was established thatConoco’s training course barely touched on the subject of the cascadepressure control system on the new cat-poly unit. Further, Mr. Taylorconcedes that this subject is \”independently significant to the trainingof an operator\” (Tr. 2202, 2208). In his view the training should havecovered this subject unless those operators with operatingresponsibilities on the cat-poly unit had previous exposure orexperience with a cascade pressure control system. He expressed theopinion that lack of training in this area \”could have created a problemwithin the unit\” (Tr. 2210).The evidence, however, failed to show that any of the operator-students(with the exception of the trainees who would not be operating theunits) were unfamiliar with or unable to operate the cat-poly cascadepressure control system. Indeed, the record establishes that theoperators who would be assigned operating responsibilities had eitherworked closely with or directly on the vapor recovery unit (VRU) of theFCC unit which used a similar cascade pressure control system (Tr.2126). None of the Secretary’s operator- witnesses stated that he wasunfamiliar with the operation of the cascade system at the time ofstart-up. Even Mr. Aranson testified that he could operate the controlroom instruments of the cat-poly unit because he had been \”trained to doit\” (Tr. 698).S:\\1984\\Processed\\79-0570-E\\00000000\\20.tif\”On this record, this aspect of Conoco’s training program cannot serve asa reason for concluding that the training program was inadequate.Both in the pleadings and at the hearing, the Secretary’s primarycomplaint about Conoco’s training program was its failure to adequatelyinstruct the operators in the location of the process lines andequipment. In July of 1978, all of the equipment and lines for the newcat-poly unit were not in place. Witnesses variously estimated that thecat-poly unit was 90 to 992 completed.Approximately three hours of the training session was devoted to fieldwork for the purpose of familiarizing the students with the equipmentand to permit them to trace the lines (Tr. 2068). The first trainingclass took place on July 10, 1978 and Mr. Branson was a member of thisclass. According to the instructor, Mr. Lepard, the students in thatclass were impeded in their examination of the unit because\”construction was going on\” (Tr. 2084). Due to a power interruptionwhich occurred during the field portion of the July 10th trainingsession, the class members assisted in securing the process units andrestarting them (Tr. 677-678, 2081). Mr. Lepard estimates that trainingsession was cut short by \”somewhat less than two hours\” (Tr. 2095-2096);Mr. Branson estimates that he missed four hours from class (Tr. 686).During the period between the one-day training course and the start-up,Mr. Branson did not trace the lines (Tr. 687).At the time of the start-up of the new cat-poly unit, Mr. Bransonbelieved that he did not know enough to be able to shut the unit down inevent of \”an emergency.\” He did nit know the location of the valvesnecessary to shut down the unit (Tr. 690).Conoco’s expert, Mr. Taylor, recognizes that field work is \”veryimportant\” (Tr. 2159). He also recognizes that training of theseoperators should have covered the \”physical equipment differences\”between the old and new cat-poly unit (Tr. 2164).S:\\1984\\Processed\\79-0570-E\\00000000\\21.tif\”Mr. Taylor states that an operator has to spend time in the fieldreviewing the flow, \”looking at it, reviewing it again, finding theactual pieces out there\” (Tr. 2191-2192). He indicated that theoperators in this case would need to know where the valves, equipmentand instruments necessary to shut down the unit were located (Tr.2194-2195).Mr. Taylor suggests that Mr. Branson had the \”availability\” on the unitto follow that field work (Tr. 2182). Unfortunately, however, he nevercompleted this necessary field work.Although Mr. Branson apparently was capable of operating the board toinitiate an emergency shut-down, he felt unable to locate the valvesnecessary to complete the shut down procedure (Tr. 2186).Mr. Taylor concedes it would be imprudent to ignore an employee claimthat he has not been adequately trained, but Mr. Taylor believes that\”an unsafe condition\” was not created in the instant case because Mr.Branson was not directly involved (Tr. 2184). This belief clearlyimplies that if Mr. Branson was directly involved, Mr. Taylor’s opinionconcerning the creation of an unsafe condition would be different. Theevidence, of course, shows that Mr. Branson was directly involved withthe cat-poly unit on a number of occasions.According to Mr. Taylor, if an operator did not know \”the new unitversus the old unit,\” he would need additional training (Tr. 2216).Also, Mr. Taylor agrees that a critical factor in how an operator reactsin an emergency situation is the confidence an operator has in his ownability to operate (Tr. 2215). Mr. Branson lacked this confidence andConoco was aware of this situation.In sum, it is found that Mr. Branson was inadequately instructed byConoco in the location of valves and equipment necessary to accomplishan emergency shutdown of the fractionation unit. Conoco was aware thatMr. Branson lacked confidence in his ability to operate the unit, yettook no further action to provide additional training or take steps toassure that Mr. Branson would not be assigned operationalS:\\1984\\Processed\\79-0570-E\\00000000\\22.tif\”responsibilities for the cat-poly unit before receiving this additionaltraining. The record further establishes that Mr. Branson’s lack oftraining createda life-threatening hazard. Mr. Taylor testified that an operator’s fieldtraining and his knowlege of the location of valves to accomplish theshut-down procedures were \”very important.\” Mr. Taylor also clearlyindicated that an operator should know all sections of the trainingmanual (including the emergency shut-down procedures section) \”in orderto permit a safe operation of the new fractionation section (emphasissupplied; Tr. 2189). The emergency procedures section of the trainingmanual provides for emergency shut-down procedures in case of fire andexplosion and requires, among other things, isolation or bypass of theunit section in which the emergency has occurred, and then a shut-downin accordance with normal prescribed procedures (Ex. C-8, p.4.). Fromthese requirements, it is reasonable to infer that the inability of anoperator to follow shut-down procedures during a fire and explosioncould exacerbate the fire and explosion conditions, which in turn wouldlikeIy lead to death or serious injury. Furthermore, Mr. Branson’sopinion that his not knowing which valves to shut off \”could cost lives\”went unchallenged and unrefuted (Tr. 699).Another question is whether Mr. Branson’s inability to accomplishemergency shut-down procedures due to his lack of field training was a\”recognized\” hazard. Conoco’s training manual and Mr. Taylor’s testimonyestablishes that both the petroleum refinery industry and Conocorecognize the need for adequately training operators in emergencyshut-down procedures. Further, the record establishes recognition by thepetroleum refinery industry of the need to determine whether an operatorhas completed his assigned field work. That was not done by Conoco inthis case even though Conoco was on notice that Mr. Branson believed heneeded additional field training. The feasible abatement methods forthis violation are obvious. IfConoco had followed industry practice and provided Mr. Branson with thefield trainingS:\\1984\\Processed\\79-0570-E\\00000000\\23.tif\”necessary to enable him to accomplish the emergency shut- downprocedures, the \”recognized\” hazard would have been eliminated.The Secretary proved, however, that only one Conoco employee wasinadequately trained at the time of start-up. A substantial penaltytherefore, is unwarranted. A penalty of $100.00 will be assessed.Citation No. 1,Item 5Item 5 of Citation No. 1 alleges a violation of section 5(a)(1) of theAct \”in that\” certain designated heaters and boilers with \”open flamesand\/or hot surfaces were not protected in a manner to prevent theignition of light hydrocarbon vapors and\/or gases in the event ofaccidental rupture or breakdown of the system.\”This charge is similar, but not identical, to the Secretary’s charge inAsamera, Oil Co., Inc., 9 BNA OSHC 1426, 1981 CCH OSHD (p) 25,131 (No.79-0949 and 79-1756, 1980)..3\/ In Asamera, the complaint identified theexisting recognized hazard as Asamera’s failure to separate or protectin any manner certain heaters and boilers to prevent ignition ofhydrocarbons. In this case, separation is not mentioned.In both cases, however, the Secretary’s theory of liability wasidentical; the employers’ failure to separate heaters at least 50 feetand boilers at least 100 feet from process equipment containinghydrocarbons, or. protect these heaters and\/or boilers so as to preventignition of hydrocarbon releases.Summary of EvidenceTo establish that Conoco’s separation and protection practicesconstituted a recognized hazard, the Secretary introduced the testimonyof Compliance Officer Bakewell and two expert witnesses, Mr. Quinlivanand Mr. McAninch.Officer Bakewell testified about his various distance measurements takenfrom the cited heaters and Boiler B-4 to valves, flanges or pipes ofother pieces of process equipment. All of these measurements were lessthan 50 feet (Ex. C-9). Specific__________________3\/ Asamera was heard after the hearing in this case. The decision inAsamera, however, was issued while this case was pending before theCommission on interlocutory appeal.S:\\1984\\Processed\\79-0570-E\\00000000\\24.tif\”measurements were not taken with respect to Boilers B-8 and B-6 becausein Officer Bakewell’s words, \”there were lines everywhere in the area\”(Tr. 269). In this regard, he also testified that \”many\” of the lines inthe \”Sulfur plant\” contained hydrocarbon vapors and hydrogen sulfide\”which is also flammable\” (Tr. 102, Ex. C-12).Officer Bakewell was unable to identify W-38 and conceded he did not knowwhat materials were contained in W-55 and W-45. He also admitted that hedid not determine the materials, the temperature, or pressure of thesematerials behind the various valves or flanges which he used asmeasuring points. He assumed that hydrocarbonewere present, but agreed that the material behind the measuring pointscould have been steam (Tr. 267-269). Officer Bakewell also testifiedthat he did not determine the temperatures of the various heater orboiler surfaces (Tr. 270).Mr. Quinlivan testified that the petroleum refinery industry generallyrecognizes that a \”safe\” distance for separating boilers, heaters, andfurnaces from process units is 100 feet (Tr. 869). He then identifiedpotential sources of hydrocarbon vapor. For example, he testified thatvacuum tower W-36 was a source for a hydrocarbon vapor release (Tr.870-871). He identified W-45 as \”a fractionator or a catalyst storage orsome such hydrocarbon-containing vessel\” (Tr. 874). According toMr. Quinlivan, any fractionating unit at Conoco’s refinery or itsassociated equipment, exchangers, pumps, and piping were all potentialsources of vapor release (Tr. 871). Mr. Quinlivan also identified the\”Sulfur Plant\” as a potential source for the release of \”flammablevapors – Hydrocarbon, H2S would be one\” (Tr. 875).Testifying more generally, Mr. Quinlivan testified that the proximity ofH-27to W-36 (21 feet. 9 inches) and the exchangers X-176 and X-139 were\”definite hazards.\” He also contended that the \”same unsafe condition;too close: existed with respectto the proximity of H-4 and H-22 to the FCC converter (Tr. 873).The import of Mr. Quinlivan’s entire testimony was that the Iocations ofConoco’sS:\\1984\\Processed\\79-0570-E\\00000000\\25.tif\”cited heaters and boilers with respect to the process equipment were\”hazardous… unsafe …. too close\” (Tr. 870-875, 877-878). In hisview, sufficient seperation of heaters and boilers from processequipment is necessary to \”give the vapor cloud time to disperse anddilute below the combustible range.\” He provided no support, however,for his thesis that greater distance will result in the dispersal of avapor cloud. In this regard, he testified there wasn’t any empiricaldata or learned treatise support for his thesis (Tr. 924).The Secretary’s other expert, Hr. McAninch, based his opinion concerningthe separation of heaters and boilers upon his 28 years of employmentand experience with American Oil Company (Amoco). He testified thatConoco’s practice when building new refinery units was to locatefurnaces on the upwind side of process equipment and no closer than 50feet from the \”first major piece of equipment\” (Tr. 1058). According toMr. McAninch, Amoco treated boilers as a separate installation and theywere \”segregated\” from process units (7:r- 1059). There is no indicationwhether or not Amoco separated boilers from process units by aprescribed distance. Mr. McAninch also indicated that two Amocorefineries had boilers and heaters within 50 feet of process units (Tr.1115-1116).In Mr. HcAninch’s view, the purpose of Amoco’s spacing practice was togive operators more time to take corrective action to dispersehydrocarbon releases (Tr. 1113-1114). At another point in his testimony,Mr. McAninch indicated that the purpose of locating heaters at least 50feet upwind from a process unit was to separate the sources of ignitionfrom the sources of hydrocarbons (Tr. 2526).Mr. McAninch identified potential sources of hydrocarbon vapor andtestified that the heaters were \”too close\” (Tr. 1062-1068). In hisopinion none of the cited boilers and heaters were \”properly located interms of safe spacing standards\” (Tr. 1068).S:\\1984\\Processed\\79-0570-E\\00000000\\26.tif\”Both the Secretary’s expert witnesses referred in their testimony to thedocument published by Industrial Risk Insurers entitled \”GeneralRecommendations for Spacing in Refineries, Petrochemical Plants,Terminals, Oil Pump Stations and Offshore Properties\” (hereinaftercalled \”IRI Recommendations\”; Ex. C-16).Mr. Quinlivan testified that the IRI Recommendations are considered\”authoritative in the industry\” (Tr. 868). Hr. McAninch stated thatAmoco’s design philosophy with respect to the separation of boilers andheaters was \”consistent\” with the IRI Recommendations (Tr. 1061-1062).Neither witness stated, however, that the purpose of the spacingrecommendations of the IRI document was to prevent the ignition ofhydrocarbon vapors by heaters and boilers (Tr. 925, 1116). Therecommended minimum separation distance of boilers from process units inIRI Recommendations is 100 feet; the recommended minimum separationdistance of heaters from process units is 50 feet (Ex. C-16, p.4).DiscussionThe record clearly establishes that the potential for fire and explosionresulting from the ignition of hydrocarbon vapor releases by heaters andboilers existed at Conoco’s refinery. That the petroleum refineryindustry, including Conoco, recognizes the existence of this hazard,which is likely to cause death or serious physical harm, also wasthoroughly established. Even the testimony of Conoco’s expert witness,Mr. Doyle, compels this finding (Tr. 2321, 2364-2366; Ex. R-19).Insufficient evidence, however, was introduced to establish that thepetroleum refinery industry or Conoco recognizes that the failure toadhere to a 50foot separation rule for heaters and process units and a100-foot separation rule for boilers and process units is hazardous.Mr. McAninch’s opinions are based on the practices of a single company,Amoco. Certainly the separation policy of a single company does notestablish the practice of an entire industry. Moreover, Amoco appliesits 50-foot spacing policy for heatersS:\\1984\\Processed\\79-0570-E\\00000000\\27.tif\”when constructing new units and has not applied a mininum 50-footspacing policy to all heaters or boilers in existing refineries.Mr. Quinlivan, on the other hand, testified on direct examination thatthe general practice of the petroleum refining industry is to apply a100-foot spacing rule for both heaters and boilers. Yet, when testifyingabout the separation practicesof the Amoco refinery in Casper, Wyoming and the Gary operating refineryat Fruita, Colorado, the only refineries specifically named by him, heconfirmed that both refineries followed a 50-foot separation rule forheaters, not a 100-foot rule (Tr. 925).4\/Clearly, the testimony of Mr. McAninch and Mr. Quinlivan is insufficient topermit a finding that the petroleum refinery adheres to, or recognizesthe need to follow, either Mr. Quinlivan’s 100-foot rule for separatingheaters and boilers from process units or Amoco’s minimum 50-foot rulefor separating heaters.Both of the Secretary’s expert witnesses referred to the IRIRecommendations in their testimony, and the Secretary relies heavily onthis document to establish the spacing practices of the petroleumrefinery industry.Mr. Quinlivan testified that the petroleum refinery industry recognizesthe IRI Recommendations as \”authoritative.\” Mr. McAninch simplyindicated that Conoco’s policy is \”consistent\” with the IRIRecommendations with respect to new installations. Neither witness namedany refineries that have specifically recognized, adopted, and adheredto IRI Recommendations. Moreover, the preface of Exhibit C-16 indicatesthat these general recommendations for spacing are presented as guidancefor \”new construction projects\” and \”additions\” to existing facilities.On this record the IRI 4\/Conoco’s brief references the finding in Asamera Oil Co., Inc., supra,that none of the heaters at Amoco’s Casper refinery or Gary’s Fruitarefinery adhered to a 50-foot or 100-foot spacing requirement. Althoughtempted, this judge has given no consideration to the findings or experttestimony in Asamera in deciding this case.S:\\1984\\Processed\\79-0570-E\\00000000\\28.tif\”Recommendations cannot be found to represent the spacing practice of thepetroleum refinery Industry with respect to existing refineries.Because the record fails to prove that the petroleum refinery industry’has a consensus spacing practice for existing refineries, the Secretarycannot rely upon industry practice to establish that Conoco’s manner ofseparation constitutes a recognized hazard. The Secretary also did notintroduce any evidence to establish that Conoco actually recognizes itsseparation practice as hazardous. However, the decision in NationalRealty and Construction Co., Inc. v. O.S.H.R.C.,489 F.2d 1257, 1265 n.32 (1973) indicates that the existence of arecognized hazard also can be shown by proof that an employer’s practiceis unacceptable when judged by a common standard recognized by safetyexperts familiar with the industry.The Secretary’s two expert witnesses agree that the proximity of thecited Conoco heaters and boilers to potential sources of hydrocarbonreleases was hazardous. They disagree, however, on what constitutes asafe separation distance. Although his testimony is far from clear onthis point, Mr. Quinlivan apparently adheres to a personal 100-footseparation rule for both heaters and boilers. Mr. McAninch, in contractto Mr. Quinlivan, adopts Amoco’s 50-foot rule for the separation ofheaters from process units. 5\/Mr. Doyle, Conoco’s expert, has still another opinion: that the 50-footand 100-foot spacing recommendations contained in the IRIRecommendations for heaters and boilers are arbitrary and not aneffective means of preventing ignition of hydrocarbon vapor releases(Tr. 2333-2334, 2337-2338).Certainly, these three divergent opinions on this critical issue provideno basis for finding that safety experts agree on what separationdistance is necessary to prevent boilers and heaters from ignitinghydrocarbon vapors coming from process_____________________________________________5\/ This record fails to indicate whether or not Mr. McAninch has aprescribed distance rule for the separation of boilers from process units.S:\\1984\\Processed\\79-0570-E\\00000000\\29.tif\”units, or that they even agree that separation is an effective means ofpreventing such ignition. Instead, these opinions support a finding thatsafety experts familiar with the petroleum refinery industry do not holda standard of common knowledgeconcerning the separation of heaters and boilers from process units toprevent ignition. Unless a common standard is established by the record,and the evidence proves that Conoco’s separation practice is contrary tothat standard, it is impossibleto find that Conoco’s separation practice is a recognized hazard undersection 5(a) (1) of the Act.The Secretary also unsuccessfully attempted to prove that Conoco’sfailure to use certain protection methods or devices to prevent boilerand heater ignition of hydrocarbon vapors from process units constituteda recognized hazard.Mr. Quinlivan testified that \”there are many schemes around\” thepetroleum refinery industry to prevent the possibility of heaters andboilers igniting hydrocarbon vapor releases. He specified fire walls,air curtains, water curtains,flame and combustible gas detectors, and fire protection systems whichwould blanket areas and isolate ignition sources from process vaporsources (Tr. 881). In connection with the water curtain system he alsorecommends an automated shut-down system (Tr. 884). He testified thathis preferred method for abating \”the hazard of the proximity of processunits to heaters and boilers\” in Conoco’s refinery would be to \”redesign or properly space\” (Tr. 884-885).In his view, the fire wall and air curtain would not have been practicalfor installation at Conoco’s refinery due to space limitations (Tr.929). Mr. Quinlivan also agrees that it would be impractical to adhereto his spacing recommendations for heaters and boilers at Conoco’srefineries (Tr. 931). Without explaining why a C02 or water curtainsystem also would not have been practical due to space limitations, Mr.Quinlivan recommended the installation of a water curtain or a CO2curtain system at Conoco’s refinery.S:\\1984\\Processed\\79-0570-E\\00000000\\30.tif\”Mr. Quinlivan estimated, \”off the top of my head,\” that the \”Iikelycost\” of a water curtain system combined with flame and combustible gasdetectors to protect heaters from. igniting, vapors as between $100,000and $150,000 (Tr. 586, 933-934). He testified that he has seen a watercurtain and combustible gas detector system at Amoco’s refinery inCasper and Gary’s refinery in Fruita, Colorado, but never answered thequestion of \”how they worked\” or indicated whether they were used aroundheaters and boilers (Tr. 886-887). Mr. Quinlivan has never seen a CO2curtain system installed in a refinery (Tr. 931).The Secretary’s evidence falls short of establishing that the petroleumrefinery industry generally uses water or CO2 curtains, or any other ofthe Secretary’s recommended protective devices, to protect heaters orboilers from ignition of hydrocarbon vapors, or that the industry orConoco recognize that the failure to use such systems or devices ishazardous. Also, the same evidence is insufficient to establish thatsafety experts familiar with the petroleum refinery industry recognizethat Conoco’s failure to use the Secretary’s recommended devices ishazardous.On the entire record, the existence of a recognized hazard with respectto Conoco’s manner of separating or protecting its heaters and boilersto prevent ignition of hydrocarbons from process units was not proven.The Secretary’s charges, both here and in Asamera, are apparent attemptsby the Secretary to establish a separation performance standard for theentire petroleum refinery industry through selective use of the generalduty clause and ad hoc adjudication rather than employing thestandard-making machinery provided in the Act. It is suggested that ifthe Secretary is persuaded that 50-foot and 100-foot spacing rules, oruse of certain protection devises, are essential for employee safety,his proper course is to use the standard-making procedures of the Act.As was pointed out by the Court in B&B Insulation, Inc. v. OSAHRC andMarshall, 583 F.2dS:\\1984\\Processed\\79-0570-E\\00000000\\31.tif\”1364 (5th Cir. 1978):\”The use of standard-making procedures assures that not only wouldemployers be apprised of the conduct required of them and responsibilityfor upgrading the safety of the industry would be borne equally by allits members, but the resulting standard would benefit from import of theindustry’s experts, both employer and employee, cost and technologyobstacles could be weighed and more interested parties can articulate inthe process.\”Citation No. 1, Items 11(b-d) Citation No._2,_Item 2( a)As amended, Citation 1. Items 11(b-d) charges Conoco with violatingseveral sections of the 1971 National Electrical Code, NFPA No. 70-1971(NEC), which have been incorporated by reference by standard 29 C.F.R.{sec}1910.309(a). The cited sections of 1971 NEC Article 501 all requirethat \”approved\” or \”explosion-proof\” electrical equipment be provided in\”hazardous locations,\” as defined by Article 500 of the 1971 NEC.The Sscretary alleges that Conoco failed to provide \”approved\”electrical equipment, or in lieu thereof, positive pressure ventilation,at six locations in its Denver refinery. 6\/1. The control room and fire building complex;2. The water pumphouse;3. Electrical equipment west of the old cat-poly unit (designated at thehearing as \”west electrical disconnects\”);4. Electrical equipment south of the old cat-poly unit (designated atthe hearing as \”P+M 322-11\”);5. Electrical substation No. 2, and;6. Electrical substation No. 1._____________________________________________6\/ Conoco withdrew its Notice of Contest with respect to a seventhlocation, Item 110(b) of Citation No. 1, in a stipulated SettlementProposal, Ex. J-1 (Tr. 4-5).S:\\1984\\Processed\\79-0570-E\\00000000\\32.tif\”Item. 2a of Citation 2, as amended, additionally alleges that Conoco\”willfully\” violated Article 501 of the 1971 NEC with respect toConoco’s control room.The issue is whether the cited locations are \”hazardous locations,\” andmore particularly, \”Class 1, Division 2\” locations within the meaning ofArticle 500-4(b) of the 1971 NEC.Article 500-4(b) provides:\”500-4 Class I Locations. Class 1 locations are those in which flammablegases may be present in the air in quantities sufficient to produceexplosive or ignitable mixtures. Class I locations shall include thefollowing.(b) Class I, Division 2. Locations (1) in which volatile flammableliquids or flammable gases are handled, processed or used, but in whichthe hazardous liquids, vapors or gases will normally be confined withinclosed containers or closed systems from which they can escape only incases of accidental rupture or breakdown of such containers or systemsor in case of abnormal operation of equipment…\”With the exception of the location of substation No. 1, it is Conoco’sposition that none of the cited locations were Class I, Division 2locations, and as a result, \”approved\” electrical equipment was notrequired. [[7\/]]Summary of EvidenceIn support of these charges of violation of the 1971 NEC, the Secretaryintroduced the testimony of Officer Bakewell, and his expert, Mr. McAninch.Officer Bakewell’s testimony that electrical equipment \”not approved\”for Class I, Division 2 was installed in the six cited locations wentunrefuted. The accuracy of his measurements from the unapprovedelectrical equipment to certain other pieces of equipment also wentunchallenged, except for his measurement from the P\/B dryerS:\\1984\\Processed\\79-0570-E\\00000000\\33.tif\”to P-4 332-11. Officer Bakewell measured this distance as 45 feet (Ex.C-9). Mr. Brooks testified that the distance was 78 feet 7 inches (Tr.1254). This measurement , however, was made by Mr. Greg Ricks,. not Mr.Brooks. According to Officer Bakewell, every measurement was taken froma \”potential source of hydrocarbons\” such as flanges, valves, pumps andpipes (Tr. 128-129, 131). On rebuttal he also testified that he \”tookmeasurements from areas where flammable vapors were housed\” in a closedsystem (Tr. 146). All of the measurements were less than 100 feet (Tr.106). In his opinion all of these 6 locations were in Class I, Division2 areas because \”under abnormal circumstances\” hazardous vapors could bereleased (Tr. 146-147).In addition to relying on the NEC when issuing the citation, OfficerBakewell relied on document AP1 RP500A entitled \”Recommended Practicefor Classification of Areas for Electrical Installation in PetroleumRefineries\” (Ex. C-32; hereinafter called \”RP 500A\”). Officer Bakewellinterprets RP 500A as extending Class I, Division 2 locations out 50feet from a potential vapor source; \”Where large releases of volatileproducts may occur,\” however, Class 1. Division 2 locations extend 100feet from the potential vapor source (Tr. 151, 157).According to Officer Bakewell, the NEC provides an employer with the optionof either installing \”approved\” electrical equipment in a Class 1,Division 2 area or enclosing the electrical equipment and positivelypressurizing the enclosure area (Tr. 160).On cross-examination, Officer Bakewell stated he was unable to testifyas to the pressure, temperature, or quantity of the material behind thepoints to which he measured (Tr. 277). His measurement of 27 feet fromthe No. 2 transformer electrical substation to the corner of the \”FCCUnit\” was not taken to a valve or flange but rather to \”a group ofoverhead lines\” for the 48-foot measurement (Tr. 278). OnS:\\1984\\Processed\\79-0570-E\\00000000\\34.tif\”rebuttal, he testified that with respect to these locations he measuredto horizon tal overhead lines, not to a vertical pipe, and to a \”pump\”(Tr. 2535).Mr. McAninch testified that in classifying Class I, Division 1 and 2areas he relied on the National Electrical Code \”Chapter 5 SpecialOccupancies, ARTICLE 500 – HAZARDOUS LOCATIONS\” (Ex. C-51). According tiMr. McAninch, Amoco also used RP 500A (Ex. C-32) as \”minimumguidelines.\” He considers that RP 500A is an interpretation of the NECby the API and serves as a \”guide\” to the industry (Tr. 1073, 1121).Amoco as a \”general rule\” used a 50-foot standard unless the electricalequipment was close to \”huge quantities\” of hydrocarbons (Tr. 1119). Inhis experience, Amoco never used a 100-foot area classification forClass I, Division 2 locations (Tr. 1123-1124). In his view, all controlrooms should be pressurized. He concedes, however, that the NEC does notrequire control rooms to be pressurized (Tr. 1075-1077).Mr. McAninch testified that Conoco’s cat-poly unit and \”some\” of therecovery section of the crude unit contained \”copious quantities ofheavier than air hydrocarbons\” that would go directly on release to thecontrol room due to the prevailing wind (Tr. 1077-1078). His opinionthat the control room at Conoco is in a Class I, Division 2 location, asthose terms are used in the NEC, is based on the fact that API 500Arequires a 100 foot extended area \”where hydrocarbons can be availableat the two foot level\” (Tr. 1081).He believes the below grade pumphouse is in a Division 2 area becausethe \”separator\” is immediately east of the pumphouse (Tr. 1082). Withrespect to P+M 32-11, Mr. McAninch believes it should have beenclassified Division 2 because of its 45-foot distance from the PB dryer(Tr. 1083-1084). He indicated, however, that if the PB dryer was located\”down wind\” he would be \”more lenient\” (Tr. 1080).S:\\1984\\Processed\\79-0570-E\\00000000\\35.tif\”If the No. 2 Transformer Electrical Substation was located only some 27feet west of the FCC, he would consider the substation as a Class I,Division 2 location (Tr. 1084).He further indicated that the \”west electrical disconnects\” also were ina Division 2 area (Tr. 1085).Conoco’s expert, Mr. Robert P. Howell, was employed by Standard Oil ofCalifornia for 40 years (Tr. 1364). A member of the API subcommittee onelectrical equipment from 1953 to 1969, he considers himself \”aprincipal author\” of RP 500A (Tr. 1367-1368). He also was a panel memberon the National Fire Protection Association (NFPA) \”code making\” panelat the time the NFPA issued the 1971 NEC (Tr. 1368).According to Mr. Howell. the NEC first defined Division 1 and Division 2areas for electrical classification purposes in 1947. Due to the\”vagueness\” of those definitions, however, the petroleum industry foundit impossible to classify areas in a consistent manner (Tr. 1375-1376).In response to this vagueness, the NFPA developed a number of \”specialoccupancy\” rules, setting forth \”rigid, or mandatory\” distances ordimensions for Division 1 and Division 2 area classifications forcertain industries, such as service stations (Tr. 1376-1380; See e.g.,NFPA, Flammable and Combustible Liquids Code, Exhibit R-4; see also,1971 NEC, Articles 510-555).According to Mr. Howell, the NFPA never developed a special occupancyrule or a rigid definition of classified areas for petroleum refineriesdue to its recognition that each petroleum refinery is different interms of process, size, terrain, and other factors, that go intodetermining how the NEC requirements for area classification should beapplied (Tr. 1380-1381).Mr. Howell testified that RP 500A was prepared to serve as aninterpretative guide of the NEC for the petroleum refinery industry (Tr.1382, 1386). Mr. Howell stated that the recommended distances of 50 and100 feet in Figure 1 of RP 500A areS:\\1984\\Processed\\79-0570-E\\00000000\\36.tif\”\”extremely conservative\” (Tr. 1390). He indicated that \”many\” of themajor oil refineries do not automatically go to 50 feet in classifying aDivision 2 area – they use \”judgment\” and do not use Figure 1 as a\”standard\” (Tr. 1389). He named Atlantic Richfield, Union Oil, Texaco,Chevron, and Amoco as companies using less than 50 feet in defining aDivision 2 area (Tr. 1402). According to Mr. Howell, Gulf, AtlanticRichfield, Union, Soho, Texaco, Shell, Chevron, and Amoco, do notclassify a Division 2 area beyond 50 feet (Tr. 1415). Also, the term\”abnormal\” in RP 500A is not to be equated with \”catastrophic\” (Tr. 1392).If the material is a volatile flammable liquid with a flash point ofunder a hundred, and if the pressure in the process equipment is over500 psi, Mr. Howell, personally would classify the area extending out 50feet from the process equipment as a Division 2 location (Tr.1399-1400). If the pressure in the equipment. however, is less than 500psi he would extend the classified area for this volatile flammableliquid out only 25 feet from the edge of the process equipment (Tr.1400-1401). Moreover, if the process fluids have flash pointsconsiderably above 100*, he \”might\” suggest that the classification belimited to the \”boundry limits\” of the process area (Tr. 1400). Histheory regarding temperature and psi in classifying a Division 2location, however, is not mentioned in RP 500A.Mr. Howell considers pumps. closures on heat exchangers, flanges onvessels, and exchangers, as sources of vapor (Tr. 1404). According toMr. Howell, the nearest source of vapor to the control room was X-302and X-304, feed preheaters in the catpoly plant. The material containedin these preheaters were various propanes and butanes operating at 600psi (Tr. 1420). For this equipment, he would go out 50 feet from thepreheaters and designate everything within this area as Class I,Division 2. Because the electrical equipment in the control room wasmore than 50 feet from these preheaters, he believes the electricalequipment was not in a Class I, Division 2 location (Tr. 1420-1421).S:\\1984\\Processed\\79-0570-E\\00000000\\37.tif\”With respect to the general purpose disconnect switches and circuitbreakers and the exhaust for the diesel engine in the below grade waterpurnphouse, Mr. Howell testified that the nearest source of vapor vasvessel the propane dryer (Tr. 1423). This dryer was operating at apressure of \”230, 250 pounds\” (Tr. 1424). In his view the two poolsdirectly adjacent to the pumphouse were not sources of vapor forclassification purposes (Tr. 1424-1425). Mr. Howell further testifiedthat the exhaust of the diesel engine is not covered by the NEC, whichlimits itself to electrical equipment (Tr. 1423).According to Mr. Howell, the NEC makes no mention of below-grade areas.However, API – RP 500A does suggest that, if a below-grade area iswithin a Class 1, Division 2 location, the below-grade area should beclassified as Division I (Tr. 1425-1426).Mr. Howell believes that the nearest source of vapor to the electricalequipment in the area designated P+M 322-11 is the stripper reboiler,X-239, or the fractionating tower W-54. They both contain lighthydrocarbons at moderate pressure, 200 to 300 pounds (Tr. 1426-1427).Mr. Howell, therefore, believes there was no need to classify P+M322-11. The pump which he measured 53 feet from P+M 322-11 was a butanereflux pump and had not been in service for \”some time\” (Tr. 1435).He also would not have classified the #2 process electrical substation.According to Mr. Howell, the MEA unit contained no flammable liquids orvolatile hydrocarbons, and the FCC unit nearest to the substation washandling \”heavy hot pitchlike materials.\” Mr. Howell testified that theclosest source of vapor were a pair of pumps, P-554 and 555, thathandled naptha, via very high vapor pressure gasoline\” (Tr. 1428). Pumps558 and 559 are closer, according to Mr. Howell, but they contain a veryhot slurry and definitely are not a source of vapor. Mr. McAninchdisagrees with Mr. Howell’s opinion in this regard, however, andtestified the slurry would vaporize (Tr. 2532). Mr. Howell furthertestified that pumps P-556 and P-5571 handleS:\\1984\\Processed\\79-0570-E\\00000000\\38.tif\”a heavy cycle oil that would not be a source of volatile vapors (Tr.1428-1429). Mr. Howell testified that W-17 is the main fractionatingtower and was within 50 feet of # 2 transformer substation (Tr. 1428-1429). Mr. Howell testified that the Secretary’s 48-foot measurement onExhibit C-9 was a flange in the MEA unit. Behind the flange, however,was \”steam\” (Tr. 1434).The nearest vapor source to the west electrical disconnects and circuitbreakers, according to Hr. Howell, was D-66; the propane dryer. Thedistance was \”such\” that there would be no reason to classify the westelectrical area (Tr. 1432).Mr. Lynen Brooks, a Conoco senior electrical engineer, testifiedconcerning Conoco’s classification procedures. According to Mr. Brooks,a Class I, Division 2 location is an area where the process fluids wouldbe contained within closed systems and when releases would occur underan abnormal situation such as a \”breakdown or failure of a piece ofequipment (Tr. 1226). Conoco uses Conoco’s Central EngineeringDepartment Standard 12 as the basis for its classification of Division 1and Division 2 areas (Tr. 1230; Ex. R-1). Conoco also recognizes that RP500A is a reliable authority for the purpose of electricalclassification in the petroleum refinery industry (Tr. 1234-1235). Mr.Brooks believes the primary purpose of RP 500A was to permit thepetroleum refinery industry to determine the extent of Division 1 andDivision 2 areas (Tr. 1236).In defining and classifying a Class I, Division 2 location, Conocomeasures out 50 feet from sources \”that are most likely to cause aproblem in a refinery.\” According to Mr. Brooks, these sources are\”rotating pumps and control valves with stems\” (Tr. 1205).Conoco relies on Conoco’s standard 12 and API RP 500A for distances andupon the NEC \”in terms of the classification of the areas\” (Tr. 1246).Conoco considers the quantity of the hazardous material that mightescape in case of an accident, the total area involved, and the recordof the industry and Conoco’s with respectS:\\1984\\Processed\\79-0570-E\\00000000\\39.tif\”to explosion or fires (Tr. 1246-1247). To Mr. Brooks’ knowledge, no fireor explosion at Conoco’s refinery was due to electrical ignition (Tr.1247). On cross-examination, however, he conceded, that he did not knowthe cause of some of the fires that had occurred at Conoco’s refinery(Tr. 1268-1270).Mr. Brooks indicated that he would classify a Division 2 location less than50 feet if he wanted to classify around a piece of equipment that washandling \”fairly heavy substances\” which would give off \”very littlevapor\” if released. He also might classify beyond 50 feet \”in a case ofa large storage area\” where \”large quantities\” might be released (Tr. 1248).Mr. Brooks does not believe that the control room was in a Class 1,Division 2 location (Tr. 1250). He testified that the closest sources ofvapor to the control room were more than 50 feet distant (Tr. 1251). Hebelieves that the material in the MEA unit, was \”only water or someother types of material that would not constitute a hazard or would notconstitute a source of vapor\” (Tr. 1251-1252).He measured 76 feet 6 inches from the window of below-grade pumphouse toD-66, the propane dryer (Tr. 1254). The nearest source of vapor, theexchanger X-130, was farther away from the pumphouse than D-66 (Tr.1255). Mr. Brooks does not consider D-66 to be a source of flammablevapor (Tr. 1284).The nearest source of vapor to P+M 322-11, according to Mr. Brooks, wasthe control valve near P-496, and it is over 50 feet away (Tr. 1260).Mr. Brooks believes that the nearest source of vapor to No. 2Transformer substation is the reflux pump P-554 and further than 50 feetaway (Tr. 1260-1261). Mr. Brooks does not consider pumps P-558 and P-559as sources of vapor because they handle a hot slurry. Mr. Brooksbelieves that the material in P-558 (within 50 feet of the control room)would auto-ignite if leaked to the atmosphere (Tr. 1301-1303). P-558 was27 feet from #2 substation (Tr. 1304). According to Mr. Brooks, pumps P-556 andd P-557 are not sources of vapor because they handle heavy fueloil, a Class III liquid (Tr. .1261).S:\\1984\\Processed\\79-0570-E\\00000000\\40.tif\”The closest source of vapor to the west electrical disconnects was thecontrol valve on X-130 and further than 50 feet away (Tr. 1263). Hemeasured the distance from the west disconnects to D-66, however, as 39feet (Tr. 1328).According to Mr. Brooks, the No. I electrical substation was in a ClassI. Division 2 area because the control valve associated with thedesalter was within 50 feet of the substation (Tr. 1265).Mr. Brooks testified that the distance from D-66 to P+M 32-11 was 78feet 7 inches. This measurement was made by Mr. Greg Hicks, not Mr.Brooks. If the distance from D-66 to P+M 32-11 was actually 45 feet (asmeasured by Officer Bakewell), Mr. Brooks still does not consider D-66 asource of vapor because D-66 does not have a control valve, and Mr.Brooks does not consider an \”ordinary valve\” as a source of leak (Tr.1297). Based on Exhibit R-3, the 78-foot, 7 inch measurement ispreferred over the 45-foot measurement of Officer Bakewell. Mr. Brooks’measurement from X-239 to P+H 322-11 was 63 feet 6 inches and 51 feet 6inches from X-239 to transformer C-17 (Tr. 1299-1361).Mr. Brooks measured the control valve below exchanger 130 to be 51 feetfrom the west electrical disconnects (Tr. 1328). D-66 was \”39 feetexactly\” from the west electrical disconnects (Tr. 1238).DiscussionAs Conoco’s brief points out, the Secretary’s interpretation andapplication of Article 500-4(b) of the NEC to the unapproved electricalequipment at issue can be \”simply\” stated: a Class 1, Division 2 area inan oil refinery must extend a minimum of 50 feet from the nearest sourceof hydrocarbon, in all cases. But, in this case. the alleged Division 2areas must extend 100 feet from the neatest sources of hydrocarbons.Because the six electrical installations were located less than 100 feetfrom a source of hydrocarbon, the Secretary maintains that Conocoviolated theS:\\1984\\Processed\\79-0570-E\\00000000\\41.tif\”sections of Article 501 of the NEC by not installing \”approved\”electrical equipment or, in lieu thereof, positive pressure ventilation.Article 500-4 of the NEC is couched in imprecise and general terms andprovides little or no guidance on how to determine the existence andextent of a Class 1, Division 2 location. Article 500-4(b) simply statesthat a Class 1, Division 2 location is an area \”in which volatileflammable 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 canescape only in case of accidental rupture or breakdown in suchcontainers or systems or in case of abnormal operation of equipment…\”Although Article 500-4 of the NEC does not define a Class I, Division 2location in terms of a specific distance from a potential source offlammable material, both the Secretary’s witnesses, Officer Bakewell andMr. McAninch used specific distances as the critical factor indetermining the existence and extent of the Class 1, Division 2locations at Conoco’s refinery. Conoco’s witnesses Mr. Howell andMr. Brooks, also used specific distances as benchmarks for determiningthe extent of Class I, Division 2 areas as defined by the NEC.In Asamera Oil Co._, Inc., 9 BNA OSHC 1426, 1981 CCH OSHD (P)25,131, No.79-0949 and 79-1756, 1980), this judge held that Article 500-4 of theNEC was imprecise on its face and that its provisions standing alonefailed to provide employers with an appropriate basis or standardcapable of determining the existence and extent of Class I, Division 2areas. This decision also held that Article 500-4 was unconstitutionallyvague as applied to Asamera. At the hearing in this case, however,Conoco abandoned its affirmative defense that Article 500-4 of the NECis unenforceably vague (Tr. 157).S:\\1984\\Processed\\79-0570-E\\00000000\\42.tif\”Conoco’s abandonment of this defense, however, does not relieve thisCommission of its duty to interpret and apply Article 500-4 in a mannerwhich provides employers with an objective standard of violation. Ininterpreting and applying broadly worded standards of the Act, thecourts and the Commission have focused on how an employer, his industry,or a \”reasonable person\” interprets the requirements imposed by thestandard. E.g., B&B Insulating, Inc., OSHRC 583 F.2d 1364 (5th Cir.1978); Cotter & Co. v. OSHRC, 598 F.2d 912 (5th Cir. 1979); S&H Riggers& Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD[[P]]23,480 (No. 15855, 1979). Therefore, the critical inquiry here, iswhether Conoco or the petroleum refinery industry, or a reasonableperson familiar with the petroleum refinery industry, would recognizethat the NEC requires Conoco’s six cited locations to be classified asClass I, Division 2 locations.The Secretary claims that RP 500A constitutes the petroleum refineryindustry’s interpretation of Article 500-4 and the general practice ofthe petroleum refinery industry with respect to classifying Class I,Division 2 locations. Conoco agrees, but disagrees that RP 500A requiresthat a Class I, Division 2 area must extend a minimum of 50 feet, orthat RP 500A requires a 100 foot extension with respect to the six citedlocations.RP 500A, Exhibit C-32, is not an occupational safety and health standardunder the act, but is an industry document – an attempt by the API topresent to the petroleum refinery industry a guide for classifyingelectrical installation areas consistent with the NEC. But there is noattempt to denote its recommendations as mandatory; clearly, therecommendations are intended to be advisory only. The foreword ofExhibit C-32 contains the following statements and disclaimers:\”This publication includes generalized statements and recom mendationson matters on which there are diverse opinions. It is important,therefore, that Judgment take precedence over a literal interpretationof the text… The information contained in this publication does notconstitute, and should not be construed to be a code of rules orregulations.\”S:\\1984\\Processed\\79-0570-E\\00000000\\43.tif\”The Secretary contends that the recommended 50-foot distance in Figure Iat p.10 of RP 500A must be construed as a \”minimum\” when determining theextent of a Class I. Division 2 area. Mr. McAninch supported thiscontention and testified that Amoco considered the 50-foot distance as aminimum in determining the extent of a Division 2 area (Tr. 1073). Atanother point in his testimony, however, he suggested that he might notalways require a minimum of 50 feet (Tr. 1084). Mr. Howell contradictedMr. McAninch’s testimony in regard to Amoco’s practice and testifiedthat unidentified Amoco representatives had informed him that Amoco insome cases extended Class 1, Division 2 areas less than 50 feet (Tr.1848-1485). He further testified that the refineries of AtlanticRichfield, Union, Ohio, Texaco, and Chevron alsoused less than a 50-foot distance in defining a Division 2 area (Tr.1402). Mr. Brooks, of course, testified that Conoco does not interpretFigure 1 of RP 500A as establishing a minimum 50-foot distance (Tr. 1248).Contrary to Conoco’s contentions,Section 11 and Figure 1 of RP 500A mustbe read as recommending a 50-foot minimum distance in Division 2locations in petroleum refineries. But a recommendation, advisory innature. cannot be the basis for finding a violation of the Act even ifthe Secretary had adopted RP 500A pursuant to Section 6(a) of the Act.See A. Prokosch and Sons Sheet Metal, Inc., 80 OSAHRC 96\/A2, 8 BNA OSHC2077, 1980 CCH OSHD (P)21,275 (No. 76-576, 76-406, 1980) and the casescited thereunder.Furthermore, it cannot be concluded that the petroleum refinery industrygenerally or Conoco specifically recognizes that the NEC mandates theuse of a minimum 50-foot distance in all situations when determining theexistence and extent of Class 1, Division 2 locations.All three experts interpreted the recommended additional 50-footDivision 2 area in Figure 1 of RP 500A as applicable only \”where largereleases of volatile products may occur.\” RP 500A, however, does notspecifically define \”large releases .S:\\1984\\Processed\\79-0570-E\\00000000\\44.tif\”Although Mr. McAninch testified on direct examination that all sourcesof vapor referenced bv the Secretary required an additional 50 footextension, he acknowledged on cross-examination that a 100-foot areaclassification rule was not customarily employed by the petroleumrefinery industry with respect to small process units such as those atConoco’s Denver refinery (Tr. 1119). He also testified at his depositionthat he was unaware of any instance where Amoco used a 100-foot radiusfor a Division 2 location (Tr. 1123-1124). He also indicated that hewould define \”huge quantities\” of vapor in terms of storage-type unitssuch as propane storage units containing 10,000 barrels (Tr. 1119).Mr. Howell testified that judgment must be used in defining \”largevolumes of hydrocarbons\” (Tr. 1167). Mr. Howell further stated thatthere was no consistent application of the 100-foot recommendationwithin the petroleum refinery industry. According to Mr. Howell, a majorsegment of the petroleum refinery industry, including Gulf. Amoco,Union, Texaco, Shell, Union, Arco, and Standard of California did notclassify refining process units beyond 50 feet (Tr. 1415). He concededhowever,that other companies do go beyond 50 feet (Tr. 1536- 1537).Conoco similarly interprets the additional 50-foot area as applicableonly to storage areas containing extremely large quantities ofhydrocarbons (Tr. 1248-1249; See also, Tr. 1310, 1335).As previously noted, RP 500A does not specifically define \”largereleases,\” and there is no indication that the petroleum refineryindustry has arrived at a consensus definition of that term through useof the 100-foot standard. Therefore,it is impossible to ascertain underwhat circumstances the petroleum refinery industry recommends that the100-foot distance should be used when determining the existence andextent of Class 1, Division 2 locations.S:\\1984\\Processed\\79-0570-E\\00000000\\45.tif\”In summary, Article 500-4 of the NEC provider no ascertainable objectivestandard of violation. There is no way of determining when an employerhas failed to comply with Article 500-4’s requirements concerningclassification of Class I, Division 2 areas. Based on the provisions ofArticle 500-4. who can say with any degree of accuracy what is theextent of a Class I, Division 2 area? Nor can the existence and extentof a Class I, Division 2 location be resolved by resort to RP 500A. Thisdocument is nothing more than an attempt by the petroleum refineryindustry to interpret the vague classification provisions of the NEC; itdoes not purport to establish an objective standard of violation for theNEC. As the Secre tary’s counsel conceded, a \”violation\” of the RP 500Adoes not constitute a violation of the NEC (Tr. 152). Moreover, RP 500A,also is vague and imprecise as to when an additional 50-foot distanceshould be used in determining the extent of Class 1, Division 2locations. Even assuming that the RP 500A 100-foot separationrequirement was mandatory and noncompliance with that requirement aviolation of the NEC and the Act, no violation of that requirement couldbe found in this case because the record fails to establish that thepetroleum refinery industry would have used the 100-foot rule atConoco’s refinery, or that Conoco actually recognized the need to extendits Division 2 areas 100 feet.For the foregoing reasons, no violation of {sec}1910.309(a) will befound with respect to the first five locations previously referenced. Inview of Conoco’s admission or concession that substation No. 1 islocated within a Class I, Division 2 location, a violation of{sec}1910.309(a) and Article 501 of the NEC with respect to thatlocation is affirmed.Conoco’s argument that the requirements of Articles 500 and 501 do notapply to this installation because it was installed before March 15,1972 must be rejected on the authority of Deleware & Hudson Railway,1980 CCH OSHD {sec}24,422; 8 BNA OSHC 1252S:\\1984\\Processed\\79-0570-E\\00000000\\46.tif\”(no. 76-787, 1980). In that decision the Commission held that?1910.309(a), incorporating Articles 500 and 501 by reference, containsno clause excluding electrical equipment installed before 1972 and thatthe pre- 1972 limitation in ?1910.309(b) does not apply to the NECArticles incorporated in former ?1910.309(a).A penalty of $100.00 for this violation is consistent with the agreedupon penalty for Item 11C(b) of Citation 1 (See Ex. J-1), and will beassessed.Unable to find that Conoco’s control room is a Class I. Division 2location, the alleged \”willful\” charge under Item 2a of Citation No. 2with respect to the control room also must be vacated.To obviate the need for a remand should a reviewing authority find thatthe NEC can be applied to the facts of this case and that the NECmandates the use of a 50-foot minimum distance in classifying a Class I,Division 2 location at Conoco’s refinery, special findings will be madewith respect to the 5 Conoco locations at issue.8\/1. Control Room and Office Building Complex (\”A\” on Ex. R-3)No potential sources of volatile flammable vapor were 50 feet or lessfrom the control room (Tr. 1314-1315, 142).Although the control room was equipped with positive pressurizationequipment, adequate positive pressurization was not maintained in thecontrol room. Conoco intentionally deceived the representatives of itsinsurance carrier and led them to believe that the control room wasadequately pressurized (Tr. 1025- 1026). The motive for this deceptionhowever, and the terms of Conoco’s insurance agreement are unknown.Without this knowledge, it is impossible to conclude whether or not this8\/ No findings with respect to the alleged 100-foot classification rulefor Class 1, Division 2 locations are necessary because sources of vaporwere within 100 feet of the 5 locations.S:\\1984\\Processed\\79-0570-E\\00000000\\47.tif\”deception constitutes recognition of the need to classify the controlroom as a Class I, Division 2 location.2. Water Pumphouse.The nearest source of flammable vapor to the water pumphouse was D-66,and was more than 50 feet from the pumphouse.3. West Electrical DisconnectsThe nearest source of vapor to the west electrical disconnects, D-66,was within 50 feet of the west electrical disconnects (Tr. 1328).4. P+M 322-11This location was probably more than 50 feet of the nearest source ofvapor, W-54 (Tr. 1299, 1426; Ex. R-3).5. Electrical Substation 2This location was within 50 feet of the nearest source of flammablevapor, W-17 (Tr. 1469-1470, 1472).Citation No. 2, Item IThis item charges Conoco with willfully violating Section 5(a)(1) of theAct \”in that\” Conoco \”allowed and\/or required relief valves on pressurevessels D-241 (stabilizer for reflux drum) and D-48 (P.B splitter refluxdrum) to be turned down so that the relieving pressure would beincreased above the normal and recommended safe pressure setting, whichcreated the hazard of increasing the internal relieving pressure on thepressure vessels and their associated equipment.\”A. BackgroundThe function of a safety relief valve is to prevent overpressure inprocess equipment. Failure to relieve overpressure can result in leaksand rupture of the equipment. Whenever the pressure in the processsystem exceeds the \”set point\” or \”release point\” of the safety reliefvalve, the spring-loaded disk of the valve opens, discharging theoverpressure into a closed flare system and onto a remoteS:\\1984\\Processed\\79-0570-E\\00000000\\48.tif\”flare where the released hydrocarbons can be safely burned. Once thepressure in the process system is reduced to the pressure of the setpoint of the relief valve the relief valve is designed to automaticallyclose (Tr. 15, 73; Ex. R-7).The \”set\” or \”release\” point of a relief valve necessarily must exceedthe normal operating pressure of the process, but it is set lower thanthe \”maximum allowable working pressure\” of the equipment protected bythe relief valve. \”Maximum allowable working pressure,\” as defined inSection 8 of the Pressure Vessel Code of the American Society ofMechanical Engineers (ASME) is the calculated maximum pressure at whichthe equipment can safely operate.A publication of the American Petroleum Institute (API), the Guide forInspection of Refinery Equipment, Chapter XVI, Pressure RelievingDevices, provides that the pressure at which a relief valve releasesshould be within + 1\/2 percent of the prescribed set pressure before therelief valve is approved for service (Section 16.8.2.7; Ex. C-50). Thesame API Guide also contains detailed inspection and testing proceduresto be followed to assure that the proper pressure setting and release ofrelief valves is maintained. (For example, see Sections 16.5.4, 16.6,16.7 and 16.8, Ex. c-50).The two relief valves in question were located in Conoco’s CatalyticPolymerization Unit (CPU). The CPU included a \”reaction\” process and a\”fractionation\” process. The fractionation process had three separatesections containing a \”stabilizer\” tower, W-68, a propane – butane\”splitter\” tower, W-69, and a \”le-ethanizer drier.\” The stabilizertower, W-68. (\”A\” on Ex. R-6) first separated the product or \”feed\”coming from the reaction process into a \”poly-gasoline\” and a propanemixture. The gasoline flowed out of the bottom of tower W-68 to storageand the propane – butane mixture flowed out the top of W-68, downthrough four heat exchangers, X-307, X-308, X-309 and X- 310, and intothe reflux drum, D-241 (\”B\” onS:\\1984\\Processed\\79-0570-E\\00000000\\49.tif\”Ex. R-6). A safety relief valve was located on top of D-241. A safetyrelief valve also was located on top of tower W-68 (\”PSU 431\” on Ex. R-6).The propane\/butane mixture in D-241 was them pumped to splitter towerW-69 (\”C\” on Ex. R-6). W-69 separated or \”split\” the propane from thebutane. Butane flowed out of the bottom of W-69 and was sent for furthertreating and storage. Propane flowed out the top of W-69, down throughtwo heat exchangers, X-315 and X-316, and into a reflux drum, D-48 (\”D\”on Ex. R- 6), and then into further treating and storage. A safetyrelief valve was located on the top of reflux drum D-48.The facts surrounding Conoco’s admitted changes of the pressure set orrelease points on the safety relief valves on D-48 and D-241 will be setforth below.B. Summary of the Evidence1. D-48 Relief ValveOn the morning of September 23, 1978, the relief valve on reflux drumD-48, opened, relieving hydrocarbons into the flare system. The splittersystem was operating at 265 pounds per square inch guage (psig) at thetime of release according to the pressure indicator in the control room;the normal operating pressure on D-48 is \”270, 275 psig.\” This reliefvalve had been initially set to release according After the release, thepressure indicator registered no pressure above 250 psig, the lowestrecording point on the pressure indicator. The valve in D-48 continuedto relieve (Tr. 1569-1570).Mr. Greg Lorimer, Conoco’s operations superintendent and acting shiftsupervisor, then went onto the second level of the cat-poly unit toinspect the relief valve on D-48. According to his testimony the reliefvalve in D-48 was vibrating and relieving, and the protective cap of thevalve was laying on the deck.The lock nut, (\”N\” on Ex. R-7), which keeps the adjustment screw (\”S\” onEx. R-7) in place, was separated from the adjustment screw by severalturns. The adjustS:\\1984\\Processed\\79-0570-E\\00000000\\50.tif\”ment screw sets the tension on the spring of the relief valve, and whenthe set tension pressure is exceeded, the seat opens and the valverelieves (Tr. 1571- 1574). When the adjustment screw is turned down ortightened the spring tension is supposed to increase and raise thepressure point at which the relief valve will open or relieve (Tr.1574). According to Mr. Lorimer, he saw the adjustment screw turncounterclockwise or upward, two turns. When an adjustment screw turnscounterclockwise, the tension on the spring is supposed to decrease andlower the pressure point at which the valve relieves (Tr. 1574- 1575).The pressure guage on drum D-48 then read 200 psig; the relief valve wasvibrating, and a small amount of hydrocarbons was seeping from the stemof the valve (Tr. 1576).Mr. Lorimer ordered the employee accompanying him to turn down on theadjustment screw until the valve on D-48 stopped relieving but \”in nocase more than two turns.\” The employee turned down the adjustment screw\”approximately one-half to one turn down\” and the D-48 relief valvestopped relieving (Tr. 1576). After the adjustment screw was turneddown, Mr. Lorimer, again looked at the pressure guage on D-48. \”[I]t wasstill 200 psig, but I could see that the pressure was beginning toincrease\” (Tr. 1578). Mr. Lorimer than went back to the control room andgave the operators instructions to watch the pressure on tower W-69 andtake immediate steps to relieve the pressure if it increased above 280psig (Tr. 1579). Mr. Lorimer then went to his office, about 40 to 50feet from the control room, to make a phone call. He claims he wanted toascertain whether there was a possibility of making an \”on-stream\”adjustment of the relief valve setting so that \”we could continue tooperate the vessel\” or whether it would be necessary to shut the vesseldown, remove the relief valve and \”reset it\” (Tr. 1579). He triedunsuccessfully to telephone Conoco’s mechanical inspector, mechanicalcraft superintendent, and the refinery manager, and then returned to thecontrol room (Tr. 1580-1581).S:\\1984\\Processed\\79-0570-E\\00000000\\51.tif\”The relief valve on D-48 again relieved, about \”an hour or an hour and ahalf\” after the employee turned down the adjustment screw. According tothe pressure indicator, the pressure in the vessel at this time ofrelieving was less than 250 psig (Tr. 1581).Mr. Lorimer then instructed the operators to depressure W-69 and shut itdown. This process normally takes approximately an hour (Tr. 1582). Onthe evening of September 23rd, the relief valve was removed and taken toa shop, \”not Conoco’s shop,\” where the pressure was reset at 310 psig.On Conoco’s instruction, the shop inserted a set screw in the lock nutto prevent it from turning (Tr. 1583).On September 23rd, Mr. Lorimer was unaware of Conoco’s existing policyat the Denver refinery which \”requires permission of the refinerymanager before any ‘hot setting’ or on-line adjusment to a relief valve\”can be done (Tr. 1584).2. D-241 Relief ValveOn either September 30 or October 1, 1978. the relief valve on D-241 wasreleasing product to the flare system. The relief valve was leaking andfrost had formed on the outlet piping of the relief valve (Tr.1657-1658). Normal operating pressure of D-241 was \”120 pounds\” and therelief valve was set to release at \”150 pounds\” (Tr. 1660).Mr. Rhodes, Conoco’s Senior Process Engineer, who was acting as shiftsupervisor at the time, ordered the operators to apply steam to melt anyice or dislodge any material that might have been preventing the reliefvalve from resetting. After about 15 or 20 minutes there was still iceon the outlet piping and the relief valve had not reset (Tr. 1658-1659).Mr. Rhodes then had the operators lower the pressure on the unit to 90or 95 pounds. After 25 or 30 minutes there was still frost on the outletpiping of the relief valve indicating that it had not reset(Tr. 1660). Five minutes after this phone call to Mr. Lyles, the reliefvalve reseated at an operating pressure of 90 to 95 pounds (Tr. 1661).The operating pressureS:\\1984\\Processed\\79-0570-E\\00000000\\52.tif\”then was raised to 120 pounds (Tr. 649-659).After Mr. Lyles arrived, Mr. Rhodes ordered him to tighten theadjustment screw on the D-241 relief valve. Mr. Lyles testified that Mr.Rhodes ordered him to take down the relief valve \”two rounds\” or twoturns in the adjusting screw. In response Mr. Lyles told Mr. Rhodes, \”Iwill give you one\” (Tr. 346). According to Mr. Carey, who was present,the adjustment screw was turned down \”five flats\” (Tr. 651). Mr. Rhodestestified that the screw was tightened \”about a turn, a turn and a half\”(Tr. 1664).Mr. Rhodes contends that his sole purpose in adjusting the valve was toprevent the relief valve from again leaking (Tr. 1664). Based on Mr.Rhodes’ \”gut feeling,\” he believes that turning down the D-241 reliefvalve would increase the pressure at which it would relieve \”about 7pounds or so\” (Tr. 1691).The relief valve on D-241 is designed to protect D-241 from overpressurethat might occur on that vessel when (1) the four \”block\” or \”gate\”valves to the heat exchangers, X-207, X-308, X-300 and X-307 are closed,and (2) D-241, is full of liquid and (3) D-41 is exposed to externalfire (Tr. 1665-1668, 1817, 1828). The relief valve on W-68 is designedto relieve any overpressure on D-241 that might occur when those threeconditions are not present.J. DiscussionTo establish that an employer has violated Section 5(a)(1) of the Act,also known as the \”general duty clause,\” the Secretary must prove by apreponderance of the evidence: (1) that a hazard likely to cause deathor serious bodily harm existed at the employer’s workplace; (2) that thehazard was recognized as such either by that employer or generallywithin the industry, and (3) that there was a feasible method by whichthe employer could have abated the \”recognized hazard. National Realtyand Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir.1973); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2dCir. 1977);S:\\1984\\Processed\\79-0570-E\\00000000\\53.tif\”Brennan v. O.S.H.R.C.and VY Lactos Laboratories, 494 F.2d 460 (8th Cir.1974); Baroid Division of NL Industries, Inc., No. 79-1775 (10th Cir.September 21, 1981).The language of the citation identifies the recognized hazard asincreasing the relieving pressure of the relief valves on D-48 and D-241above the \”normal and recommended safe pressure\” settings for theseparticular valves. The hearing record, however, shows that the partiesalso tried an alternative theory of recognized hazard, namely, Conoco’s\”on-stream\” or \”on-line\” pressure setting adjustments on valves D-48 andD-241. This alternative theory of recognized hazard, therefore, shall betreated in all respects as if it had been raised by the pleadings.See Baroid Division of NL Industries, supra; See also, Rule 15(b) of theFederal Rules of Civil Procedure.The petroleum refinery industry generally, and Conoco specifically,recognize that properly designed, applied, installed, and maintained,pressure releasing devices, are essential to the safety of refineryemployees. Without the protection of such devices the pressure withinthe process equipment could foreseeably exceedthe maximum allowable working pressure of that equipment and result inrupture of the equipment. The likely consequence of any such rupture, ofcourse, would be serious physical harm or death to employees.Conoco also readily concedes that failing to set a relief valve torelease below the maximum allowable pressure working pressure of thevessel it protects is hazardous. Conoco, however, denies that the reliefvalves in question were ever set to release above the maximum allowableworking pressure on D-48 and D-241.Conoco further contends that so long as the set pressure point on arelief valve does not exceed the maximum allowable working pressure nohazard exists.The record contains no evidence that the maximum allowable workingpressures on D-48 and D-241 were exceeded on the dates in question. Inpoint of fact, the maximum allowable working pressures on these vesselswere never established. TheS:\\1984\\Processed\\79-0570-E\\00000000\\54.tif\”record also fails to establish, as alleged by the Secretary in hiscitation, that the initially set pressure of 300 psig on the D-48 reliefvalve was ever exceeded or that the initial set pressure on D-241 of 150psig was exceeded as the result of the on-line pressure adjustments. Inthe absence of this proof, the Secretary failed to sustain his firsttheory of recognized hazard as alleged in his citation.The Secretary’s second theory of recognized hazard, however, thatConoco’s on-line adjustments on the D-43 and D-241 relief valvesconstituted recognized hazards, finds ample evidentiary support in thierecord.A \”safety hazard\” (recognized hazard) has been defined as a condition(or practice) at the worksite that creates or contributes to anincreased risk that an event likely to cause death or serious physicalharm to employees will occur. See Baroid Division of NL Industries,supra. A critical inquiry in this case, therefore, is whether Conoco’son-line adjustments of the relief valves on D-48 and D-241 increased therisk of overpressure on these vessels. If they did, recognized hazardsexisted.Numerous sections of the API Guide (Ex. C-50) support the conclusionthat the failure to properly set a relief valve to release at aprescribed safe level Is recog nized as hazardous by the petroleumrefinery industry (See Sections 16.5.4, 16.7.2, 16.8.2.7, 16.8.3.1, Ex.C-50). These sections emphasize the importance of accurately testing todetermine the set pressure at which a valve will relieve. Even whenexperience has indicated that the repair of valves on- line is a safeand suitable practice, the API Guide recognizes the importance oftesting the valve for its release set point by an approved procedure.Furthermore. Conoco, itself, has previously declared that \”a good, safeoperating\” practice is to \”verify safety valve set points\” when \”hot\”setting a relief valve to stop leaks (Ex. C-35).It logically follows, therefore, that any on-line change in therelieving pressure point of a malfunctioning relief valve, withoutdetermining its new pressureS:\\1984\\Processed\\79-0570-E\\00000000\\55.tif\”relief point, also is recognized as hazardous by both the petroleumrefinery industry and Conoco. On this record, Conoco’s adjustments tothe relief valves on D-48 and D-241 are found to be recognized safetyhazards. Conoco’s argument that the adjustments in question were nothazardous because there was no proof that the set pressures after theadjustments exceeded the maximum allowable working pressure levels ofthe equipment is unpersuasive. It is similar to claiming that spinning arevolver barrel and playing a game of Russian roulette without knowingthe location of the bullet is not hazardous so long as the hammerstrikes an empty chamber.Conoco additionally contends that adjusting the pressure an the safetyvalve on D-241 was not hazardous because the safety valve on tower W-68eliminated any possibility of overpressure on D-241. Not so. The failureto determine the set pressure point on the malfunctioning safety valveon D-241 after attempting to increase the pressure above the relievingpressure point clearly added to the risk of overpressure in the eventthe gate valves became blocked and D-241 became exposed to an externalfire. .Conoco focuses on the lack of proof that the set pressure on the D-241relief valve exceeded the maximum allowable working pressure of thedrum, that the gate valves ever became blocked, and that D- 241 wasexposed to a fire. But as previously stated, the recognized hazard withrespect to both relief valves is changing the relieving pressure pointon a malfunctioning relief valve without determining the set point atwhich it will relieve.The Secretary also had the burden of showing that Conoco knew, or withthe exercise of reasonable diligence could have known, of the likelihoodof the hazardous practice in this case. See Mountain States Telephone &Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980); National Realtyand Construction Co., supra. The Secretary sustained this burden. Theevidence shows that Conoco’s policy which forS:\\1984\\Processed\\79-0570-E\\00000000\\56.tif\”bids turning down safety valves to stop them from leaking without theexpress permission of the refinery manager or, in his absence, theprocess superintendent, was not effectively communicated and implementedby Conoco. Mr. Lorimer never heard of the prohibition; and Mr. Rhodesdeliberately ignored it. As was pointed out in the National Realty case:\”the fact that a foreman would feel free to break a company policy isstrong evidence that implementation was lax.\” Because Conoco’s safetyrule in this regard was not effectively communicated and implemented, itis found that Conoco failed to exercise reasonable diligence indiscovering these instances of violation. See H.B. Zachry Co. v. OSHRC,No. 80-1357 (5th Cir. Mar. 2, 1981).Having found a violation of the general duty clause, the final inquiryis whether the violation was willful. A willful violation of the generalduty clause is established when an employer makes a conscious anddeliberate decision not to comply with its requirements or when anemployer’s conduct is properly characterized as showing a carelessdisregard of the requirements or an indifference to employee safety.Tri-City Construction Company, 8 BNA OSHC 1567 (No. 77-3668, 1980).After Conoco was placed on notice of the hazardous practice of turningdown safety valves to stop leaks, Conoco took action to remedy thispractice by issuing a safety directive. Although inadequate, the actiontaken exhibited an intent to eliminate the known and recognizedhazardous practice, not to permit its continued existence. See MelJarvis Construction Co., Inc., (No. 77-2100, September 30, 1981). Theviolation, therefore, will be affirmed as serious, not willful.PenaltyThe high gravity of this violation dictates a substantial penalty. Inaddition, the two incidents reveal a glaring deficiency in thecommunication and implementation of Conoco’s safety program. To impressupon Conoco the need to correct this deficiency, the maximum permissiblepenalty of $1,000.00 will be assessed.S:\\1984\\Processed\\79-0570-E\\00000000\\57.tif\”Findings of FactAll findings of facts relevant and necessary to a determination of thecontested issues have been found specially, and appear above in the bodyof the decision. (See Rule 52(a) of the Federal Rules of Civil Procedure).Conclusions of Law1. The record fails to establish by a preponderance of the evidence thatrespondent violated 29 C.F.R. ?1910.134(a)(2).2. The record establishes by a preponderance of the evidence thatrespondent committed a serious violation of 29 U.S.C. ?654(a)(1) withrespect to the inadequate training of Mr. Ronald D. Branson.3. The record fails to establish by a preponderance of the evidence thatrespondent violated 29 U.S.C. ?654(a)(1) with respect to the separationand protection of respondent’s heaters and boilers.4. 29 C.F.R. ?1910.309(a), incorporating Articles 500 and 501 of theNational Electrical Code (1971 edition), applies to electricalinstallations installed before March 15, 1972.5. Respondent judicially admitted that its electrical substation No. 1was in a Class 1, Division 2 location.6. The record establishes by a preponderance of the evidence thatrespondent’s electrical substation 1 contained electrical equipment not\”approved\” or \”explosion-proof.\”7. Respondent’s electrical substation 1 was in violation of ?1910.309(a).8. Standing alone, Article 500-4 of the National Electrical Code, 1971edition, provides no objective standard to determine the existence andextent of Class 1, Division 2 locations. Unless the record evidenceestablishes that an employer or his industry recognizes the need toclassify a particular location as Class 1,S:\\1984\\Processed\\79-0570-E\\00000000\\58.tif\”Division 2, application of Article 501 of the NEC. and ?1910.309(a) ofthe Act is impossible and no violation can be affirmed.9. In this case, the record fails to establish that Conoco or thepetroleum. refinery industry recognizes the need to classify the fiveelectrical installations at issue as Class 1, Division 2 locations.10. The record establishes by a preponderance of the evidence thatrespondentcommitted a serious violation of 29 U.S.C. ?654(a)(1) with respect tothe pressure setting adjustments on the relief valves for D-48 andD-241. The record fails to establish by a preponderance of the evidencethat respondent willfully committed this violation.ORDER Based on the Findings of Fact, Conclusions of Law and the entirerecord, its ORDERED:1. Item Nos. 4, 6, and 11c(b), as amended by the complaint, areAFFIRMED, and penalties of $280.00, $360.00 and $100.00 respectively areASSESSED.2. Respondent shall comply with the abatement procedures of paragraph 3of the Stipulation (See Ex. J-1).3. Item 8 of Citation No. I is VACATED, but respondent shall implementthe measures agreed to in paragraph 4 of the Stipulation (See Ex. J-1).4. The alleged violation of 29 C.F.R. ?1910.134(a)(2) is VACATED.5. A serious violation of 29 U.S.C. ?654(a)(1) with respect to theinadequate training of Ronald D. Branson is AFFIRMED, and a penalty of$100.00 ASSESSED. 6. The alleged violation of 29 U.S.C. ?654(a)(1) withrespect to the separating and protection of respondent’s heaters andboilers is VACATED.7. The alleged violation of 29 C.F.R. ?1910.309(e), (Article 501 of theNEC) with respect to electrical substation No. 1 is AFFIRMED, and apenalty of $100.00 ASSESSED.S:\\1984\\Processed\\79-0570-E\\00000000\\59.tif\”8. With the exception of Items 11c(b) and 11c(e). of Citation 1, asamended, the other alleged serious violations with respect to Article501 of the NEC are VACATED.9. Item 2a of Citation No. 2 is VACATED.10. Item Nos. 1, 7, and 10 of Citation No. 1, as amended, are VACATED.11. A serious violation of 29 U.S.C. ?654(a)(1) with respect to theadjustments of the relief valves on D-48 and D-241 is AFFIRMED, and apenalty of $1,000.00 ASSESSED.James A. Cronin,Jr.Judge,OSHRC Cror4in,_Jr. Ajudge, OSHRCDated: January 6, 1982FOOTNOTES:[[7\/]] Conoco concedes that substation No. 1 is located within a ClassI, Division 2 location but argues that the requirements of 29 C.F.R.?1910.309(a) do not apply to electrical equipment, including theequipment in substation No. 1, installed before March 15, 1972.”