“Docket No. 78-1816 SECRETARY OF LABOR,Complainant,v.PHILLIPS PETROLEUM CO., Respondent.OSHRC Docket No. 78-1816DECISION Before:\u00a0 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 Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). [[1\/]] \u00a0Administrative Law Judge F. Daley Abels found that a violation was established. \u00a0 Thecase is before the Commission under 29 U.S.C. ? 661(i) by direction of formerCommissioner Barnako.\u00a0 For the following reasons, we reverse the judge’s decision.I. The events that led to the issuance of a citation to Phillips are set forth in JudgeAbels’ decision as follows:On March 10, 1978, a 1\/2-inch pipe nipple broke on a pump in a compressorbuilding at Phillips’ refinery in Kansas City…. The pump was part of a piping systemrunning through the compressor building.\u00a0 This system piped and pumped liquidhydrocarbons. The leak resulting from the broken nipple allowed liquid hydrocarbons andhydrocarbon vapors to accumulate in the building. Approximately 15 minutes after the leakwas discovered, the accumulated vapors were ignited by an unknown source, causing anexplosion and fire which injured 17 employees.[[2\/]]The failure of the pipe nipple was attributed to metal fatigue.\u00a0 Therewas no prior indication that the pipe was corroded or defective. Following an inspection,the Secretary issued to Phillips a citation that alleged three separate violations ofsection 5(a)(1), as follows:1.\u00a0 The audible alarm system provided for the gas plant area was notused to warn and evacuate employees non-essential to the controlling of a hazardoussituation which developed in building number 55B10, compressor building, located in thegas plant area, thereby exposing these employee(s) to the hazard of fire and\/or explosion.2.\u00a0 Equipment designed to monitor and control flammable vaporconcentration in building number 55B10, compressor building, while the building is closedup, was not provided, thereby exposing employee(s) to the hazard of fire and\/or explosion.3.\u00a0 The ventilation system provided for building number 55B10,compressor building, a building in which Class I liquid was pumped and which also had pitsinto which flammable vapors could travel, failed to prevent the accumulation of flammablevapors therein, thereby exposing employee(s) to the hazard of fire and\/or explosion.[[3\/]]Following a hearing, Judge Abels affirmed the violations alleged in items one and two andassessed a $200 penalty for each violation.\u00a0 The judge vacated the violation allegedin item three.\u00a0 On review, Phillips takes issue only with the judge’s affirmance ofitem two.II. The compliance officer who inspected Phillips’ worksite, Joseph Anthony,[[4\/]] testifiedthat abatement of the hazard resulting from excessive accumulation of flammable vaporscould be achieved by the installation of a continuous monitoring device to measure theaccumulation of flammable vapors in the compressor building.\u00a0 When the lowerexplosive limit of the flammable vapor was reached, electrical impulses would be generatedby this monitor to perform the following four functions:\u00a0 (1) sound an alarm to warnpersonnel in the area, (2) shut off the electricity in the building, (3) close down thehydrocarbon source, and (4) activate a ventilation system to remove the accumulatedvapor.[[5\/]]\u00a0 Anthony testified that he had seen this type of monitoring deviceinstalled in the maintenance buildings of two refineries and in the combined storage andmaintenance area of a third refinery that he had inspected prior to his inspection ofPhillips’ plant.\u00a0 On further questioning, it was established that the device seen byAnthony during prior inspections was a gas monitoring device that would activate an alarmand shut off electric power in a building, but the device was not designed to activate aventilation system or shut off the flow of hydrocarbons.\u00a0 Anthony conceded that hehad never seen the proposed abatement device installed in a compressor building.\u00a0 Healso conceded that the only similarity between the compressor building and other buildingswhere he had seen the device was that the buildings were enclosed.\u00a0 He further statedthat the essential elements of the proposed device were commercially available, but itwould have to be engineered or \”tailor made\” for installation in Phillips’compressor building.Jack McKenna, a safety consultant for the refining industry, testified onbehalf of Phillips that it was not the refinery industry’s practice to install amonitoring device in a compressor building.\u00a0 The only place that McKenna had everseen a gas monitoring device that would activate a ventilation system was in a controlhouse in which computerized equipment was located.\u00a0 He also testified that while sucha system would theoretically work in a compressor building in a refinery, in practice itwould be infeasible. He added that, if the thirty-six compressors at the facility where heworked were shut down by this type of system, the plant would blow up.Carl Baker, Phillips’ director of safety, fire protection, and equipmentinspection, testified that Phillips had gas monitors and alarm systems at some of itsunmanned pump stations.\u00a0 He also stated that, as far as he was aware, no member ofthe refining industry used monitoring and control or ventilation equipment in compressorbuildings.Chester Klunick, safety manager for Continental Oil Company(\”Conoco\”), testified that none of Conoco’s refineries in the United States usedthe vapor monitoring, control, and ventilation equipment described by Anthony. \u00a0However, in its chemical facilities Conoco had gas detection equipment without explosionsuppression devices.\u00a0 Conoco also used gas monitoring devices aboard ships duringloading and unloading.\u00a0 Klunick explained that Conoco did not have vapor monitoring,control, and ventilation equipment in its refineries because it would be an impracticalsystem for refineries.\u00a0 He stated that these systems are unreliable and that, when helast checked such a system, he found \”it was 23 percent off as far as accuracy [was]concerned.\”\u00a0 He also noted that Conoco has found it very difficult to maintaingas monitoring devices on ships.\u00a0 He stated that it was unusual for pipes like theone in Phillips’ compressor building to fail.\u00a0 He also testified that it would bedifficult to determine where to properly place the proposed monitors in the compressorbuilding so that they would detect pipe failures.\u00a0 Klunick added that the systemwould be unreliable and impractical because of the large number of pumps that would haveto be monitored and the difficulty of maintaining the many monitoring devices that wouldbe needed.Both McKenna and J. W. Scarborough, Phillips’ refinery manager, testifiedthat the accumulation or confinement of flammable vapors and the possibility of ignitionor explosion of such vapors was a recognized hazard within the refinery industry. \u00a0McKenna, Klunick, and Scarborough testified that the ventilation system in the compressorbuilding was adequate to eliminate the small amount of vapor normally produced inoperation of that facility but was inadequate to eliminate the undue or abnormalaccumulation of vapors that existed on the day of the explosion.\u00a0 Baker, who was anengineer, testified that larger pipes in the compressor building were as likely to breakas a pipe nipple, and that, in order to adequately ventilate the released hydrocarbonvapor in the event of the failure of the larger pipes, a fan twenty-eight feet in diameterwould be required.\u00a0 Baker noted that the compressor building would have to bepartially rebuilt to house such a fan.\u00a0 Baker further testified that the nipple thatruptured was four to five times stronger than necessary, consistent with industrystandards.III.In affirming the violation alleged in item two of the citation, Judge Abels found that theundue accumulation of flammable vapors in an enclosed building was a recognized hazard inthe petroleum refining industry.\u00a0 With respect to the feasibility of a monitoringdevice as an abatement measure, the judge found:\u00a0 \”[T]here is sufficientmaterial and credible evidence to show that once the vapors began to unduly accumulate,accumulation to the point of ignition and explosion could have been prevented by the useof a monitoring device to control the concentration of the flammable vapors in thecompressor building.\”\u00a0 In concluding that the monitoring device was a feasiblemethod of abatement, Judge Abels relied on the compliance officer’s testimony that he hadobserved such a device in use at other facilities.\u00a0 Although the compliance officer\”had never seen or heard\” of a monitoring device installed in a compressorbuilding, the judge noted that Phillip’s witnesses indicated that monitoring devices wereused in some refinery operations 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 of a violation wasbased on an improper characterization of the recognized hazard.\u00a0 Phillips furthercontends that the judge erred in finding that the \”[u]se of a monitoring and controlsystem to prevent the undue accumulation of flammable vapors in a compressor building istechnologically feasible.\”\u00a0 Specifically, Phillips argues that the judge’sfinding that the compliance officer had seen the proposed monitoring device in structuressimilar to the compressor building is unsupported by the record.\u00a0 Phillips contendsthat the device seen by the compliance officer, a gas monitoring device, was not the sameas the proposed monitoring device and notes further that the facilities where thecomplianceofficer saw these devices were far different and much less complex than Phillips’compressor building.\u00a0 Phillips also argues that the judge ignored evidence that themonitoring device was not a reliable instrument and its use might be dangerous.The Secretary argues that the judge properly defined the hazard as the undueaccumulation of flammable vapors in the compressor building.\u00a0 The Secretary alsocontends that the compliance officer’s testimony establishes a prima facie showing offeasibility and Phillips did not rebut this showing.\u00a0 According to the Secretary, thecompliance officer’s failure to testify as to the detailed specifications and capacitiesof the proposed abatement measure is immaterial because the Secretary is not required toactually design the abatement measures.V.In order to establish a section 5(a)(1) violation, the Secretary must prove:\u00a0 (1) theemployer failed to render its workplace free of a hazard, (2) the hazard was recognizedeither by the cited employer or generally within the employer’s industry, (3) the hazardwas causing or was likely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materially reduced thehazard.\u00a0 Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10thCir. 1981); St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840 (8th Cir. 1981); NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); LittleBeaver Creek Ranches, Inc., 82 OSAHRC 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.\u00a0 There is no dispute that Phillips was aware of ahazard associated with the accumulation of flammable vapors in the compressor buildingunder normal operating conditions and that the compressor building was adequatelyventilated to eliminate vapor leakage that accumulated under such conditions.\u00a0 Thehazard at issue in this case, however, does not involve the accumulation of flammablevapors under normal conditions.\u00a0 Rather, the hazard of which recognition must beshown here is excessive accumulation of flammable vapors in the compressorbuilding.\u00a0 We find no evidence that this hazard was recognized by Phillips or thepetroleum 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 the hazard. \u00a0\”A violation of the general duty clause cannot be sustained unless the Secretary isable (1) to establish the type of employer conduct necessary to avoid citation undersimilar circumstances and (2) to demonstrate the feasibility and likely utility of suchconduct.\”\u00a0 Cargill, Inc., Nutrena Feed Division, 82 OSAHRC 11\/A2, 10 BNAOSHC 1398, 1982 CCH OSHD ? 25,935 (No. 78-5707, 1982); see also NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). \u00a0 Theabatement proposed by the Secretary consisted of a monitoring and control device capableof:\u00a0 (1) sounding an alarm, (2) shutting off the electricity in the building, (3)closing off the source of hydrocarbon, and, (4) activating a ventilation system.\u00a0 Theonly evidence presented by the Secretary with respect to the feasibility and likelyutility of the proposed abatement was the testimony of compliance officer Anthony.According to the compliance officer, the devices he observed during his threeprior refinery inspections were not monitoring and control devices but gas analyzingequipment.\u00a0 This equipment shut off the electricity in the facilities where it wasinstalled but, unlike the proposed monitoring device, did not close off the hydrocarbonsource or activate a ventilation system.[[6\/]]\u00a0 There is no evidence that theequipment in the compressor building was similar to the equipment in the maintenance areaswhere the compliance officer had seen gas monitoring equipment.\u00a0 The complianceofficer admitted that the only similarity between the compressor building and thosebuildings in which he had seen monitoring devices was that all were enclosed.\u00a0 Therealso is evidence suggesting that an automatic shut-off of the piping in the compressorbuilding may itself be hazardous.We also agree with Phillips’ argument that the judge failed to take accountof evidence that the proposed monitoring device was inaccurate and unreliable. \u00a0Klunick testified that a monitoring device such as the one proposed by the Secretary\”was 23 percent off as far as accuracy is concerned.\”\u00a0 He also stated thata system based on such a device would be unreliable and difficult to maintain. McKennaalso testified that such a system would be infeasible.\u00a0 The Secretary offered noevidence to rebut this testimony.\u00a0 It is apparent that, if the monitoring device wereinaccurate and unreliable, it would be likely to trigger false alarms and shut offelectricity and the flow of hydrocarbons when vapors were at a safe level, or to notactivate when vapors reached a dangerous level. We, therefore, conclude that the evidencedoes not establish that the proposed devices could feasibly be installed in Phillips’compressor building.Having determined that the Secretary failed to establish either the existenceof a recognized hazard or the feasibility and likely utility of the proposed abatementmethod, we reverse the judge’s finding of a violation and vacate item two of the citation.\u00a0 The $200 penalty assessed by the judge is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JAN 31 1984CLEARY, Commissioner, dissenting:I disagree with the majority both on the question of the recognized hazardand on the feasibility of abatement.The majority finds no evidence that the hazard of excessive accumulations offlammable vapors in the compressor building was recognized by Phillips or the petroleumrefining industry.\u00a0 Let us examine this non-evidence.\u00a0 Phillips’ own expertstestified that ignitable vapor accumulations are a recognized hazard in the industry.\u00a0 The fact that metal fatigue is nearly undetectable and capable of causingcatastrophic breakdown was disputed by no one.\u00a0 The fact that any building, includingcompressor buildings, can become a lethal chamber if vapors accumulate at a greater ratethan they are dispersed is obvious.\u00a0 This is underscored by the fact that Phillips’compressor building was specially designed to allow for dissipation of \”normal\”leakage.What the majority is saying is that there is no evidence that the industryactually contemplated the events as they happened in this case:\u00a0 that vaporaccumulations could reach ignitable levels [a fact] in an enclosed space [a fact] if theleak resulted from equipment failure due to metal fatigue [a fact].\u00a0 The purpose ofthe Act is to upgrade employee safety and health to the extent feasible.\u00a0 Its purposeis not to give binding effect to industry custom and practice.\u00a0 Yet it should beapparent that a hyper emphasis on what is unique or specific in a given case rendersvirtually all hazards sui generis; only conditions and practices that are regarded asunsafe by the industry will come within the purview of the general duty clause.\u00a0 Thisis not what was intended by Congress and I cannot accede to it.\u00a0 On the record inthis case I would find that the Secretary did establish that both the industry andPhillips recognized the hazard of excessive accumulations of flammable vapors in thecompressor building.I also conclude the Secretary has established the feasibility of abatement.\u00a0 Theissue on review, with respect to abatement, is whether the Secretary has established thefeasibility of a monitoring and control system which would consist of a \”head\”to detect excessive accumulations of hydrocarbon vapors in Phillips’ compressor buildingand an automatic shut-off of hydrocarbons and electrical power in the event excessivelevels of hydrocarbons are detected.\u00a0 The control system would also have an automaticalarm.In analyzing the evidence on this issue, I begin with the fact that thetechnical feasibility of a gas monitoring and control system has been conceded byPhillips’ own expert witnesses.\u00a0 Both Jack McKenna, a safety consultant and member ofthe National Fire Protection Association, and Chester Klunick, safety manager for Conoco,expressly conceded that such a system is technologically feasible, that it could performthe desired function, and that they had actually seen similar systems in place in computerbuildings.Although both witnesses expressed numerous reservations about such a system,their reservations are not of a type to establish infeasibility.\u00a0 McKenna testifiedthat if all 36 compressors at the plant where he is employed (not Phillips) were shut downat once, the \”whole plant\” would blow up.\u00a0 But the fact is that Phillips’compressor building had only four compressors–two inoperative–and McKenna admitted thathe had \”no idea\” what would happen if these four compressors were shut down.\u00a0 Not only is this testimony inconclusive, it appears to conflict with Klunick’stestimony that the leaking pump should have been shut down immediately.[[7]]\u00a0 Indeed,Klunick suggested that 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 was impractical for tworeasons:\u00a0 cost and unreliability.\u00a0 He testified that the system would beunreliable because it would \”probably\” not be installed in the proper locationto detect the vapor accumulation.\u00a0 This is inconsistent with McKenna’s testimony thatthe explosion occurred not because the vapors accumulated in any one place inside thecompressor building, but because the vapors filled the entire building.\u00a0 In anyevent, having admitted that a monitor could be properly placed to perform effectively,Klunick’s fears that proper placement \”might not\” occur carry little weight.Klunick argued that placing the monitoring system at floor level would probably requiredaily inspection, thus rendering the system \”impractical.\”\u00a0 But Spencer,Phillips’ controlman, testified that he inspected the compressor building four times aday, or every two hours, during his shift alone.\u00a0 Respondent submitted no evidencethat the system could not be checked during one of these routine inspections. \u00a0Moreover, monitoring systems are utilized in other types of facilities, such ascomputerized control room, chemical facilities, aboard ships, and unmanned stations on apipeline.\u00a0 Apparently the systems are not deemed impractical as to these facilities,yet they are alleged to be impractical in a compressor building.\u00a0 No persuasivereason is advanced to distinguish the utility of this device in some facilities, but notin the compressor room.\u00a0 It would also seem apparent that daily inspections are notconducted of monitoring devices at unmanned stations.Klunick also testified that although Conoco does in fact use gas monitoringsystems in computer buildings and elsewhere, he does not consider them reliable.\u00a0 Hestated that the last time he checked one of Conoco’s monitors it was \”23 percent offas far as accuracy is concerned.\”\u00a0 I find it inconceivable that a large andsophisticated operation like Conoco would go to the trouble of installing safety equipmentthat is no more than 75 percent accurate, particularly in installations as valuable ascomputer housing.\u00a0 Inthe absence of specific supporting evidence for Klunick’s assertion, I accord it verylittle weight.Klunick also testified that Conoco had buildings similar to Phillips’compressor building, and that these buildings were not equipped with monitor and controlsystems to protect against a pump failure such as occurred at Phillips’.\u00a0 It is wellestablished that industry custom and practice, although relevant, are not the finaldeterminants of an employer’s obligations under the Act.\u00a0 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).\u00a0 Moreover, Conoco’s practice cannot be the standard by which we measure the adequacyof Phillips’ efforts because the circumstances at the two companies were significantlydifferent.According to Klunick, Conoco took several measures not taken at Phillips toprotect against such failure as is at issue here.\u00a0 Conoco had a continuous inspectionprogram of pumps inside its buildings, including pumps inside those buildings similar toPhillips’ compressor building.\u00a0 It had backup systems so that the line could beswitched to another pump if the primary pump failed.\u00a0 It trained employees so theywould know what to do in emergency situations.\u00a0 Phillips, on the other hand, neverinspected the pump from the day it was put in operation until the day of the explosion.\u00a0 Phillips submitted no evidence that it had a backup system which the employeescould have switched to or that it conducted training programs covering situations such asthe one that occurred.\u00a0 Nor did Phillips submit any evidence that the action of itsemployees after discovering the leaks was in any way in vio- lation of the training theyhad received.The need for a monitor and control system must be assessed in context.\u00a0 If Conocohas, by instituting a greater number of safety precautions than has Phillips, freed itsworkplace of the hazard, the further abatement may be necessary at Phillips, but not atConoco.\u00a0 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 evidence thatPhillips’ compressor building was similar to the maintenance areas where the complianceofficer observed gas monitoring equipment and that the monitoring equipment he did observeelsewhere did not include an automatic gas shut-off feature.\u00a0 Whatever significancethis might have had has been rendered nugatory by Phillips’ own expert testimony thathydrocarbon monitoring and control technology does exist, that it could be installed atthis site, and that it is capable of performing the desired function.\u00a0 Even if thecompliance officer’s testimony, alone, was insufficient to establish feasibility ofabatement, it does not follow that feasibility has not been shown.\u00a0 In determiningwhether feasibility has been established, we will look to the record as a whole.\u00a0 SeeC. 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 hazard ofexcessive accumulation of flammable vapors was recognized by Phillips or the petroleumindustry is rather startling.\u00a0 One would have to conclude that the industry would bejustifiably unconcerned about a serious leak of flammable hydrocarbons, and that there areno reasonable measures to prevent such an occurrence or protect employees.\u00a0 Theindustry practice as presented by Phillips seems to be to simply accept explosions such asoccurred in this instance.\u00a0 If this does bespeak industry practice, I do not agreethat it could do no more.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]) telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] 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 employees employment and aplace of employment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to his employees.[[2\/]] Phillips’ compressor building was a single level brick structure,approximately 130 feet long.\u00a0 The building housed 4 compressors.\u00a0 Two trenchesor pits, approximately 42 to 48 inches deep, ran the length of the building.\u00a0 Thepump to which the nipple in question was connected drew condensate or liquid off a vessellocated outside of the building and transferred the liquid to another part of Phillips’process also located outside the compressor building.\u00a0 The explosion blew out aportion of the roof.\u00a0 One employee lost time from work as a result of injuriesincurred in the explosion.\u00a0 His injuries resulted, however, from a fall when hetripped while running away from the compressor building.\u00a0 The remaining 16 employeeswere treated for cuts and scratches in Phillips’ infirmary and then returned to work.[[3\/]] In his complaint, the Secretary amended the citation to delete fromeach item the concluding phrase \”thereby exposing employees to the hazard of fireand\/or explosion.\”[[4\/]] At the time of the hearing, Anthony had been employed as a complianceofficer for a period of five years.\u00a0 He had previously served as a base safetyofficer in the military.\u00a0 Mr. Anthony had \”no knowledge of the refiningprocessing\” from his military experience, but had inspected three refineries whilewith OSHA.\u00a0 The Phillips inspection was his first inspection involving a fire orexplosion at a refinery.[[5\/]] We note that item three of the citation alleged that Phillips’ failureto provide an adequate ventilation system was a violation of section 5(a)(1).\u00a0 Theevidence shows and the judge found that Phillips would be required to partially rebuildthe compressor building to install the ventilation system.\u00a0 Based on this finding,the judge concluded that the proposed ventilation system was infeasible and he vacateditem three.\u00a0 The Secretary does not take issue with this finding.\u00a0 With respectto item one, we note that the judge affirmed a serious violation based on his finding thatPhillips failed to use its alarm system to warn its employees of the situation thatexisted in the compressor building.\u00a0 Phillips does not take issue with this finding.\u00a0 Thus, the only item remaining in contest is item two, alleging failure to install amonitoring 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 citation separately alleged thatPhillips failed to provide a ventilation system adequate to prevent the accumulation offlammable vapors.\u00a0 The evidence shows and the judge found that Phillips would berequired to partially rebuild the compressor building to install such a ventilationsystem.\u00a0 Based on this finding, the judge concluded that the proposed ventilationsystem was infeasible and vacated item three.\u00a0 The Secretary did not seek review ofthis holding.\u00a0 Thus, it has already been determined that one of the four functionsthat the proposed monitoring and control device was to perform is not feasible.[[7]] The compressor cannot operate without a functioning pump to draw offliquids.\u00a0 Therefore, if the pump is shut down the compressor must also be shut down.”