“Docket No. 79-0570-E 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.. ofDenver, Colorado for the Authorized Employee Representative.DECISION AND ORDER Cronin, Judge, OSHRC:On October 3, 1978, a major fire and explosion occurred at Continental Oil’s refinery(CONOCO) killing three employees, hospitalizing twelve persons and causing extensivedamage to the Conoco plant and surrounding area. Representatives of the Secretary of Laborcommenced their investigation 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 this investigation,the Secretary issued three citations to Conoco under the Occupational Safety and HealthAct of 1970 (29 U.S.C. ?651 et seq.; hereafter called the Act) alleging 13 seriousviolations, two other than serious violations, and one willful violation of the Act.Penalties in the amount of $16,480.00 were proposed.On February 1, 1979, the Secretary issued an amended citation amending one seriousviolation 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 proposedpenalties 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 to three seriousviolations; the Secretary agreed to dismiss four other items of the citations. Theprovisions of this agreement will be incorporated into this order (See Judge’s ExhibitJ-D).The hearing in this case commenced on October 22, 1979 and closed on November 16, 1979. OnJanuary 7, 1980, the Commission accepted the Secretary’s interlocutory appeal of thisjudge’s ruling of November 16, 1979. The Commission, on April 27, 1981, upheld theNovember 16th ruling and 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 of Citation No. 1. andItems 1 and 2 of Citation No. 2. Each of these alleged violations will be addressed inorder.Citation No. 1, Item 2As amended, this item charges Conoco with failing to provide emergency escape respiratorson its sour water stripper tower and hydrogen sulfide absorber tower inS:\\1984\\Processed\\79-0570-E\\00000000\\05.tif\”violation of 29 C.F.R. ?1910.134(a)(2), which provides in pertinent part: (2) Respiratorsshall be provided by the employer when such such equipment is necessary to protect thehealth of the employee. The employers shall provide the respirators where applicable andsuitable for the purpose intended…Summary of EvidenceThe record reflects that both towers contained hazardous concentrations of hydrogensulfide (H2S) in a closed system (Tr. 802-805, 813). It also is undisputed that employeeswere required to go onto the platforms of these towers in the course of their duties.According to the Secretary’s compliance officer, however, these employees were notactually exposed to a H2S contaminated atmosphere under normal working conditions (Tr.49-50, 294, 2264, 2278). Conoco did not locate emergency respiratora on either tower orrequire employees to carry such respirators on their person. Conoco, however, positionedan H2S monitor on the first level of the sour water tower due to the possible presence ofH2S at that location (Tr. 2286). Other uncontradicted evidence establishes that no Conocoemployee has ever been exposed to H2S when working on either of the t~ in question.Further, there is no indication in the record that there has ever a release of H 2S fromthese towers (Tr. 2270).H2S is a highly toxic gas which can cause immediate unconsciousness and death, even atrelatively low concentrations (Tr. 40; Ex. C-1, p.7). Exposure to H 2S isa universally recognized hazard in the petroleum industry, and its potentially fataleffects are recognized by Conoco in its safety manual (Tr. 47-48; Ex. C-7, p.14). TheSecretary’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 tower and the H2Sabsorber tower are sources of H2S releases (Tr. 801). Mr. Quinlivan testified that theflanged joints, control instruments, and the 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 process control instrumentson the H2S absorber tower, might be susceptible to accidental releases Of H2S due to thecorrosion (Tr. 805, F16).On direct examination Mr. Quinlivan was asked to assume that proper materials were used toinhibit corrosion and regular inspections made to detect the possibility of corrosion onthese towers. He then was asked whether any possibility of an H2S release existed. Heanswered \”Yes.\” Although asked for his opinion on how this possibility wouldarise, he never gave it (Tr. 808-809). Later, on cross-examination, Mr. Quinlivan concededthat the possibility of an H2S release resulting from corrosion would be eliminated by theuse of materials to inhibit corrosion, regular inspections to detect corrosion, and properrecord-keeping (Tr. 943). Although the record is silent on whether materials to inhibitcorrosion were used, Conoco does inspect the towers for corrosion \”onstream\” onan annual basis and internally every other year, and keeps records of these inspections(Tr. 2255-2257). No evidence was introduced to establish that Conoco’s practices in thisregard were inadequate.Conoco employees were informed about the dangers of exposure to H2S, and Instructed towarn the control room and other employees when H2S is detected. Signs warning of thepossible presence of H2S and H2S alarm monitors were located throughout the refinery.Employees were instructed to 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 an entrypermit. When entering the system an employee also must be a member of a 2-man work teamand use a supplied air system. A stand-by rescue worker with a separate air source alsomust accompany the 2-man work team (Tr. 2265, 2301).When first testifying on direct examination, Compliance Officer Bakewell referenced onlyone emergency escape respirator which he felt suitable and capable ofS:\\1984\\Processed\\79-0570-E\\00000000\\07.tif\”eliminating exposure to H2S on the towers – the Robert Shaw air capsule respirator (Tr.41-43; Ex. C-2). This respirator is approved for respiratory protection during escape bythe Natlonal Institute for Occupational Safety and Health (NIOSH.), but only fortemperatures above 20*F (Tr. 297-298; Ex. C-2). Both Officer Bakewell and Mr. Quinlivanadmitted that the Robert Shaw respirator is unsuitable for year round use at Conoco’sDenver refinery because the temperature frequently falls below 20* in Denver (Tr. 297-298,947-948).Later in the hearing, the Secretary recalled Officer Bakewell to testify on direct thatfollowing his initial testimony he called NIOSH and questioned a Mr. Terry, who said hewas a chemist with the NIOSH respirator section, concerning the availability of escaperespirators that 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). OfficerBakewell is unacquainted with the referenced respirators and does not know if theserespirators have any use limitations imposed by NIOSH (Tr. 1188- 1189).Officer Bakewell testified that emergency escape respirators should be placed on theplatforms of the two towers (Tr. 301). He also testified, however, that the preferablemethod would be for an employee to carry a respirator on his belt (Tr. 240-241, 303-304).He admitted he does not know how long it takes to don the Robert Shaw respirator orwhether an employee 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 equipment is necessary to protect the health of the employee.\” Conoco first argues that toprove that respiratory protection was \”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 Both Conoco’sinterpretation of the standard and its view of the Secretary’s burden of proof under thestandard are too narrow and completely ignore that ?1910.134 contemplates the use ofrespirators when \”dangerous atmospheres…..might be encountered in normaloperation…\” (emphasis supplied; See ?1910.134(e)(3)). Clearly, the requirements of?1910.134(a)(2) are intended to apply when employee excessive exposure is foreseeable.Therefore, proof of actual exposure is unnecessary to establish a violation of thisstandard.The standard at issue is read to require employers to provide respirators wheneveremployees may be foreseeably exposed to a contaminant in excess of the limits provided in?1910.1000 (Table Z-2) or foreseeably exposed to an oxygen-deficient atmosphere. TheSecretary must prove potential excessive exposure to H2S because actual exposure to H2S ispermitted within certain prescribed limits.The evidence is insufficient to prove that Conoco employees, foreseeably exposed to animpermissible level of H2S on the two towers, were not providedwith respirators by Conoco. The record does establish that Conoco employees entering thetower systems and working on lines and flanges containing H2S might encounter an H2Satmosphere in excess of permissible limits. But those employees were provided by Conocowith a supplied air system and stand-by rescue worker which eliminated the possibility ofan exposure to an excessive hazardous concentration of H2S (Tr. 2264-2265, 2301).Conoco also recognized that accidental releases Of H2S on these towers were possible inthe event of corrosion. This possibility of exposure, however, apparently I\/Section 1910.1000 (Table Z-2) provides for a maximum ceiling concentration of 20p.p.m. anda maximum exposure of 50p.p.m. in a single 10 minute period, provided no other exposureoccurs.S:\\1984\\Processed\\79-0570-E\\00000000\\09.tif\”was eliminated by Conoco’s inspection procedures to detect corrosion and leaks due to thecorrosion (Tr. 300-301, 2255-2257, 2269). There was no evidence to the contrary. TheSecretary’s expert, Mr. Quinlivan, suggested that accidental releases of H2S in the towerscould occur for \”other reasons\” besides corrosion, but he failed to eitheridentify or substantiate these other possibilities. It also is unrefuted that no employeehas ever been exposed to H2S on the two towers and that neither tower has ever experiencedan accidental release of H2S. Conoco’s safety supervisor, Mr. Bradley, did admit that thepresence of H2S was possible on the first landing of the sour water stripper structure. Noexplanation of what would cause the presence of H2S at that location, however, was evergiven, or whether employees working on the two towers might encounter an excessiveconcentration of H2S coming from that location which would require the use of emergencyrespirators.Unable to find that unprotected employees were foreseeably exposed to excessiveconcentrations of H2S during normal operations, no violation of this standard can beaffirmed.An additional reason requires vacation of this item. The standard also is read to requirean employer not only to provide respirators but to provide respi rators capable ofprotecting employees from dangerous atmospheres. For a violation of the standard to beestablished, therefore, it is necessary to prove that there are respirators\”applicable and suitable for the purpose intended ….,\” and the burden ofproving this element is on the Secretary.The Secretary’s witnesses conceded that the referenced Robert Shaw respirator wasunsuitable for year-round use in Denver, and Officer Bakewell’s hearsay testimony thatrespirators are available and suitable for use below 20* temperatures, standing alone, isconsidered insufficient to establish this critical element.S:\\1984\\Processed\\79-0570-E\\00000000\\10.tif\”Citation No.1 Item 3 IntroductionAs amended by the complaint, Item 3 of Citation No. 1 charges Conoco with violation ofSection 5(a)(1) of the Act \”in that the employer did not provide adequate trainingand instruction to employees who were employed as operators of the new catalytic,polymerization unit in that during the 8-hour training session given, much of thevalvework and piping was not in place on the unit causing employees to be unfamiliar withthe full unit in case of an emergency.\”Several months prior to the anticipated start-up date of Conoco’s new catpolyfractionation section. members of Conoco’s management, including Phil Nelson, processsuperintendent, Greg Lorimar, operations superintendent, Leonard Brandt, heavy oildivision supervisor, and Glenn Lepard, training supervisor, met for the purpose ofdesigning a training course for operators of the new unit (Tr. 2057-2058). After reviewingthe prior experience and training of the operators involved and the matters to be covered,the group jointly decided upon a one-day training course, consisting of a classroomsession and \”hands-on\” field work (Tr. 1959-1961, 2057- 2058, 2074-2075).As an aid to the training course, a cat-poly operating manual, Exhibit C- 8, was preparedby Leonard Brandt and Jimmie Rhodes, senior design engineer (Tr. 1957). This manual wasdistributed to all participants approximately two weeks to a month prior to the scheduledtraining in July, 1978, and they were instructed to study and become familiar with itscontents (Tr. 2064-2065, 2112). The Secretary’s employee witnesses testified they read themanual prior to the training class.At the beginning of each class each employee was given a 10-question written quiz to testhis 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). Therewere approximately 5 to 7 employees in each training session, and instruction was providedby Mr. Lepard, Conoco’s training supervisor, and Mr. Rhodes, a senior process engineer anddesigner of the new cat-poly unit.The classroom training lasted approximately three hours and covered the subjects listed inthe agenda of June 28, 1978 (Exhibit R-11): sections of the operating manual (Tr.2071-2072), differences between the old and new cat-poly fractionation sections (Tr. 676)and the process flow and instrumentation diagrams in the manual (Tr. 2067). The trainingprogram did not take up the specific characteristics of the \”cascade controlsystem\” (Tr. 2090-2091). After rest breaks, Mr. Rhodes would answer questions (Tr.2068).In the afternoon session, the class participants were taken to the new unit for thepurpose of familiarizing themselves with the equipment and to \”field crace\” theflow scheme of the unit (Tr. 2068). After three hours in the field the group wouldreconvene in the classroom and each employee was given a test (Tr. 2067, 2077- 2078). Alloperators passed the test with a mark of 70% or more except Ronny DeHerra (Tr. 2079-2080).Each class was told that the operators should continue studying the manual and fieldtracing the unit (Tr. 2084).Testifying in support of the Secretary’s charge under this item was Officer Bakewell andMr. HcAninch, along with five Conoco employees who attended one of the training sessionsin July, 1978.Mr. Donald Kapus, a chief operator at the time of the start-up, had previously been ahelper and operator in the old cat-poly unit (Tr. 511-512). In his opinion he did not feelthat the training was adequate \”in terms of the practical aspects\” (Tr. 513).Mr. Kapus testified that the 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 tothe training class the students were given the cat-poly training manual and requested\”to absorb the information.\” They also were given flow sheets and told to reviewthem before the unit start-up (Tr. 374). In his view the field training was\”difficult\” because \”a lot\” of the piping and control systems weremissing. He could not estimate \”percentage wise\” how much of the system wasmissing (Tr. 378). In his view the field training was \”worthwhile\” to \”lowexperienced people\” (Tr. 378). He believes it important for an operator to befamiliar enough with the unit so that he can \”react in emergencies\” (Tr. 381).According to Mr. Martel, an operator must have a \”pretty good idea of the flow andlocation of the specific control systems, in order \”to handle emergencies\” (Tr.381-382). In order to control or eliminate a pin hole leak in vessel W-55 an operatorwould have to know the function and position of perhaps a dozen valves (Tr. 384). After hecompleted his eight hour training session, Mr. Martel did not \”feel competent\”to handle the new cat-poly unit (Tr. 385). He did not feel his training was adequatebecause he did not \”have\” the physical location of all of the piping and controlsystems involved and the basic knowledge of the systems internal action \”in my ownmind\” (Tr. 385). Mr. Martel also testified that the cascading control system is moresophisticated than a \”straight system\” and was not adequately covered in thetraining system (Tr. 387).On cross-examination, Mr. Martel, testified that he had a chance to trace the pipes in thenew cat-poly unit prior to start up (Tr. 458-459). He indicated that\”management\” told the operators to try to get familiar with the piping \”astime allows\” (Tr. 459). At another point, however, he could not recall whether theywere told by a supervisor 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 afterthe training class, he did not feel that he was qualified to handle an emergency on thecat-poly unit (Tr. 602). He stated that he had let his supervisor, Leonard Brandt, knowthat 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 thetest, and that Mr. Judish should be able to handle the situation (Tr. 604).Prior to start-up Mr. Judish went out to the unit and traced the lines of the new unit(Tr. 629-630). By the time of start-up Mr. Judish had \”no problem\” understandinghow 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 these questions were buthe obtained satisfactory answers to those questions prior to start-up (Tr. 633).Mr. Michael Carey testified that he felt the training was adequate for him (Tr. 641-642,664-666). He did not know, however, the location of all 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 training session (Tr. 666). Mr.Ronald D. Branson, an FCC operator, testified that 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 heavy oils supervisor,and Mr. Glenn Lepard for more training. They responded that they would \”catch melater.\” But they never did (Tr. 680). He testified that he asked Mr. Brandt twice forextra training, once before the 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 the control board of the newcat-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 the control board whenhe asked for additional training the second time (Tr. 701, 707-708). He testi fied he didnot \”call\” Mr. Brandt, however to tell him this or request additional train ing(Tr. 701).On cross-examination Mr. Branson testified that he could operate \”the instrumentsinside\” because \”that is all I was trained to do\” (Tr. 698). He furthertestified that he did not know enough to shut the unit down in the event of an emergencybecause he had \”no idea\” of the location of \”a lot of the valves\” (Tr.690, 699\”. After the training class he went out to the new unit on a single occasionto try and trace the lines but he was immediately called back to the control room (Tr.687).Mr. Brandt testified the major part of a shut down of the fractionation unit is doneoutside on the unit – shutting down valves, pumps – getting the 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 the class 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]eare going to take a test\” (Tr. 710).Officer Bakewell knows of no standard practice in the petroleum refinery industry fortraining operators for catalytic polymerization units (Tr. 309-311). His opinion that theoperators training was inadequate was based solely on the opinions of the operators thattheir training was inadequate because they did not know the \”physicalcharacteristics\” of the system (Tr. 250-251, 312). He conceded he really didn’tanalyze the training program\” (Tr. 315). Officer Bakewell had no personal knowledgeconcerning the operation of the cat-poly unit nor any knowledge concerning the priortraining experience of the employees taking their training course (Tr. 314-318).In Mr. McAninch’s opinion Conoco could not have adequately trained the operators in\”eight hours\” to operate the cat-poly unit because the contents of theoperationsS:\\1984\\Processed\\79-0570-E\\00000000\\15.tif\”manual could not have been covered in eight hours (Tr. 1090, 1137). He retreated from hisopinion concerning the inadequacy of this part of the program, however. when informed thatthe operators were provided with the training manuals 2 to 6 weeks before the class andthen tested to determine 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 to conclude that Conoco’s training wasinadequate from the standpoint of safety because \”I don’t know what the Conocoprogram consisted of\” (Tr. 1136-1137). He further agreed that he was not in aposition to say whether the Conoco training of the operators created a hazard of physicalinjury or death (Tr. 1137).Mr. Brandt, Conoco’s heavy oil division supervisor, testified that as of July 7, 1978, 95%of the fractionation system of the cat-poly unit had been completed and installed.According to Mr. Brandt, the reactor’s back pressure control valve, the reactor line tothis valve, the compressuring line, the line from the splitter to the de-ethanizer, theline from butane to storage, and the lines from propane to storage and poly- gasoline tostorage, were missing (Tr. 1965). In his view the only missing piece of equipment that anoperator should know the location of was the reactor back pressure controller (Tr. 1966,1969).According to Mr. Brandt the operators were assigned to the cat-poly unit approximately 6days prior to the start-up and were involved in \”steaming out\” the lines.This process requires that the lines be traced out, bleeders closed, and the entire systembe checked for leaks (Tr. 1971).Mr. Brandt stated that Mr. Branson complained in July, 1978 that he had not been presentfor the entire training session. Mr. Brandt told Mr. Branson at that time \”we’d catchup with that training\” when Mr. Branson was required to assume the position of achief operator (Tr. 1973).S:\\1984\\Processed\\79-0570-E\\00000000\\16.tif\”Mr. Brandt agrees that one man should not be responsible for all the control panels (Tr.1974). Mr. Brandt does not recall Mr. Branson making a second complaint about his trainingor informing him that Mr. Branson had been left in the control room alone (Tr. 1977).According to Mr. Lepard, the class instructor, part of the test given to the class at theend of the session was to fill in the process flow lines and the process control points ona diagram with the new equipment drawn in (Tr. 2077- 2078). According to Mr. Lepard, acontrol valve was not in place when the operators went into the field to trace the lines(Tr. 2107). Mr. Lepard testified that Mr. Branson never complained to him about thetraining course or claim that he did not know how to operate the unit (Tr. 2083).According to Mr. Lepard, Mr. Rhodes discussed the emergency procedure section of theoperations manual (Tr. 2096-2097). Mr. Lepard testified that the manual did not explainthe operation of cascade pressure control system and he does not recall whether Mr. Rhodeswent into detail about this system (Tr. 2101). Mr. Lepard previously had not seen such asystem (Tr. 2114).Mr. Kenard Taylor, Conoco’s expert on training, described the old fractionation section ofthe cat-poly unit as follows: the product of the reactor went to the deethanizer, then tothe de-propanizer, and then to the stabilizer. In the new fractionation section theproduct went to the stabilizer, then to the de- propanizer, and finally to thede-ethanizer (Tr. 2163). From the standpoint of the individual operator, the operatingconditions, tower pressures and temperatures, and the process flow, were different betweenthe old and the new fractionation sections (Tr. 2163). In his view, the training programon the new unit should 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 in July, 1978, toprovide operators with a \”meaningful and sufficient\” physical inspection andtracing of the equipment (Tr. 2180-2181).In his view, approximately one third of the information in the manual was new to theoperators, and all sections except section one should have been covered \”in order topermit a safe operation of the new fractionating section\” (Tr. 2189).Mr. Taylor testified that in shutting down the new fractionating section, the procedureswould be the same; the valves, however, would be different (Tr. 2194).Mr. Taylor would have made two changes in the existing training course. He would havetried to have the training closer to the start-up line as an aid to retention, and hewould have inserted a \”process control section\” which he considers\”independently significant\” to the training of an operator (Tr. 2202, 2208). Or,cross-examination Mr. Taylor testified that if any of the operators with operatingresponsibilities did not have exposure or experience with a cascade pressure controlsystem, the cascade system should have been covered, and that if it was not 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 if theemployees have done their field training according to Mr. Taylor (Tr. 2212). It was hisunderstanding that Conoco did not formally follow up to determine after the trainingsession whether the operators had traced the lines (Tr. 2213). In his view, however,observations by supervisors would have teen sufficient to determine whether operators werecapable (Tr. 2213-2214). According to Mr. Taylor, it is customary for industry to takefurther action to determine whether additional training is necessary when an operatorexpresses a lack of confidence in his training (Tr. 2214-2215).Mr. Taylor is of the opinion that Conoco’s training program was adequate, did not create arecognized hazard of physical injury or death, 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 the operators. (Tr.2200-2201).DiscussionBy a preponderance of the evidence the record establishes a violation of Section 5(a)(1)of the Act resulting from Conoco’s inadequate training of Mr. Ronald Branson.Although not a model of clarity, the complaint identifies the alleged recognized hazard asConoco’s failure during the 8-hour training session to adequately familiarize operators ofthe new cat-poly fractionation unit with the valvework and piping on the unit so as toenable the operators to deal with an \”emergency.\” The hearing record, however,reflects that the parties tried a much broader theory of recognized hazard: whether any ofthe operators assigned operating duties on the cat-poly unit were inadequately trained byConoco so as to create a recognized hazard likely to cause death or serious physicalinjury. Because both parties plainly tried this alternative theory of recognized hazard,it has been treated in all respects as if it had been raised by the pleadings. 2\/The Secretary’s conclusion that Conoco’s training was inadequate was based in part onOfficer Bakewell’s and Mr. McAninch’s opinions that the training manual could not belearned in a one-day training course. After learning, however, that the training manualswere distributed and read by the operators and then tested to determine whether they hadread the manuals, Officer Bakewell admitted that the length of the classroom training wasnot the basis for the citation (Tr. 251). Mr. McAninch indicated that if the operatorswere provided with the manuals prior to the class, tested to determine their knowledge oftheir contents, and achieved at least a passing grade 2\/Both parties introduced evidence on this issue, and Conoco’s brief, at pp.64 and 65acknowledged that the question presented is far broader than the issue presented by thecomplaint.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’s one-day trainingformat was adequate under the circumstances (Tr. 2149- 2150, -2152, 2190, 2195), and aboveaverage based on his knowledge of industry practices and customs (Tr. 2195, 2203-2204). onthis record, it cannot be found that the eight hour training session was inadequate due toits length.Another of the Secretary’s apparent objections to Conoco’s training program involvesConoco’s failure to adequately cover the subject of the \”cascade pressure controlinstrumentation.\” It was established that Conoco’s training course barely touched onthe subject of the cascade pressure control system on the new cat-poly unit. Further, Mr.Taylor concedes that this subject is \”independently significant to the training of anoperator\” (Tr. 2202, 2208). In his view the training should have covered this subjectunless those operators with operating responsibilities on the cat-poly unit had previousexposure or experience with a cascade pressure control system. He expressed the opinionthat lack of training in this area \”could have created a problem within theunit\” (Tr. 2210).The evidence, however, failed to show that any of the operator-students (with theexception of the trainees who would not be operating the units) were unfamiliar with orunable to operate the cat-poly cascade pressure control system. Indeed, the recordestablishes that the operators who would be assigned operating responsibilities had eitherworked closely with or directly on the vapor recovery unit (VRU) of the FCC unit whichused a similar cascade pressure control system (Tr. 2126). None of the Secretary’soperator- witnesses stated that he was unfamiliar with the operation of the cascade systemat the time of start-up. Even Mr. Aranson testified that he could operate the control roominstruments of the cat-poly unit because he had been \”trained to do it\” (Tr.698).S:\\1984\\Processed\\79-0570-E\\00000000\\20.tif\”On this record, this aspect of Conoco’s training program cannot serve as a reason forconcluding that the training program was inadequate.Both in the pleadings and at the hearing, the Secretary’s primary complaint about Conoco’straining program was its failure to adequately instruct the operators in the location ofthe process lines and equipment. In July of 1978, all of the equipment and lines for thenew cat-poly unit were not in place. Witnesses variously estimated that the cat-poly unitwas 90 to 992 completed.Approximately three hours of the training session was devoted to field work for thepurpose of familiarizing the students with the equipment and to permit them to trace thelines (Tr. 2068). The first training class took place on July 10, 1978 and Mr. Branson wasa member of this class. According to the instructor, Mr. Lepard, the students in thatclass were impeded in their examination of the unit because \”construction was goingon\” (Tr. 2084). Due to a power interruption which occurred during the field portionof the July 10th training session, the class members assisted in securing the processunits and restarting them (Tr. 677-678, 2081). Mr. Lepard estimates that training sessionwas cut short by \”somewhat less than two hours\” (Tr. 2095-2096); Mr. Bransonestimates that he missed four hours from class (Tr. 686). During the period between theone-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. Branson believed that he did notknow enough to be able to shut the unit down in event of \”an emergency.\” He didnit know the location of the valves necessary to shut down the unit (Tr. 690).Conoco’s expert, Mr. Taylor, recognizes that field work is \”very important\” (Tr.2159). He also recognizes that training of these operators 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 field reviewing the flow,\”looking at it, reviewing it again, finding the actual pieces out there\” (Tr.2191-2192). He indicated that the operators in this case would need to know where thevalves, equipment and instruments necessary to shut down the unit were located (Tr.2194-2195).Mr. Taylor suggests that Mr. Branson had the \”availability\” on the unit tofollow that field work (Tr. 2182). Unfortunately, however, he never completed thisnecessary field work.Although Mr. Branson apparently was capable of operating the board to initiate anemergency shut-down, he felt unable to locate the valves necessary to complete the shutdown procedure (Tr. 2186).Mr. Taylor concedes it would be imprudent to ignore an employee claim that he has not beenadequately trained, but Mr. Taylor believes that \”an unsafe condition\” was notcreated in the instant case because Mr. Branson was not directly involved (Tr. 2184). Thisbelief clearly implies that if Mr. Branson was directly involved, Mr. Taylor’s opinionconcerning the creation of an unsafe condition would be different. The evidence, ofcourse, shows that Mr. Branson was directly involved with the cat-poly unit on a number ofoccasions.According to Mr. Taylor, if an operator did not know \”the new unit versus the oldunit,\” he would need additional training (Tr. 2216). Also, Mr. Taylor agrees that acritical factor in how an operator reacts in an emergency situation is the confidence anoperator has in his own ability to operate (Tr. 2215). Mr. Branson lacked this confidenceand Conoco was aware of this situation.In sum, it is found that Mr. Branson was inadequately instructed by Conoco in the locationof valves and equipment necessary to accomplish an emergency shutdown of the fractionationunit. Conoco was aware that Mr. Branson lacked confidence in his ability to operate theunit, yet took no further action to provide additional training or take steps to assurethat Mr. Branson would not be assigned operationalS:\\1984\\Processed\\79-0570-E\\00000000\\22.tif\”responsibilities for the cat-poly unit before receiving this additional training. Therecord further establishes that Mr. Branson’s lack of training createda life-threatening hazard. Mr. Taylor testified that an operator’s field training and hisknowlege of the location of valves to accomplish the shut-down procedures were \”veryimportant.\” Mr. Taylor also clearly indicated that an operator should know allsections of the training manual (including the emergency shut-down procedures section)\”in order to permit a safe operation of the new fractionation section (emphasissupplied; Tr. 2189). The emergency procedures section of the training manual provides foremergency shut-down procedures in case of fire and explosion and requires, among otherthings, isolation or bypass of the unit section in which the emergency has occurred, andthen a shut-down in accordance with normal prescribed procedures (Ex. C-8, p.4.). Fromthese requirements, it is reasonable to infer that the inability of an operator to followshut-down procedures during a fire and explosion could exacerbate the fire and explosionconditions, which in turn would likeIy lead to death or serious injury. Furthermore, Mr.Branson’s opinion that his not knowing which valves to shut off \”could costlives\” went unchallenged and unrefuted (Tr. 699).Another question is whether Mr. Branson’s inability to accomplish emergency shut-downprocedures due to his lack of field training was a \”recognized\” hazard. Conoco’straining manual and Mr. Taylor’s testimony establishes that both the petroleum refineryindustry and Conoco recognize the need for adequately training operators in emergencyshut-down procedures. Further, the record establishes recognition by the petroleumrefinery industry of the need to determine whether an operator has completed his assignedfield work. That was not done by Conoco in this case even though Conoco was on notice thatMr. Branson believed he needed additional field training. The feasible abatement methodsfor this violation are obvious. IfConoco had followed industry practice and provided Mr. Branson with the field trainingS:\\1984\\Processed\\79-0570-E\\00000000\\23.tif\”necessary to enable him to accomplish the emergency shut- down procedures, the\”recognized\” hazard would have been eliminated.The Secretary proved, however, that only one Conoco employee was inadequately trained atthe time of start-up. A substantial penalty therefore, 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 the Act \”inthat\” certain designated heaters and boilers with \”open flames and\/or hotsurfaces were not protected in a manner to prevent the ignition of light hydrocarbonvapors and\/or gases in the event of accidental rupture or breakdown of the system.\”This charge is similar, but not identical, to the Secretary’s charge in Asamera, Oil Co.,Inc., 9 BNA OSHC 1426, 1981 CCH OSHD (p) 25,131 (No. 79-0949 and 79-1756, 1980)..3\/ InAsamera, the complaint identified the existing recognized hazard as Asamera’s failure toseparate or protect in 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 was identical; the employers’failure to separate heaters at least 50 feet and boilers at least 100 feet from processequipment containing hydrocarbons, or. protect these heaters and\/or boilers so as toprevent ignition of hydrocarbon releases.Summary of EvidenceTo establish that Conoco’s separation and protection practices constituted a recognizedhazard, the Secretary introduced the testimony of Compliance Officer Bakewell and twoexpert witnesses, Mr. Quinlivan and Mr. McAninch.Officer Bakewell testified about his various distance measurements taken from the citedheaters and Boiler B-4 to valves, flanges or pipes of other pieces of process equipment.All of these measurements were less than 50 feet (Ex. C-9). Specific__________________ 3\/ Asamera was heard after the hearing in this case. The decision in Asamera, however, wasissued while this case was pending before the Commission 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 because in OfficerBakewell’s words, \”there were lines everywhere in the area\” (Tr. 269). In thisregard, he also testified that \”many\” of the lines in the \”Sulfurplant\” contained hydrocarbon vapors and hydrogen sulfide \”which is alsoflammable\” (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 he did not determinethe materials, the temperature, or pressure of these materials behind the various valvesor flanges which he used as measuring points. He assumed that hydrocarbonewere present, but agreed that the material behind the measuring points could have beensteam (Tr. 267-269). Officer Bakewell also testified that he did not determine thetemperatures of the various heater or boiler surfaces (Tr. 270).Mr. Quinlivan testified that the petroleum refinery industry generally recognizes that a\”safe\” distance for separating boilers, heaters, and furnaces from process unitsis 100 feet (Tr. 869). He then identified potential sources of hydrocarbon vapor. Forexample, he testified that vacuum 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 or somesuch hydrocarbon-containing vessel\” (Tr. 874). According toMr. Quinlivan, any fractionating unit at Conoco’s refinery or its associated equipment,exchangers, pumps, and piping were all potential sources of vapor release (Tr. 871). Mr.Quinlivan also identified the \”Sulfur Plant\” as a potential source for therelease of \”flammable vapors – Hydrocarbon, H2S would be one\” (Tr. 875).Testifying more generally, Mr. Quinlivan testified that the proximity of H-27to W-36 (21 feet. 9 inches) and the exchangers X-176 and X-139 were \”definitehazards.\” He also contended that the \”same unsafe condition; too close: existedwith 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 of Conoco’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 his view, sufficient seperation ofheaters and boilers from process equipment is necessary to \”give the vapor cloud timeto disperse and dilute below the combustible range.\” He provided no support, however,for his thesis that greater distance will result in the dispersal of a vapor cloud. Inthis regard, he testified there wasn’t any empirical data or learned treatise support forhis thesis (Tr. 924).The Secretary’s other expert, Hr. McAninch, based his opinion concerning the separation ofheaters and boilers upon his 28 years of employment and experience with American OilCompany (Amoco). He testified that Conoco’s practice when building new refinery units wasto locate furnaces on the upwind side of process equipment and no closer than 50 feet fromthe \”first major piece of equipment\” (Tr. 1058). According to Mr. McAninch,Amoco treated boilers as a separate installation and they were \”segregated\” fromprocess units (7:r- 1059). There is no indication whether or not Amoco separated boilersfrom process units by a prescribed 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 to give operators moretime to take corrective action to disperse hydrocarbon releases (Tr. 1113-1114). Atanother point in his testimony, Mr. McAninch indicated that the purpose of locatingheaters at least 50 feet upwind from a process unit was to separate the sources ofignition from the sources of hydrocarbons (Tr. 2526).Mr. McAninch identified potential sources of hydrocarbon vapor and testified that theheaters were \”too close\” (Tr. 1062-1068). In his opinion none of the citedboilers and heaters were \”properly located in terms 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 the documentpublished by Industrial Risk Insurers entitled \”General Recommendations for Spacingin Refineries, Petrochemical Plants, Terminals, Oil Pump Stations and OffshoreProperties\” (hereinafter called \”IRI Recommendations\”; Ex. C-16).Mr. Quinlivan testified that the IRI Recommendations are considered \”authoritative inthe industry\” (Tr. 868). Hr. McAninch stated that Amoco’s design philosophy withrespect to the separation of boilers and heaters was \”consistent\” with the IRIRecommendations (Tr. 1061-1062). Neither witness stated, however, that the purpose of thespacing recommendations of the IRI document was to prevent the ignition of hydrocarbonvapors by heaters and boilers (Tr. 925, 1116). The recommended minimum separation distanceof boilers from process units in IRI Recommendations is 100 feet; the recommended minimumseparation distance of heaters from process units is 50 feet (Ex. C-16, p.4).DiscussionThe record clearly establishes that the potential for fire and explosion resulting fromthe ignition of hydrocarbon vapor releases by heaters and boilers existed at Conoco’srefinery. That the petroleum refinery industry, including Conoco, recognizes the existenceof 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, compelsthis finding (Tr. 2321, 2364-2366; Ex. R-19).Insufficient evidence, however, was introduced to establish that the petroleum refineryindustry or Conoco recognizes that the failure to adhere to a 50foot separation rule forheaters and process units and a 100-foot separation rule for boilers and process units ishazardous.Mr. McAninch’s opinions are based on the practices of a single company, Amoco. Certainlythe separation policy of a single company does not establish the practice of an entireindustry. Moreover, Amoco applies its 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-foot spacing policy to allheaters or boilers in existing refineries.Mr. Quinlivan, on the other hand, testified on direct examination that the generalpractice of the petroleum refining industry is to apply a 100-foot spacing rule for bothheaters and boilers. Yet, when testifying about the separation practicesof the Amoco refinery in Casper, Wyoming and the Gary operating refinery at Fruita,Colorado, the only refineries specifically named by him, he confirmed that both refineriesfollowed a 50-foot separation rule for heaters, 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 recognizes the need to follow,either Mr. Quinlivan’s 100-foot rule for separating heaters and boilers from process unitsor Amoco’s minimum 50-foot rule for separating heaters.Both of the Secretary’s expert witnesses referred to the IRI Recommendations in theirtestimony, and the Secretary relies heavily on this document to establish the spacingpractices of the petroleum refinery industry.Mr. Quinlivan testified that the petroleum refinery industry recognizes the IRIRecommendations as \”authoritative.\” Mr. McAninch simply indicated that Conoco’spolicy is \”consistent\” with the IRI Recommendations with respect to newinstallations. Neither witness named any refineries that have specifically recognized,adopted, and adhered to IRI Recommendations. Moreover, the preface of Exhibit C-16indicates that these general recommendations for spacing are presented as guidance for\”new construction projects\” and \”additions\” to existing facilities. Onthis record the IRI 4\/Conoco’s brief references the finding in Asamera Oil Co., Inc., supra, that none of theheaters at Amoco’s Casper refinery or Gary’s Fruita refinery adhered to a 50-foot or100-foot spacing requirement. Although tempted, this judge has given no consideration tothe findings or expert testimony 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 the petroleumrefinery Industry with respect to existing refineries.Because the record fails to prove that the petroleum refinery industry ‘has a consensusspacing practice for existing refineries, the Secretary cannot rely upon industry practiceto establish that Conoco’s manner of separation constitutes a recognized hazard. TheSecretary also did not introduce any evidence to establish that Conoco actually recognizesits separation practice as hazardous. However, the decision in National Realty andConstruction Co., Inc. v. O.S.H.R.C.,489 F.2d 1257, 1265 n.32 (1973) indicates that the existence of a recognized hazard alsocan be shown by proof that an employer’s practice is unacceptable when judged by a commonstandard recognized by safety experts familiar with the industry.The Secretary’s two expert witnesses agree that the proximity of the cited Conoco heatersand boilers to potential sources of hydrocarbon releases was hazardous. They disagree,however, on what constitutes a safe separation distance. Although his testimony is farfrom clear on this point, Mr. Quinlivan apparently adheres to a personal 100-footseparation rule for both heaters and boilers. Mr. McAninch, in contract to Mr. Quinlivan,adopts Amoco’s 50-foot rule for the separation of heaters from process units. 5\/Mr. Doyle, Conoco’s expert, has still another opinion: that the 50-foot and 100-footspacing recommendations contained in the IRI Recommendations for heaters and boilers arearbitrary and not an effective means of preventing ignition of hydrocarbon vapor releases(Tr. 2333-2334, 2337-2338).Certainly, these three divergent opinions on this critical issue provide no basis forfinding that safety experts agree on what separation distance is necessary to preventboilers and heaters from igniting hydrocarbon vapors coming from process_____________________________________________5\/ This record fails to indicate whether or not Mr. McAninch has a prescribed distancerule 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 of preventing suchignition. Instead, these opinions support a finding that safety experts familiar with thepetroleum refinery industry do not hold a standard of common knowledgeconcerning the separation of heaters and boilers from process units to prevent ignition.Unless a common standard is established by the record, and the evidence proves thatConoco’s separation practice is contrary to that standard, it is impossibleto find that Conoco’s separation practice is a recognized hazard under section 5(a) (1) ofthe Act.The Secretary also unsuccessfully attempted to prove that Conoco’s failure to use certainprotection methods or devices to prevent boiler and heater ignition of hydrocarbon vaporsfrom process units constituted a recognized hazard.Mr. Quinlivan testified that \”there are many schemes around\” the petroleumrefinery industry to prevent the possibility of heaters and boilers igniting hydrocarbonvapor releases. He specified fire walls, air curtains, water curtains,flame and combustible gas detectors, and fire protection systems which would blanket areasand isolate ignition sources from process vapor sources (Tr. 881). In connection with thewater curtain system he also recommends an automated shut-down system (Tr. 884). Hetestified that his preferred method for abating \”the hazard of the proximity ofprocess units 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 practical for installationat Conoco’s refinery due to space limitations (Tr. 929). Mr. Quinlivan also agrees that itwould be impractical to adhere to his spacing recommendations for heaters and boilers atConoco’s refineries (Tr. 931). Without explaining why a C02 or water curtain system alsowould not have been practical due to space limitations, Mr. Quinlivan recommended theinstallation of a water curtain or a CO2 curtain 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 gas detectors toprotect heaters from. igniting, vapors as between $100,000 and $150,000 (Tr. 586,933-934). He testified that he has seen a water curtain and combustible gas detectorsystem at Amoco’s refinery in Casper and Gary’s refinery in Fruita, Colorado, but neveranswered the question of \”how they worked\” or indicated whether they were usedaround heaters and boilers (Tr. 886-887). Mr. Quinlivan has never seen a CO2 curtainsystem installed in a refinery (Tr. 931).The Secretary’s evidence falls short of establishing that the petroleum refinery industrygenerally uses water or CO2 curtains, or any other of the Secretary’s recommendedprotective devices, to protect heaters or boilers from ignition of hydrocarbon vapors, orthat the industry or Conoco recognize that the failure to use such systems or devices ishazardous. Also, the same evidence is insufficient to establish that safety expertsfamiliar with the petroleum refinery industry recognize that Conoco’s failure to use theSecretary’s recommended devices is hazardous.On the entire record, the existence of a recognized hazard with respect to Conoco’s mannerof separating or protecting its heaters and boilers to prevent ignition of hydrocarbonsfrom process units was not proven.The Secretary’s charges, both here and in Asamera, are apparent attempts by the Secretaryto establish a separation performance standard for the entire petroleum refinery industrythrough selective use of the general duty clause and ad hoc adjudication rather thanemploying the standard-making machinery provided in the Act. It is suggested that if theSecretary is persuaded that 50-foot and 100-foot spacing rules, or use of certainprotection devises, are essential for employee safety, his proper course is to use thestandard-making procedures of the Act. As was pointed out by the Court in B&BInsulation, Inc. v. OSAHRC and Marshall, 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 would employers beapprised of the conduct required of them and responsibility for upgrading the safety ofthe industry would be borne equally by all its members, but the resulting standard wouldbenefit from import of the industry’s experts, both employer and employee, cost andtechnology obstacles could be weighed and more interested parties can articulate in theprocess.\”Citation No. 1, Items 11(b-d) Citation No._2,_Item 2( a)As amended, Citation 1. Items 11(b-d) charges Conoco with violating several sections ofthe 1971 National Electrical Code, NFPA No. 70-1971 (NEC), which have been incorporated byreference by standard 29 C.F.R. {sec}1910.309(a). The cited sections of 1971 NEC Article501 all require that \”approved\” or \”explosion-proof\” electricalequipment be provided in \”hazardous locations,\” as defined by Article 500 of the1971 NEC.The Sscretary alleges that Conoco failed to provide \”approved\” electricalequipment, or in lieu thereof, positive pressure ventilation, at six locations in itsDenver 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 the hearing as\”west electrical disconnects\”);4. Electrical equipment south of the old cat-poly unit (designated at the 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 seventh location, Item 110(b)of Citation No. 1, in a stipulated Settlement Proposal, 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 to Conoco’s control room.The issue is whether the cited locations are \”hazardous locations,\” and moreparticularly, \”Class 1, Division 2\” locations within the meaning of Article500-4(b) of the 1971 NEC.Article 500-4(b) provides:\”500-4 Class I Locations. Class 1 locations are those in which flammable gases may bepresent in the air in quantities sufficient to produce explosive or ignitable mixtures.Class I locations shall include the following.(b) Class I, Division 2. Locations (1) in which volatile flammable liquids or flammablegases are handled, processed or used, but in which the hazardous liquids, vapors or gaseswill normally be confined within closed containers or closed systems from which they canescape only in cases of accidental rupture or breakdown of such containers or systems orin case of abnormal operation of equipment…\”With the exception of the location of substation No. 1, it is Conoco’s position that noneof the cited locations were Class I, Division 2 locations, and as a result,\”approved\” electrical equipment was not required. [[7\/]]Summary of EvidenceIn support of these charges of violation of the 1971 NEC, the Secretary introduced thetestimony of Officer Bakewell, and his expert, Mr. McAninch.Officer Bakewell’s testimony that electrical equipment \”not approved\” for ClassI, Division 2 was installed in the six cited locations went unrefuted. The accuracy of hismeasurements from the unapproved electrical equipment to certain other pieces of equipmentalso went unchallenged, 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. Brookstestified 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, everymeasurement was taken from a \”potential source of hydrocarbons\” such as flanges,valves, pumps and pipes (Tr. 128-129, 131). On rebuttal he also testified that he\”took measurements from areas where flammable vapors were housed\” in a closedsystem (Tr. 146). All of the measurements were less than 100 feet (Tr. 106). In hisopinion all of these 6 locations were in Class I, Division 2 areas because \”underabnormal circumstances\” hazardous vapors could be released (Tr. 146-147).In addition to relying on the NEC when issuing the citation, Officer Bakewell relied ondocument AP1 RP500A entitled \”Recommended Practice for Classification of Areas forElectrical Installation in Petroleum Refineries\” (Ex. C-32; hereinafter called\”RP 500A\”). Officer Bakewell interprets RP 500A as extending Class I, Division 2locations out 50 feet from a potential vapor source; \”Where large releases ofvolatile products may occur,\” however, Class 1. Division 2 locations extend 100 feetfrom 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 2area or enclosing the electrical equipment and positively pressurizing the enclosure area(Tr. 160).On cross-examination, Officer Bakewell stated he was unable to testify as to the pressure,temperature, or quantity of the material behind the points to which he measured (Tr. 277).His measurement of 27 feet from the No. 2 transformer electrical substation to the cornerof the \”FCC Unit\” was not taken to a valve or flange but rather to \”a groupof overhead 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 measured to horizon taloverhead lines, not to a vertical pipe, and to a \”pump\” (Tr. 2535).Mr. McAninch testified that in classifying Class I, Division 1 and 2 areas he relied onthe National Electrical Code \”Chapter 5 Special Occupancies, ARTICLE 500 – HAZARDOUSLOCATIONS\” (Ex. C-51). According ti Mr. McAninch, Amoco also used RP 500A (Ex. C-32)as \”minimum guidelines.\” He considers that RP 500A is an interpretation of theNEC by the API and serves as a \”guide\” to the industry (Tr. 1073, 1121). Amocoas a \”general rule\” used a 50-foot standard unless the electrical equipment wasclose to \”huge quantities\” of hydrocarbons (Tr. 1119). In his experience, Amoconever used a 100-foot area classification for Class I, Division 2 locations (Tr.1123-1124). In his view, all control rooms should be pressurized. He concedes, however,that the NEC does not require control rooms to be pressurized (Tr. 1075-1077).Mr. McAninch testified that Conoco’s cat-poly unit and \”some\” of the recoverysection of the crude unit contained \”copious quantities of heavier than airhydrocarbons\” that would go directly on release to the control room due to theprevailing wind (Tr. 1077-1078). His opinion that the control room at Conoco is in a ClassI, Division 2 location, as those terms are used in the NEC, is based on the fact that API500A requires a 100 foot extended area \”where hydrocarbons can be available at thetwo foot level\” (Tr. 1081).He believes the below grade pumphouse is in a Division 2 area because the\”separator\” is immediately east of the pumphouse (Tr. 1082). With respect to P+M32-11, Mr. McAninch believes it should have been classified Division 2 because of its45-foot distance from the PB dryer (Tr. 1083-1084). He indicated, however, that if the PBdryer 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 27 feet west of theFCC, he would consider the substation as a Class I, Division 2 location (Tr. 1084).He further indicated that the \”west electrical disconnects\” also were in aDivision 2 area (Tr. 1085).Conoco’s expert, Mr. Robert P. Howell, was employed by Standard Oil of California for 40years (Tr. 1364). A member of the API subcommittee on electrical equipment from 1953 to1969, he considers himself \”a principal author\” of RP 500A (Tr. 1367-1368). Healso was a panel member on the National Fire Protection Association (NFPA) \”codemaking\” panel at the time the NFPA issued the 1971 NEC (Tr. 1368).According to Mr. Howell. the NEC first defined Division 1 and Division 2 areas forelectrical classification purposes in 1947. Due to the \”vagueness\” of thosedefinitions, however, the petroleum industry found it impossible to classify areas in aconsistent manner (Tr. 1375-1376). In response to this vagueness, the NFPA developed anumber of \”special occupancy\” rules, setting forth \”rigid, ormandatory\” distances or dimensions for Division 1 and Division 2 area classificationsfor certain industries, such as service stations (Tr. 1376-1380; See e.g., NFPA, Flammableand Combustible Liquids Code, Exhibit R-4; see also, 1971 NEC, Articles 510-555).According to Mr. Howell, the NFPA never developed a special occupancy rule or a rigiddefinition of classified areas for petroleum refineries due to its recognition that eachpetroleum refinery is different in terms of process, size, terrain, and other factors,that go into determining how the NEC requirements for area classification should beapplied (Tr. 1380-1381).Mr. Howell testified that RP 500A was prepared to serve as an interpretative guide of theNEC for the petroleum refinery industry (Tr. 1382, 1386). Mr. Howell stated that therecommended distances of 50 and 100 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 a Division 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 companiesusing less than 50 feet in defining a Division 2 area (Tr. 1402). According to Mr. Howell,Gulf, Atlantic Richfield, Union, Soho, Texaco, Shell, Chevron, and Amoco, do not classifya Division 2 area beyond 50 feet (Tr. 1415). Also, the term \”abnormal\” in RP500A is not to be equated with \”catastrophic\” (Tr. 1392).If the material is a volatile flammable liquid with a flash point of under a hundred, andif the pressure in the process equipment is over 500 psi, Mr. Howell, personally wouldclassify the area extending out 50 feet from the process equipment as a Division 2location (Tr. 1399-1400). If the pressure in the equipment. however, is less than 500 psihe would extend the classified area for this volatile flammable liquid out only 25 feetfrom the edge of the process equipment (Tr. 1400-1401). Moreover, if the process fluidshave flash points considerably above 100*, he \”might\” suggest that theclassification be limited to the \”boundry limits\” of the process area (Tr.1400). His theory regarding temperature and psi in classifying a Division 2 location,however, is not mentioned in RP 500A.Mr. Howell considers pumps. closures on heat exchangers, flanges on vessels, andexchangers, as sources of vapor (Tr. 1404). According to Mr. Howell, the nearest source ofvapor to the control room was X-302 and X-304, feed preheaters in the catpoly plant. Thematerial contained in these preheaters were various propanes and butanes operating at 600psi (Tr. 1420). For this equipment, he would go out 50 feet from the preheaters anddesignate everything within this area as Class I, Division 2. Because the electricalequipment in the control room was more than 50 feet from these preheaters, he believes theelectrical equipment 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 circuit breakers and theexhaust for the diesel engine in the below grade water purnphouse, Mr. Howell testifiedthat the nearest source of vapor vas vessel the propane dryer (Tr. 1423). This dryer wasoperating at a pressure of \”230, 250 pounds\” (Tr. 1424). In his view the twopools directly adjacent to the pumphouse were not sources of vapor for classificationpurposes (Tr. 1424-1425). Mr. Howell further testified that the exhaust of the dieselengine is not covered by the NEC, which limits itself to electrical equipment (Tr. 1423).According to Mr. Howell, the NEC makes no mention of below-grade areas. However, API – RP500A does suggest that, if a below-grade area is within a Class 1, Division 2 location,the below-grade area should be classified as Division I (Tr. 1425-1426).Mr. Howell believes that the nearest source of vapor to the electrical equipment in thearea designated P+M 322-11 is the stripper reboiler, X-239, or the fractionating towerW-54. They both contain light hydrocarbons at moderate pressure, 200 to 300 pounds (Tr.1426-1427). Mr. Howell, therefore, believes there was no need to classify P+M 322-11. Thepump which he measured 53 feet from P+M 322-11 was a butane reflux pump and had not beenin 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 or volatile hydrocarbons, and the FCCunit nearest to the substation was handling \”heavy hot pitchlike materials.\” Mr.Howell testified that the closest source of vapor were a pair of pumps, P-554 and 555,that handled naptha, via very high vapor pressure gasoline\” (Tr. 1428). Pumps 558 and559 are closer, according to Mr. Howell, but they contain a very hot slurry and definitelyare not a source of vapor. Mr. McAninch disagrees with Mr. Howell’s opinion in thisregard, however, and testified 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 fractionating tower and was within 50 feet of # 2transformer substation (Tr. 1428- 1429). Mr. Howell testified that the Secretary’s 48-footmeasurement on Exhibit 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 circuit breakers,according to Hr. Howell, was D-66; the propane dryer. The distance was \”such\”that there would be no reason to classify the west electrical area (Tr. 1432).Mr. Lynen Brooks, a Conoco senior electrical engineer, testified concerning Conoco’sclassification procedures. According to Mr. Brooks, a Class I, Division 2 location is anarea where the process fluids would be contained within closed systems and when releaseswould occur under an abnormal situation such as a \”breakdown or failure of a piece ofequipment (Tr. 1226). Conoco uses Conoco’s Central Engineering Department Standard 12 asthe basis for its classification of Division 1 and Division 2 areas (Tr. 1230; Ex. R-1).Conoco also recognizes that RP 500A is a reliable authority for the purpose of electricalclassification in the petroleum refinery industry (Tr. 1234-1235). Mr. Brooks believes theprimary purpose of RP 500A was to permit the petroleum refinery industry to determine theextent of Division 1 and Division 2 areas (Tr. 1236).In defining and classifying a Class I, Division 2 location, Conoco measures out 50 feetfrom sources \”that are most likely to cause a problem in a refinery.\” Accordingto 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 and upon the NEC\”in terms of the classification of the areas\” (Tr. 1246). Conoco considers thequantity of the hazardous material that might escape in case of an accident, the totalarea involved, and the record of 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 fire or explosion atConoco’s refinery was due to electrical ignition (Tr. 1247). On cross-examination,however, he conceded, that he did not know the cause of some of the fires that hadoccurred 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 was handling\”fairly heavy substances\” which would give off \”very little vapor\” ifreleased. He also might classify beyond 50 feet \”in a case of a large storagearea\” 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 of vapor to the control room were morethan 50 feet distant (Tr. 1251). He believes that the material in the MEA unit, was\”only water or some other types of material that would not constitute a hazard orwould not constitute a source of vapor\” (Tr. 1251-1252).He measured 76 feet 6 inches from the window of below-grade pumphouse to D-66, the propanedryer (Tr. 1254). The nearest source of vapor, the exchanger X-130, was farther away fromthe pumphouse than D-66 (Tr. 1255). Mr. Brooks does not consider D-66 to be a source offlammable vapor (Tr. 1284).The nearest source of vapor to P+M 322-11, according to Mr. Brooks, was the control valvenear P-496, and it is over 50 feet away (Tr. 1260).Mr. Brooks believes that the nearest source of vapor to No. 2 Transformer substation isthe reflux pump P-554 and further than 50 feet away (Tr. 1260-1261). Mr. Brooks does notconsider pumps P-558 and P-559 as sources of vapor because they handle a hot slurry. Mr.Brooks believes that the material in P-558 (within 50 feet of the control room) wouldauto-ignite if leaked to the atmosphere (Tr. 1301-1303). P-558 was 27 feet from #2substation (Tr. 1304). According to Mr. Brooks, pumps P- 556 andd P-557 are not sources ofvapor because they handle heavy fuel oil, 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 the control valve onX-130 and further than 50 feet away (Tr. 1263). He measured the distance from the westdisconnects to D-66, however, as 39 feet (Tr. 1328).According to Mr. Brooks, the No. I electrical substation was in a Class I. Division 2 areabecause the control valve associated with the desalter was within 50 feet of thesubstation (Tr. 1265).Mr. Brooks testified that the distance from D-66 to P+M 32-11 was 78 feet 7 inches. Thismeasurement was made by Mr. Greg Hicks, not Mr. Brooks. If the distance from D-66 to P+M32-11 was actually 45 feet (as measured by Officer Bakewell), Mr. Brooks still does notconsider D-66 a source of vapor because D-66 does not have a control valve, and Mr. Brooksdoes not consider an \”ordinary valve\” as a source of leak (Tr. 1297). Based onExhibit R-3, the 78-foot, 7 inch measurement is preferred over the 45-foot measurement ofOfficer Bakewell. Mr. Brooks’ measurement from X-239 to P+H 322-11 was 63 feet 6 inchesand 51 feet 6 inches from X-239 to transformer C-17 (Tr. 1299-1361).Mr. Brooks measured the control valve below exchanger 130 to be 51 feet from the westelectrical disconnects (Tr. 1328). D-66 was \”39 feet exactly\” from the westelectrical disconnects (Tr. 1238).DiscussionAs Conoco’s brief points out, the Secretary’s interpretation and application of Article500-4(b) of the NEC to the unapproved electrical equipment at issue can be\”simply\” stated: a Class 1, Division 2 area in an oil refinery must extend aminimum of 50 feet from the nearest source of hydrocarbon, in all cases. But, in thiscase. the alleged Division 2 areas must extend 100 feet from the neatest sources ofhydrocarbons. Because the six electrical installations were located less than 100 feetfrom a source of hydrocarbon, the Secretary maintains that Conoco violated theS:\\1984\\Processed\\79-0570-E\\00000000\\41.tif\”sections of Article 501 of the NEC by not installing \”approved\” electricalequipment or, in lieu thereof, positive pressure ventilation.Article 500-4 of the NEC is couched in imprecise and general terms and provides little orno guidance on how to determine the existence and extent of a Class 1, Division 2location. Article 500-4(b) simply states that a Class 1, Division 2 location is an area\”in which volatile flammable liquids or flammable gases are handled, processed, orused, but in which the hazardous liquids, vapors or gases will normally be confined withinclosed containers or closed systems from which they can escape only in case of accidentalrupture or breakdown in such containers or systems or in case of abnormal operation ofequipment…\”Although Article 500-4 of the NEC does not define a Class I, Division 2 location in termsof a specific distance from a potential source of flammable material, both the Secretary’switnesses, Officer Bakewell and Mr. McAninch used specific distances as the criticalfactor in determining the existence and extent of the Class 1, Division 2 locations atConoco’s refinery. Conoco’s witnesses Mr. Howell andMr. Brooks, also used specific distances as benchmarks for determining the extent of ClassI, 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 and79-1756, 1980), this judge held that Article 500-4 of the NEC was imprecise on its faceand that its provisions standing alone failed to provide employers with an appropriatebasis or standard capable of determining the existence and extent of Class I, Division 2areas. This decision also held that Article 500-4 was unconstitutionally vague as appliedto Asamera. At the hearing in this case, however, Conoco abandoned its affirmative defensethat Article 500-4 of the NEC is unenforceably vague (Tr. 157).S:\\1984\\Processed\\79-0570-E\\00000000\\42.tif\”Conoco’s abandonment of this defense, however, does not relieve this Commission of itsduty to interpret and apply Article 500-4 in a manner which provides employers with anobjective standard of violation. In interpreting and applying broadly worded standards ofthe Act, the courts and the Commission have focused on how an employer, his industry, or a\”reasonable person\” interprets the requirements imposed by the standard. 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 BNAOSHC 1260, 1979 CCH OSHD [[P]]23,480 (No. 15855, 1979). Therefore, the critical inquiryhere, is whether Conoco or the petroleum refinery industry, or a reasonable personfamiliar with the petroleum refinery industry, would recognize that the NEC requiresConoco’s six cited locations to be classified as Class I, Division 2 locations.The Secretary claims that RP 500A constitutes the petroleum refinery industry’sinterpretation of Article 500-4 and the general practice of the petroleum refineryindustry with respect to classifying Class I, Division 2 locations. Conoco agrees, butdisagrees that RP 500A requires that a Class I, Division 2 area must extend a minimum of50 feet, or that 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 standard under the act,but is an industry document – an attempt by the API to present to the petroleum refineryindustry a guide for classifying electrical installation areas consistent with the NEC.But there is no attempt to denote its recommendations as mandatory; clearly, therecommendations are intended to be advisory only. The foreword of Exhibit C-32 containsthe following statements and disclaimers:\”This publication includes generalized statements and recom mendations on matters onwhich there are diverse opinions. It is important, therefore, that Judgment takeprecedence over a literal interpretation of the text… The information contained in thispublication does not constitute, 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 I at p.10 of RP500A must be construed as a \”minimum\” when determining the extent of a Class I.Division 2 area. Mr. McAninch supported this contention and testified that Amococonsidered the 50-foot distance as a minimum in determining the extent of a Division 2area (Tr. 1073). At another point in his testimony, however, he suggested that he mightnot always require a minimum of 50 feet (Tr. 1084). Mr. Howell contradicted Mr. McAninch’stestimony in regard to Amoco’s practice and testified that unidentified Amocorepresentatives had informed him that Amoco in some cases extended Class 1, Division 2areas less than 50 feet (Tr. 1848-1485). He further testified that the refineries ofAtlantic Richfield, Union, Ohio, Texaco, and Chevron alsoused less than a 50-foot distance in defining a Division 2 area (Tr. 1402). Mr. Brooks, ofcourse, testified that Conoco does not interpret Figure 1 of RP 500A as establishing aminimum 50-foot distance (Tr. 1248).Contrary to Conoco’s contentions,Section 11 and Figure 1 of RP 500A must be read asrecommending a 50-foot minimum distance in Division 2 locations in petroleum refineries.But a recommendation, advisory in nature. cannot be the basis for finding a violation ofthe Act even if the Secretary had adopted RP 500A pursuant to Section 6(a) of the Act. SeeA. Prokosch and Sons Sheet Metal, Inc., 80 OSAHRC 96\/A2, 8 BNA OSHC 2077, 1980 CCH OSHD(P)21,275 (No. 76-576, 76-406, 1980) and the cases cited thereunder.Furthermore, it cannot be concluded that the petroleum refinery industry generally orConoco specifically recognizes that the NEC mandates the use of a minimum 50-foot distancein all situations when determining the existence and extent of Class 1, Division 2locations.All three experts interpreted the recommended additional 50-foot Division 2 area in Figure1 of RP 500A as applicable only \”where large releases of volatile products mayoccur.\” RP 500A, however, does not specifically define \”large releases .S:\\1984\\Processed\\79-0570-E\\00000000\\44.tif\”Although Mr. McAninch testified on direct examination that all sources of vapor referencedbv the Secretary required an additional 50 foot extension, he acknowledged oncross-examination that a 100-foot area classification rule was not customarily employed bythe petroleum refinery industry with respect to small process units such as those atConoco’s Denver refinery (Tr. 1119). He also testified at his deposition that he wasunaware of any instance where Amoco used a 100-foot radius for a Division 2 location (Tr.1123-1124). He also indicated that he would define \”huge quantities\” of vapor interms of storage-type units such as propane storage units containing 10,000 barrels (Tr.1119).Mr. Howell testified that judgment must be used in defining \”large volumes ofhydrocarbons\” (Tr. 1167). Mr. Howell further stated that there was no consistentapplication of the 100-foot recommendation within the petroleum refinery industry.According to Mr. Howell, a major segment of the petroleum refinery industry, includingGulf. Amoco, Union, Texaco, Shell, Union, Arco, and Standard of California did notclassify refining process units beyond 50 feet (Tr. 1415). He conceded however,that othercompanies do go beyond 50 feet (Tr. 1536- 1537).Conoco similarly interprets the additional 50-foot area as applicable only to storageareas containing extremely large quantities of hydrocarbons (Tr. 1248-1249; See also, Tr.1310, 1335).As previously noted, RP 500A does not specifically define \”large releases,\” andthere is no indication that the petroleum refinery industry has arrived at a consensusdefinition of that term through use of the 100-foot standard. Therefore,it is impossibleto ascertain under what circumstances the petroleum refinery industry recommends that the100-foot distance should be used when determining the existence and extent 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 objective standard ofviolation. There is no way of determining when an employer has failed to comply withArticle 500-4’s requirements concerning classification of Class I, Division 2 areas. Basedon the provisions of Article 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 extent of a Class I,Division 2 location be resolved by resort to RP 500A. This document is nothing more thanan attempt by the petroleum refinery industry to interpret the vague classificationprovisions of the NEC; it does not purport to establish an objective standard of violationfor the NEC. 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 andimprecise as to when an additional 50-foot distance should be used in determining theextent of Class 1, Division 2 locations. Even assuming that the RP 500A 100-footseparation requirement was mandatory and noncompliance with that requirement a violationof the NEC and the Act, no violation of that requirement could be found in this casebecause the record fails to establish that the petroleum refinery industry would have usedthe 100-foot rule at Conoco’s refinery, or that Conoco actually recognized the need toextend its Division 2 areas 100 feet.For the foregoing reasons, no violation of {sec}1910.309(a) will be found with respect tothe first five locations previously referenced. In view of Conoco’s admission orconcession that substation No. 1 is located within a Class I, Division 2 location, aviolation of {sec}1910.309(a) and Article 501 of the NEC with respect to that location isaffirmed.Conoco’s argument that the requirements of Articles 500 and 501 do not apply to thisinstallation because it was installed before March 15, 1972 must be rejected on theauthority 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), incorporatingArticles 500 and 501 by reference, contains no clause excluding electrical equipmentinstalled before 1972 and that the pre- 1972 limitation in ?1910.309(b) does not apply tothe NEC Articles incorporated in former ?1910.309(a).A penalty of $100.00 for this violation is consistent with the agreed upon penalty forItem 11C(b) of Citation 1 (See Ex. J-1), and will be assessed.Unable to find that Conoco’s control room is a Class I. Division 2 location, the alleged\”willful\” charge under Item 2a of Citation No. 2 with respect to the controlroom also must be vacated.To obviate the need for a remand should a reviewing authority find that the NEC can beapplied to the facts of this case and that the NEC mandates the use of a 50-foot minimumdistance in classifying a Class I, Division 2 location at Conoco’s refinery, specialfindings will be made with 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 less from the controlroom (Tr. 1314-1315, 142).Although the control room was equipped with positive pressurization equipment, adequatepositive pressurization was not maintained in the control room. Conoco intentionallydeceived the representatives of its insurance carrier and led them to believe that thecontrol room was adequately pressurized (Tr. 1025- 1026). The motive for this deceptionhowever, and the terms of Conoco’s insurance agreement are unknown. Without thisknowledge, it is impossible to conclude whether or not this8\/ No findings with respect to the alleged 100-foot classification rule for Class 1,Division 2 locations are necessary because sources of vapor were within 100 feet of the 5locations.S:\\1984\\Processed\\79-0570-E\\00000000\\47.tif\”deception constitutes recognition of the need to classify the control room 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 than50 feet from the pumphouse.3. West Electrical DisconnectsThe nearest source of vapor to the west electrical disconnects, D-66, was within 50 feetof the west electrical disconnects (Tr. 1328).4. P+M 322-11This location was probably more than 50 feet of the nearest source of vapor, W-54 (Tr.1299, 1426; Ex. R-3).5. Electrical Substation 2This location was within 50 feet of the nearest source of flammable vapor, W-17 (Tr.1469-1470, 1472).Citation No. 2, Item IThis item charges Conoco with willfully violating Section 5(a)(1) of the Act \”inthat\” Conoco \”allowed and\/or required relief valves on pressure vessels D-241(stabilizer for reflux drum) and D-48 (P.B splitter reflux drum) to be turned down so thatthe relieving pressure would be increased above the normal and recommended safe pressuresetting, which created 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 in process equipment.Failure to relieve overpressure can result in leaks and rupture of the equipment. Wheneverthe pressure in the process system exceeds the \”set point\” or \”releasepoint\” of the safety relief valve, the spring-loaded disk of the valve opens,discharging the overpressure 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 the pressure in theprocess system is reduced to the pressure of the set point of the relief valve the reliefvalve is designed to automatically close (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 than the \”maximumallowable working pressure\” of the equipment protected by the relief valve.\”Maximum allowable working pressure,\” as defined in Section 8 of the PressureVessel Code of the American Society of Mechanical Engineers (ASME) is the calculatedmaximum pressure at which the equipment can safely operate.A publication of the American Petroleum Institute (API), the Guide for Inspection ofRefinery Equipment, Chapter XVI, Pressure Relieving Devices, provides that the pressure atwhich a relief valve releases should be within + 1\/2 percent of the prescribed setpressure before the relief valve is approved for service (Section 16.8.2.7; Ex. C-50). Thesame API Guide also contains detailed inspection and testing procedures to be followed toassure that the proper pressure setting and release of relief valves is maintained. (Forexample, 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 Catalytic Polymerization Unit(CPU). The CPU included a \”reaction\” process and a \”fractionation\”process. The fractionation process had three separate sections containing a\”stabilizer\” tower, W-68, a propane – butane \”splitter\” tower, W-69,and a \”le-ethanizer drier.\” The stabilizer tower, W-68. (\”A\” on Ex.R-6) first separated the product or \”feed\” coming from the reaction process intoa \”poly-gasoline\” and a propane mixture. The gasoline flowed out of the bottomof tower W-68 to storage and 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 into the 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 safety relief valve alsowas 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 tower W-69 (\”C\”on Ex. R-6). W-69 separated or \”split\” the propane from the butane. Butaneflowed out of the bottom of W-69 and was sent for further treating and storage. Propaneflowed out the top of W-69, down through two heat exchangers, X-315 and X-316, and into areflux drum, D-48 (\”D\” on Ex. R- 6), and then into further treating and storage.A safety relief valve was located on the top of reflux drum D-48.The facts surrounding Conoco’s admitted changes of the pressure set or release points onthe safety relief valves on D-48 and D-241 will be set forth below.B. Summary of the Evidence 1. D-48 Relief ValveOn the morning of September 23, 1978, the relief valve on reflux drum D-48, opened,relieving hydrocarbons into the flare system. The splitter system was operating at 265pounds per square inch guage (psig) at the time of release according to the pressureindicator in the control room; the normal operating pressure on D-48 is \”270, 275psig.\” This relief valve had been initially set to release according After therelease, the pressure indicator registered no pressure above 250 psig, the lowestrecording point on the pressure indicator. The valve in D-48 continued to relieve (Tr.1569-1570).Mr. Greg Lorimer, Conoco’s operations superintendent and acting shift supervisor, thenwent onto the second level of the cat-poly unit to inspect the relief valve on D-48.According to his testimony the relief valve in D-48 was vibrating and relieving, and theprotective cap of the valve was laying on the deck.The lock nut, (\”N\” on Ex. R-7), which keeps the adjustment screw (\”S\”on Ex. R-7) in place, was separated from the adjustment screw by several turns. The adjustS:\\1984\\Processed\\79-0570-E\\00000000\\50.tif\”ment screw sets the tension on the spring of the relief valve, and when the set tensionpressure is exceeded, the seat opens and the valve relieves (Tr. 1571- 1574). When theadjustment screw is turned down or tightened the spring tension is supposed to increaseand raise the pressure point at which the relief valve will open or relieve (Tr. 1574).According to Mr. Lorimer, he saw the adjustment screw turn counterclockwise or upward, twoturns. When an adjustment screw turns counterclockwise, the tension on the spring issupposed to decrease and lower 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 was vibrating,and a small amount of hydrocarbons was seeping from the stem of the valve (Tr. 1576).Mr. Lorimer ordered the employee accompanying him to turn down on the adjustment screwuntil the valve on D-48 stopped relieving but \”in no case more than two turns.\”The employee turned down the adjustment screw \”approximately one-half to one turndown\” and the D-48 relief valve stopped relieving (Tr. 1576). After the adjustmentscrew was turned down, Mr. Lorimer, again looked at the pressure guage on D-48. \”[I]twas still 200 psig, but I could see that the pressure was beginning to increase\” (Tr.1578). Mr. Lorimer than went back to the control room and gave the operators instructionsto watch the pressure on tower W-69 and take immediate steps to relieve the pressure if itincreased above 280 psig (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 to ascertain whetherthere was a possibility of making an \”on-stream\” adjustment of the relief valvesetting so that \”we could continue to operate the vessel\” or whether it would benecessary to shut the vessel down, remove the relief valve and \”reset it\” (Tr.1579). He tried unsuccessfully to telephone Conoco’s mechanical inspector, mechanicalcraft superintendent, and the refinery manager, and then returned to the control 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 a half\”after the employee turned down the adjustment screw. According to the pressure indicator,the pressure in the vessel at this time of relieving was less than 250 psig (Tr. 1581).Mr. Lorimer then instructed the operators to depressure W-69 and shut it down. Thisprocess normally takes approximately an hour (Tr. 1582). On the evening of September 23rd,the relief valve was removed and taken to a shop, \”not Conoco’s shop,\” where thepressure was reset at 310 psig. On Conoco’s instruction, the shop inserted a set screw inthe lock nut to prevent it from turning (Tr. 1583).On September 23rd, Mr. Lorimer was unaware of Conoco’s existing policy at the Denverrefinery which \”requires permission of the refinery manager 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 was releasing productto the flare system. The relief valve was leaking and frost had formed on the outletpiping of the relief valve (Tr. 1657-1658). Normal operating pressure of D-241 was\”120 pounds\” and the relief valve was set to release at \”150 pounds\”(Tr. 1660).Mr. Rhodes, Conoco’s Senior Process Engineer, who was acting as shift supervisor at thetime, ordered the operators to apply steam to melt any ice or dislodge any material thatmight have been preventing the relief valve from resetting. After about 15 or 20 minutesthere was still ice on 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 90 or 95pounds. After 25 or 30 minutes there was still frost on the outlet piping of the reliefvalve indicating that it had not reset(Tr. 1660). Five minutes after this phone call to Mr. Lyles, the relief valve reseated atan 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 the adjustment screw on theD-241 relief valve. Mr. Lyles testified that Mr. Rhodes ordered him to take down therelief valve \”two rounds\” or two turns in the adjusting screw. In response Mr.Lyles told Mr. Rhodes, \”I will give you one\” (Tr. 346). According to Mr. Carey,who was present, the adjustment screw was turned down \”five flats\” (Tr. 651).Mr. Rhodes testified that the screw was tightened \”about a turn, a turn and ahalf\” (Tr. 1664).Mr. Rhodes contends that his sole purpose in adjusting the valve was to prevent the reliefvalve from again leaking (Tr. 1664). Based on Mr. Rhodes’ \”gut feeling,\” hebelieves that turning down the D-241 relief valve would increase the pressure at which itwould relieve \”about 7 pounds or so\” (Tr. 1691).The relief valve on D-241 is designed to protect D-241 from overpressure that might occuron that vessel when (1) the four \”block\” or \”gate\” valves to the heatexchangers, 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 external fire (Tr. 1665-1668, 1817, 1828). The relief valve on W-68is designed to 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 a preponderance of theevidence: (1) that a hazard likely to cause death or serious bodily harm existed at theemployer’s workplace; (2) that the hazard was recognized as such either by that employeror generally within the industry, and (3) that there was a feasible method by which theemployer could have abated the \”recognized hazard. National Realty and ConstructionCo., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973); Usery v. Marquette CementManufacturing Co., 568 F.2d 902 (2d Cir. 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); BaroidDivision of NL Industries, Inc., No. 79-1775 (10th Cir. September 21, 1981).The language of the citation identifies the recognized hazard as increasing the relievingpressure of the relief valves on D-48 and D-241 above the \”normal and recommendedsafe pressure\” settings for these particular valves. The hearing record, however,shows that the parties also tried an alternative theory of recognized hazard, namely,Conoco’s \”on-stream\” or \”on-line\” pressure setting adjustments onvalves D-48 and D-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 the Federal Rules ofCivil Procedure.The petroleum refinery industry generally, and Conoco specifically, recognize thatproperly designed, applied, installed, and maintained, pressure releasing devices, areessential to the safety of refinery employees. Without the protection of such devices thepressure within the process equipment could foreseeably exceedthe maximum allowable working pressure of that equipment and result in rupture of theequipment. The likely consequence of any such rupture, of course, would be seriousphysical harm or death to employees.Conoco also readily concedes that failing to set a relief valve to release below themaximum allowable pressure working pressure of the vessel it protects is hazardous.Conoco, however, denies that the relief valves in question were ever set to release abovethe maximum allowable working pressure on D-48 and D-241.Conoco further contends that so long as the set pressure point on a relief valve does notexceed the maximum allowable working pressure no hazard exists.The record contains no evidence that the maximum allowable working pressures on D-48 andD-241 were exceeded on the dates in question. In point of fact, the maximum allowableworking pressures on these vessels were never established. TheS:\\1984\\Processed\\79-0570-E\\00000000\\54.tif\”record also fails to establish, as alleged by the Secretary in his citation, that theinitially set pressure of 300 psig on the D-48 relief valve was ever exceeded or that theinitial set pressure on D-241 of 150 psig was exceeded as the result of the on-linepressure adjustments. In the absence of this proof, the Secretary failed to sustain hisfirst theory of recognized hazard as alleged in his citation.The Secretary’s second theory of recognized hazard, however, that Conoco’s on-lineadjustments on the D-43 and D-241 relief valves constituted recognized hazards, findsample evidentiary support in thie record.A \”safety hazard\” (recognized hazard) has been defined as a condition (orpractice) at the worksite that creates or contributes to an increased risk that an eventlikely to cause death or serious physical harm to employees will occur. See BaroidDivision of NL Industries, supra. A critical inquiry in this case, therefore, is whetherConoco’s on-line adjustments of the relief valves on D-48 and D-241 increased the risk ofoverpressure on these vessels. If they did, recognized hazards existed.Numerous sections of the API Guide (Ex. C-50) support the conclusion that the failure toproperly set a relief valve to release at a prescribed safe level Is recog nized ashazardous by the petroleum refinery 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 when experience hasindicated that the repair of valves on- line is a safe and suitable practice, the APIGuide recognizes the importance of testing the valve for its release set point by anapproved procedure. Furthermore. Conoco, itself, has previously declared that \”agood, safe operating\” 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 the relieving pressure pointof a malfunctioning relief valve, without determining its new pressureS:\\1984\\Processed\\79-0570-E\\00000000\\55.tif\”relief point, also is recognized as hazardous by both the petroleum refinery industry andConoco. On this record, Conoco’s adjustments to the relief valves on D-48 and D-241 arefound to be recognized safety hazards. Conoco’s argument that the adjustments in questionwere not hazardous because there was no proof that the set pressures after the adjustmentsexceeded the maximum allowable working pressure levels of the equipment is unpersuasive.It is similar to claiming that spinning a revolver barrel and playing a game of Russianroulette without knowing the location of the bullet is not hazardous so long as the hammerstrikes an empty chamber.Conoco additionally contends that adjusting the pressure an the safety valve on D-241 wasnot hazardous because the safety valve on tower W-68 eliminated any possibility ofoverpressure on D-241. Not so. The failure to determine the set pressure point on themalfunctioning safety valve on D-241 after attempting to increase the pressure above therelieving pressure point clearly added to the risk of overpressure in the event the gatevalves became blocked and D-241 became exposed to an external fire. .Conoco focuses on the lack of proof that the set pressure on the D-241 relief valveexceeded the maximum allowable working pressure of the drum, that the gate valves everbecame blocked, and that D- 241 was exposed to a fire. But as previously stated, therecognized hazard with respect to both relief valves is changing the relieving pressurepoint on a malfunctioning relief valve without determining the set point at which it willrelieve.The Secretary also had the burden of showing that Conoco knew, or with the exercise ofreasonable diligence could have known, of the likelihood of the hazardous practice in thiscase. See Mountain States Telephone & Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir.1980); National Realty and Construction Co., supra. The Secretary sustained this burden.The evidence 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 the express permissionof the refinery manager or, in his absence, the process superintendent, was noteffectively communicated and implemented by Conoco. Mr. Lorimer never heard of theprohibition; and Mr. Rhodes deliberately ignored it. As was pointed out in the NationalRealty case: \”the fact that a foreman would feel free to break a company policy isstrong evidence that implementation was lax.\” Because Conoco’s safety rule in thisregard was not effectively communicated and implemented, it is found that Conoco failed toexercise reasonable diligence in discovering these instances of violation. See H.B. ZachryCo. v. OSHRC, No. 80-1357 (5th Cir. Mar. 2, 1981).Having found a violation of the general duty clause, the final inquiry is whether theviolation was willful. A willful violation of the general duty clause is established whenan employer makes a conscious and deliberate decision not to comply with its requirementsor when an employer’s conduct is properly characterized as showing a careless disregard ofthe requirements or an indifference to employee safety. Tri-City Construction Company, 8BNA OSHC 1567 (No. 77-3668, 1980).After Conoco was placed on notice of the hazardous practice of turning down safety valvesto stop leaks, Conoco took action to remedy this practice by issuing a safety directive.Although inadequate, the action taken exhibited an intent to eliminate the known andrecognized hazardous practice, not to permit its continued existence. See Mel JarvisConstruction Co., Inc., (No. 77-2100, September 30, 1981). The violation, therefore, willbe affirmed as serious, not willful.PenaltyThe high gravity of this violation dictates a substantial penalty. In addition, the twoincidents reveal a glaring deficiency in the communication and implementation of Conoco’ssafety program. To impress upon Conoco the need to correct this deficiency, the maximumpermissible penalty 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 the contested issueshave been found specially, and appear above in the body of 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 that respondentviolated 29 C.F.R. ?1910.134(a)(2).2. The record establishes by a preponderance of the evidence that respondent committed aserious violation of 29 U.S.C. ?654(a)(1) with respect to the inadequate training of Mr.Ronald D. Branson.3. The record fails to establish by a preponderance of the evidence that respondentviolated 29 U.S.C. ?654(a)(1) with respect to the separation and protection ofrespondent’s heaters and boilers.4. 29 C.F.R. ?1910.309(a), incorporating Articles 500 and 501 of the National ElectricalCode (1971 edition), applies to electrical installations installed before March 15, 1972.5. Respondent judicially admitted that its electrical substation No. 1 was in a Class 1,Division 2 location.6. The record establishes by a preponderance of the evidence that respondent’s electricalsubstation 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, 1971 edition, providesno objective standard to determine the existence and extent of Class 1, Division 2locations. Unless the record evidence establishes that an employer or his industryrecognizes the need to classify 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) of the Act isimpossible and no violation can be affirmed.9. In this case, the record fails to establish that Conoco or the petroleum. refineryindustry recognizes the need to classify the five electrical installations at issue asClass 1, Division 2 locations.10. The record establishes by a preponderance of the evidence that respondent committed a serious violation of 29 U.S.C. ?654(a)(1) with respect to the pressuresetting adjustments on the relief valves for D-48 and D-241. The record fails to establishby a preponderance of the evidence that respondent willfully committed this violation.ORDER Based on the Findings of Fact, Conclusions of Law and the entire record, itsORDERED:1. Item Nos. 4, 6, and 11c(b), as amended by the complaint, are AFFIRMED, and penalties of$280.00, $360.00 and $100.00 respectively are ASSESSED.2. Respondent shall comply with the abatement procedures of paragraph 3 of the Stipulation(See Ex. J-1).3. Item 8 of Citation No. I is VACATED, but respondent shall implement the measures agreedto 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 the inadequate training ofRonald D. Branson is AFFIRMED, and a penalty of $100.00 ASSESSED. 6. The alleged violationof 29 U.S.C. ?654(a)(1) with respect to the separating and protection of respondent’sheaters and boilers is VACATED.7. The alleged violation of 29 C.F.R. ?1910.309(e), (Article 501 of the NEC) with respectto electrical substation No. 1 is AFFIRMED, and a penalty 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, as amended, the otheralleged serious violations with respect to Article 501 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 the adjustments of therelief valves on D-48 and D-241 is AFFIRMED, and a penalty 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 Class I, Division 2location but argues that the requirements of 29 C.F.R. ?1910.309(a) do not apply toelectrical equipment, including the equipment in substation No. 1, installed before March15, 1972.”