“SECRETARY OF LABOR,Complainant,v.PHILLIPS PETROLEUM CO.,Respondent.OSHRC Docket No. 78-1816_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:In this case, the Commission must determine whether Phillips PetroleumCompany (\”Phillips\”) violated section 5(a)(1) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). [[1\/]] Administrative Law Judge F. Daley Abels found that a violation wasestablished. The case is before the Commission under 29 U.S.C. ?661(i) by direction of former Commissioner Barnako. For the followingreasons, we reverse the judge’s decision.I.The events that led to the issuance of a citation to Phillips are setforth in Judge Abels’ decision as follows:On March 10, 1978, a 1\/2-inch pipe nipple broke on a pump in acompressor building at Phillips’ refinery in Kansas City…. The pumpwas part of a piping system running through the compressor building. This system piped and pumped liquid hydrocarbons. The leak resultingfrom the broken nipple allowed liquid hydrocarbons and hydrocarbonvapors to accumulate in the building. Approximately 15 minutes after theleak was discovered, the accumulated vapors were ignited by an unknownsource, causing an explosion and fire which injured 17 employees.[[2\/]]The failure of the pipe nipple was attributed to metal fatigue. Therewas no prior indication that the pipe was corroded or defective.Following an inspection, the Secretary issued to Phillips a citationthat alleged three separate violations of section 5(a)(1), as follows:1. The audible alarm system provided for the gas plant area was notused to warn and evacuate employees non-essential to the controlling ofa hazardous situation which developed in building number 55B10,compressor building, located in the gas plant area, thereby exposingthese employee(s) to the hazard of fire and\/or explosion.2. Equipment designed to monitor and control flammable vaporconcentration in building number 55B10, compressor building, while thebuilding is closed up, was not provided, thereby exposing employee(s) tothe hazard of fire and\/or explosion.3. The ventilation system provided for building number 55B10,compressor building, a building in which Class I liquid was pumped andwhich also had pits into which flammable vapors could travel, failed toprevent the accumulation of flammable vapors therein, thereby exposingemployee(s) to the hazard of fire and\/or explosion.[[3\/]]Following a hearing, Judge Abels affirmed the violations alleged initems one and two and assessed a $200 penalty for each violation. Thejudge vacated the violation alleged in item three. On review, Phillipstakes issue only with the judge’s affirmance of item two.II.The compliance officer who inspected Phillips’ worksite, JosephAnthony,[[4\/]] testified that abatement of the hazard resulting fromexcessive accumulation of flammable vapors could be achieved by theinstallation of a continuous monitoring device to measure theaccumulation of flammable vapors in the compressor building. When thelower explosive limit of the flammable vapor was reached, electricalimpulses would be generated by this monitor to perform the followingfour functions: (1) sound an alarm to warn personnel in the area, (2)shut off the electricity in the building, (3) close down the hydrocarbonsource, and (4) activate a ventilation system to remove the accumulatedvapor.[[5\/]] Anthony testified that he had seen this type of monitoringdevice installed in the maintenance buildings of two refineries and inthe combined storage and maintenance area of a third refinery that hehad inspected prior to his inspection of Phillips’ plant. On furtherquestioning, it was established that the device seen by Anthony duringprior inspections was a gas monitoring device that would activate analarm and shut off electric power in a building, but the device was notdesigned to activate a ventilation system or shut off the flow ofhydrocarbons. Anthony conceded that he had never seen the proposedabatement device installed in a compressor building. He also concededthat the only similarity between the compressor building and otherbuildings where he had seen the device was that the buildings wereenclosed. He further stated that the essential elements of the proposeddevice were commercially available, but it would have to be engineeredor \”tailor made\” for installation in Phillips’ compressor building.Jack McKenna, a safety consultant for the refining industry, testifiedon behalf of Phillips that it was not the refinery industry’s practiceto install a monitoring device in a compressor building. The only placethat McKenna had ever seen a gas monitoring device that would activate aventilation system was in a control house in which computerizedequipment was located. He also testified that while such a system wouldtheoretically work in a compressor building in a refinery, in practiceit would be infeasible. He added that, if the thirty-six compressors atthe facility where he worked were shut down by this type of system, theplant would blow up.Carl Baker, Phillips’ director of safety, fire protection, and equipmentinspection, testified that Phillips had gas monitors and alarm systemsat some of its unmanned pump stations. He also stated that, as far ashe was aware, no member of the refining industry used monitoring andcontrol or ventilation equipment in compressor buildings.Chester Klunick, safety manager for Continental Oil Company (\”Conoco\”),testified that none of Conoco’s refineries in the United States used thevapor monitoring, control, and ventilation equipment described byAnthony. However, in its chemical facilities Conoco had gas detectionequipment without explosion suppression devices. Conoco also used gasmonitoring devices aboard ships during loading and unloading. Klunickexplained that Conoco did not have vapor monitoring, control, andventilation equipment in its refineries because it would be animpractical system for refineries. He stated that these systems areunreliable and that, when he last checked such a system, he found \”itwas 23 percent off as far as accuracy [was] concerned.\” He also notedthat Conoco has found it very difficult to maintain gas monitoringdevices on ships. He stated that it was unusual for pipes like the onein Phillips’ compressor building to fail. He also testified that itwould be difficult to determine where to properly place the proposedmonitors in the compressor building so that they would detect pipefailures. Klunick added that the system would be unreliable andimpractical because of the large number of pumps that would have to bemonitored and the difficulty of maintaining the many monitoring devicesthat would be needed.Both McKenna and J. W. Scarborough, Phillips’ refinery manager,testified that the accumulation or confinement of flammable vapors andthe possibility of ignition or explosion of such vapors was a recognizedhazard within the refinery industry. McKenna, Klunick, and Scarboroughtestified that the ventilation system in the compressor building wasadequate to eliminate the small amount of vapor normally produced inoperation of that facility but was inadequate to eliminate the undue orabnormal accumulation of vapors that existed on the day of theexplosion. Baker, who was an engineer, testified that larger pipes inthe compressor building were as likely to break as a pipe nipple, andthat, in order to adequately ventilate the released hydrocarbon vapor inthe event of the failure of the larger pipes, a fan twenty-eight feet indiameter would be required. Baker noted that the compressor buildingwould have to be partially rebuilt to house such a fan. Baker furthertestified that the nipple that ruptured was four to five times strongerthan necessary, consistent with industry standards.III.In affirming the violation alleged in item two of the citation, JudgeAbels found that the undue accumulation of flammable vapors in anenclosed building was a recognized hazard in the petroleum refiningindustry. With respect to the feasibility of a monitoring device as anabatement measure, the judge found: \”[T]here is sufficient material andcredible evidence to show that once the vapors began to undulyaccumulate, accumulation to the point of ignition and explosion couldhave been prevented by the use of a monitoring device to control theconcentration of the flammable vapors in the compressor building.\” Inconcluding that the monitoring device was a feasible method ofabatement, Judge Abels relied on the compliance officer’s testimony thathe had observed such a device in use at other facilities. Although thecompliance officer \”had never seen or heard\” of a monitoring deviceinstalled in a compressor building, the judge noted that Phillip’switnesses indicated that monitoring devices were used in some refineryoperations and that such a device would work in Phillips’ compressorbuilding, even though it would be subject to daily maintenance.IV.In its petition for review, Phillips argues that the judge’s finding ofa violation was based on an improper characterization of the recognizedhazard. Phillips further contends that the judge erred in finding thatthe \”[u]se of a monitoring and control system to prevent the undueaccumulation of flammable vapors in a compressor building istechnologically feasible.\” Specifically, Phillips argues that thejudge’s finding that the compliance officer had seen the proposedmonitoring device in structures similar to the compressor building isunsupported by the record. Phillips contends that the device seen bythe compliance officer, a gas monitoring device, was not the same as theproposed monitoring device and notes further that the facilities wherethe complianceofficer saw these devices were far different and much less complex thanPhillips’ compressor building. Phillips also argues that the judgeignored evidence that the monitoring device was not a reliableinstrument and its use might be dangerous.The Secretary argues that the judge properly defined the hazard as theundue accumulation of flammable vapors in the compressor building. TheSecretary also contends that the compliance officer’s testimonyestablishes a prima facie showing of feasibility and Phillips did notrebut this showing. According to the Secretary, the complianceofficer’s failure to testify as to the detailed specifications andcapacities of the proposed abatement measure is immaterial because theSecretary is not required to actually design the abatement measures.V.In order to establish a section 5(a)(1) violation, the Secretary mustprove: (1) the employer failed to render its workplace free of ahazard, (2) the hazard was recognized either by the cited employer orgenerally within the employer’s industry, (3) the hazard was causing orwas likely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materiallyreduced the hazard. _Baroid Division of NL Industries, Inc. v. OSHRC_,660 F.2d 439 (10th Cir. 1981); _St_. _Joe Minerals Corp. v. OSHRC_, 647F.2d 840 (8th Cir. 1981); _National Realty & Construction Co. v. OSHRC_,489 F.2d 1257 (D.C. Cir. 1973); _Little Beaver Creek Ranches, Inc_., 82OSAHRC 36\/A2, 10 BNA OSHC 1806, 1982 CCH OSHD ? 26,125 (No. 77-2096, 1982).In this case, we conclude that the Secretary has failed to establish theexistence of a recognized hazard. There is no dispute that Phillips wasaware of a hazard associated with the accumulation of flammable vaporsin the compressor building under normal operating conditions and thatthe compressor building was adequately ventilated to eliminate vaporleakage that accumulated under such conditions. The hazard at issue inthis case, however, does not involve the accumulation of flammablevapors under normal conditions. Rather, the hazard of which recognitionmust be shown here is _excessive_ accumulation of flammable vapors inthe compressor building. We find no evidence that this hazard wasrecognized by Phillips or the petroleum refinery industry.We also conclude that the Secretary has failed to prove that there was afeasible means by which Phillips could have eliminated or reduced thehazard. \”A violation of the general duty clause cannot be sustainedunless the Secretary is able (1) to establish the type of employerconduct necessary to avoid citation under similar circumstances and (2)to demonstrate the feasibility and likely utility of such conduct.\” _Cargill, Inc., Nutrena Feed Division_, 82 OSAHRC 11\/A2, 10 BNA OSHC1398, 1982 CCH OSHD ? 25,935 (No. 78-5707, 1982); _see_ _also_ _NationalRealty & Construction Co. v. OSHRC_, 489 F.2d 1257 (D.C. Cir. 1973). The abatement proposed by the Secretary consisted of a monitoring andcontrol device capable of: (1) sounding an alarm, (2) shutting off theelectricity in the building, (3) closing off the source of hydrocarbon,and, (4) activating a ventilation system. The only evidence presentedby the Secretary with respect to the feasibility and likely utility ofthe proposed abatement was the testimony of compliance officer Anthony.According to the compliance officer, the devices he observed during histhree prior refinery inspections were not monitoring and control devicesbut gas analyzing equipment. This equipment shut off the electricity inthe facilities where it was installed but, unlike the proposedmonitoring device, did not close off the hydrocarbon source or activatea ventilation system.[[6\/]] There is no evidence that the equipment inthe compressor building was similar to the equipment in the maintenanceareas where the compliance officer had seen gas monitoring equipment. The compliance officer admitted that the only similarity between thecompressor building and those buildings in which he had seen monitoringdevices was that all were enclosed. There also is evidence suggestingthat an automatic shut-off of the piping in the compressor building mayitself be hazardous.We also agree with Phillips’ argument that the judge failed to takeaccount of evidence that the proposed monitoring device was inaccurateand unreliable. Klunick testified that a monitoring device such as theone proposed by the Secretary \”was 23 percent off as far as accuracy isconcerned.\” He also stated that a system based on such a device wouldbe unreliable and difficult to maintain. McKenna also testified thatsuch a system would be infeasible. The Secretary offered no evidence torebut this testimony. It is apparent that, if the monitoring devicewere inaccurate and unreliable, it would be likely to trigger falsealarms and shut off electricity and the flow of hydrocarbons when vaporswere at a safe level, or to not activate when vapors reached a dangerouslevel. We, therefore, conclude that the evidence does not establish thatthe proposed devices could feasibly be installed in Phillips’ compressorbuilding.Having determined that the Secretary failed to establish either theexistence of a recognized hazard or the feasibility and likely utilityof the proposed abatement method, we reverse the judge’s finding of aviolation and vacate item two of the citation. The $200 penaltyassessed by the judge is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 31 1984CLEARY, Commissioner, dissenting:I disagree with the majority both on the question of the recognizedhazard and on the feasibility of abatement.The majority finds no evidence that the hazard of excessiveaccumulations of flammable vapors in the compressor building wasrecognized by Phillips or the petroleum refining industry. Let usexamine this non-evidence. Phillips’ own experts testified thatignitable vapor accumulations are a recognized hazard in the industry. The fact that metal fatigue is nearly undetectable and capable ofcausing catastrophic breakdown was disputed by no one. The fact thatany building, including compressor buildings, can become a lethalchamber if vapors accumulate at a greater rate than they are dispersedis obvious. This is underscored by the fact that Phillips’ compressorbuilding was specially designed to allow for dissipation of \”normal\”leakage.What the majority is saying is that there is no evidence that theindustry actually contemplated the events as they happened in thiscase: that vapor accumulations could reach ignitable levels [a fact] inan enclosed space [a fact] if the leak resulted from equipment failuredue to metal fatigue [a fact]. The purpose of the Act is to upgradeemployee safety and health to the extent feasible. Its purpose is notto give binding effect to industry custom and practice. Yet it shouldbe apparent that a hyper emphasis on what is unique or specific in agiven case renders virtually all hazards sui generis; only conditionsand practices that are regarded as unsafe by the industry will comewithin the purview of the general duty clause. This is not what wasintended by Congress and I cannot accede to it. On the record in thiscase I would find that the Secretary did establish that both theindustry and Phillips recognized the hazard of excessive accumulationsof flammable vapors in the compressor building.I also conclude the Secretary has established the feasibility ofabatement. The issue on review, with respect to abatement, is whetherthe Secretary has established the feasibility of a monitoring andcontrol system which would consist of a \”head\” to detect excessiveaccumulations of hydrocarbon vapors in Phillips’ compressor building andan automatic shut-off of hydrocarbons and electrical power in the eventexcessive levels of hydrocarbons are detected. The control system wouldalso have an automatic alarm.In analyzing the evidence on this issue, I begin with the fact that thetechnical feasibility of a gas monitoring and control system has beenconceded by Phillips’ own expert witnesses. Both Jack McKenna, a safetyconsultant and member of the National Fire Protection Association, andChester Klunick, safety manager for Conoco, expressly conceded that sucha system is technologically feasible, that it could perform the desiredfunction, and that they had actually seen similar systems in place incomputer buildings.Although both witnesses expressed numerous reservations about such asystem, their reservations are not of a type to establishinfeasibility. McKenna testified that if all 36 compressors at theplant where he is employed (not Phillips) were shut down at once, the\”whole plant\” would blow up. But the fact is that Phillips’ compressorbuilding had only four compressors–two inoperative–and McKennaadmitted that he had \”no idea\” what would happen if these fourcompressors were shut down. Not only is this testimony inconclusive,it appears to conflict with Klunick’s testimony that the leaking pumpshould have been shut down immediately.[[7]] Indeed, Klunick suggestedthat the employees were negligent in failing to shut down the pump assoon as the leak was discovered.Klunick testified that in his opinion a monitor and control system wasimpractical for two reasons: cost and unreliability. He testified thatthe system would be unreliable because it would \”probably\” not beinstalled in the proper location to detect the vapor accumulation. Thisis inconsistent with McKenna’s testimony that the explosion occurred notbecause the vapors accumulated in any one place inside the compressorbuilding, but because the vapors filled the entire building. In anyevent, having admitted that a monitor could be properly placed toperform effectively, Klunick’s fears that proper placement \”might not\”occur carry little weight. Klunick argued that placing the monitoringsystem at floor level would probably require daily inspection, thusrendering the system \”impractical.\” But Spencer, Phillips’ controlman,testified that he inspected the compressor building four times a day, orevery two hours, during his shift alone. Respondent submitted noevidence that the system could not be checked during one of theseroutine inspections. Moreover, monitoring systems are utilized inother types of facilities, such as computerized control room, chemicalfacilities, aboard ships, and unmanned stations on a pipeline. Apparently the systems are not deemed impractical as to thesefacilities, yet they are alleged to be impractical in a compressorbuilding. No persuasive reason is advanced to distinguish the utilityof this device in some facilities, but not in the compressor room. Itwould also seem apparent that daily inspections are not conducted ofmonitoring devices at unmanned stations.Klunick also testified that although Conoco does in fact use gasmonitoring systems in computer buildings and elsewhere, he does notconsider them reliable. He stated that the last time he checked one ofConoco’s monitors it was \”23 percent off as far as accuracy isconcerned.\” I find it inconceivable that a large and sophisticatedoperation like Conoco would go to the trouble of installing safetyequipment that is no more than 75 percent accurate, particularly ininstallations as valuable as computer housing. Inthe absence of specific supporting evidence for Klunick’s assertion, Iaccord it very little weight.Klunick also testified that Conoco had buildings similar to Phillips’compressor building, and that these buildings were not equipped withmonitor and control systems to protect against a pump failure such asoccurred at Phillips’. It is well established that industry custom andpractice, although relevant, are not the final determinants of anemployer’s obligations under the Act. _National Realty &_ _Constr. Co.v. OSHRC_, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973); _Peter CooperCorp_., 81 OSAHRC 101\/A2, 10 BNA OSHC 1203, 1982 CCH OSHD ? 25,795 (No.76-596, 1981). Moreover, Conoco’s practice cannot be the standard bywhich we measure the adequacy of Phillips’ efforts because thecircumstances at the two companies were significantly different.According to Klunick, Conoco took several measures not taken at Phillipsto protect against such failure as is at issue here. Conoco had acontinuous inspection program of pumps inside its buildings, includingpumps inside those buildings similar to Phillips’ compressor building. It had backup systems so that the line could be switched to another pumpif the primary pump failed. It trained employees so they would knowwhat to do in emergency situations. Phillips, on the other hand, neverinspected the pump from the day it was put in operation until the day ofthe explosion. Phillips submitted no evidence that it had a backupsystem which the employees could have switched to or that it conductedtraining programs covering situations such as the one that occurred. Nor did Phillips submit any evidence that the action of its employeesafter discovering the leaks was in any way in vio- lation of thetraining they had received.The need for a monitor and control system must be assessed in context. If Conoco has, by instituting a greater number of safety precautionsthan has Phillips, freed its workplace of the hazard, the furtherabatement may be necessary at Phillips, but not at Conoco. _See__Chevron Oil Co._, OSHRC Docket No. 10799 (Apr. 20, 1983); _GeneralElectric Co_., 82 OSAHRC 56\/A2, 10 BNA OSHC 2034, 1982 CCH OSHD ? 26,259(No. 79-504, 1982).The majority attaches significance to the fact that there is no evidencethat Phillips’ compressor building was similar to the maintenance areaswhere the compliance officer observed gas monitoring equipment and thatthe monitoring equipment he did observe elsewhere did not include anautomatic gas shut-off feature. Whatever significance this might havehad has been rendered nugatory by Phillips’ own expert testimony thathydrocarbon monitoring and control technology does exist, that it couldbe installed at this site, and that it is capable of performing thedesired function. Even if the compliance officer’s testimony, alone,was insufficient to establish feasibility of abatement, it does notfollow that feasibility has not been shown. In determining whetherfeasibility has been established, we will look to the record as awhole. _See_ _C. Kaufman, Inc_., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295,1977-78 CCH OSHD ? 22,481 (14249, 1978).In sum, the majority finding that there was no evidence that the hazardof excessive accumulation of flammable vapors was recognized by Phillipsor the petroleum industry is rather startling. One would have toconclude that the industry would be justifiably unconcerned about aserious leak of flammable hydrocarbons, and that there are no reasonablemeasures to prevent such an occurrence or protect employees. Theindustry practice as presented by Phillips seems to be to simply acceptexplosions such as occurred in this instance. If this does bespeakindustry practice, I do not agree that it could do no more.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), provides:Sec. 5(a) Each employer — (1) shall furnish to each of his employeesemployment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2\/]] Phillips’ compressor building was a single level brick structure,approximately 130 feet long. The building housed 4 compressors. Twotrenches or pits, approximately 42 to 48 inches deep, ran the length ofthe building. The pump to which the nipple in question was connecteddrew condensate or liquid off a vessel located outside of the buildingand transferred the liquid to another part of Phillips’ process alsolocated outside the compressor building. The explosion blew out aportion of the roof. One employee lost time from work as a result ofinjuries incurred in the explosion. His injuries resulted, however,from a fall when he tripped while running away from the compressorbuilding. The remaining 16 employees were treated for cuts andscratches in Phillips’ infirmary and then returned to work.[[3\/]] In his complaint, the Secretary amended the citation to deletefrom each item the concluding phrase \”thereby exposing employees to thehazard of fire and\/or explosion.\”[[4\/]] At the time of the hearing, Anthony had been employed as acompliance officer for a period of five years. He had previously servedas a base safety officer in the military. Mr. Anthony had \”no knowledgeof the refining processing\” from his military experience, but hadinspected three refineries while with OSHA. The Phillips inspection washis first inspection involving a fire or explosion at a refinery.[[5\/]] We note that item three of the citation alleged that Phillips’failure to provide an adequate ventilation system was a violation ofsection 5(a)(1). The evidence shows and the judge found that Phillipswould be required to partially rebuild the compressor building toinstall the ventilation system. Based on this finding, the judgeconcluded that the proposed ventilation system was infeasible and hevacated item three. The Secretary does not take issue with thisfinding. With respect to item one, we note that the judge affirmed aserious violation based on his finding that Phillips failed to use itsalarm system to warn its employees of the situation that existed in thecompressor building. Phillips does not take issue with this finding. Thus, the only item remaining in contest is item two, alleging failureto install a monitoring and control device in the compressor building.[[6\/]] Although one of the functions of the proposed device was theactivation of a ventilation system, item three of the citationseparately alleged that Phillips failed to provide a ventilation systemadequate to prevent the accumulation of flammable vapors. The evidenceshows and the judge found that Phillips would be required to partiallyrebuild the compressor building to install such a ventilation system. Based on this finding, the judge concluded that the proposed ventilationsystem was infeasible and vacated item three. The Secretary did notseek review of this holding. Thus, it has already been determined thatone of the four functions that the proposed monitoring and controldevice was to perform is not feasible.[[7]] The compressor cannot operate without a functioning pump to drawoff liquids. Therefore, if the pump is shut down the compressor mustalso be shut down.”