“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2128 \u00a0 MOBIL OIL COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 6, 1976?DECISION\u00a0BEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioner.BARNAKO,Chairman:Theissue in this case is whether Respondent (Mobil) violated 29 U.S.C. ? 654(a)(1)with respect to a natural gas heater used at its oil refinery at Paulsboro, NewJersey. Complainant alleges that the procedures established by Mobil to relightthe heater exposed Mobil?s employees to a recognized hazard likely to causedeath or serious harm. Judge Donald K. Duvall held that the evidence failed toestablish a violation. We have reviewed the entire record, and conclude thatthe Judge properly disposed of the alleged violation of 29 U.S.C. ? 654(a)(1)for the reasons he assigned.Mobil?semployees were represented in these proceedings by the Oil, Chemical, andAtomic Workers International Union, AFL-CTO, and its Local 8?831 (OCAW). OCAWhas filed a brief before the Commission, arguing that a violation should befound based on Mobil?s alleged inadequate implementation of its relightingprocedures. At the hearing, however, the parties agreed that the substance ofthe alleged violation was the inadequacy of the procedures, and not any failurein their implementation. OCAW did not object to this formulation of the issue,and the case was tried on that basis. We cannot, under these circumstances,find a violation based on a different theory. ?It is patently unfair for anagency to decide a case on a legal theory or set of facts which was notpresented at the hearing.? National Realty & Construction Co. v. OSHRC,489 F.2d 1257, 1267, n. 40 (D.C. Cir. 1973).?Accordingly, theJudge?s decision is affirmed. It is so ORDERED.?FOR THE COMMISSION:?William S.McLaughlinExecutiveSecretaryDATE: FEB 6,1976?CLEARY,Commissioner, DISSENTING:Themajority opinion notes that the issue before the Commission is whetherrespondent?s relight procedures exposed its employees to a recognized hazardlikely to cause death or serious physical harm. Administrative Law Judge Duvalland the majority conclude that the relight procedures were not a ?recognizedhazard.? I must respectfully disagree.Respondentmaintains as part of its Paulsboro, New Jersey, petroleum refinery a propanede-asphalting (PDA) unit. This unit is comprised of a number of components,including a natural draft gas-fired process (PDA-BB2) heater. The heater,installed in 1950, was cylindrical in shape with a 16-foot diameter. It wasapproximately 80 feet high, and was estimated to weigh between 20 and 30 tons.ThePDA process begins with the pumping of residual stock oil into a tower. Propanegas is then injected. The propane is necessary to separate (?split?) theasphalt from the oil. Shortly thereafter, the propane and oil mixture is pumpedthrough the PDA-BB2 heater. When the mixture reaches the required temperature,the propane and asphalt mix and split from the oil.Heatfor this process was provided by four gas burners, analogous to those of a gasstove. They were located at the base of the PDA-BB2 heater about eight feet offthe ground. These burners were supplied gas by individual lines that wereregulated by valves (termed cock-valves). The lines were connected to a main gasline that was controlled by a header valve system located approximately 35 feetfrom the burner.Onthe morning of October 26, 1973, at about 11 o?clock, the propane gascompressors of the PDA unit failed. Because of this failure, the PDA-BB2 heaterwas shut down. The shutdown consisted only of turning off the main valve andchecking its bypass at the header valve system. The cock valves were not closedat this time.Shortlyafter 3 o?clock on that day, the signal was given by respondent?s foreman toprepare the PDA-BB2 burner for relighting. Direct testimony reveals thatrespondent?s employee closed the four cock valves under the furnace while asecond employee obtained a bucket of kerosene for the torch. The torch was apencil-thin piece of wire with an asbestos rag attached. The burner was purgedwith steam for at least one-half hour according to company regulations. Afterthe steam purge was completed, two employees prepared to light the heater. Oneemployee, a second operator, positioned himself at the header valve systemwhile the second employee, also a second operator, positioned himself below theburners. The latter operator lit the torch and hung it by its hook to the rimof a burner. He then used a pipe wrench to ?beat open? the cock valve below theburner; turned to the second operator; and signaled for release of gas to theprepared burner. The block valve on the ?down stream? side of the regulator atthe header valve system was opened to about 30 percent capacity. Almostimmediately, the PDA-BB2 heater exploded. The explosion seriously injured thesecond operator standing next to it.Respondent?ssentor operator testified that it was important to the safe relighting of theheater that all valves be opened slowly and just a little at a time. He testifiedthat the technique for properly opening these valves was learned through trialand error and experience.Thevalves to the burners and the main valves were very difficult to operate. Tomove virtually any valve, it would have to be hammered with a pipe wrench or apiece of pipe. The valves could be made to open more easily. During biannualturn-around maintenance the valves were put back into proper operatingcondition. In the interim, exposure to the elements and the corrosive refineryatmosphere caused them to stiffen considerably.Respondentmaintains as part of its operating manual a one page set of instructionstitled, General Safety Precautions To Be Observed When Lighting Off Gas-FiredProcess Heaters. These instructions, last revised in 1963, are available to allemployees required to light the PDA-BB2 heater. The instructions requireemployees to open the main valve before the first cock valve is opened. (Thereverse procedure was used on the day of the explosion.) Item 7, of theinstructions, with its accompanying note, and Item 8 provide the followingspecific warnings:7. Slowly openthe gas burner valve, the gas should ignite immediately. If it does not, shutthe gas valve and purge the furnace before attempting to light the burneragain.?NOTE: It isextremely important to open gas valve slowly because the ignition of gas willcause a seven-fold increase in volume. Thus if a large volume of gas is rapidlyignited the low draft obtained during the startup may be insufficient to pullthe flame into the firebox resulting in a flash back. This is particularly trueon ring-type gas burners.?8. When addingfuel to the burner by use of the hand valve at the burner, continue to open thevalve very slowly. Even though the burner is lit, a substantial increase in gasflow may still cause a flash back.?Thedecision to issue the citation was based on the file compiled by the complianceofficer who made the inspection, and the recommendation of a second complianceofficer who had specialized knowledge in the area of gas heaters. The lattercompliance officer testified that his recommendation was based on the . . .lack of adequate combustion safeguards,? even when whose required byrespondent?s instructions were considered.Thecompliance officer suggested several combustion safeguards that would haveheightened employee safety. These included a remote furnace ignition system orpilot light system, as well as flow meters to monitor the gas-air mixture jointto the burners. He was very specific that respondent?s ?torch? was inadequate.Thecompliance officer noted that the language of respondent?s instructionsrecognized and acknowledged in at least two places, the hazard of lighting aPDA-BB2 heater. Moreover, the heater operating instructions used by respondentwere substantially the same as those used generally throughout the petroleumrefinery industry.Respondent?sexpert testified with respect to the undesirability of both remote control andpilot-light furnace ignition systems.Asis noted at the outset of my opinion, the theory of complainant?s case was thatrespondent?s relight procedures were violation of ? 5(a)(1) of the Act. Thus,the citation alleged the following:?P.D.A.Furnace Near #1. T.C.C.The employerfailed to furnish each of his employees employment and a place of employmentwhich are free from recognized hazards that are causing or likely to causedeath or serious physical harm to his employees.?Adequatesafety devices for protection of employees lacking. Remote control furnace ignitionsystem or adequate pilot ignition system with sufficient combustion safeguardsnot provided (emphasis added).\u00a0Respondent?sexpert witness successfully rebutted the testimony of complainant?s complianceofficer on the desirability of a remote-control furnace ignition system orpilot-light system. Respondent?s expert established that an ?uncomplicated?manual ignition system would be preferred over an automatic system, thereliability of which could not be assured. But, ?uncomplicated? is not necessarilysynonymous with primitive. ?Primitive? is the exact word used by the complianceofficer to describe respondent?s relight procedure. To cite just one example ofthe inadequacy of respondent?s procedure, I note the following short colloquybetween counsel for complainant and the compliance officer who had thespecialized knowledge of gas heaters:What?s areliable ignition source??Well, in the20th Century it?s not a kerosene torch (emphasis added).?Moreover,the lack of flow meters required respondent?s employees to estimate, on thebasis of past experience, the proper flow of gas. Finally, both the main andcock valves were so ?stiff? that to move them the operator was generallyrequired to strike them with a piece of pipe or a pipe wrench.Therewas no reference in respondent?s relight instructions to free the valves beforerelighting. Yet it was acknowledged that it was critical that they be openedslowly. Respondent?s employees could not accurately measure the rate of flow ofgas to the burners. The instructions did not advise them to do so. It isreasonable to infer that respondent?s employees were not asked to measure therate of flow to the burners because of the absence of flow meters.[1]The compliance officer?s objections to these deficiencies and his strongobjection to respondent?s ?torch?, are unrebutted on the record. It is clearthat respondent had not updated its relight procedures for at least ten yearsbefore the explosion at its Paulsboro facility. it is equally clear that on thedate of inspection, safety measures were available that would have provided asafer method for lighting respondent?s heater.Forthe foregoing reasons I would conclude that the Judge erred in holding thatcompliance with respondent?s operating instructions did not result in aviolation of section 5(a)(1) of the Act.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2128 \u00a0 MOBIL OIL COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDERDATE: November 23, 1973DECISION AND ORDERAPPEARANCES:Francis V.LaRuffa, Esq., Regional Solicitor by: Stephen D. Dubnoff, Esq., Assistant Solicitor,and Samuel Gorin, Esq., Deputy Regional Solicitor, U.S. Department of Labor,New Yowk, New York Attorneys for Complainant\u00a0Gordon E. Meske,Esq., and John E. Blay, Esq., Philadelphia, Pennsylvania Attorneys forRespondent\u00a0James J. Cronin,Esq., Associate General Counsel, and Steven Wodka, Legislative Aide, Attorneysfor Authorized Employee Representative?STATEMENT OF CASEDonaldK. Duvall, Judge, OSHRC:Thisis a proceeding pursuant to Sections 9 and 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act)contesting a Citation and Notification of Proposed Penalty in the amount of$900 relating to an alleged serious violation of Section 5(a)(1) of the Act.Complainant?s Citation, issued to Respondent on January 2, 1973, on the basisof an inspection conducted on November 3, 1972, at Respondent?s oil refinerylocated at Billingsport Road, Paulsboro, New Jersey, described the allegedviolation as follows:?P.D.A.Furnace Near #1, T.C.C.The employer failedto furnish each of his employees employment and a place of employment which arefree from recognized hazards that are causing or likely to cause death orserious physical harm to his employees.Adequate safetydevices for protection of employees lacking.\u00a0Remote controlfurnace ignition system or adequate pilot ignition system with sufficientcombustion safeguards not provided.?\u00a0TheCitation was contested by Respondent on January 26, 1973, and by letter datedMarch 6, 1973, from its representative, Oil, Chemical and Atomic WorkersInternational Union, the Authorized Employee Representative elected partystatus in this matter. In its Answer to Complainant?s Complaint Respondentdenied any 1973, moved for dismissal of this 1973, moved for dismissal ofmatter and vacation of the Citation and proposed penalty on the grounds thatthe Complainant failed to comply with the requirements of Section 8(f)(1) ofthe Act respecting the employees? notice of violation (Complaint letter) whichprejudiced Respondent and the reasonable promptness requirement of Section 9(a)of the Act respecting issuance of the Citation. By order dated April, 16, 1973,the undersigned Judge to whom this matter was assigned, denied Respondent?smotion to dismiss without prejudice. A hearing of this matter was duly held atPhiladelphia, Pennsylvania, on April 19?20, and 24, 1973, before theundersigned Judge. At the outset of the hearing, Respondent renewed its motionto dismiss on which judgment was reserved by the Judge pending receipt ofevidence and briefs on the issues it raised, with the exception of that issuealleging that the Complaint letter in this matter was not made by any employeesor representatives of employees as provided in Section 8(f)(1) of the Act,which issue was decided adverse to the Respondent and thereby excluded fromfurther consideration of the motion to dismiss (Tr. 18?42). Subsequently,Respondent submitted a brief with proposed findings of fact and conclusions oflaw.Thefactual context of the Citation herein may be summarized as follows. As part ofits petroleum refinery in Paulsboro, New Jersey, Respondent operates a propanedeasphalting (PDA) unit, comprised of component units, including a naturaldraft gas fired process (PDA BB2) heater. This PDA BB2 heater, installed in1950, was cylindrical in shape and mounted vertically on supports above groundand out of doors. The base of the heater contained four gas burners each ofwhich was supplied gas fuel through individual cock-valves, which wereconnected to a main gas line controlled by a main header valve approximately 35feet away. According to Respondent?s operating procedures manual (hereinaftercalled operating instructions) ignition of this heater was accomplished byopening the main leader valve which permitted gas to flow to the individualburner cock-valves, affixing a lighted torch to the first burner to be ignited,and then slowly opening the corresponding burner cock-valve to achieve burnerignition. A similar procedure was prescribed for igniting each of the otherthree burners, in turn.OnOctober 26, 1972, the PDA BB2 heater was being prepared for start-up after theentire PDA unit had been shut-down earlier in the day due to a mechanicalfailure unrelated to the PDA BB2 heater. After steam purging the heater, anassigned employee (Thomas Gray) attempted to ignite a single burner on theheater by affixing a lighted torch to the burner and opening the correspondingburner cock-valve being supplied gas from the main header valve which wasopened by another employee (E.G. Levan). Before ignition, an explosion occurredin the heater, toppling it and injuring Mr. Gray. On November 3, 1972, and OSHACompliance Officer conducted an inspection of the worksite, as requested by hisoffice on the basis of a written Complaint letter from the employeerepresentative, received by Complainant on November 3, 1972, but nottransmitted to Respondent until November 17, 1972. Thereafter, Complainantissued its Citation and Proposed Penalty to Respondent on January 2, 1973,requiring immediate correction of the alleged violation and payment of aproposed penalty of $900.Theissues for decision herein are: (1) whether Complainant?s failure to provideRespondent-employer or his agent with a copy of the Complaint letter sent byaffected employees? representative no later than at the time of inspectionconstitutes such a violation of Section 8(f)(1) of the Act and\/or is soprejudicial to Respondent as to deny him due process of law and requiredismissal of the Citation and Proposed Penalty herein; (2) whetherComplainant?s issuance of the Citation and Notification of Proposed Penaltyherein almost 60 days after inspection of Respondent?s worksite constitutesreasonable promptness in accordance with Section 9(a) of the Act; (3) whetheror not Respondent violated Section 5(a)(1) of the Act as alleged; and (4)whether the proposed penalty is appropriate under Sections 17(b), (j) and (k)of the Act.DISCUSSIONComplaintLetterRespectingthe notice of violation issue (1), Section 8(f)(1) of the Act provides asfollows:?Any employees orrepresentative of employees who believe that a violation of a safety or healthstandard exists that threatens physical harm, or that an imminent dangerexists, may request an inspection by giving notice to the Secretary or hisauthorized representative of such violation or danger. Any such notice shall bereduced to writing, shall set forth with reasonable particularity the groundsfor the notice, and shall be signed by the employees or representative ofemployees, and a copy shall be provided the employer or his agent no later thanat the time of inspection, except that, upon the request of the person givingsuch notice, his name and the names of individual employees referred to thereinshall not appear in such copy or on any record published, released, or madeavailable pursuant to subsection (g) of this section. If upon receipt of suchnotification the Secretary determines there are reasonable grounds to believethat such violation or danger exists, he shall make a special inspection inaccordance with the provisions of this section as soon as practicable todetermine if such violation or danger exists. If the Secretary determines thereare no reasonable grounds to believe that a violation or danger exists he shallnotify the employees or representative of the employees in writing of suchdetermination.?\u00a0Itis an undisputed fact of record that a copy of affected employees? letter ofcomplaint, dated October 31, 1972, and signed by the Director of theCitizenship-Legislative Department, Oil, Chemical and Atomic WorkersInternational Union, representing the Authorized Employee Representative, wasfirst provided to Respondent under cover of a letter dated November 17, 1972,from Complainant (received by Respondent on November 21, 1972), which was 14days after Complainant?s November 3, 1972, inspection of Respondent?s workplace(Memorandum of Law in support of Respondent?s motion to dismiss, Exhibits 1Aand 1B, Case File at J?1; Tr. 187?189, 235?236).Respondentcontends that Section 8(f)(1) of the Act constitutes a mandatory requirementthat ?a copy (of the notice of violation) shall be provided the employer or hisagent no later than at the time of inspection? and that a similar requirementis contained in Section 1903.11(a) of the OSHA Regulations and Procedures (29CFR Section 1903.11, 36 FR 17852, September 4, 1973); that Complainant?sfailure to comply with these provisions of the Act and its own regulationsrenders the inspection jurisdictionally defective and invalidates the Citationand Proposed Penalty based thereon. Respondent further contends thatComplainant?s failure to provide a copy of the notice of violation incompliance with the statutory and regulatory requirement was prejudicial and deniedit due process of law in two respects: (1) the notice of violation containeddisparaging misrepresentations of fact prejudicial to the objectivity of theinspection, of which Respondent had no knowledge until it received the noticetwo weeks after the inspection; and (2) Respondent was precluded from takingtimely action, such as court challenge or refusal to permit inspection,respecting the legal sufficiency of the notice of violation, specificallywhether it was properly signed, as required by law, by employees orrepresentative of employees (Tr. 32?34, 39?40).Complainanttakes the position that the pertinent provision of Section 8(f)(1) is notmandatory, but directory only since it was intended not to limit theSecretary?s right to enter and inspect (which he can do on his own volitionwithout a notice of violation under Section 8(a)) in order to effectuate therights of affected employees (Tr. 26?31).Thepertinent legislative history appears substantially to support Complainant?sposition on this issue. The Senate Committee report on S.2193, which wassubsequently enacted by the Congress, provides in pertinent part as follows:?A furtherprovision, section 8(f)(1), entitles employees or a representative of employeeswho believe that a health or safety violation exists which threatens physicalharm or that an imminent danger exists, to request a special inspection bygiving notification to the Secretary, setting forth the basis of the request.If the Secretary determines upon receipt of the notification that there arereasonable grounds to believe that a violation or imminent danger exists, heshall make a special inspection as soon as practicable. If the Secretarydetermines there are no reasonable grounds to believe that a violation orimminent danger exists he shall so notify in writing those making the request.\u00a0?By requiring thatthe special inspection be made ?as soon as practicable,? the committeecontemplates that the Secretary, in scheduling the special inspection, willtake into account such factors as the degree of harmful potential involved inthe condition described in the request and the urgency of competing demands forinspectors arising from other requests or regularly scheduled inspections.\u00a0?While the billprovides that a request for a special inspection shall be reduced to writing,the committee intends that notification may first be made by telephone, andthat where an immediate harm is threatened, such as in an imminent dangersituation, the Secretary should not await receipt through the mail of thewritten notification before beginning his inspection.? Report of SenateCommittee on Labor and Public Welfare, Legislative History of the OccupationalSafety and Health Act of 1970, 92d Cong., 1st Sess. 152 (June 1971).\u00a0Theindividual views of Senator Javits respecting inspections on demand furtherclarifies the legislative intent:?As a result of thisamendment the provisions of the bill requiring an inspection to be conducted bythe Secretary as soon as possible upon receipt of a notice from employeesalleging a violation of standards or imminent danger were modified to requiresuch an inspection as soon as practicable only if the Secretary determinesthere are reasonable grounds to believe that an alleged violation or dangerexists. This will ensure that inspections are not required in response togroundless complaints, and will permit the Secretary to schedule suchinspections more flexibly.? Individual Views of Mr. Javits, Legislative Historyof the Occupational Safety and Health Act of 1970, 92d Cong. 1st Sess. 189(June 1971).\u00a0Thesubsequent statement of the Managers on the Part of the House reporting on theHouse and Senate Conference on the disagreeing votes of the two Houses stateswith respect to special inspections as follows:A special inspectionwas required by the Senate bill as soon as practicable where an employeealleges the violation of a standard in writing, and the Secretary findsprobable cause to believe that a violation exists. In case of a refusal toconduct an inspection or if any inspection results in a finding that noviolation exists, a notification of that decision must be provided the employeein writing. The House receded. Where during any inspection or prior to ascheduled inspection an employee alleges a violation in writing, the Senatebill required a written explanation of a negative finding. An informal reviewprocess was in the latter instance also provided for. There were no comparableprovisions in the House amendment. The House receded with amendments requiringthe employer to be given notice of the request for an inspection and deletingthe requirement that failure to find a violation be explained in writing(emphasis added).? Statement of the Managers in the Part of the House,Legislative History of the Occupational Safety and Health Act of 1970, 92dCong., 1st Sess. 37?38 (June 1971).\u00a0Althoughthe legislative history appears silent on the purpose of requiring the employerto be given notice of the request for inspection, it seems logical to accept Respondent?sassertion that such provision was made in the interest of due process andfairness (Respondent?s Brief, p. 14). However, it seems clear from thelegislative history, on balance, that Congress did not intend the copy ofnotice of violation to employer requirement to preclude special inspection bythe Secretary as soon as practicable once he determines upon receipt of suchnotification that there are reasonable grounds for believing that a seriousviolation of a safety and health standard or an imminent danger exists. Indeed,Section 8(f)(1) requires the Secretary to act expeditiously to inspect such analleged violation or danger consistent with the systematic conduct of hisinspection program and the rights of employees. Thus, in the House debate onthe conference report, Representative Steiger, one of the principal architectsof the Act, stated that in implementing Section 8(f)(1) ?it is expected that the Secretary will use his good judgment indetermining whether there are reasonable grounds to believe that a violationexists and will not permit this procedure to be used as an harassment device.?Cong. Rec.?House, December 17, 1970, Legislative History of the OccupationalSafety and Health Act of 1970?1919 (June 1971).\u00a0Inthe present case, the record establishes that on the basis of a letter noticeof violation dated October 31, 1972, received from a representative ofRespondent?s employees, the Complainant-Secretary apparently determined thatthere were reasonable grounds to believe that such violation existed, and toexpedite an inspection, on November 2, 1972, directed Compliance OfficerSchultz, who was in or near the area wherein Respondent?s refinery was located,to make such inspection (Tr. 186). At the time of his inspection on November 3,the Compliance Officer informed Respondent?s refinery manager and safetydirector that his inspection was based on a complaint of which he did not havea copy, but concerning which they all could make inquiry from Mr. Harry Bailey,the local union safety officer, which they did (Tr. 187?189).WhileMr. Bailey did provide some information concerning the basis of the allegedviolation he had only limited knowledge of the actual complaint letter (Tr.173, 174?176) and therefore could not apprise Respondent of the specificcontent and form of the notice of violation. Under these circumstancesRespondent contends that it was denied the opportunity of seeking apre-inspection administrative or judicial determination of whether the noticeof violation met the legal requirements of Section 8(f)(1). Even if this didconstitute a significant denial of due process, it must be deemed to have beenwithin the contemplation of the Congress when, as previously noted, theyconstrued Section 8(f)(1) to permit flexible and reasonable administration bythe Secretary to effect the purposes of the Act. Actually, even without knowingthe form or content of the notice of violation, Respondent could probably havebrought a cause of action or refused to permit the inspection on the basis ofComplainant?s failure to produce a copy of the notice at the time ofinspection. By failing to do this or to insist that it be informed at least bytelephone from the OSHA New York office of the specific content of the noticeof violation, it may be deemed to have waived any right of pre-inspectionprotest or have acquiesced in the procedure followed.Thisproceeding itself constitutes quasi-judicial review of the inspectionprocedures followed by the Secretary in this case. Chapters V and VI of theSecretary?s Compliance Operations Manual (January 1972) contains instructionsand guidelines for implementation of Section 8(f)(1) of the Act and 29 CFRSection 1903.11 of the OSHA regulations respecting inspections and complaints.Chapter VI 4.a. prescribes that the complaint should be evaluated to determinewhether there are reasonable grounds to believe that the violation or dangercomplained of exists and that, in most cases, the submission of a properlycompleted complaint should be sufficient for evaluation purposes. Chapter VIA.2. sets forth the formality requirements for a complaint as (a) be reduced towriting, (b) allege that a violation of the Act exists in the workplace, (c)set forth with reasonable particularity the grounds upon which it is based, and(d) be signed by one or more employees or their representative.Thecomplaint letter in this case, dated October 31, 1972, was addressed to Mr.Alfred Barden, Regional Administrator of the United States Department of Laborat New York City and stated as follows:?On October 26, 1972at 4:45 PM a fire and explosion at the PD Furnace near #1 T.C.C. in the MobilOil Refinery in Paulsboro, New Jersey injured one worker. The worker, Mr. TommyGray, suffered a broken ankle when he was trapped under debris from theexplosion.\u00a0?Mr. Gray is amember of OCAWIU Local 8?831 which represents the workforce at that refinery.\u00a0?We request that youinitiate an immediate accident investigation into the causes of the explosionand fire. Citation and penalties against the company are definitely in order.We further request that your investigation produce recommendations as to howsuch accidents can be avoided in the future.\u00a0?The designatedemployee walk-around representative for this investigation is Mr. Harry Bailey,home phone number (609) 845?5230.\u00a0?Please send copiesof all citations, notice of proposed penalties, and the inspector?s report tothis office. Release of this information to us is guaranteed by the Freedom ofInformation Act.\u00a0?Our request for an immediate investigation also takes into account:1) The extreme?luck? in this situation in view of the force of the explosion and the closeproximity of highly volatile materials;2) Mobil Oil?sextremely poor health and safety record;3) Mobil?s commonpractice quickly covering up the evidence of an accident as soon aspossible?making investigations by independent groups difficult; and,4) the history ofOSHA?s involvement with health and safety matters at this refinery.\u00a0This lettershall serve as follow-up to phone calls placed by my assistant, Mr. StevenWodka, to Mr. Carl Meyers of your office on October 30, 1972 and earlier today.\u00a0It appears fromthese conversations that Mr. Meyers failed to respond to the gravity of thesituation at Mobil. As you know, there have been a series of accidents at thePaulsboro refinery since the initial inspection. This fact alone should havedictated that inspectors be assigned to this situation immediately.\u00a0?It is my hope thatyou will convey to your staff the continuing problem at Mobil and the need torespond quickly to accident situations as they arise at this plant.\u00a0?This letter may be released in entirety to the employer.?\u00a0Theletter was on the letterhead of the Oil, Chemical and Atomic WorkersInternational Union and signed by Anthony Mazzocchi, DirectorCitizenship-Legislative Department of the International Union, with copies toMr. Richard Meyer, President of Local 8?831, Mr. R.R. Rogowski, Director ofDistrict 8, and Mr. Ed Steiger, International Representative.Respondent?smotion to dismiss is based in part on its claim that Mr. Mazzocchi was not anemployee or representative of employees within the meaning of Section 8(f)(1)of the Act. At the hearing I ruled against Respondent on that particular claim,but since the claim is still asserted in Respondent?s brief I will explain myprior ruling in more detail. Chapter VI, A.2.d.(2) of Complainant?s ComplianceOperations Manual states that for the purposes of submitting a complaint underSection 8(f)(1), a representative of employees may be:(a)Any authorized representative of the employee bargaining unit, such as acertified or recognized labor organization;(b)An attorney acting for an employee; and(c)Any other person acting in a representative capacity; for example, a member ofthe employee?s family.Therecord herein clearly establishes that the President of the Independent OilWorkers at Paulsboro, New Jersey, affiliated with Oil, Chemical and AtomicWorkers International Union, A.F. of L.?C.I.O., Local 8?831, after contactingthe members of the local union?s safety committee, authorized Anthony Mazzocchiof the International Union in Washington to write a complaint letter to OSHAbased on the explosion at the refinery in which a member of the local union hadbeen injured (Tr. 177?179). On the basis of the testimony of the local unionpresident (Richard A. Meyer), the complaint letter itself and the earlierarguments of counsel at the hearing (Tr. 22?42), I reaffirm my ruling that Mr.Mazzocchi?s signature of the complaint letter here satisfied the requirement ofSection 8(f)(1) of the Act since he signed as an authorized representative ofRespondent?s employee bargaining unit (Tr. 5?6, Authorized EmployeeRepresentative?s Statement in Opposition to Motion to Dismiss under cover ofletter submission dated April 11, 1973, being Item J?6 in the Case File).ButRespondent further contends that the complaint or notice of violation containedprejudicial disparaging misrepresentations of fact which compromised the objectivityof the inspection since, not having a copy of or full information concerningthe notice, Respondent was precluded from denying or rebutting suchmisrepresentations or taking legal action at the time of the inspection.Assuming but not deciding that the notice of violation did contain suchmisrepresentations (not proven of record), it seems doubtful that theyinfluenced the compliance officer?s inspection since he had not seen a copy ofthe notice and had practically no information concerning it other than what hegleaned from Mr. Bailey (Tr. 187?188), which Respondent?s safety director (Mr.Christie) was equally privy to. Short of insisting on a copy of the notice or atelephone communication of its content at the time of inspection, which Respondentchose not to do, it could have corrected or rebutted the allegedmisrepresentations by written communication to OSHA after November 21, 1972,when it received a copy of the notice of violation, which was well beforeissuance of the citation. In any event, the record suggests that neither thecompliance officer who conducted the inspection and who made no recommendationthat a citation should issue, nor Mr. Palmieri, the Compliance Officer whoreviewed and contributed to the report upon which the citation was ultimatelybased were influenced by the notice of violation (Tr. 211?212, 262?263,287?288). In any event, Respondent was immediately aware of the heaterexplosion so that its late receipt of the Complaint letter did not delay orinhibit its prompt investigation of the accident (Tr. 385).Iconclude from the foregoing analysis that in the circumstances of this case theComplainant?s non-provision of a copy of the notice of violation to Respondentat or before the time of inspection was neither a violation of Section 8(f)(1)of the Act nor a prejudicial denial of due process such as to require vacationof the Citation and Proposed Penalty herein.Thefurther question arises as to whether Complainant?s mailing of the notice ofviolation to Respondent on November 17, 1972, two weeks after the inspectionwas consistent with the provisions of Section 8(f)(1), interpreted in the lightof its legislative history, or a denial of due process by reason of prejudice.While the Secretary may not in appropriate cases, such as here, be bound toprovide a copy of the notice of violation to the employer no later than thetime of inspection, his usual practice is to do so (Tr. 253; ComplianceOperations Manual, Chap. V, E.1.(d); VI, A.4.f.). Indeed, the Secretary?s proceduresare to encourage the submission of complaints in writing and to make a copyavailable to the employer before the inspection, even in cases where thecomplaint is received during an inspection (Compliance Operations Manual, Chap.V, G.2.). Where the Secretary appropriately does not make a copy of thecomplaint available at the inspection, in my opinion, he has a continuingobligation to do so as soon as reasonably possible. There is no showing on therecord of this case why it took Complainant two weeks to send Respondent thenotice of violation and absent any showing of extenuating circumstancesprecluding it, Complainant should have mailed a copy of the notice toRespondent on November 3 or the next work day at the latest. Each day thatelapsed following this inspection in which the employer was not provided a copyof the notice of violation increased the risk of prejudice to the Respondentsince it progressively reduced the time in which Respondent could makeappropriate response or take prudent action with respect to said notice, ifnecessary or desired, for Complainant?s consideration prior to possibleissuance of a Citation and Proposed Penalty. However, in the circumstances ofthis case, including the elongated review period (until January 2, 1973) beforethe citation herein was issued, I do not consider this procedural deficiency tobe of sufficient magnitude to vitiate the legal basis of the Cication andProposed Penalty herein. Nor do I, for reasons previously discussed, considerthis procedural deficiency to have resulted in any substantial prejudice toRespondent.Finally,Respondent argues that the special inspection in this case was illegal becausein not providing a copy of the notice of violation at the inspectionComplainant failed to comply with its own regulations and procedures, namely,29 CFR 1903.11. Consistent with the cases cited as legal authorities byRespondent in its Brief (p. 14), the aforestated regulation, like Section8(f)(1) of the Act to which it relates, must be applied as interpreted orintended by the Congress. Thus, as previously demonstrated, the word ?shall? inSection 8(f)(1) insofar as it relates to providing the employer with a copy ofthe notice of violation no later than at the time of the inspection isdirectory and not mandatory in cases such as this one. Since the language ofSection 8(f)(1) of the Act and Section 1903.11 of the regulations do not makethis clear on their faces (indeed, appear mandatory giving the usual meaning tothe word ?shall?), the question is whether Complainant?s promulgatedregulations and published procedures (Compliance Operations Manual) fairlyimplement Section 8(f)(1) of the Act, as intended by Congress and construedherein, with reasonable accuracy and clarity and, furthermore, whetherComplainant followed its own regulations and procedures consistent with therequirements of administrative due process. Respecting the regulations, Part1903 of Title 29 of the Code of Federal Regulations appears to be the principalbody of OSHA regulations relating to inspections, citations and proposedpenalties and Section 1903.11 of that Part appears to be the only regulatorysection concerned with complaints by employees and it largely paraphrases thestatute (Section 8(f)(1)). Turning to the Compliance Operations Manual, ChapterVI covers complaints which are received at the Area Director?s office before aninspection (this case). The procedures for handling such complaints which meetthe formality requirements of 29 CFR Section 1903.11 (this case) are: (a) thecomplaint should be evaluated to determine whether there are reasonable groundsto believe that the violation or danger complained of exists; and (b) if it isdetermined that there are reasonable grounds for believing that the violationor danger exists, an inspection shall be scheduled as soon as practicable(Manual, Chap. VI, A.4.). Reference is made to the inspection priorities inChapter IV, which give castastrophe and\/or fatality first priority andcomplaints second priority, out of four categories of priorities (Manual, Chap.IV, B.2.).Theinspection instructions relating to complaints state in pertinent part asfollows:?b. Complaints.(1) Complaints mustbe acted upon as soon as possible based on priorities and procedures containedin Chapters IV and VI.(2) The AreaDirector will establish priorities regarding the action to be taken oncomplaints. Complaints alleging the existence of an imminent danger shall beaccorded the higher priority in accordance with the instructions in Chapter IX.High priority shall also be given to complaints alleging conditions whichappear to be serious.? (Manual, Chap. IV, B.3.).\u00a0Basedon the definition of imminent danger and the procedure to be followed in suchsituations (Manual, Chap. IX, A. and B.), it appears that Complainant in thiscase properly gave high priority to an inspection based on a complaint allegingserious conditions rather than an imminent danger situation. It is noted thatthe Complaint letter refers to a fire and explosion at the ?PD Furnace near #1T.C.C.? at Respondent?s Paulsboro Refinery resulting in one injured employee,alleges citation and penalties against Respondent are ?in order,? and requestsan immediate accident investigation as to the causes and how such accidents canbe avoided in the future, taking into account (1) the force of the explosionand the close proximity of highly volatile materials; (2) Respondent?s?extremely poor health and safety record?; (3) Respondent?s ?common practicequickly covering up the evidence of an accident as soon as possible?makinginvestigations by independent groups difficult?; and (4) ?the history of OSHA?sinvolvement with health and safety matters at this refinery.? Substantialevidence of record supports contentions (1) and (4) above (Tr. 131?133, 164,174?175, 177?178, 189?190; 204?205; 394?395). There is a conflict in theevidence respecting contention (2) (Tr. 336?337), and no substantial evidenceof record to support contention (3). Compliance Officer Schultz testified thatit was his understanding that the reasons for his being directed to make aninspection before he had a written complaint in his possession were toascertain the facts as soon as possible after the explosion, the fact (which helater learned) that the Complaint letter requested immediate inspection, andthe fact that he was the available compliance officer closest to the workplaceat the time (Tr. 256?257).Oncean OSHA area office determines that reasonable grounds exist to justify aninspection, OSHA procedures state that the inspection should be conducted inaccordance with the provisions of Chapter V of the Compliance Operations Manual(Manual, Chap. VI, A.4.d.). Chapter V (General Inspection Procedures), E.(Opening Conference), 1.d. instructs the compliance officer to furnish to theemployer a copy of complaint ?if appropriate?. There is no explanation orreference to any other provision as to what circumstances or factors determineappropriateness. Presumably the ?if appropriate? limitation relates to thedirectory as distinguished from mandatory nature of Section 8(f)(1), althoughthis is nowhere stated in the Manual. The limitation may also relate to certaincircumstances when the compliance officer receives a complaint during an inspection,specifically, when a hazardous condition is alleged orally (i.e., no formalcomplaint) and when an imminent danger situation may be involved (Manual, Chap.V, G.4. and 5.). Neither of these circumstances existed in the present case;indeed this entire section G. is clearly not applicable to the present casewhich involved receipt of the complaint at the Area Director?s office before aninspection, a situation covered exclusively by Chapter VI as far as complaintprocedures are concerned (Manual, Chap. VI, A.1.).Yeteven in the situation where the complaint is received during an inspection, thecompliance officer is generally instructed to give a copy of the complaint tothe employer even if it requires making a copy of the complaint, advising thecomplaining employee of his additional rights if he submits a complaint meetingformal requirements, offering a copy of the OSHA-7 Form, and, if necessary,assisting the employee in filling out the form (Manual, Chap. V, G.2. and 3.).Even in catastrophic or fatal accident situations, such as accidents involvingprevious complaints alleging imminent danger or serious conditions, theinvestigation procedures incorporate by reference the same opening conferenceprocedure contained in Chap. V, E., including furnishing a copy of the complaintif appropriate (d) (Manual, Chap. VI, C.3.c.). Even in an imminent dangersituation Chap. IX, C.2. of the Manual prescribes in pertinent part as follows:?a. Any inspectionof an imminent danger situation shall be conducted in accordance with therequirements of the Act, the regulations and the provisions of Chapter V ofthis Manual. For example, an opening conference, walkaround, and a closingconference are requirements of such an inspection.\u00a0?b. However,considering the urgent nature of imminent danger situations, all suchprocedural steps should be taken as expeditiously as possible.?\u00a0Whileprovision b. above might reasonably permit omission of the general requirementthat a copy of the complaint be given to the employer at the inspection, it isperhaps significant to note the emphasis given to adhering to the generalrequirements governing inspections and complaints even in the imminent dangersituation.Theaforestated emphasis on adhering to the general rule of furnishing a copy ofthe complaint is reinforced by the provision in the procedures for handlingcomplaints meeting the formality requirements of 29 CFR Section 1903.11 whichstates that at the opening conference with the employer, a copy of thecomplaint ?should? be given to the employer (Manual, Chap. VI, A.4.f.).Onbalance, I conclude that Complainant?s regulations, particularly 29 CFR Section1903.11, and procedures, particularly Compliance Operations Manual Chaps. IV,V, VI, and IX, pertaining to furnishing a copy of the complaint to the employerat the time of inspection, where the complaint meets the statutory validityrequirements, is received by OSHA prior to the inspection, and is determined toconstitute reasonable grounds to believe a violation of a safety or healthstandard or imminent danger exists, are unreasonably vague, unclear andconfusing. I further conclude that the pertinent regulations and procedures, byreason of their vagueness and imprecision, are inaccurate and misleading to theextent they fail to implement the meaning of Section 8(f)(1) of the Act asintended by Congress. They manifestly failed to apprise the Respondent hereinthat in the conduct of a special inspection in the circumstances of this casethe Secretary was not legally obligated to provide the employer with a copy ofthe written complaint at the time of inspection. Employers must be presentedwith discernible regulations and procedures by which they can guide their ownconduct, and the requirements of such regulations and procedures must beapparent upon a reading thereof by an ordinary prudent employer. Cf. Secretaryof Labor v. Ryder Truck Lines, Inc., OSHRC Docket No. 391 (8?16?73)(Dissenting Opinion).Therequirements of due process and fairness make it incumbent upon everygovernmental agency, including OSHA, to promulgate rules, regulations, andprocedures that implement and elucidate the applicable law in a reasonablyclear and accurate manner. However, given the Congress? directoryinterpretation of the complaint aspect of Section 8(f)(1) of the Actnotwithstanding the mandatory language of that Section, and given the inherentdifficulty of drafting regulations and procedures which are not so precise asto circumscribe unduly that very inspection flexibility which the Congressclearly intended the Secretary to retain to achieve the purposes of the Act, Icannot find as a matter of law in the circumstances of this case that thepertinent regulations and procedures promulgated and published constitute asubstantial denial of due process or fairness within the meaning of the FederalConstitution (Fifth Amendment) as interpreted by the courts. At the same time,Complainant is on notice from the date of this decision of the deficienciesperceived in the existing applicable regulations and procedures which it ischarged with promulgating and implementing on a continuing basis consistentwith the governing law as construed and interpreted by proper adjudicatorybodies. While I agree that ?An employer has the right to expect the complainant(Secretary) to adhere to the provisions of the Act and Regulations applicableto his conduct . . .? (Respondent?s brief, page 14, citing Secretary ofLabor v. Accu-Namics, Inc., OSHRC Docket No. 477 (November 27, 1972)), inthis case the inspection procedures followed by Complainant were substantiallyin accord with Section 8(f)(1) of the Act as intended by Congress. Similarly,Complainant substantially adhered to its own published procedures,notwithstanding their vagueness and imprecision.CitationIssue(2) herein and the alleged second reason in support of Respondent?s motion todismiss, is Respondent?s contention that the elapse of two months? time afterthe inspection on November 3, 1972, before issuance of the Citation on January2, 1973, constituted an unreasonable delay in violation of the ?reasonablepromptness? requirement of Section 9(a) of the Act, which provides in part asfollows:?If, upon inspectionor investigation, the Secretary or his authorized representative believes thatan employer has violated a requirement of section 5 of this Act, of anystandard, rule or order promulgated pursuant to section 6 of this Act, or ofany regulations prescribed pursuant to this Act, he shall with reasonablepromptness issue a citation to the employer . . .?\u00a0Section9(c) of the Act, also pertinent, provides as follows:?No citation may beissued under this section after the expiration of six months following theoccurrence of any violation.?\u00a0Respondentcontends that under all the circumstances of this case Complainant?s issue ofthe Citation (and Notification of Proposed Penalty) 60 days after theinspection does not constitute ?reasonable promptness? as required by the Act(Respondent?s Brief, p. 19). In support of its position, Respondent citespertinent legislative history, Section 10(a) of the Act, and undue prejudice aswarranting vacation of the Citation and dismissal of this matter. Respondentessentially relies on the Conference Report on the Senate bill which wasenacted, particularly that part which states:?After an inspectionor investigation, a citation may be issued for a violation of any safety orhealth requirement of the Act. In the Senate bill, this citation had to beissued ?forthwith.? The term, ?forthwith,? lent itself to an interpretationthat would require the issuance of a citation on-the-spot before leaving thepremises. The conference committee, however, changed this procedure to requirethe issuance of a citation with ?reasonable promptness? after the completion ofan investigation. The ?reasonable promptness? standard will allow aninvestigator, before he issues a citation, to refer to regulations andguidelines issued by the Secretary, consider what is an appropriate abatementperiod in light of precedent, and consult with other officials about the factsof the case. The period, however, should be a brief interval between aninspection and the issuance of a citation, normally not exceeding 72 hours. Thechange brings the present language more in line with the citation provisionscontained in the House bill.? Conference Report on S.2193, Occupational Safetyand Health Act of 1970, Legislative History of the Act, Senate Committee onLabor and Public Welfare, 92d Cong., 1st Sess. 1219 (June 1971).\u00a0Similarly,the Statement of the Managers reads in pertinent part:?The Senate billprovided that if, upon inspection or investigation, the Secretary or hisauthorized representative ?determines? that an employer has violated mandatoryrequirements under the Act, he shall ?forthwith? issue a citation. The Houseamendment provided that if on the basis of an inspection or investigation theSecretary ?believes? that an employer has violated such requirements, he shallissue a citation to the employer. The conference report provides that if theSecretary ?believes? that an employer has violated such requirements he shallissue the citation with reasonable promptness. In the absence of exceptionalcircumstances any delay is not expected to exceed 72 hours from the time theviolation is detected by the inspector.? Statement of the Managers on the Partof the House, p. 38, Legislative History of the Act, S. Committee on Labor andPublic Welfare, 92d Cong., 1st Sess. 1191 (June 1971).\u00a0Thereasonable promptness mandated by the Act for issuance of a Citation is not anabsolutely fixed time period from the date of inspection; it may be interpreteddifferently in each case depending upon the individual merits of the case, thelength of delay, and proof of prejudice or harm to the party. Borton,Incorporated, OSHRC Docket No. 1482 (April 2, 1973); Chicago Bridge andIron Co., OSHRC Docket No. 744 (January 5, 1973, ordered for reviewFebruary 2, 1973). But see dissenting opinions of Chairman Moran in SilverSkillet Food Products, OSHRC Docket No. 497 (February 23, 1973); PleasantValley Packing Company, Inc., OSHRC Docket No. 464 (January 4, 1973), whichassert the 72 hour requirement in the absence of exceptional circumstances.InBorton the 128 day delay in issuance of the citation was held not toconstitute reasonable promptness because the record presented no exceptionalcircumstances which could justify a delay of that length and Respondentproffered proof of prejudice in that one of its employees, a key witness in thecase, was no longer employed or available to testify. The record in the instantcase presents some exceptional circumstances which reasonably explain the 60day delay in issuance of the citation. Compliance Officer Schultz filed hisreport on November 8 and thereafter the review process included consultation withCompliance Officer Palmieri, who had more experience with the type of heaterunit involved; two reviews by the Regional Office and review by the Solicitor?sOffice (Tr. 254?256, 264?265, 320?323). Special attention was given tocitations of Mobil because of extensive OSHA experience with that employer (Tr.321). In addition to two intervening holidays (Thanksgiving and Christmas), theresponsible Area Director died during the interim period resulting in furtherdelay (Tr. 323). I find no unreasonable delay in Complainant?s investigation,which clearly is within the purview of the ?reasonable promptness? requirement.Secretary of Labor v. Julius Nasso Concrete Corporation & Beach ConcreteCompany, Inc., OSHRC Docket No. 2123 (August 31, 1973) (under review byCommission).Respondent?schief contention respecting the Citation is that its issuance after 60 dayswith an immediate abatement requirement prejudiced Respondent in that theheater unit involved was an essential part of a major processing unit which normallywas in continuous operation, 7 days a week, 24 hours a day, and thuseconomically required quick replacement (Tr. 324?326). The record hereinindicates that the delayed issuance of the Citation did not substantiallyprejudice Respondent, legally or economically. There is no indication of recordthat Respondent?s presentation of its case in contesting the Citation,including testimonial evidence, has been prejudiced in any way. The fact thatRespondent made a contractual commitment by ordering a new heater on November3, 1972, the very day of the inspection, suggests that Respondent was noteconomically prejudiced by issuance of the Citation on January 2, 1973 (Tr.372). Complainant?s telephonic notification of Respondent at the end ofNovember 1972 that an unspecified citation would probably issue apparentlycaused no economic prejudice (Tr. 328?330, 397?398). Respondent seems to be onfirmer ground when it suggests unfairness in being required to abateimmediately an alleged serious condition which Complainant took 60 days toinvestigate (Respondent?s Brief, p. 20). However, as stated by Mr. Palmieri, itis the practice of OSHA to issue amended citations in cases of timely andreasonable requests for extension of time for abatement (Tr. 325?326). Therecord herein does not indicate that Respondent has ever requested amodification of the abatement period.Onbalance I conclude that Complainant?s motion to dismiss should be denied asbased on inadequate and unconvincing legal grounds, viewed singly or collectively.Section5(a)(1) Alleged ViolationTosustain the Citation issued in this case, Complainant has the burden of provingby reliable, probative, and substantial evidence that on October 26, 1972,Respondent did not furnish his employees at the Paulsboro refinery employmentwhich was free from recognized hazards that were causing or were likely tocause death or serious physical harm to his employees in that the PDA BB2heater which exploded on that date lacked adequate safety devices for protectionof the affected employees, specifically, remote control furnace ignition systemor adequate pilot ignition system with sufficient combustion safeguards.Complainantcontends that the normal operation of the heater in question constituted thealleged violation of Section 5(a)(1) of the Act (Tr. 44). The heater is one ofat least two heaters (the other being a smaller BB1 reaffinate heater) andother vessels, towers and exchanges which make up the total PDA unit at thePaulsboro refinery (Tr. 50?52). The heater itself was a cylindrical, naturaldraft gas-fired heater (Tr. 410?411). A mixture of asphalt and propane enteredand flowed through the heater in tubes and the gas fuel to fire the fourburners came into the bottom of the heater through pipes from the source unit(Tr. 51). It is characteristic and normal procedure for this type of refineryheater to remain in continuous operation, 24 hours a day, 7 days a week for atwo-year period (Tr. 74, 413) and this particular heater was shut-down andstarted-up approximately 20 times since 1950 when the heater was first put onstream (ignited), the last time prior to the accident herein being in Februaryor March 1972, for a regular maintenance check (Tr. 53, 72, 400).Thenormal procedure for start-up of the heater was to establish the oil flow inthe tubes, steam purge the heater for 30 minutes to rid it of any residual gas,open the main gas valve to bring gas up to the four closed valves of the fourburners, ignite an asbestos, kerosene-dipped torch and thrust it up into aburner hole, open that burner valve until the burner gas ignites, and thenrepeat the procedure for each of the other three burners (Tr. 54?55, 78?81).Thereafter, adjustments are made on the gas flow to each of the burners inorder to establish the right operating temperature (500 degrees F.) (Tr. 55).The existence and size of flame is determined by visual perception through theport-hole on each burner and experience with each particular burner and itsvalve (Tr. 60).Thisstart-up operation is normally performed by two men: one under the heater towork the burner valves and make ignition and one at the main gas valve, thelatter being subject to the commands of the man underneath the burner (Tr. 56).The main gas valve is opened slowly by a handle until the flow of gas can beheard (Tr. 57). The main gas valve on this heater was opened about 30% in orderto get a full flow of gas, based on trial and error experience (Tr. 58). Theburner valves were about 5 or 5?1\/2 feet off the ground and were each operatedby a handle (Tr. 120). These valves varied in the amount of gas flow theypermitted with a given degree of turn and their tightness usually requiredhammering with a wrench (Tr. 60, 87?87). Heater operating instructions wereposted about 10 feet from the heater and were kept in the desk in the unitcontrol room (Schultz Report, p. 7, Tr. 60?61, 90, 236) and were received bythe operators (Tr. 70), but no official (as distinguished from on the job)training on heater ignition was given (Tr. 70).Theheater was originally equipped with a pilot ignition system which was usedafter the changeover from oil to gas fuel but not within the past three yearsat least, apparently because the system coked up so that the gas would not passthrough, resulting in their being plugged up and not used (Tr. 92?93, 204). Thewritten general precautions or operating instructions (Case File, J?5) alsoprovided that the operator should wear a face shield, gloves and long sleevedshirt during light-off, but First Operator Hogan testified that he did notfollow those guidelines because he considered them more hazardous (Tr. 84?85).OnOctober 26, 1972, the heater was shut down together with the entire PDA unitdue to compressor problems in the propane gas area (Tr. 69). Prior to start-up,Second Operator Levan closed the four burner valves and purged the heater withsteam for a half-hour or better (Tr. 126?127), having obtained First OperatorJ. Frank?s permission to start-up (Tr. 143). Levan stationed himself some 30?35feet away at the main header valve to control the flow of gas to the burners.Second Operator Tom Gray lit a kerosene-soaked torch underneath the heater andinserted it up into the number one (northwest) burner (Tr. 128, 159). Since hecould not at first open the valve on the burner he hung the torch on the sideof the burner while he best the valve open with a pipe wrench. At this pointGray signaled Levan to open the main valve, which he did, to permit gas to flowto the burner. Gray indicated that he was not getting gas since the burner didnot ignite and at once the heater exploded, sending bricks flying and knockingover the heater. Levan immediately shut off the main valve and sought to assistGray, who was injured by the explosion (Tr. 131?133, 164).Therewas no apparent deficiency in the purging process, whereby 190 pounds of steampressure goes up through the heater and out the stack thus purging the heaterof any residual gas (Tr. 127?128, 137?138). Mr. Levan had 2?1\/2 yearsexperience as Second Operator on this PDA unit and over 20 years with Mobil(Tr. 122). Mr. Gray had three to six years experience as a Second Operator onthis PDA unit and over 20 years with Mobil (Tr. 150?151, 154, 205). Mr. JamesFrank, the First Operator on the unit at the time, had 23 years experience atthis process, but being in the control room at the time, he did not witness theexplosion (Tr. 216). Levan testified that the burner valves were closed priorto the steam purge and he never touched them thereafter (Tr. 147). Thereafter,Gray did not check the burner valves before attempting to ignite the northwestnumber one burner and, in fact, opened that burner valve before Levan openedthe main header valve, although he and Levan admitted normal procedure (as setforth in the booklet entitled General Safety Precautions To Be Observed WhenLighting Off Gas-Fired Process Heaters which was in the desk near the unit)would be to check the valves to make certain they were all closed beforeopening the main header valve (Tr. 140?141, 162?163, 165?166). Levan explainedthat the normal procedure was not followed because of the difficulty in openingthe burner valve (Tr. 140). At the time of the explosion, Gray was wearingsafety glasses, but no face shield (Tr. 165).Respectingpast performance of the heater, First Operator J.A. Hogan, Jr., testified thatsince 1950 during the time he was on duty there were two mishaps, bothinvolving oil spills (overflow from burners) and fire before the heater wasconverted to gas fuel (Tr. 63?64). He also stated he had never experienced aflashback on this unit (Tr. 84). According to the member of the Union SafetyCommittee (Mr. Bailey) who participated in the walkaround, the Complaint whichled to the Citation was based in part on Respondent?s failure to make necessaryrepairs, such as stuck valves on this particular heater, which were requestedbut never made (Tr. 175). This specific allegation was not rebutted at thehearing (Tr. 176), although the record indicates that considerable maintenance,including lubrication of valves and replacement of tubing, was performed on theheater during the bi-annual turnaround, the last one having been performed inFebruary or March 1972 (Tr. 72?76, 238, 400?402). The condition of the brick inthe heater, also complained of by Mr. Bailey, could not be ascertained by thecompliance officer in his inspection (Tr. 204?205, Compliance Officer Schultz?sReport, Commission File J?16, pp. 607).Inhis report, Mr. Schultz found no evidence of equipment failure, unless furtherinvestigation disclosed defective shut-off cocks on the burners allowing thefire chamber to fill with gas before ignition, and he expressed the opinionthat human error was involved (Schultz Report, Commission File J?16, p. 7). Hesuggested that such error may have consisted of the burner valves being openbeforehand or there being too much gas pressure (Tr. 235). During the closingconference, Respondent?s refinery manager, Mr. Neiderstadt, indicated to Mr.Schultz that the company?s continuing investigation would include removal andexamination of the burner valves for defects in the presence of a unionrepresentative (Tr. 208, Schultz Report, supra at 7). The results of thatinvestigation, if completed, are not a matter of record herein, nor was anyfurther investigation at the workplace made by OSHA respecting this matter (Tr.246). In his report, Mr. Schultz reached no conclusion respecting a possibleviolation for the reason that he had no knowledge of any violation of astandard (Tr. 208, 211?212). In fact, he reported that Respondent had aneffective safety and health program and was in compliance (OSHA Safety andHealth Report, p. 1, Commission File J?16; Tr. 212?213, 248?249). Mr. Schultzalso indicated at the closing conference that he would suggest to his areadirector that there be a more intensive investigation by someone with moreexperience with this type of alleged violation (Tr. 246, 250; Schultz Report,p. 7).Subsequently,in consultation with Mr. Palmieri, a compliance officer in the Newark areaoffice with more knowledge concerning furnaces, Mr. Schultz reviewed his reportin the light of certain provisions of the National Fire Protection AssociationCode and agreed with Mr. Palmieri that they would be applicable and,presumably, that they would support issuance of a citation for violation of thegeneral duty clause (Tr. 209?210, 240?241).RecognizedhazardInany alleged violation under the general duty clause (Section 5(a)(1)) of theAct, the threshold question to be determined is whether the alleged violationconstituted a ?recognized hazard? causing or likely to cause death or seriousharm to Respondent?s employees. Secretary of Labor v. Vy LactosLaboratories, Inc., OSHRC Docket No. 31 (February 21, 1973).Itis also well established that:?A recognized hazardis a condition that is known to be hazardous, and is known not necessarily byeach and every employer but is known taking into account the standard ofknowledge in the industry. Legislative History of the Occupational Safety andHealth Act of 1970, Senate Committee on Labor and Public Welfare, 92d Cong.,1st Session 1007 (June 1971) (Statement of Congressman Daniels).\u00a0Thus,the critical question is whether the hazard was recognized by the industry ofwhich Respondent is a part. Secretary of Labor v. Vy Lactos Laboratories,Inc., supra; Secretary of Labor v. Republic Creosoting Co., Division ofReilly Tar and Chemical Corp., OSHRC Docket No. 22 (February 9, 1973); OSHACompliance Operations Manual, VIII?2 (January 1972).Thehazard alleged in this case was Respondent?s normal operation of the PDA BB2heater under its standing operating instructions, without sufficient combustionsafeguards, including remote control furnace ignition system or adequate pilotignition system. Thus, the question here is whether Respondent?s normaloperation of the heater under its operating instructions was a recognizedhazard in the petroleum industry on or about October 26, 1972.Paradoxically,the record in this case shows, as discussed in this Decision, that on October26, 1972, Respondent?s employees did not operate the heater strictly inaccordance with Respondent?s operating instructions and the normal practice andprocedure in certain important respects. It is arguable that the broad languageof Section 5(a)(1) requiring a place of employment ?free from recognizedhazards that are causing or are likely to cause death or serious physical harmto employees? makes relevant and probative evidence of any condition orcircumstance, such as employee error or negligence, reasonably related to theactual operation of the cited heater (without the cited combustion safeguards),whether or not such condition or circumstance was in accordance (compliance)with the standing operating instructions and the normal operating procedure andpractice. Such a broad view of the scope of the matter here in issue would beconsistent with established general rules of construction respecting remedialstatutes and the specific purposes and objectives of this Act. Such a view isreinforced here by the complaints of Respondent?s affected employees, to wit,the alleged inadequate training and supervision of Respondent?s employees andthe malfunctioning of or defects in the valves and brick-lining of the heater,and by testimony of Respondent?s employees, in effect, that they did not complywith Respondent?s operating instructions with respect to closing the burnervalves before opening the main gas valve and wearing protective clothing andface shield.However,while I have considered such factors insofar as they might reasonably relate tothe central issues in this case as defined above, the Citation and Complaint inthe case, as framed and interpreted by Complainant, appear to exclude fromtheir ambit or thrust all evidence essentially relating to any issue other thanthe one defined above, namely, whether the heater (without the cited combustionsafeguards), operated in accordance with Respondent?s normal operatinginstructions, was in violation of Section 5(a)(1). Thus, even if the recordherein contained reliable, probative and substantial evidence that the heaterwas in violation of Section 5(a)(1), not because of inadequate combustionsafeguards as cited, but because of defects in the construction or mechanicalfunctioning of the heater as designed and\/or because of the failure ofRespondent?s employees to operate the heater in compliance with the operatinginstructions, and Respondent knew or, with the exercise of reasonablediligence, could have known of such defects or failure, the requirements ofestablished practice and procedure and of due process would preclude me fromreaching a decision favorable to Complainant under the Citation and Complaintas narrowly drawn and issued in this case. To do otherwise would contraveneSection 9(a) of the Act, which requires each citation to be in writing anddescribe with particularity the nature of the violation; as well as Section 5of the Administrative Procedure Act (5 U.S.C.A. 554(b)), which provides thatpersons entitled to notice of an agency hearing shall be timely informed of thematters of fact and law to be asserted. See Secretary of Labor v. Utah-IdahoSugar Company, OSHRC Docket No. 764 (September 27, 1973), p. 40?41, citing RodalePress Inc. v. F.T.C., 407 F.2d 1252, 132 U.S. App. D.C. 317 (1968).Inthis connection it is noteworthy that much of the evidence of record respectingnon-compliance by Respondent?s employees with the operating instructions wasdeveloped by Respondent?s counsel on cross-examination of Complainant?switnesses (Tr. 84?85), presumably for the purpose of attempting to provepossible proximate causes of the heater explosion other than the heater itselfas designed and operated normally in accordance with the operatinginstructions.Complainant?saffirmative position on the recognized hazard issue, as framed, is basedessentially on (1) the heater operating instructions posted, issued anddistributed by Respondent to its employees, which specifically or by necessaryimplication referred to such hazards as explosion and flashback, (2) thetestimony of certain of Respondent?s employees as to the hazardous nature oftheir duties as operators of the heater under the operating instructions, (3)testimony of Compliance Officer Palmieri (no experience with working petroleumrefineries) and industrial hygienist Barrett (limited reading about andinspections of working petroleum refineries) that in their opinion, based ontheir knowledge and experience (with ovens and furnaces in the chemical andmetal working industries), the heater operating instructions used by Respondentwere substantially the same as those used generally throughout the petroleumrefinery industry; and (4) the provisions of Article 86A (Standard for Ovensand Furnaces) and Article 500 series of the National Fire ProtectionAssociation consensus standards, which require a reliable ignition source orpilot system (NFPA 520?8) and supervisory cocks (NFPA 520?9) and are applicableto operation of this heater in the petroleum industry.Respondent?snegative position on the question of recognized hazard is bottomed on itscontention that the NFPA standards, which have not been adopted as occupationalsafety and health standards under the Act, are not applicable to the petroleumindustry, based on the testimony of the refinery operations manager (Mr.McIntyre?over 7 years employment with Mobil) and a consulting engineer (Mr.Lockwood) with 38 years experience in engineering and design of petroleumrefineries, including 17 years working in a refinery (Mobil) as chief operatorand start-up operator; design and construction work on new refineries in theUnited States and abroad, and membership and participation in the work of substantivecommittees of the NFPA and the American Petroleum Institute, including the NFPACommittee for Prevention of Boiler Furnace Explosions and API Committee on FireProtection Engineering (Tr. 406?410). It was stipulated by the parties that thetestimony of a second expert witness (Mr. Prussing), who was unable to attend thehearing, would parallel that of Mr. Lockwood. Mr. Prussing?s qualifications(Respondent?s Exhibit R?2) qualify him as a professional and consultingengineer principally in the petroleum industry.NFPACode ApplicabilityTheapplicability of the cited NFPA provisions to the subject heater in thepetroleum industry is a key issue on the question of industry recognition ofthe cited hazard because of the disputed differences in design and operationbetween manually fired natural draft heaters in the petroleum industry andovens and furnaces used in the metal working and other industries, the limitedfamiliarity and expertise of Messrs. Palmieri and Barrett with such heaters inthe petroleum industry, and the considerable expertise and experience in that industryof Messrs McIntyre and Lockwood (and Mr. Prussing), each of whom gaveunrebutted testimony as to significant differences, ignition-wise, betweenheaters and operating procedures in the petroleum industry and those in otherindustries (Tr. 376?377, 383, 411?414). Respondent?s experts also testifiedthat manual ignition of natural draft gas-fired process heaters, without pilotor remote control ignition, was standard practice within refineries the worldover, including the United States; that to the best of their knowledge andbelief that practice and procedure was more reliable and safer and compliedwith all known standards, including those of the American Petroleum Institute(API) and general practice and knowledge within the petroleum industry (Tr. 414?418).Whilethe pertinent NEPA standards (NFPA No. 86A?1971, Chap. 5) do not on this recordappear to have been adopted as occupational safety and health standardspromulgated under Section 6 of the Act (Tr. 302), they clearly are nationalconsensus standards within the meaning of Section 3 (9) of the Act and havebeen designated as such by the Secretary of Labor (29 CFR Part 1910, preface;36 F.R. 10466, May 29, 1971). And in the absence of an applicable specificoccupational safety and health standard promulgated under Section 6 of the Act,applicable national consensus standards may be considered as persuasiveevidence on the question of whether a particular hazard is a recognized hazardwithin the pertinent industry. Cf. Secretary of Labor v. Hidden Valley Corp.,OSHRC Docket No. 11 (February 8, 1972); and see Morey, ?The General DutyClause of the Occupational Safety and Health Act of 1970?, 86 Harv. L. Rev.988, 1002 (1973).Respondentargues that the NFPA standards relied on by Complainant, including NFPA No.86A, Articles 520?68, 9; 550?2; and 560?14, are not applicable to the petroleumindustry for the reasons that:(1)the scope of NFPA No. 86A, as set forth in its Foreword and Article 100?1,excludes the BB2 type heater since (a) the Class A ovens or furnaces to whichthe standard applies relates only to ovens and furnaces processing ?flammablevolatiles from material in the oven . . ., i. e., flammable volatiles frompaints and other finishing processes such as dipped or sprayed material, impregnatedmaterial, coated fabrics, etc.? and (b) the standard applies to ?newinstallations or alterations or extensions to existing equipment? (Tr.419?420).(2)the NFPA develops and recommends standards on a careful, deliberative, balancedbasis involving representatives of all industries affected by the particularstandard under consideration, and no representatives of the petroleum industryparticipated or were invited to participate in the development andrecommendation of the NFPA standard here involved (Tr. 355, 421?422).(3)current equipment and practice respecting BB2 heaters in the petroleum refineryindustry, including all refineries in the United States and abroad, do notrequire or use the supervisory cocks, remote control or pilot ignition, flow-metersand other combustion safeguards provided in the NFPA standard here involved(Tr. 414?418; 422).(4)utilization of and compliance with the NFPA standard here involved would createoperational problems and possibly hazardous conditions in the petroleumrefinery industry (Tr. 423?424; 431?432).(5)requiring compliance with the NFPA standard here involved would, in thecircumstances of this case, contravene the purpose and provisions of Section 6of the Act prescribing elaborate procedures for promulgation of occupationalsafety and health standards (Respondent?s Brief, pp. 30?34).Asto Respondent?s point (1), the evidence of record is inconclusive, in myopinion. The NFPA Article 86A Foreword definition of Class A ovens or furnacesrefers to ?an explosion hazard from either, or a combination of, the fuel inthe use of, flammable volatiles from material in the oven or catalyticcombustion system;?, thus suggesting that the fuel in use, as distinguishedfrom the volatiles, was an alternative hazard contemplated (Tr. 304). Such ahazard was present in the subject heater, even though it was of tubular type,i.e., the asphalt-propane mixture was contained in metal tubes as it passedthrough the heater and was not directly exposed to the heat as flammable volatilesfrom paint and other finishing processes are. Also, while there is someauthority that standards adopted as occupational safety and health standards donot include time limitations specified in the industry standards (Secretaryof Labor v. Diesel Construction Co., OSHRC Docket No. 827 (February 20,1973); accord, U.S. v. J.M. Rosa Construction Co., Inc., U.S.D.C.(Conn.), B?637 April 2, 1973, 1 OSHC 1188, BNA\/OSH Rep.; and see Tr. 310), Iwould find it difficult, if not unfair in the circumstances of this case toapply the NFPA standard here invoked with respect to the heater here involved,which was installed in 1950, unless it was clearly shown that the changeoverfrom oil to gas fuel, followed by discontinued use of the pilot ignitionsystem, constituted an alteration of existing equipment within the meaning ofNFPA Article 100?1.Respondent?spoint (2) is well taken. That NFPA standards, as national consensus standards,are carefully developed in consultation with interested industries to assure balanceand comprehensiveness is well established (1NFPA Annotated OSHA Regulations,vii (NFPA, 1971); Tr. 420?422). And expert witnesses for both Respondent andComplainant testified that there were no petroleum industry representatives onthe NFPA committee which drafted the ovens and furnaces standard (Tr. 355,421?422).RespectingRespondent?s point (3), American Petroleum Institute standards (which have notbeen designated as national consensus standards) do not require remote controlignition or pilot ignition or a supervisory cock system on natural draftprocessing heaters in petroleum refining, according to the unrebutted testimonyof Mr. Lockwood (Tr. 422). The fact that the American Petroleum Institute hasbeen the major association of the oil companies and refineries since 1919,performing such representative and protective functions as standard-setting,tends to establish the petroleum industry as a clearly defined and distinctiveindustry (Judicial Notice; American Petroleum Institute, Publications &Materials, Foreword (1973)).Thereis conflicting testimony of record with respect to Respondent?s point (4).Despite the persuasiveness of the logic of Mr. Palmieri?s explanation of howthe combustion safeguards specified would improve the safety of working withRespondent?s heater (Tr. 270?281), I am inclined to give greater weight to thetestimony of Messrs. McIntyre and Lockwood based on their superior expertise inthe operation of this heater in the petroleum refining industry. Mr. McIntyretestified that manual lighting of the heater was more reliable than a pilotsystem by virtue of visual supervision and control in an outdoors atmosphere(Tr. 383). Mr. Lockwood testified that manual ignition of this heater was saferbecause of the self-supervisory requirements of a two-year continuous operatingcycle (Tr. 431?434).Despiteconsiderable study by OSHA and Respondent, the cause of the explosion of theheater has not been clearly defined in this record, thus making anyascertainment of proper corrective measures dependent upon more technicalanalysis and careful weighing of the variable factors involved, includingpossible human error and the relative capabilities and defects of theparticular equipment suitable for the petroleum industry. Such a technologicallycompetent analysis, evaluation and study, likely to affect operations orpractice of an entire industry, can more effectively and fairly be achievedthrough the rule-making procedure for promulgating standards prescribed inSection 6 of the Act rather than by an adjudicatory process based on thespecific facts of a single case tried before a Judge with no technicalexpertise in the petroleum industry beyond that contained in the case record. Iam therefore inclined to agree with Respondent?s contention that to permitComplainant to use Section 5(a)(1) of the Act as a means to enforce an NFPAstandard in the circumstances of this case would circumvent all the elaborateprocedures set forth in Section 6, would be inconsistent with the overall purposeof the Act, and give a wider effect to the Act?s general duty requirement thanCongress intended (Respondent?s Brief, p. 33, citing Peter v. Hobby, et al.,349 U.S. 311; Secretary of Labor v. Aro, Inc., OSHRC Docket No. 465, andChairman Moran?s dissenting opinion in Secretary of Labor v. Somerset TireServices, Inc., OSHRC Docket No. 44 (March 29, 1973). The point is evenwhen an industry recognizes a hazard, it should be given time to takecorrective steps and specific, confirmed knowledge of the hazard should berequired, not a mere suspicion or theory that there is a hazard. Morey, ?TheGeneral Duty Clause of the Occupational Safety and Health Act of 1970,? 86Harv. L.Rev. 988, 995?996, 1002 (1973).Thereis conflicting evidence on this record even respecting the specific complaintsof Respondent?s affected employees as represented by Mr. Bailey. None ofRespondent?s employees with heater operational duties were shown to havesubstantial training deficiencies (Tr. 47, 70, 89?91, 95?96, 106?107). Even if loosebrick in the heater construction could have been demonstrated, there wasconvincing testimony that an accumulated pocket of hazardous gas around orbehind such bricks following the prescribed usual half-hour steam purge wouldnot be possible (Tr. 424?425). While the burner valves were so tight that theyhad to be hammered with a wrench to operate, with the resultant risk ofimprecise over- or under-turning (Tr. 87?89), there was also testimony thatthis close tolerance and tight fit of the burner valves, given theiroperational duration and outside exposure to the elements, was designed anddesirable (Tr. 399?402).Atthe same time, a preponderance of the evidence tends to show that, contrary tostandard operating instructions, more than one burner valve was open at thetime the northwest burner was being lit-off (Tr. 375?376, 390?391), thussuggesting the possibility of human error or negligence as a major cause of theheater explosion?a cause which Complainant contends could have been eliminated orminimized by Respondent had the heater been equipped with a supervisory cockand automatic pilot system. As to that contention, Respondent asserts that itdid not and could not with the exercise of reasonable diligence know that Mr.Gray, a trained Second Operator with 6 years? experience (Tr. 154) woulddeviate from the standing operating instructions which required closing allburner valves before opening the main valve for light-off (Respondent?s Brief,pp. 29?30). This assertion is made in support of Respondent?s no recognizedhazard claim as well as its additional claim that the alleged violation herewas not a serious violation within the meaning of Section 17(k) of the Act.This appears to be a reasonable assertion on this record, although somewhat weakenedby Mr. Gray?s admission that he did not comply fully with the protectiveclothing and equipment (hard hat and face mask) requirements of the standardoperating instructions (Tr. 165). Respondent?s apparent laxity in not enforcingcompliance with those provisions of the instructions (Tr. 84?85) suggests thepossibility of similar laxity in enforcing compliance with other provisions ofthe instructions, including the one prescribing burner valve procedure onlight-off, of which Respondent might be chargeable with notice.However,Mr. Gray testified that his normal practice in that respect is to follow theoperating instructions (Tr. 165?166), and the record does not reveal any othersimilar heater explosions at all, much less any attributable to comparablehuman error or malfeasance on the part of Mr. Gray or any other employee ofRespondent. Indeed, based on Mr. Lockwood?s unrebutted testimony, the accidentrecords show few cases of explosions similar to this one in the petroleumrefinery industry over all the years such heaters have been in use (Tr.433?434).Onbalance, I conclude that Complainant has not sustained its burden of provinghis contention that the NFPA standard invoked is applicable to Respondent?scited heater.OperatinginstructionsComplainantalso contends that the very operating instructions issued by Respondent for thesubject heater constitutes evidence of Respondent?s recognition of the citedhazard, and of industry recognition of the hazard to the extent thatessentially the same operating instructions are used throughout the industry(Tr. 333?335). This is a somewhat specious argument for the reason that theseinstructions which recognize the potential hazard of explosion and flashbackpurport to prescribe operating procedures to control or minimize that potentialhazard and cannot fairly be deemed an admission by Respondent that operation ofthe heater in accordance with the instructions (and without the combustionsafeguards, such as supervisory cocks, remote control or pilot system,specified by Complainant) constitutes a hazard in violation of Section 5(a)(1).Respondent clearly regarded the heater, operated in accordance with itsstanding operating instructions, as in compliance with all applicable OSHA andindustry standards (Testimony of Mr. McIntyre, Tr. 397?398; of Mr. Lockwood,Tr. 418, 422).Mr.Palmieri?s feeling or theory that the petroleum industry should be addingcombustion safeguards to the BB2 type heaters by up-grading as they alter andbuy new equipment is based on his inspections of ovens and furnaces inindustries other than the petroleum industry and the premise, disputed byRespondent?s petroleum industry experts (Tr. 412?414), that the heaters used inthose other industries (chemical, utilities, smelting, anneal and generalindustrial) are of the same fundamental type as the natural draft gas firedprocess heater cited herein (Tr. 334?335, 341). Based on the unrebuttedtestimony of Mr. McIntyre and Mr. Lockwood, neither the replacement heaterordered by Respondent nor essentially similar heaters recently designed forinstallation in new petroleum refineries elsewhere in the United States havethe combustion safeguards deemed essential by Complainant for compliance withthe Act (Tr. 397?398, 416?418).Whileit is conceivable that the state of the knowledge of the petroleum industryshould be such as to support Complainant?s contention that the cited hazard isrecognized by that industry, the present existence of such industry knowledgeor recognition has not been proven of record. As previously indicated,substantial evidence of the requisite degree of industry knowledge orrecognition could, if available, be more fully and appropriately adduced in apromulgation proceeding under Section 6 of the Act.SeriousViolationRespondent?sseparate argument that Complainant has failed to sustain its burden of proof ofa serious violation under Sections 5(a)(1) and 17(k) of the Act is alsopersuasive. Section 5(a)(1) outlaws ?recognized hazards that are causing or arelikely to cause death or serious physical harm to employees?. Section 17(k)defines a serious violation as one which exists where there is ?a substantialprobability that death or serious physical harm could result from a condition .. . unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation?. Under OSHA procedures, acitation for a violation of Section 5(a)(1) is not issued unless the violationis serious, willful or repeated. (OSHA Compliance Operations Manual, Chap.VIII, Sec. A.2.d.). The Citation herein alleges a serious violation of Section5(a)(1).Inmaking the determination of the probable consequence of a condition under thissection of the Act, two factors must be considered: (1) the likelihood of anaccident resulting from the hazardous condition and (2) the likelihood of deathor serious harm resulting from the accident (OSHA Compliance Operations Manual,VIII?4). Apart from Mr. Palmieri?s reference to ?Murphy?s Law??that what can happenwill happen (Tr. 269), the only evidence of record tending to show thelikelihood of an accident resulting from operation of the cited heater underRespondent?s standing operating instructions and procedures (including areasonable allowance for human action and error which is inherent in andcontemplated by those instructions and procedures) is the testimony ofwitnesses confirming the single instance of explosion of the cited heater. Mr.Schultz, the only Compliance Officer to inspect the actual worksite andcircumstances of the accident, concluded in his report that human error ratherthan equipment failure was involved in the accident (Mr. Schultz?s Report, p.7, Commission File J?16; Tr. 234?235). There is no probative evidence of recordshowing any prior accidents involving this particular heater (other than oilspills prior to the conversion to gas fuel, Tr. 63?64) nor any other heater ofthe same type in the petroleum industry. A showing of statistics on loss timeaccidents in the industry directly related to the hazard here cited would berelevant to the probability determination. See Secretary of Labor v. SpencerFoods, Inc., OSHRC Docket No. 450 (September 12, 1972). Even Mr. Palmieriadmitted that his belief that there was mechanical failure was based on purespeculation (Tr. 342), and his testimony regarding a possibility rather thanprobability that death or serious physical harm could result from the allegedviolation was ambiguous (Tr. 289, 343). Respondent?s petroleum expert (Mr.Lockwood) testified that the petroleum industry accident records reveal ?veryfew cases in all the years of fired heaters where there has been an explosionof the type that happened at Paulsboro?, but it does happen occasionally (Tr.433). He further indicated that reliance upon employees in the operation ofthis type heater has not been a safety problem to any degree within thepetroleum industry (Tr. 433).Inthe circumstances of this particular accident, wherein Second Operator Grayadmitted failing to check on the closure of the burner valves before openingthe main gas valve in accordance with the operating instructions (Tr. 163),Respondent contends that such non-compliance with the instructions by such anexperienced employee was completely unanticipated and an unexpected human error(Respondent?s Brief, p. 29?30). Apart from Mr. Gray?s further admission that hedid not comply with the protective face shield and gloves provisions of thesame operating instructions, there is no evidence of record tending to show aprevious pattern of conduct by Mr. Gray or other employees operating the heaterwhich could have put Respondent on notice of a degree of hazard with respect tothe heater sufficient to increase substantially the likelihood of an accident.Indeed, Mr. Gray testified that his normal procedure is to follow theinstructions prescribed with respect to checking the burner valves beforeopening the main valve (Tr. 163, 165?166).Withrespect to the second factor, likelihood of death or serious harm resulting froman accident due to the alleged hazardous condition seems substantial based onthe photographs of the force of the explosion in this case (Complainant?sExhibits C1?7). While Mr. Gray?s injuries in this particular accident may nothave constituted serious physical harm as defined by OSHA (OSHA ComplianceManual, VIII?5), he was hospitalized 40 days (Tr. 164) and probably consideredhimself most fortunate to have survived such an explosion, which toppled the20?30 ton heater he was standing under (Tr. 394).Onbalance, the evidence of record, in my opinion, does not establish asubstantial probability that death or serious physical harm could result fromoperation of the cited heater under Respondent?s operating instructions andprocedures (without the combustion safeguards specified by Complainant). Nordoes the record prove that Respondent knew or with the exercise of reasonablediligence could have known of the presence of the alleged violation (employeeerror or negligence) within the meaning of Section 17(k) of the Act.However,consistent with the purposes of the Act, I am constrained to observe thatRespondent?s heavy reliance on the human element involved in the implementationof its operating instructions and procedures respecting operation of the BB2heater (Tr. 58?60, 62) imposes an equally heavy obligation on Respondentrespecting the training and supervision of its employees in the enforcement ofits own standing instructions for operating said heater. In my opinion, theevidence of record indicates a certain degree of laxity by Respondent in thetraining or supervision of its employees in the operation of the heater inaccordance with its instructions (Testimony of Mr. Gray, Tr. 162?163, 165?166;Mr. Schultz, Tr. 205; Mr. Hogan, Tr. 70, 84?85, 89?91, 95?96, 100, 106?107; Mr.Hartzell, Tr. 120; and Mr. Palmieri, Tr. 268?270). In these respects Respondentdoes not appear to be carrying out its obligation to maintain a safe place ofemployment to the fullest extent reasonably possible, thus tending to increasethe probability of an accident resulting in death or serious harm to itsemployees to a point perhaps approaching legal liability under the Act.Accordingly,as a prudent employer, Respondent might be well advised to review itsinstructions and procedures respecting operation of the heater in relation tothe actual functioning of its equipment, particularly the burner valves of theheater. More specifically, Second Operator Levan testified that Mr. Gray,contrary to Respondent?s operating instructions and the normal procedure, hadopened the burner valve before the main valve ?because it was hard to hold thetorch in the awkward position and take one hand with the pipe and try to beatthat cock open? (Tr. 140, 129). While the burner valves were deliberatelydesigned to be tight-fitting for apparently valid engineering reasons(Testimony of Mr. McIntyre, Tr. 399?400), this condition was part of theaffected employees complaint as a safety hazard (Tr. 175) and the results ofRespondent?s investigation of possibly defective burner valves is not disclosedon this record (Tr. 208). Similarly, both Mr. Gray and Mr. Hogan testified thatthey did not comply with the protective clothing and equipment guidelines inthe operating instructions because to do so would, in Mr. Hogan?s opinion, havecreated a greater hazard (Tr. 84?85, 165). Assuming good faith, such testimonysuggests the need for thorough investigation, perhaps by Respondent and itsemployees? Safety Committee on a joint basis, so as to afford enforceablepractical protection to affected employees, bearing in mind that Mr. Graysuffered burns of the face, arms and back (Tr. 164). In short, the totalevidence in this case suggests that Respondent should at least analyze andreview its entire heater safety program in terms of the three elements ofsafety engineering (engineering revision, education and enforcement) referredto by Mr. Palmieri (Tr. 271).Inview of my analysis above of the determinative issues of recognized hazard andserious violation, discussion of the appropriateness of the related penaltyherein is unnecessary. Suffice it to say, that were the foregoing determinativeissues to be resolved in favor of Complainant, I would agree that a penalty of$900.00, as proposed herein, would be appropriate, taking into considerationthe gravity of the alleged violation (severe), the size of Respondent?sbusiness ($1 billion net worth, over 1000 employees), Respondent?s good faith(compliance with numerous citations), and Respondent?s history of previousviolations of the Act at its Paulsboro refinery (approximately 90 violationscited, including four serious violations) (Tr. 289?292, 336?338).FINDINGS OF FACTTherecord herein as a whole contains reliable, probative and substantial evidenceto support the following findings of fact:1.Respondent is a New York corporation having a place of business, namely an oilrefinery, located at Paulsboro, New Jersey, which uses materials from and shipsmanufactured products to points outside of New Jersey (Complaint, p. 2, CaseFile item 5; Hearing Transcript Tr. 16).2.Respondent is a large corporation employing over 1000 employees at thisrefinery, with a 1971 net worth in excess of one billion dollars (Tr. 16?17).3.On October 26, 1972, the PDA BB2 heater unit at Respondent?s Paulsbororefinery, exploded and toppled over, injuring Thomas Gray, the second operatorof the heater, who was standing under the heater at the time in the process oflighting one of four burners of the heater following a temporary shut down (Tr.152?153).4.The PDA BB2 heater, which had been installed in 1950, was a natural draftgas-fired manually ignited heater, cylindrical, 16 feet wide (diameter) and 82feet tall, constructed of steel shell lined with fire brick, and containing tubingthough which flowed a mixture of asphalt and propane gas which was processed byheat from four gas fueled burners at the bottom of the heater, which waselevated about 8 feet off the ground (Mr. Schultz?s Report, Case File itemJ?16).5.The processing function performed by the heater was in the middle of a largerprocess of refining oil for use as lubricants, involving a number of otherdifferent units in close proximity to the heater located out-doors. The processheater, once lighted, ran a continous cycle 24 hours a day for periods as longas two years, when turnarounds (periodic shut downs for maintenance and repair)occurred. Sometimes more frequent shut downs were required for emergencyreasons, as on October 26, 1972, when the heater was shut-down with other PDAunits due to a faulty compressor not connected with the heater (Tr. 369, 413).6.The normal procedure for relighting or ?lighting-off? the heater was containedin operating instructions entitled ?General Safety Precautions To Be ObservedWhen Lighting Off Gas Fired Process Heaters? which were given to each employeewhen he was assigned to the heater and a copy kept in the desk of a nearbyenclosed control room (Tr. 192?193, 54?60; Case File item J?5).7.The essential procedure prescribed in the operating instructions and the normalpractice followed for lighting-off the heater was to (1) purge the inside ofthe heater with steam thoroughly so as to clean out any residual gas orhydrocarbon; (2) make certain all gas burner valves are closed before openingthe header valve (which controls flow of gas to burner valves); (3) light thetorch (kerosene-soaked rags or asbestos with handle) and place it in front ofor above the burner being lit so that the flame is in the path of the gas flow;(4) slowly open the gas burner valve; if the gas does not ignite immediately,shut the gas valve and purge the heater before attempting to light the burneragain; (5) when adding fuel to the burner after it is lit continue to open theburner valve very slowly; and (6) follow the same ignition procedure to igniteeach of the other burners on the heater.Theinstructions pointed out that keeping the gas burner valves closed beforeopening the header valve was to prevent any hydrocarbon from entering thefirebox and creating an explosion mixture. The danger of a flashback if theburner valve is not opened slowly was also noted, since the low draft obtainedduring start-up may be insufficient to pull the flame into the firebox when alarge volume of gas is rapidly ignited.8.Essentially the same operating instructions and procedure (without the citedcombustion safeguards) are used in the operation of PDA BB2 type heatersthroughout the petroleum industry (Tr. 415?416, 432).9.The main header valve was located about 35 feet away from the heater; there wasalso a by-pass valve used to control the gas flow until the process stablized,and an automatic valve which cut off the gas flow when the pressure or rate offlow became too low (Mr. Schultz?s Report, p. 5, Case File item J?16; Tr. 426,434). The burner valves were designed to be tight-fitting and were turned bywrench handles which frequently had to be hammered to operate the valves (Tr.87?89, 400).10.On October 26, 1972, the heater was shut down to accommodate repairs to anotherunit at which time all burner valves were closed. From about 4 to 4:30 the sameday the heater was steam purged. About 4:30 p.m., having gotten permission tolight-off from First Operator James Frank, who was in charge in the controlroom at the time, Second Operator Thomas Gray lit a kerosene-soaked asbestostorch and hung it by the northwest burner, the valve of which he hammered open,at the same time signaling Second Operator Levan, who has standing by theheader valve, to open the main header valve and thus start the gas flow to theburner. Mr. Levan opened the main valve about 1\/3 of the way, but Mr. Graysignaled no gas since he saw no ignition of the burner and almost immediatelythe heater exploded through its southeast side and collapsed off its foundation(Tr. 126?132).11.Mr. Gray, the injured employee, was an experienced second operator with somesix years? experience in the ignition of this and similar heaters, but onOctober 26, 1972, he did not follow Respondent?s operating instructions forigniting the PDA BB2 heater in that he failed to check to determine that thefour burner valves were closed before opening the main gas valve in attemptingto ignite a single burner, Also, Mr. Gray did not wear all the protective clothingand equipment prescribed by the operating instructions (Tr. 163, 165).12.On November 3, 1972, at the direction of the Newark Area Office of OSHA,Compliance Officer Herman Schultz made an inspection of Respondent?s refinery,particularly the circumstances of the heater explosion. The inspection was madeon the basis of a complaint letter received by the OSHA regional office fromthe Director, Citizenship-Legislative Department of the Oil, Chemical andAtomic Workers International Union at the request of the Safety Committee andPresident of the Independent Oil Workers at Paulsboro, New Jersey, affiliatedwith Oil, Chemical and Atomic Workers International Union, A.F. of L.-C.I.O.,Local 8?831, which represented Respondent?s employees.Mr.Schultz was directed to make the inspection since he was on a trip in the areaat the time and the complaint had stressed the need for immediate inspection. Acopy of the complaint letter was transmitted to the Respondent for the firsttime on November 17, 1972. Mr. Harry Bailey, a member of the Local Union?sSafety Committee accompanied Mr. Schultz on his walkaround inspection, togetherwith Respondent?s representatives, and informed him that the complaint includedallegations that the heater?s firebricks were in disrepair, allowing pockets ofgas to accumulate, and that Respondent?s employees on the heater receivedinadequate training.Thecomplaint letter itself, dated October 31, 1972, requested immediate accidentinvestigation of the causes of the heater explosion which caused injury to Mr.Gray and asserted that ?Citation and penalties against the company aredefinitely in order?, taking into account (1) the extreme ?luck? in thissituation in view of the force of the explosion and its close proximity tohighly volatile materials; (2) Respondent?s ?extremely poor health and safetyrecord?; (3) Respondent?s ?common practice (of) quickly covering up theevidence of an accident as soon as possible . . .?, and (4) the history of OSHAinvolvement in safety and health matters at Respondent?s refinery (Tr. 185?208;Complaint letter, Case File item J?1).13.Compliance Officer Schultz?s inspection report, submitted to his Area Directoron November 18, 1972, found Respondent ?in compliance? and evaluated its safetyand health program as ?effective?, and stated that in Schultz?s opinion humanerror was involved. Later in November, after consultation with ComplianceOfficer Palmieri, Mr. Schultz agreed that certain provisions of the NationalFire Prevention Association Code relating to gas-fired furnaces were applicableto Respondent?s heater. Thereafter, the Citation in this matter was prepared byMr. Palmieri, reviewed by the OSHA Regional Office and Solicitor?s Office, andissued on January 2, 1973 (Mr. Schultz?s Report, Case File item J?16; Tr.208?218, 232?257).14.The Citation issued to Respondent on January 2, 1973, alleges violation ofSection 5(a)(1) of the Act in that Respondent failed to furnish each of hisemployees employment and a place of employment which are free from recognizedhazards that are causing or likely to cause death or serious physical harm tohis employees, by failing to provide adequate safety devices on the PDA BB2heater, specifically, remote control furnace ignition system or adequate pilotignition system with sufficient combustion safeguards (Citation, Case File item1).Thus,the hazard cited was the operation of the heater in accordance withRespondent?s normal operating instructions (without the specified combustionsafeguards) which, allegedly, was a recognized hazard causing or likely tocause death or serious physical harm to Respondent?s employees (Tr. 18, 21?22,42, 269?270, 282, 285, 333?335, 365).15.There are no occupational safety and health standards promulgated under Section6 of the Act and no standards prescribed by the American Petroleum Institute orany other regulatory body which are applicable to the PDA BB2 heater and itsoperation and which require the cited combustion safeguards for operation ofsaid heater within the petroleum industry (Tr. 414?415, 422).16.The Notification of Proposed Penalty relating to the Citation herein, issued toRespondent on January 2, 1973, proposed a penalty of $900.00 taking intoconsideration the gravity of the alleged violation, Respondent?s size, goodfaith, and history of past violations of the Act (Tr. 289?292, 336?338).CONCLUSIONS OF LAW1.Respondent was and is at all times material hereto an employer engaged in abusiness affecting commerce within the meaning of Section 3 (5) of the Act, andthe Commission has jurisdiction of the parties and the subject matter herein.2.Respondent was and is at all times material hereto subject to the requirementsof the Act.3.The fact that a copy of the complaint letter or notice of violation was not providedto Respondent before or at the time of inspection did not, in the circumstancesof this case and for the reasons set forth in this decision, constitute aviolation of Section 8(f)(1) of the Act.4.Under the circumstances of this case and for the reasons set forth in thisdecision, the Citation herein was issued with reasonable promptness within themeaning of Section 9(a) of the Act.5.On October 26, 1972, Respondent?s operation of its PDA BB2 heater at itsPaulsboro refinery in accordance with its normal operating instructions(without the cited combustion safeguards) was not a recognized hazard withinthe petroleum industry within the meaning of Section 5(a)(1) of the Act.6.On October 26, 1972, Respondent?s operation of its PDA BB2 heater at itsPaulsboro refinery in accordance with its normal operating instructions(without the cited combustion safeguards) was not likely to cause death orserious physical harm to its employees within the meaning of Section 5(a)(1) ofthe Act.7.On October 26, 1972, there was not a substantial probability that death orserious physical harm could result from Respondent?s operation of its PDA BB2heater at its Paulsboro refinery in accordance with its normal operatinginstructions (without the cited combustion safeguards) within the meaning ofSection 17(k) of the Act.8.Respondent?s Employees, Thomas Gray and E.G. Levan, did not strictly comply ??Respondent?s applicable normal operating instructions when they lighted-offRespondent?s PDA BB2 heater on October 26, 1972. Those acts of saidnon-compliance by Respondent?s said employees which were critical to the safeoperation of the heater (e.g., opening the burner valve before opening the mainheader valve) very likely could have resulted in death or serious physicalharm, but were probably not known, and could not with the exercise ofreasonable diligence have been known by Respondent within the meaning ofSection 17(k) of the Act.9.Respondent?s Motion to Dismiss, as stated at the hearing just prior to Respondent?spresentation of its case in chief, should be granted.ORDERBasedon the foregoing Findings of Fact and Conclusions of Law and the record as awhole, good cause appearing, it is hereby ORDERED, that:1.The transcript of the hearing in this matter, specifically, the testimony ofRespondent?s witness, Mr. Norman Lockwood, at page 423 of the transcript, isamended to read in pertinent part as follows:?Withthe type of operation that we have, the supervisory cock system would createmany many problems for us, due to the fact that the furnace is operated for twoto six years, and it?s impossible to test out the system to make sure it isalways functioning. The possibility of its being in improper operation would beminimal.?2.Respondent?s Motion to Dismiss, as finally stated at the hearing in thismatter, is granted.3.The Complaint herein is dismissed and the Citation and Notification of ProposedPenalty issued by Complainant to Respondent on January 2, 1973, are herebyvacated.?DONALDK. DUVALLJudge,OSHRCDated:October 24, 1973Washington,D.C.[1]It is surprising that the woefully inadequate system used to relight thePDA-BB2 heater has allowed any of the employees who work near it to survivelong enough to gain through ?trial and error? the experience necessary tosuccessfully relight the heater.”