“SECRETARY OF LABOR,Complainant,v.UNION OIL COMPANY OF CALIFORNIA,Respondent.OSHRC Docket No. 85-0111_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The United States Court of Appeals for the Seventh Circuit has remandedthis case to us so that we may determine the penalty to be assessedUnion Oil Company of California. _McLaughlin v. Union Oil Co. ofCalifornia_, 869 F.2d 1039 (7th Cir. 1989).The Secretary of Labor issued Union Oil two citations allegingviolations of the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651 _et_ _seq._ (\”the Act\”). Citation 1 alleged that Union Oil hadcommitted three willful violations; citation 2 alleged one seriousviolation. The Secretary proposed the maximum penalties permitted underthe Act, $10,000 for each of the three willful items and $1,000 for theone serious item. _See_ sections 17(a) and 17(b) of the Act, 29 U.S.C.?? 666(a) & (b).Item 1 of citation 1 alleged a willful violation of section 5(a)(1) ofthe Act, 29 U.S.C. ? 654(a)(1), known as the \”general duty clause.\” Item2 alleged a willful violation of 29 C.F.R. ? 1910.132(a). Item 3contained six sub-items alleging violations of various subsections of 29C.F.R. ? 1910.156(c). These sub-items together allegedly constituted onewillful violation of section 1910.156(c). Citation 2 alleged that UnionOil had committed one serious violation of section 5(a)(1).The administrative law judge who heard the case found that Union Oil hadcommitted a willful violation of section 5(a)(1) and affirmed item 1 ofcitation 1. He assessed a $10,000 penalty for that item.Addressing item 2 of citation 1, the administrative law judge concludedthat the requirements of 29 C.F.R. ? 1910.132(a) applied to certainclasses of Union Oil’s employees but not to others. He consequentlyfound a violation, but only as to some of the employees covered by item2 of citation 1. He found that the violation was willful as to theemployees covered, but he reduced the penalty from $10,000 to $4,000.The judge affirmed five of the six sub-items of item 3. He found thatthe violations alleged in sub-items 3A, 3C, and 3E were willful andassessed a combined penalty of $6,000 for the three. The judge affirmedsub-items 3D and 3F as serious, rather than willful, violations andassessed a $1,000 penalty for these. He vacated the remaining sub-item, 3B.In citation 2, the judge found that there had been a serious violationof section 5(a)(1) and assessed the proposed penalty of $1,000. Thepenalties assessed totaled $22,000.The judge’s decision was not directed for review by the Commission, andboth parties appealed to the court of appeals.The court held that the judge had erred in limiting his finding of aviolation of section 1910.132(a) to certain employees. It said that allthe employees described in item 2 of citation 1 had to be provided withprotective equipment under that standard. The court held, however, thatthe violation of section 1910.132(a) was not willful because Union Oil’sinterpretation of the standard was not frivolous. The court alsodisagreed with the administrative law judge’s finding that item 1 ofcitation 1 was willful.Although Union Oil challenged on appeal the judge’s findings with regardto the five sub-items in item 3 of citation 1 that were affirmed by theadministrative law judge, the court did not address these itemsspecifically. It found that the judge committed no clear error infinding that one group of employees was inadequately trained. The courtsaw no need to discuss Union Oil’s other challenges to the judge’sfindings, holding that those challenges had no merit. The courtsimilarly rejected Union Oil’s challenge to the judge’s affirmance ofcitation 2. The judge’s disposition of item 3 of citation 1 and ofcitation 2 therefore stands.Under section 17(j) of the Act, 29 U.S.C. ? 666(j), in assessingpenalties, the Commission must give due consideration to the size of theemployer, the gravity of the violation, the good faith of the employer,and the employer’s history of previous violations. Having consideredthose factors, we modify the judge’s decision to assess the followingpenalties for the violations found non-willful by the court: $1,000 foritem 1 of citation 1 (section 5(a)(1)), and $1,000 for item 2 ofcitation 1 (section 1910.132(a)). We affirm the judge’s penaltyassessments for those violations not disturbed by the court: $7,000 foritem 3 of citation 1 (section 1910.156(c)), and $1,000 for citation 2(section 5(a)(1)). We therefore assess a total of $10,000 inpenalties.[[1\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 26, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.UNION OIL COMPANY OF CALIFORNIA,CHICAGO REFINERY,Respondent,OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION, AFL-CIO,and its Local 7-517,Authorized Employee Representative.OSHRC DOCKET NO. 85-0111_DECISION AND ORDER_Child, JudgeAPPEARANCES:For the Complainant:Richard J. Fiore, Esq., Chicago, IllinoisLisa R. Williams, Esq., Chicago, IllinoisMark A. Holbert, Esq., Chicago, IllinoisPeter D. Broitman, Esq., Chicago, IllinoisFor the Respondent:Mark A. Lies, II, Esq., Chicago, IllinoisRobert H. Joyce, Esq., Chicago, IllinoisRobert E. Mann, Esq., Chicago, IllinoisFor the Authorized Employee Representative:Bill Wittig, Lemont, IllinoisGary Woods, Lemont, IllinoisRobert B. Hattendorf, Lemont, Illinois_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_ _seq_.,(the Act). Complainant seeks affirmance of Citation No. 1 issued torespondent January 11, 1985, charging: one item of willful violation ofsection 5(a)(1) of the Act[[1\/]] for alleged failure to furnish a placeof employment free of the hazard of fire and explosion resulting fromfailure to properly repair and adequately inspect for corrosion anddeterioration pressure vessels containing liquefied petroleum productsin process of production, and two items of willful violation of section5(a)(2) of the Act for alleged failure of the respondent to comply withvarious standards adopted by the Secretary of Labor having to do withpersonal protective equipment and training to be provided employee firefighting personnel. Complainant seeks affirmance of the proposed penaltyof $30,000.00 for these allegedly willful violations.Complainant also seeks affirmance of Citation No. 2, issued torespondent January 11, 1985, charging one item of violation of section5(a)(1) of the Act for alleged \” . . . lack of effective emergencyevacuation procedures and education and training of personnel in saidprocedures,\” and of the penalty proposed thereon in the sum of $1,000.00.The matter came on regularly for hearing at Chicago, Illinois,commencing on the 21st day of April 1987, and concluding on the 3rd dayof June 1987. The parties were permitted to submit posthearing briefs,proposed findings of fact and conclusions of law, replies andsur-replies as they desired. Each has submitted post-hearing briefs.Respondent has submitted proposed findings of fact and conclusions oflaw. Complainant and respondent have each submitted replies to theother’s post-hearing brief and sur-replies to the other’s reply.To the extent proposed findings of fact and conclusions of law submittedby the respondent are consistent with those entered herein they areaccepted; to the extent they are not so consistent they are rejected.As stated at pages 89-91 of respondent’s Post-Trial memorandum the only\”affirmative defenses\” claimed by the respondent are: (1) compliancewith the Illinois Boiler and Pressure Vessel Safety Act regardingrespondent’s pressure vessel inspection program and the recordsmaintained thereof in effect preempts an action brought by the Secretaryclaiming violation of the \”general duty clause\” of the Act (Citation No.1, item 1), and (2) compliance with certain aspects of the complainant’sproposed evacuation program, requiring evacuation of all employees fromthe operating units, would create an increased hazard (Citation No. 2,item 1). There can be no greater hazard affirmative defense to analleged violation of the general duty clause. _Secretary v. RoyalLogging Company_, 7 BNA OSHC 1744, 1751 (No. 15169, 1979), affirmed 645F.2d 822, 830 (Ninth Cir. 1981). _See_ Issue Q, _infra_.Jurisdiction of the subject matter and of the parties has been admittedand is not an issue._The Issues_:Issues raised by the citations and the pleadings to be here determined are:A. Was the respondent in violation of section 5(1)(1) of the Act asalleged in Citation No. 1, item 1?[[2\/]]B. Would compliance by the respondent with the Illinois Boiler andPressure Vessel Safety Act, if compliance there be, constitute a bar tocomplainant proceeding under section 5(a)(1) of the Act?C. If respondent was in violation of section 5(a)(1) of the Act as setforth in Issue A, was that violation willful?D. If respondent was in violation of section 5(a)(1) of the Act as setforth in Issue A what penalty would be appropriate?E. Was the respondent in violation of 29 C.F.R. 1910.132(a) for failureto provide and require the use of protective fire fighting equipment asalleged in Citation No. 1, item 2?[[3\/]]F. If respondent was in violation of the standard as alleged in Issue E,was that violation willful, or failing that, serious?G. If respondent was in violation of the standard as alleged in Issue E,what, if any, penalty would be appropriate?H. Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) asalleged in Citation No. 1, item 3A?[[4\/]]I. Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) asalleged in Citation No. 1, item 3B?[[5\/]]J. Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) asalleged in Citation No. 1, item 3C?[[6\/]]K. Was the respondent in violation of 29 C.F.R. 156(c)(2) as alleged inCitation No. 1, Item 3D?[[7\/]]L. Was the respondent in violation of 29 C.F.R. 156(c)(3) as alleged inCitation No. 1, item 3E?[[8\/]]M. Was the respondent in violation of 29 C.F.R. 1910.156(c)(4) asalleged in Citation No. 1, item 3F?[[9\/]]N. If the respondent was in violation of any or all of Issues H thru M(items 3A thru 3F), was such violation willful or failing that serious,in whole or in part?O. If the respondent was in violation of any or all of Issues H thru M(items 3A thru 3F) what, if any, penalty or penalties would be appropriate?P. Was the respondent in violation of section 5(a)(1) of the Act asalleged in serious Citation No. 2, item 1?[[10\/]]Q. Would an evacuation plan as proposed by complainant create a greaterhazard to respondent’s employees and thus become other than feasible?R. If respondent was in violation of section 5(a)(1) of the Act as setforth in Issue P, above, what penalty would be appropriate?_The Catastrophic Event_During the afternoon shift on July 23, 1984, a vapor cloud was observedto be coming from the vicinity of a large pressure vessel in theUnsaturated Gas Plant of respondent’s Chicago Refinery.The vessel, known as and hereafter referred to as 12D701, was 8? feet indiameter and rose in excess of 53 feet above the ground. Known as theamine absorber, 12D701 received liquefied propane and butane gas (C3-C4)rich in hydrogen sulfide (H_2 S) at a port near the bottom of thevessel. The liquefied propane and butane gas would rise in the vesselthrough a series of perforated trays, exiting at the top relatively leanof H_2 S. An amine solution consisting of monoethanolamine in water(MEA) would enter the vessel at the top and, flowing downward counter tothe flow of the liquefied petroleum product through the perforatedtrays, would strip the H_2 S from the liquefied propane and butanegases. The amine solution would exit the vessel at the bottom having inthe process become rich in H_2 S.The liquefied propane and butane gases would flow to the next pressurevessel in the process for additional treatment involving removal ofother sulphur compounds. (Tr. 81-83, 330-331; Exhibit C-8)At approximately 5:30 p.m. on July 23rd personnel at the Fluid CatalyticCracking Complex (FCC unit) received warning by telephone from personnelfrom an adjacent unit of a possible leak. (Tr. 355) Upon receiving thetelephone warning, outside operator Wayne Kielma and assistant operatorsRobert Gomer, George Smith and Robert Haggard left the field shelter,referred to as the unit satellite, and observed a vapor cloud about15-20 feet long approximately 12 feet above the ground in the vicinityof 12D701. (Tr. 354-358, 443-447)The vapor cloud was observed to be originating from a horizontal crackat or near a circumferential weld of vessel 12D701. When first observedthe crack appeared to be 6 to 9 inches long. (Tr. 359) The leak at thispoint was through the fixed ladder that goes up the side of the vesselto the top of the vessel. It prevented climbing to the top of the vesselto actuate a mechanically operated pressure relief valve. (Tr. 383, 384)Mr. Kielma by means of the portable radio on his person informed theinside operator on the unit of the leak and its size and location. Theinside operator had a telephone connection with the guard gate fromwhence a 222 alarm would be sounded. After Mr. Kielma made his initialreport to the inside operator he heard the 222 alarm sounding. (Tr. 389,506, 507) He then walked around the tower and determined there were noother leaks and asked the assistant outside operators to lay out andconnect steam hoses and direct steam at the leak. (Tr. 360, 447) He alsoasked one of the assistants to get a ladder.The purpose of the ladder was to permit access to some valves elevatedon the east side of vessel 12D701. These valves if operated would permitredirecting the flow of \”product\” to a different vessel, thus bypassing12D701. The ladder, when brought, was only about an 8 foot A frameladder and to reach the valves Mr. Kielma had to stand on the very topof the ladder. This left him inadequate \”leverage\” to open or close thevalves. (Tr. 360-362) He was unable to operate any of the four valves atthat location which, had he been successful, would have isolated thevessel by eliminating the flow in and out. After descending from theladder he told one of his assistants they would have to shut the wholeunit down. (Tr. 363) By this time the crack had lengthened to the westand now appeared to him to be 1? to 2 feet in length. (Tr. 364)While Mr. Kielma was attempting to thus bypass 12D701 a fire truckarrived at the unit and Mr. Kielma saw Perry Parker, a member of theshift fire brigade standing next to the truck approximately 12-18 feetsouthwest of 12D701. Mr. Parker was wearing no fire fighting equipmentat that time. (Tr. 368, 369; Exhibit C-23) During the attempt to controlthe escaping vapor by directing steam on it, Chris Watkins, anothermember of the shift fire crew was observed to enter the unit wearingonly blue jeans and a flannel shirt, i.e., not wearing turnout gear.(Tr. 452, 2197, 2201, 2216)Mr. Kielma then told Bill Drury, cracking shift supervisor, while thetwo were standing about 25 feet from vessel 12D701 that he was unable toisolate the vessel and it would be necessary to shut down the entireunit which would take 30-45 minutes. Mr. Drury approved and said hewould get Mr. Kielma some help. Mr. Drury took a step northeasterlytoward the control center and Mr. Kielma took a step toward the FCC sideof the complex. (Tr. 371, 372)At this point 12D701 failed. Mr. Kielma experienced an explosion whichthrew him northerly followed in 2 or 3 seconds by a wall of fire. (Tr.372-374)As a result of the explosion the upper portion consisting of six coursesof this seven course tower, vessel 12D701, was propelled through the aircoming to rest 3200 feet from point of origin, spewing its contents asit went.The explosion and following conflagration resulted in the deaths of 17employees and lost worktime injuries to 14 other employees ofrespondent. (Exhibit C-23)The Occupational Safety and Health Administration (OSHA) conducted aninvestigation into the causes of failure of vessel 12D701 and the fire,explosion, deaths and injuries which resulted therefrom which culminatedin the issuance of the citations, subject of this action. (Tr. 3190, 3196)Metallurgical examination of significant portions of vessel 12D701 wasconducted by the United States National Bureau of Standards after theincident of July 23, 1984. (Tr. 853, 878, 884; Exhibit C-44) Thisexamination revealed that pressure vessel 12D701 had fractured along apath adjacent to a circumferential repair weld joining Course 1 andCourse 2 performed in 1974 at the time of the replacement of Course 2.(Tr. 928, 1031-32) This repair welding had caused a hard microstructureto form in the area of the metal where the base metal and the weld metaljoined. (Tr. 1031, 1032) This area is referred to as the heat-affectedzone. (Tr. 930) This hard microstructure, identified as \”martensite,\”developed as a result of rapid cooling of the carbon steel creating aregion of metal that was more brittle than the adjacent base metal andtherefore more susceptible to both cracking and crack propagation. (Tr.1032)The examination disclosed that at the time of the catastrophic ruptureof pressure vessel 12D701, there existed four pre-existing cracksadjacent to the weld connecting courses 1 and 2 equal to approximatelyforty percent of circumference of the vessel. These cracks, open to theinside surface of the vessel, extended to depths beyond midthickness ofthe one inch vessel wall. (Exhibit C-49) The surfaces of thesepre-existing cracks were blackened by deposits of iron sulfide, theknown by-product of the corrosion process produced when steel comes incontact with hydrogen sulfide. (Tr. 921-926; Exhibit C-48) Exhibit C-49depicts by hash marks, the general location of these pre-existing cracksin the vessel wall adjacent to the weld connecting courses 1 and 2.The investigation disclosed that when the deepest of the pre-existingcracks extended through more than ninety (90) percent of the wallthickness, the remaining 1\/10 inch ligament of steel, weakened by theabsorbed hydrogen had insufficient remaining strength to contain thepressurized liquefied propane and butane gases. This remaining 1\/10 inchligament of vessel wall therefore broke through causing the initialcrack and resulting leak. This crack continued to tear and propagatealong the hydrogen weakened and embrittled vessel until completeseparation of the upper and lower sections of the vessel occurred. (Tr.960-63)_Discussion__Issue A:_Was the respondent in violation of section 5(a)(1) of the Act as allegedin Citation No. 1, item 1?To establish a violation of section 5(a)(1) of the Act, commonlyreferred to as the \”general duty clause,\” the Secretary must prove by apreponderance of the evidence (1) that a condition or activity in theemployer’s workplace presented a hazard to employees, (2) the hazard wasrecognized either by the employer or generally within the employer’sindustry, (3) the hazard was likely to cause death or serious physicalharm, and (4) that feasible means existed to eliminate or materiallyreduce the hazard. _See_ _Inland Steel Co._, 12 BNA OSHC 1968, 1986 CCHOSHD ? 27,647 (OSHRC No. 79-3286, 1986); _Pelron Corporation_, 12 BNAOSHC 1833, 1835 (No. 82-388, 1986); _Phillips Petroleum Co._, 11 BNAOSHC 1776, 1984 CCH OSHD ? 26,783 (OSHRC No. 78-1816, 1984); _ChevronOil Company_, 11 BNA OSHC 1329, 1331 (No. 10799, 1983); _National Realty& Construction Co. v. OSHRC_, 489 F.2d 1257 (1 BNA OSHC 1422) (D.C. Cir.1973).(1)Due to the known flammable and explosive properties of petroleumproducts, and particularly of liquefied petroleum gases which must bemaintained under pressure, petroleum refineries must necessarily bedesigned and maintained in such fashion as to reduce the potential offire and explosion resulting from unintended escape of the product inprocess of refinement. Where that product moves through vessels underpressure, the integrity of such vessels to support the expectedpressures must be safeguarded.Fire and explosion can result when liquefied petroleum gases are allowedto escape into the atmosphere during the process of refinement.Leaks of product from pressure vessels occur from cracks which areallowed to grow. Cracks in the walls of pressure vessels are known tooccur (1) in heat affected zones adjacent to welds where a hard orbrittle condition known as martensite is allowed to occur or remainfollowing welding operations, and (2) where carbon steel of the typeutilized in vessel 12D701 is exposed to H_2 S, particularly whereevidence of corrosion in the form of hydrogen attack is observed.Failure to apply recognized welding procedures or post-weld treatment toreduce or eliminate martensite and inadequate inspection to detect thepresence or development of stress cracking or hydrogen induced crackingwould permit cracking to develop to the point of vessel failure andincrease the likelihood of fire and explosion of petroleum product towhich hazard operations personnel are exposed. See _National Realty_,_supra_, 1 BNA OSHC at 1427. See also _Pelron Corporation_, _supra_, 12BNA OSHC at 1835.(2)That the increased hazard of fire and explosion of refinery product waspreventable and could be eliminated or could be materially reduced wasrecognized by the respondent is established by the existence since 1957of an inspection department at respondent’s Chicago refinery. Thisdepartment, sometimes referred to as the Corrosion and FoulingDepartment, was responsible for monitoring the condition of pressurevessels located at the refinery to assure their ability to operatesafely. (Tr. 553-54, 564, 572, 690-93, 1674, 1679, 1680, 1804-05, 3718).Following 1975 the inspection department was intended to qualify underand assure respondent’s compliance with The Illinois Boiler and PressureVessel Safety Act (hereinafter \”The Illinois Act\”). (Illinois RevisedStatutes, Chapter 111?, ? 3201 _et. seq._, Exhibit C-59; Respondent’sPost Trial memorandum p. 3; Tr. 3607, 3625, 3626; Exhibit R-6)From the time of its creation in 1957, the inspection department atrespondent’s Chicago Refinery was guided by the recommended practicesfor inspection of pressure vessels published by the American PetroleumInstitute (API). (Tr. 622, 623, 690-692; Exhibits C-61, C-62, C-63,C-64, C-65; and API 510)In accommodating the inspection requirements of The Illinois Act afterits adoption in 1975, The respondent as an \”owner user\” under that actelected to be governed by API 510.[[11\/]] (Tr. 3620, 3621; Exhibit R-6)The Illinois Act contemplated that inspections of pressure vesselswithin that state would be performed by the state’s Chief Inspector orby a Deputy Inspector or in the case of qualified owner user situations,i.e., the respondent, by Special Inspectors.[[12\/]]Section 2.2 of API 510 contains its own set of requirements forinspector qualifications.[[13\/]]API 510 by its terms applies to vessels after they have been placed inservice. (Exhibit C-60, p.1, section 1.1.1) However, API incorporates inprinciple the provisions of the Boiler and Pressure Vessel Codepublished by the American Society of Mechanical Engineers (ASME Code).In doing so, the API states that although the ASME Code is written fornew construction, most of its requirements apply to maintenanceinspection, repair and alteration of operating vessels. Where the ASMECode provisions do not apply, API 510 applies in lieu of strictconformance with the ASME Code. (Exhibit C-60, p.1&2, sections 1.2.2 and1.2.3; Tr. 802, 803)Section V of the ASME Code is specifically referred to at Section 3.5 ofAPI 510 as a guide to performing many of the non-destructive examinationtechniques utilized in inspection; and Section V of the ASME Code adoptsthe guidelines for determining qualifications of persons utilizingnondestructive examination methods as they appear in \”RecommendedPractice for Nondestructive Testing Personnel Qualification andCertification\” published by the American Society for NondestructiveTesting. (Exhibit 66, p.8, section T-170, footnote 3; Exhibit C-67)____________________Pressure vessel 12D701 was designed and fabricated in accordance withthe ASME Code which governs the fabrication of pressure vessels. It wasconstructed of A516-70 carbon steel, one inch thick consisting of a topand bottom head and seven cylindrical sections referred to as coursesall joined by circumferential welds. Designed to operate at a maximumoperating pressure of 230 psi at a maximum temperature of 140? F, 12D701was placed in service in the spring of 1970. (Exhibits C-35, p.00622 andC-44) As operated, the pressure was maintained at 230 psi measured atthe top of the tank with the practical result that the lower coursesexerted greater pressure on the walls of the tank due to the weight ofthe product above. (Tr. 100, 105)Commencing in 1972 and biannually thereafter 12D701 was subjected to aturnaround inspection which involved shutdown of the operation affectingthe vessel, external and internal inspection of the vessel and itscomponents and repairs where necessary. (Tr. 589-591)In the course of the 1972 turnaround, inspection disclosed corrosiondefects in the walls of 12D701 resulting from the action of hydrogen onthe A516-70 carbon steel. Hydrogen in its atomic form passes through thesteel and dissipates harmlessly into the atmosphere. However, ifhydrogen atoms in passing through the steel encounter flaws which occurat the time of pouring and\/or rolling the steel during its manufactureconsisting of inclusions of foreign material, the atomic hydrogen thereaccumulates and converts to molecular hydrogen. In the processtremendous heat and pressure is exerted causing the inclusion to becomea lamination within the steel. Where these laminations occur near thesurface of the steel they appear as blisters. Should laminations, whichgenerally run parallel to the surface of the steel, be joined by crackswhich tend to run at right angle to the surface, hydrogen step crackingis said to have occurred. (Exhibits C-51 and C-52) Also, pitting canoccur on the interior surface of the vessel as a result of hydrogenattack. Pitting and blistering were observed to have occurred on theinterior of 12D701. Notes of the inspection disclose: \”The second sheetup has a large area of dirty metal or laminations and some hydrogenblistering has taken place.\” A coupon was removed through one of thehydrogen blisters and sent to respondent’s research center in Brea,California, for observation. (Exhibits C-16 and C-34, pp. 30-31)The coupon removed came away in two pieces, separated at the lamination.The inner piece had a thickness of .30 inch. The research centerreported to the inspection department at respondent’s Chicago refineryin May of 1972 that its examination disclosed a large number of \”openedlaminations,\” more appearing on the inner portion of the wall than theouter portion. Also, the steel was found to be within specificationswith hardness \”. . .well below the critical hardness at which point onemight expect hydrogen embrittlement.\” Finally, the report disclosed:\” . . .Most of the laminations which separated were parallel to thewalls of the vessel, although I did find several that had joined in adirection perpendicular to the wall thickness. . . . joining of thelaminations can lower the strength of the wall;\” (Exhibit C-18)Due to the corrosion deterioration of the 2nd course of 12D701, thatcourse was scheduled to be replaced during the 1974 turnaround. Usingthe same grade of carbon steel, to-wit: A516-70, the new replacementsecond course was installed in 1974 in three pieces requiring threevertical and two circumferential welds accomplished without dismantlingthe tower and while it remained standing. The first contractor engagedto do the repair proved unsatisfactory and the repair was cleaned up byremoving welds performed and completed by a second contractor. Inaddition to the replacement of the second course, a process change wasperformed on 12D701 during this 1972 turnaround. The size of theperforations in the 9 trays were enlarged from 5\/16\” to 3\/8\” to permitan increase in the flow or \”throughput\” of petroleum product treated.(Exhibits C-15, C-17 and C-34, p.29)Visual inspection of the balance of 12D701 during the 1974 turnarounddisclosed continuing corrosion and attack by hydrogen in the form ofnumerous small hydrogen blisters on the interior of the first course ofthe vessel.After completion of second course replacement and tray perforationenlargement the vessel was returned to service.Ultrasonic thickness examination of the first course in October of 1975caused the respondent’s inspection department to conclude \”dirty steelbottom ring.\” (Exhibit C-34, p.29)Straight beam ultrasonic (Sonoray) examination causes an ultrasonic beamfrom the surface to measure the thickness of a wall of steel. Aninterruption of that beam caused by meeting a place where a laminationhas occurred will cause the thickness of the wall to appear to be thedistance from the surface point of origin of the beam to the point ofthe lamination. Thus false readings of wall thickness would beinterpreted as disclosing laminations, sometimes referred to asdiscontinuities.In the spring of 1976 a turnaround inspection was again done on 12D701.This time visual inspection disclosed:\”Small ‘raindrop’ like blisters on top of #7 and #8 downcomers. . . .Blistering occurring on second ring southwest side. . . . The entiresurface of shell plate, ring #1 had many blisters ranging in size from?\” to 1\” in diameter. The lamination of the blister varied from .16\” to.38\”. (Exhibit C-34, p.29)Courses 3, 4, 5, and 6 are now observed to \”appear to be in goodcondition except that many areas have dirty metal or lamination.\”(Exhibit C-34, p.28)In order \”to arrest the hydrogen attack on the plate,\” a monel metalliner was welded orange peel fashion to the bottom head of the vesseland monel metal liner was welded to the entire interior surface of thefirst course, excepting only a distance of ten inches below a portion ofthe circumferential weld connecting the first and second courses atwhich point one of the perforated trays interfered. The vessel was againreturned to service.By entry dated November 1977, a member of respondent’s inspectiondepartment noted on the record of vessel 12D701:Sonoray coverage on a grid indicated hydrogen evolution to be active.The new plate (1974) in second ring has two localized spots ofsubsurface discontinuities. (Exhibit C-34, p.27)Following the 1982 turnaround the following recommendation was enteredin the history record of 12D701:_Recommend_: Do External UT as time permits & check ring #1 & #2 forlaminations (Ref. LWV Grid Survey 11\/77). (Exhibit C-34, p.24)Notes entered following the 1984 turnaround conducted in or around April1984 included: \”All ultrasonic thickness readings taken on shell areabove nominal thickness\” and \”Six scattered hydrogen blisters, ?\”diameter max., were found in feed tray area, all located within 1 footof circumferential weld.\” (Exhibit C-34, p.24) That the circumferentialweld referred to is that joining course 1 and course 2 is apparent fromthe additional entry for that turnaround, \”bottom head and shell belowfeed tray has Monel lining.\” It will be remembered that the presence ofthe tray prevented monel lining from being placed over a portion ofcourse 1 to a point 10 inches below the circumferential weld.Inspection of vessel 12D701 during the 1984 turnaround was performed byone of respondent’s trainee inspectors, who nonetheless held the titleof \”Inspection Supervisor\”. (Tr. 1682, 1687; Exhibit C-71, p.1)Respondent’s \”Inspection Supervisor\” was assisted in this inspection byan independent inspector supplied to respondent under a contract enteredinto between respondent and an independent inspection contracting company.The head of respondent’s inspection department testified thatrespondent’s \”Inspection Supervisor\” was not the \”team leader\” of thetwo-man team that inspected 12D701 during the 1984 turnaround, (Tr.1683) that he was in fact receiving training in inspecting 12D701 atthat time, (Tr. 1688) and that he was receiving the \”expert guidance\” ofthe independent inspector who was working with him. (Tr. 1689) Thisposition on part of the respondent belies the facts.The independent inspector who participated in the inspection of 12D701during the 1984 turnaround was supplied under a contract which provided:The contractor will provide experienced personnel qualified to performinspection of Petroleum Refinery process equipment and other fieldinspection _as directed by Union Oil Company Representative. . . . Thiswork is to be done under the supervision of the Company InspectionSupervisors_. (Emphasis added) (Exhibit C-75, p.1)Also the independent inspector who participated in the inspection ofvessel 12D701 testified: that in the 1984 turnaround Mr. Granot, head ofrespondent’s inspection department, assigned him to work withrespondent’s inspection supervisor in question; that he knew nothing ofthe inspection supervisor’s background or credentials; that he was toldthat he was to do inspection work with respondent’s inspectionsupervisor; that he performed no training activities; that theinspection supervisor would inform him what they had to do on a dailybasis; that the inspection supervisor was his contact with Mr. Granot;that he took no notes, they were rather taken by the inspectionsupervisor; that he made no recommendations with respect to repair oralterations of any vessels; that during the three weeks he was there heneither certified nor decertified any vessel; that they would inspectfrom two to five vessels each day; and that he initialed no documentsduring the turnaround. (Tr. 1878-1885)This independent inspector has for many years been licensed by the Stateof Indiana, pursuant to examination, as an Unfired Pressure VesselInspector. Before retiring in 1981 he worked for Amoco Oil Refinerywhere he inspected pressure vessels from 1961 until retirement. He holdsno other certifications and has taken no courses given by the AmericanSociety of Nondestructive Testing. He considered the interiorinspections of vessels they inspected during the turnaround to be inaccordance with his understanding of good industry inspection practices.(Tr. 1889-1891, 1902; Exhibit C-67 p.5)Neither member of the two-man team that inspected vessel 12D701 was aSpecial Inspector as that term is defined in the Illinois Act whichprovides:The inspections herein required shall be made by . . . a SpecialInspector provided for in this Act. (Exhibit C-59, sec. 10(7))Notwithstanding the foregoing, Mr. Granot, head of respondent’sinspection department, who made no inspection of vessel 12D701 certifiedto the State of Illinois as required in the Illinois Act that 12D701 wasinspected in 1984 as required by the Act. Mr. Granot was himself aqualified Special Inspector under the Illinois Act. This procedure ofcertifying to the State without having seen the vessel had also beenfollowed in the course of the turnaround inspections since Mr. Granotheaded up the inspection department at respondent’s Chicago Refinery in1977. (Tr. 1802-1804, 3441, 3442)________________________Following the repair of vessel 12D701 in 1974 respondent tested thequality of the repair in three particulars: (1) it submitted the weldsto visual inspection, (2) it subjected the repair welds to radiography,and (3) the vessel was hydrostatically pressure tested to 345 psi.(Exhibits C-34 p.29, C-16 p.30061) Respondent’s engineer in charge ofthe inspection department at the time of the replacement of the secondcourse of 12D701 in 1974 has known since the 1960’s that if welds in anenvironment where atomic hydrogen can be generated have a Brinellehardness over 220, the likelihood of cracking is a possibility. (Tr.677, 682) In the course of the 1974 repair the turnaround was delayed bypoor productivity and welding performed by the contractor first hired.That welding was removed and re performed by a second contractor. Alsorespondent’s records disclose that \”Very poor cuts on plates in D701caused excessive rewelding.\” Notwithstanding these problems no hardnesstests were performed on the repair welds after their completion in 1974or at any time thereafter. (Exhibits C-22 p.2, C-34 pp.24-30) Likewiserespondent appears to have given no consideration to the likelihood thathardening of the base metal in the heat affected zone adjacent to theextensive repair welds might have resulted from this torturouslyperformed field welding. No attempt was made in 1974 or at any timethereafter to rule out the presence of \”martensite.\”The literature of the American Petroleum Institute as well as Chapters Vand VIII of the ASME Boiler and Pressure Vessel Code bear abundantwitness that the petroleum refinery industry recognized the potentialfor hydrogen induced cracking and pressure vessel failure where hardwelds or martensite were allowed to be present as a result of field orrepair welding. Also the literature warned of permitting unrelievedresidual stresses to remain as a product of repair welds. The literaturewarned that such conditions could give rise to Hydrogen Stress Crackingwhere allowed to exist in an environment exposed to H_2 S and advisedmethods both of avoiding the conditions and inspecting for theexistence, development or growth of hydrogen cracking. (Exhibit C-62pp.35, 36, 47, 48; Exhibit C-63 p.4; Exhibit C-64 p.5, 6; Exhibit C-66p.7; Appendix A, attached to Complainant’s Post Trial Brief, pp.10, 12of the 1958 Edition and pp.10, 12 of the 1970 Edition)Particularly useful for the detection of cracks formed or in process inthe shells of pressure vessels were Magnetic Particle Testing and LiquidDye Penetrant Testing. Also Ultrasonic Testing was useful in detectingcracks if angle beam, also referred to as shear beam ultrasonic testingmethod, was utilized. The respondent utilized the straight beam methodof ultrasonic testing which serves only to measure wall thickness or thedepth of discontinuities or laminations. (Tr. 689)Respondent had on hand a portable Telebrineller hardness measuringinstrument and actually measured the hardness of welds at the secondcourse of 12D701 in 1972. (Exhibit C-34, p.30) Respondent also had onhand the equipment for performing the ultrasonic testing, the magneticparticle testing and the liquid dye penetrant testing for cracks.Notwithstanding such capability and awareness of ongoing hydrogen attackrespondent did nothing following the repair welds of 12D701 in 1974 toeither measure the hardness of the repair welds or the base metal in theheat affected zone adjacent to those welds; nor did respondent conductany tests to rule out the presence of cracking in pressure vessel 12D701._______________________________Respondent expresses a defense to be that it should not be responsiblefor failure to detect a \”microscopic\” crack among 700 pressure vessels.There is no evidence the cracks found to be present in vessel 12D701were \”microscopic.\” The evidence is that four cracks covering some 40%of the circumference of the vessel in the vicinity of the horizontalweld joining courses one and two occurred in the \”microstructure\” of themetal in the weld heat affected zone which microstructure took on theproperties of martensite as a result of the welding procedures followedin 1974. (Tr. 1032, 1044, 1055; Exhibit (C-49)(3)That fire or explosion and the increased likelihood thereof resultingfrom undetected cracks would likely cause death or serious physical harmis amply born out by the events at respondent’s Chicago Refinery on July23, 1984. Seventeen employees died and fourteen received injuriesresulting in lost work time as a result of the ignition of refineryproduct which began its escape from an undetected crack in pressurevessel 12D701 and which crack rapidly connected with others around thecircumference of the corrosion weakened wall.(4)Respondent had the feasible means of detecting cracks in the welds orbase metal of pressure vessels at its refinery from prior to 1974 andthrough the time of the catastrophe on July 23, 1984. The timelydetection of hydrogen stress cracks in pressure vessel 12D701 could haveeliminated or materially reduced the likelihood of the leak of productwhich resulted in the fire and explosion of July 23, 1964.Complainant has met its burden of proof of Issue A._Issue B:_Would compliance by the respondent with the Illinois Act, if compliancethere be, constitute a bar to complainant proceeding under section5(a)(1) of the Act?Section 18(a) of the Act addresses State jurisdiction over occupationalsafety and health issues with respect to which no standard is in effectunder section 6 of the Act. In effect section 18(a) makes nointerference with the right of any State agency or court to assertconcurrent jurisdiction over occupational safety and health issues wherethe Secretary of Labor acting through OSHA has promulgated no specificregulation.In the case before us respondent may have failed to comply with therequirement of the Illinois Act that inspection of its pressure vesselsbe performed by \”Special Inspectors\” commissioned by the State ofIllinois. Should the State of Illinois desire to assert jurisdiction andproceed against the respondent for that alleged failure, section 18(a)provides that \”nothing in this Act shall prevent. . .\” it from doing so.There is nothing in the language of the Act or the legislative historyto suggest that Congress intended compliance with the standards ofapplicable state law to create an exemption from the Act’s general dutyclause. See _Puffers Hardware, Inc. v. Donovan_, 742 F.2d 12, 16-17(1st. Cir. 1984), OSHRC No. 83- 1863.The existence of the Illinois Act or compliance therewith would not actas a bar to the Secretary proceeding under the general duty clause ofthe Act as set forth in Citation No. 1, item 1._Issue C_:If respondent was in violation of section 5(a)(1) of the Act as setforth in Issue A, was that violation willful?In order to show a violation of section 5(a)(1) of the Act to have beenwillful, the Secretary has the burden of demonstrating by apreponderance of the evidence the employer’s disregard of or plainindifference to its statutory duty to furnish a workplace free fromrecognized hazards. The evidence produced must be such that itconvincingly establishes that the employer intentionally disregarded orwas indifferent to employee safety. The Secretary may satisfy his burdenby showing aggravating circumstances such as: the employers failure toremedy a visibly dangerous condition actually known to the employer orits supervisory personnel, (_Central Soya De Puerto Rico v. Secretary ofLabor_, 653 F.2d 38 (1st Cir. 1981); _Kus-tum Builders, Inc._, 10 BNAOSHC 1128, 1131 (No. 76-2644, 1981); _Babcock & Wilcox Company_, 7 BNAOSHC 1194 (No. 77-3575-A, 1979); _St. Joe Mineral Corp. v. OSHRC_, 647F.2d 840, 848 (8th Cir. 1981)) or the employer’s deliberate disregard ofknown safety requirements, (_Ensign-Bickford Co. v. OSHA_, 10 BNA OSHC1639 (No. 78-4945, 1982), aff’d., 717 F.2d 1419 (D.C. Cir. 1983).Respondent suggests that this case should be governed by theCommission’s reasoning in _United States Steel Corporation_, 12 BNA OSHC1693 (No. 79-1998, 1986) which ruled the employer not guilty of awillful violation where it had developed a strategy for dealing with thehazard based on the judgment of its managers as to the existence ofconditions that could give rise to an explosion hazard. Here, however,no such strategy was developed for the detection or elimination of cracks.The record establishes that there were applicable industry safetystandards including the API Pressure Vessel Inspection Code andInspection Guides and that respondent had knowledge of those standards.Respondent had in fact obligated itself to observe the API standards byelecting, as permitted by the Illinois Act, to conduct its owninspection program in accordance with API rules and regulationsutilizing \”Special Inspectors\” qualified under the Illinois Act, ratherthan to submit to state inspection of its pressure vessels.Notwithstanding continued observations of ongoing hydrogen attack onpressure vessel 12D701 over the ten year period between 1974 to 1984,respondent failed to utilize recommended and available repair methods toavoid the potential for cracking, or testing techniques to determine thepresence or absence of cracks in the vessel walls or welds. Furthermore,respondent followed a course of conduct which certified to the State ofIllinois on a continuing basis that inspection of pressure vessels wasaccomplished by inspectors qualified under the Illinois Act when suchwas contrary to the fact. Respondent’s repeated failure to test forcracks and its misrepresentation of the quality of the inspectionsperformed is convincing evidence of plain indifference to employeesafety and the statutory duty to furnish a workplace free from therecognized hazard of fire or explosion which could result from leak ofproduct from undetected cracks allowed to form in pressure vessels.Complainant has met its burden of proof with respect to the willfulnature of the 5(a)(1) violation set forth in Issue A._Issue D_If respondent was in violation of section 5(a)(1) of the Act as setforth in Issue A, what penalty would be appropriate?Giving due consideration to the factors set forth at Section 17(j) ofthe Act and by reason of the disregard shown by the respondent of theknown safety requirements of the Illinois Act, and of the variousAmerican Petroleum Institute recommendations regarding welding repairs,inspecting for cracks and inspections conducted by qualified inspectors,it is here determined that the proposed penalty of $10,000 for thiswillful violation is appropriate._Issue E_Was the respondent in violation of 29 C.F.R. 1910.132(a) for failure toprovide and require the use of protective fire fighting equipment asalleged in Citation No. 1, item 2?To prove a violation of section 5(a)(2) of the Act, the complainant mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator Co._, 6 BNA OSHC 2048, 1978CCH OSHD ? 23,135 (No. 16057, 1978) The standard at 29 C.F.R.1910.132(a) has been held to apply to the facts of a case if areasonable person familiar with the circumstances, including factsunique to an industry, would recognize a hazardous condition requiringthe use of personal protective equipment. _Tube-Lok Products_, 9 BNAOSHC 1369, 1981 CCH OSHD ? 25,235 (No. 16200, 1981); _General ElectricCo._, 7 BNA OSHC 2183, 1980 CCH OSHD ? 24,268 (No. 15037, 1980); _LukinsSteel Company_, 10 BNA OSHC 1115, 1123 (No. 76-1053, 1981); _PuffersHardware, Inc_. _dba Beacon Hardware_, 11 BNA OSHC 1701 (83-267, 1983).Evidence presented supports findings of both constructive and actualknowledge of a hazardous condition warranting the use of fire protectiveclothing by all members of the shift fire crews and operating personnelrequired to contain fires and potential fires in the operations areas ofthe refinery.Complainant’s expert, Mr. Lawrence Watrous, a licensed Fire ProtectionEngineer, testified that because of the large amounts of fuel involved,an oil refinery fire may develop from the incipient or small stage intoa major fire within a very short period. Thus operating personnel andthe Shift Fire Crew may necessarily be required to confront majoremergencies before the Day Fire Crew can be called in. (Tr. 2868, 2879;Exhibit C-92) Mr. Watrous further testified that protective gear shouldbe provided to all personnel who may be thus faced with possible vaporignition. (Tr. 2871-72, 2893-95) Internal memoranda clearly demonstratethat respondent’s Fire Chief and other supervisory personnel recognizedthat refinery fires were unpredictable and that the possibility ofencountering a hazardous situation always existed. (Exhibit C-86,pp.18452, 18458-59; Tr. 2595-97)At the time of the 1984 explosion and prior thereto, respondent hadwritten emergency procedures. (Exhibit C-9; Tr. 2630) Under itspolicies: (1) All operating personnel at the refinery were expected toextinguish or contain minor fires located in their work areas as part oftheir regular duties. (Exhibit C-9, p.30012; Tr. 2516); (2) Fires andpotential fires beyond the capabilities of the operating personnel wereto be handled by the Day Fire Crew, volunteers trained to become\”proficient\” in firefighting. (Exhibit C-9, pp. 29988, 30013; Tr. 2517,2520); (3) Members of the Shift Fire Crew, refinery employees fillingdesignated refinery positions and trained to \”adequately\” performfirefighting duties (Exhibit C-9, 29988; Tr. 2590), were to respond attimes when the Day Fire Crew was not present. (Exhibit C-9, pp. 29988,29991; Tr. 2520); (4) The Shift Fire Crew was to call in the Day FireCrew from their homes should a fire develop beyond their capabilities.(Exhibit C-9, p. 29991; Tr. 2524)No protective clothing was provided for or required to be worn byregular operating personnel. (Tr. 2519) All members of the fire crewswere required under standing orders to obtain fire protective turnoutgear consisting of boots, helmet, coat and gloves before reporting to afire or potential fire scene. (Exhibit C-9, pp.29989, 29991; Tr.2525-26) However, Shift Fire Crew personnel testified that the crewregularly responded to fire scenes without the required turnout gear.(Tr. 2248-9, 2287, 2351, 2413, 2425-26, 2430) Respondent’s recordsdisclose that this practice was known to respondent’s Fire Chief, whoexpressed concern over the likelihood of serious injury resultingtherefrom in January 1984. (Exhibit C-86, p.18458; Tr. 2794-99) On theday of the explosion giving rise to this action, Shift Fire Crew memberswho died in the ensuing events were seen to arrive at the scene of thepotential fire without turnout gear. (Tr. 368, 369, 452, 2000-01, 2197,2201, 2216; Exhibit C-23)_____________________________At page 64 of its Post-Trial Memorandum respondent raises the followingdefense:Initially, this citation is legally unenforceable relating to personnelwho are assigned to the shift fire brigade, since 29 C.F.R. 1910.156,relating to fire brigade, does _not_ require the use of personalprotective equipment for shift fire brigades who are required to respondto \”incipient\” stage fires. Further, since the shift fire brigade wasonly required to respond to incipient stage fires, there is no factualbasis for asserting a more general regulation (1910.132) than that whichis specifically applicable to the shift fire brigade.Other than refuting respondent’s indefensible claim that its firebrigades were \” . . .only required to respond to incipient stage fires,\”complainant makes no reply to this defense. Neither party cites anycases or authorities in support of their respective positions. 29 C.F.R.1910, Subpart L – Fire Protection, in pertinent part reads:Subpart L – Fire Protection? 1910.155 Scope, application and definitions applicable to this subpart.(a) _Scope_. This subpart contains requirements for fire brigades, andall portable and fixed fire suppression equipment, fire detectionsystems, and fire or employee alarm systems installed to meet the fireprotection requirements of 29 C.F.R. Part 1910.(b) _Application_. This subpart applies to all employments except formaritime, construction and agriculture.* * *? 1910.156 Fire Brigades.(a) _Scope and application_–(1) _Scope_. This section containsrequirements for the organization, training, and personal protectiveequipment of fire brigades whenever they are established by an employer.(2) _Application_. The requirements of this section apply to firebrigades, industrial fire departments and private or contractual typefire departments. Personal protective equipment, requirements apply onlyto members of fire brigades performing interior structural firefighting. The requirements of this section do not apply to airport crashrescue or forest fire fighting operations.* * *(e) _Protective clothing_. The following requirements apply to thoseemployees who perform interior structural fire fighting. Therequirements do not apply to employees who use fire extinguishers orstandpipe systems to control or extinguish fires only in the incipientstage.* * *Under \”protective clothing\” the standard lists foot and leg protection,body protection, hand protection, head, eye and face protection. Saidprotective clothing is also referred to therein as \”equipment.\” Thereference to \”incipient stage\” fires in ? 1910.156(e) is viewed asapplying only to employees performing \”interior structural firefighting\” referred to also in that paragraph.Nevertheless, the Secretary has, perhaps unwittingly, managed to givenotice in this Subpart L that in all employments except maritime,construction and agriculture, personal protective equipment need not befurnished to or worn by members of employer established fire brigadesunless said brigades are engaged in interior structural fire fightingand then only if the fire is beyond the incipient stage.Subpart L, dealing as it does specifically with fire protection and theneed for fire protective clothing for employer established fire brigadesin industries including the oil refining industry, we are constrained tofollow the Commission’s reasoning in _Williams Enterprises of Georgia,Inc._, 12 BNA OSHC 2097 (No. 79-4618, 1986), _reversed_ _Brock v.Williams Enterprises of Georgia, Inc_. 832 F.2d 560 (11th Cir. 1987)The general standard at 29 C.F.R. 1910.132(a) is held not to apply tothe members of respondent’s fire brigades to whom respondent furnishedprotective clothing. Nevertheless the standard does apply torespondent’s operation personnel who are required to handle the fire orpotential fire until allowed to evacuate by the Chief of the respondingfire crew. Respondent furnished no protective clothing to theseoperations employees. Just as Scott Air Pack respirators hung on thewalls at the respective satellites, so also could have hung protectiveclothing.The complainant has met its burden of proving a violation of 29 C.F.R.1910.132(a) with respect to operating personnel, but not with respect torespondent’s fire brigade members._Issue F_:If respondent was in violation of the standard as alleged in Issue E,was that violation willful, or failing that, serious?In order to show a violation of a standard or regulation under 5(a)(2)of the Act to have been willful the Secretary has the burden of provingby a preponderance of the evidence the respondent’s violative conduct tohave been voluntarily done with intentional or careless disregard forthe requirements of the Act or with plain indifference to employeesafety. See _Williams Enterprises v. Donovan_, 744 F.2d 170, 179-180(D.C. Cir. 1984) 13 BNA OSHC 1249 (No. 85-355, 1987); _Asbestos TextileCompany, Inc._, 12 BNA OSHC 1062, 1063 (No. 79-3831, 1984); _D.A.&L.Caruso, Inc._, 11 BNA OSHC 2138, 2142 (No. 79-5675, 1984); _DanielInternational Corporation v. Donovan_, 705 F.2d 382 (10th Cir. 1983), 11BNA OSHC 1305 (No. 81-1714, 1983). Thus, no showing of malicious intentor of obstinate refusal to comply with the requirements of the Act needbe shown to establish a willful violation. In _Tri-City ConstructionCo._, 8 BNA OSHC 1567 (No. 77-3668, 1980) the Commission stated:While we agree. . . \”that a willful violation is established when. . .the respondent. . . made a conscious and deliberate decision not tocomply\” with a known requirement of the Act, we would also find awillful violation when the respondent’s conduct is properlycharacterized as showing a _careless disregard of the requirements ofthe Act or an indifference to employee safety_. (8 BNA OSHC at 1571)(emphasis added).A violation is said to be \”serious\” under the Act \”. . . if there is asubstantial probability that death or serious physical harm couldresult. . .\” (Section 17 (k))Applying the foregoing principles to respondent’s failure to providefire protective clothing to its operations personnel who were first tohandle fires or potential fire emergencies on respondent’s productionunits and who were expected to remain at the scene until allowed toevacuate by the chief of the responding fire crew, (Tr. 2745) we arecompelled to find that said violation on the part of the respondent wasat the least serious.The hazard presented employees dealing with escaping flammable liquidsor gases is that in a very brief time the situation can change from avery small fire or potential for fire to a major conflagration.That respondent recognized this situation is apparent from its providingits shift fire crews with fire protective clothing and training them inthe use of 2? inch and 3 inch hoses and 2? inch nozzles, notwithstandingrespondent’s claim that its shift fire crews were expected to handleonly \”incipient stage fires.\”Respondent’s training of operations personnel to handle incipient stagefires and its failure to provide fire protective clothing to personnelin the production units who might be faced with controlling escapingflammable liquids or gases while it provided the fire crew membersexpected to come to the scene with such protective clothing must beviewed as conduct voluntarily done with careless disregard for therequirements of the Act and with plain indifference to the safety ofoperations personnel.Complainant has proved respondent’s violation of item 2 of Citation No.1 to have been willful._Issue G:_If respondent was in violation of the standard as alleged in Issue E,what, if any, penalty would be appropriate?Giving due consideration to the factors set forth at section 17(j) ofthe Act and the fact that whereas complainant charged this violation tohave affected shift fire brigade members and unit operating personnel,whereas it has been here found that the regulation violated wasapplicable only to the unit operations personnel; it is here determinedthat the sum of $4,000.00 is an appropriate penalty to be assessedagainst respondent for the willful violation of item 2 of Citation No. 1._Issue H_:Was the respondent in violation of 29 C.F.R. 1910.156(c)(1) as allegedin Citation No. 1, item 3A?The complainant must prove by a preponderance of the evidence that1910.156(c)(1) was applicable to the facts of this case, that respondentfailed to comply with_the standard by failing to provide adequatetraining to fire brigade members and employee exposure to the hazardcreated by the violative condition. _Otis Elevator Co., _supra_., IssueE, p.44.General knowledge and the evidence presented at the hearing compel anawareness of the rapidity with which an incipient stage fire or even apotential fire not yet ignited can become a major conflagration in anoil refinery environment. (Tr. 2865-67) Flammable vapors emitted from aleaking vessel, given a source of ignition, can ignite in an instantenveloping personnel in the vicinity. Respondent’s knowledge of theflammable properties of its various products is beyond dispute.Notwithstanding the foregoing, respondent claims to have required itsshift fire brigades to respond only to incipient stage fires and to havetrained them accordingly. (Tr. 4742; Respondent’s Post-Trial Memorandum,pp. 26, 64, 67, Respondent’s Post-Trial Reply Memorandum p.35)As of March 17, 1982, the Fire Protection Department at respondent’sChicago Refinery considered its \”fire suppression force\” to be organizedand trained as follows:A. PERSONNEL1. All Refinery EmployeesEach employee is expected to fight fires in his or her work area and tobe proficient in the use of the fire fighting equipment provided. Thisincludes portable hand held fire extinguishers, hose reels and monitors.All employees will attempt to safely extinguish minor fires using theabove equipment or contain the fire until additional fire fightingpersonnel and equipment have arrived.2. Shift Fire CrewThe Shift Fire Crew shall provide initial control and suppressionmeasures during nights, weekends and holidays. The Shift Fire Crew shallbe composed of the Laboratory Personnel, Coke Handlers, Pumpers andShift-fitters. Training for these personnel shall be held on abi-monthly basis to ensure familiarity with the equipment available to them.3. Day Fire Crew of The Fire DepartmentThe Fire Department is composed of members who, on a voluntary basis,have agreed to attend monthly training sessions to become proficient inthe handling of in-plant emergencies. Members of the Fire Departmentwill also, after a given period of membership (usually 2 years) and withthe individual’s consent, attend a second monthly class to learn theproper method of operation of all mobile firefighting equipment.The Shift Fire Crew and Day Fire Crew and their training were furtherdefined:_SHIFT FIRE CREW_The purpose of the Shift Fire Crew is to provide fire protection whenthe Day Fire Crew is not present. The Shift Fire Crew is headed by thePetrochemical Department Shift Supervisor unless the incident involvesthe Petrochemical Operating Area. In this case, the Blending andTransfer Shift Supervisor shall assume the responsibilities as head ofthe Shift Fire Crew. Whenever possible, both the Petrochemical andBlending and Transfer Shift Supervisor shall respond, with the Blendingand Transfer Shift Supervisor assisting the Petrochemical ShiftSupervisor when both are present. The acting coordinator of the ShiftFire Crew shall hereafter be referred to as the Shift Fire Chief.The Shift Fire Crew is comprised of the following job classifications:1. Pumpers2. Laboratory Personnel3. Coke Handlers4. Shift PipefittersTraining sessions for Shift Fire Crew personnel are held on a bi-monthlybasis. Classes consist of practical and classroom instruction to enablemembers to adequately perform fire fighting duties._DAY (VOLUNTEER) FIRE CREW_The Day Fire Crew provides fire protection during weekdays, between 7:30A.M. and 4:00 P.M. and assists the Shift Fire Crew upon request.Membership consists of both salaried and hourly personnel who normallywork straight days and who have volunteered for membership.Training sessions for the Day Fire Crew are held on a monthly basis.Additional half-day classes will be held monthly for members classifiedas apparatus engineers. Apparatus engineers will be certified afterpassing a comprehensive written and practical examination.(Exhibit C-9, pp. 23988, 30012, 30013 see also pp. 30017, 30018)It will thus be seen that the Shift Fire Crew, who were assigned asfirefighters along with their Shift Fire Crew Chiefs as part of theirrefinery job description, received less and inferior training than theDay Fire Crew, who volunteered to serve and agreed to attend monthlytraining session. (Tr. 2748-49)That respondent actually expected its Shift Fire Crews to respond to andhandle fires greater than incipient stage is manifest by respondent’sfurnishing fire protective clothing to be worn by the members of saidcrews. (Tr. 4825)Respondent had a written rule in its emergency procedures plan thatprotective clothing would be put on by members of the fire crews beforereporting to the scene of a fire or potential fire. (Exhibit C-9, pp.29989, 29991, 30014; Tr. 2525-26) Respondent’s Fire Chief expressed hisconcern when the rule requiring the wearing of turnout gear was notobeyed by fire crew members. (Exhibit C-86, p.18458; Tr. 2794-99)That respondent knew its Shift Fire Crews would in all likelihood befacing major fires rather than \”incipient stage fires\” is furtherapparent from a review of respondent’s Shift Fire Crew training recordswhich reveal that at eleven training sessions in 1983 alone, traininginvolved use of 3 inch hose, 2? inch hose and 2? inch nozzles. (ExhibitC-89, 17708, 17718, 17721, 17722, 17728, 17729, 17730, 17731, 17732,17735 and 17737)Respondent argues:\”. . . it should be noted that all employees in the refinery who workedout in the operating units (regardless of job classification) were toreceive annual fire- fighting training, consisting of hands-on trainingat the respondent’s fire field at the refinery, as well as classroominstruction in the use of handheld fire extinguishers, one and one-halfinch hoselines and fixed monitors.\”(Tr. 4850-4853) (Respondent’s Post-Trial Memorandum p.70)Section 1910.155(26) defines incipient stage fires:(26) \”Incipient stage fire\” means a fire which is in the initial orbeginning stage and which can be controlled or extinguished by portablefire extinguishers, Class II standpipe or small hose systems without theneed for protective clothing of breathing apparatus.Thus the general production employee population at respondent’s Chicagorefinery, was trained to respond to \”incipient stage fires.\”Apart from that minimal training afforded all employees, respondentestablished two classifications of Fire Brigade. The Day Fire Crewsometimes referred to as The Fire Department was made up of volunteerswho were trained to be \”. . .proficient in the handling of in-plantemergencies.\” The members agreed to and were expected to attend, atminimum, monthly training sessions. Some were expected to attend twomonthly sessions \”. . .to learn the proper method of operation of allmobile firefighting equipment.\” The members of this Day Fire Crew wereissued their own personal protective clothing which was kept on the FireDepartment Mobile Command Center truck. Fire Department Officers were tobe appointed by the Chief based on experience and ability. The Day FireCrew members were divided into squads directed by lieutenants.Respondent’s Fire Chief and Deputy Fire Chief worked the day shift.(Exhibit C-9)Finally, the second Fire Brigade classification established by therespondent was the Shift Fire Crew. Although turnout gear of varioussizes was placed in the back of the pickup truck assigned to the ShiftFire Crew Chief and members of the Shift Fire Crew were instructed toput on turnout gear before reporting to the scene of a fire or potentialfire, these members were not assigned or furnished protective clothingfor their individual use. (Tr. 2824) Certain job descriptions, to-wit:Pumpers, Laboratory personnel, Coke Handlers and Shift Pipefitterscarried with them the incidental requirement that the person awarded thejob would be automatically a member of the Shift Fire Crew and requiredto respond to the scene of fire or potential fire when the alarmsounded. (Tr. 2822) By job description the Petrochemical DepartmentShift Supervisor became automatically the Shift Fire Crew Chief unlessthe emergency was in his operating area in which event the Blending andTransfer Shift Supervisor, who was otherwise to act as Assistant Chief,was to assume the responsibility of head of the Shift Fire Crew. TheShift Fire Crew was \”. . .to provide fire protection when the Day FireCrew is not present.\” Training was to be bimonthly consisting ofpractical and classroom instruction to enable members to \”adequately\”perform fire fighting duties. (Exhibit C-9, p. 29988) Elsewhere trainingfor Shift Fire Crew is described \” . . .to ensure familiarity with theequipment available to them.\” (Exhibit C-9, p. 33012)The refinery operated 24 hours a day, 7 days each week. A serious fireemergency could occur during any shift at any time of the day. There wasno reason to assume that the hazard of fire or potential fire would begreater at any given point in time be it day or night. (Tr. 2525, 2820)Realistically, the respondent trained its Day Fire Crew to meet fireemergencies which could arise in its Chicago refinery plant.Unrealistically, respondent trained its Shift Fire Crew to respond onlyto incipient stage fires (Tr. 4742) and then changed it with theresponsibility to \”. . . provide fire protection when the Day Fire Crewis not present.\” The hazards they were to face were identical. If theShift Fire Crew could not handle the problem, it was required to summonthe off-duty Day Fire Crew and then, in effect, hold the fort until helparrived. That help was intended to be not merely more manpower, butbetter trained personnel. (Tr. 2524)Such a plan and strategy on the part of the respondent merely putuntrained personnel in harm’s way.Respondent failed to train and educate members of its Shift Fire Crewscommensurate with those duties and functions they were expected to perform.Complainant met its burden of proof with respect to Issue H._Issue I_:Was the respondent in violation of C.F.R. 1910.156(c)(1) as alleged inCitation No. 1, item 3B?The standard requires that fire brigade leaders be provided withtraining and education which is more comprehensive than that providedthe general membership of the fire brigade.Complainant alleges that in reference to the Shift Fire Crew Chiefs,this was not done.Respondent made an attempt to provide additional training to its ShiftFire Crew Chiefs over and above what they would receive in attending thebimonthly Shift Fire Crew classes.As of 1979, all Shift Fire Crew Chiefs had attended an out-of-refinerytraining class at either the Industrial Fire Training School at Texas Aand M or the Western Oil and Gas Association facility in Reno, Nevada.There were ten Shift Fire Crew Chiefs and as of 1979 respondent had aprogram to send two of these chiefs to the above mentioned outside firetraining schools each year. Thus each Fire Crew Chief was anticipated toattend an outside training school each five years. (Tr. 4896, 4897)One Shift Fire Crew Chief attended the Union Oil sponsored Fire TrainingSchool at Reno the year of its inception in 1981. (Tr. 4898) In 1982 therespondent effected a reorganization which interfered with the FireDepartment’s training plans and five Shift Fire Crew Chiefs were sent tothe Reno Fire Training School that year. (Tr. 4899) Shift Crew Chiefsfrom the Chicago refinery attended the Reno Fire Training School in1983. (Tr. 4899) By the fall of 1983 every new Shift Fire Chief was tohave attended a week long out of state fire training school. (ExhibitC-86, p. 018449) Early in 1984 the Fire Department of the respondentcommenced Shift Fire Chief classes on Monday afternoons. Each class wasrepeated on four consecutive Mondays in order to allow these shiftworkers each the opportunity of attending the given class. (Tr.4894-4896) In these classes incidents which had occurred in the refinerywould be discussed and how they may have been handled differently. (Tr.4894)In view of the foregoing it can hardly be said that respondent’s FireBrigade leaders were not provided training and education morecomprehensive than that provided the general Shift Fire Crew membership.The testimony of Mr. Watrous, respondent’s witness, was convincing andestablished the need for more concern on the part of the respondent formore adequate fire training. (Tr. 2892-2897) Nevertheless the facts arethat the respondent provided training to its Shift Fire Crew Chiefswhich was more comprehensive than that given the crew members. Theresult may have been that the poorly trained were being led by the lesspoorly trained, but complainant failed to meet its burden of proving aviolation of Issue I._Issue J_:Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) as allegedin Citation No. 1, item 3C?The standard requires that fire brigade members be provided trainingfrequently enough to assure that each member is able to perform assignedduties and functions satisfactorily and in a safe manner so as not toendanger fire brigade members or other employees.After becoming Fire Safety Supervisor for the respondent in 1975, DaleT. Pirc, by letter dated May 29, 1979, called attention of his corporatesuperiors to difficulties in getting Shift Fire Crew personnel to attendfire training sessions. He pointed out that the problem had existed formany years, and stated: \”. . . The lack of attendance at trainings andresponse to off-shift emergencies cannot be ignored any longer. Thepotential of the loss of life and property without an efficientoff-shift fire and rescue squad is too great.\” (Exhibit C-86, p. 018431;Tr. 4739)Again, by letter dated August 7, 1979, Chief Pirc complained to hiscorporate superiors, \”. . . In the past we have managed to slip by withthe few capable people we have on shift and merely turning our heads theother way with those who choose not to participate. Needless to say,some day our luck will run out and we will suffer the consequences. . .\”(Exhibit C-86, p. 018433)In May of 1981, Chief Pirc reported that Shift Fire Crew attendance attraining classes was up to an \”acceptable\” 70%. He reported thatattending personnel had for the first time been subjected to \”live fire\”at the fire training field. He noted that whereas the Shift Fire CrewChief’s had a 60% attendance, it should be 100% since they have \”. ..overall responsibility of shift fire emergencies.\” (Exhibit C-86, p.018438)Incidentally, in the above report of May 14, 1981, Chief Pirc noted thatall personnel at the training field \”. . .used full protectiveclothing,\” and that in the upcoming Shift Fire Crew classes for Julythere would be a review of \”. . . _2? handline_ operations.\” (emphasisadded)By letter to his corporate superiors dated December 23, 1981, Chief Pircexpressed disappointment in the attendance of Shift Fire Crew personnelat training sessions throughout 1981. The Shift Fire Crew Chiefs hadonly a 66% attendance. Chief Pirc there noted: \”. . . We have determinedthat if each classification in the Shift Fire Crew achieves an 80%attendance in each of the six annual classes, they should be able tomaintain the basic skills required for that job. . . . We believe thatattendance below this minimum greatly increases the risk of propertydamage and personal injury to the members themselves.\” (Exhibit C-86,p.018440)By letter to his corporate superior dated March 25, 1983, Chief Pircnoted that the Shift Fire Chiefs from the \”North Plant\” had a 0%attendance at the March 1983 training classes. Chief Pirc noted: \”Theproblem is now to the point that not only I seriously question the ShiftFire Chief’s ability, but many members of the Shift Crew. . . have alsobegun to ask the same question. . . . Such a lack of confidence wouldprove disastrous to any progress we have made with the Shift Fire Crewover the past few years.\” (Exhibit C-86, p. 018444)Continuing neglect of training by the Shift Fire Crew Chiefs is noted byChief Pirc in a letter to his corporate superior, dated June 22, 1983.(Exhibit C-86, p. 018448)Chief Pirc’s concerns were forwarded up the corporate ladder in a letterdated June 28, 1983, wherein it was noted: \”. . . Since the OperatingDepartment reorganization in September (1982), attendance of the ShiftFire Chiefs as a group has averaged 33%. The last time a ShiftSupervisor from the Petrochemical Department attended a shift firetraining class was January 1983.\” The writer also notes: \”Thus far, ourrequest for recommendations from the Operating Division have notprovided any significant solutions. We are putting a select group ofindividuals into nonroutine, unpredictable and hazardous situations forwhich training plays a major part in both effectiveness and safety ofthe entire Shift Fire Crew.\” (Exhibit C-86, p. 018452)By January 18, 1984, Chief Pirc noted in a letter to his superior theattendance of Shift Fire Chiefs at training sessions had risen to lessthan 50%. Shift Crew member attendance had improved and was observed tobe \”marginally acceptable.\” (Exhibit C-86, p. 018457)Perhaps the biggest flaw in respondent’s Shift Fire Crew concept wasthat although membership was mandated by job description including thepositions of Chief, participation in training or even appearance at asounded emergency alarm was not enforced. Chief Pirc, who had no inputin the selection of shift crew members or chiefs, (Tr. 2588) on at leasttwo occasions suggested that Shift Fire Crew members should be replacedin their job classifications if they failed to have satisfactoryattendance at training sessions or failed a written competence test. Hedidn’t venture so bold as to suggest the same requirement of Chiefs whoheld supervisory positions in operations. (Tr. 4938-40, 2442-44,2451-53, 2590; Exhibit C-86, pp. 018454, 018456) There is no evidence inthe record that management took Chief Pirc’s suggestions seriously.That respondent gave production priority over safety fire training isdemonstrated in the closure of the Fire Training Field in 1983.Respondent without first providing an alternative fire training sitepreempted the space and constructed a new production facility thereon.From May of 1983 until around the first of July 1984 the respondent’sFire Department was without a live training field where it could providehands-on training in putting out actual fires to its fire fightingpersonnel. Chief Pirc considered live firefighting drills to be anecessary part of the training. (Tr. 2630-32)Respondent’s failure to respond effectively to the importuning of itsFire Department Chief that more frequent attendance at fire trainingsessions be required of Shift Fire Crew members and Chiefs andrespondent’s disabling of the live fire training field without providingan alternative for a period exceeding one year constituted a failure toprovide fire training to its Shift Fire Crew \”. . .frequently enough toassure that each member of the fire brigade was able to perform his orher assigned duties and functions satisfactorily and in a safe manner soas not to endanger fire brigade members or other employees.\”Complainant has met its burden of proof with respect to Issue J._Issue K_:Was the respondent in violation of 29 C.F.R. 1910.156(c)(2) as allegedin Citation No. 1, item 3D?The standard requires in addition to sufficient frequency of trainingthat \”all fire brigade members shall be provided with training at leastannually.\”As of July 23, 1984, the respondent had 10 Shift Fire Crew Chiefs orAssistant Chiefs and 65 Shift Fire Crew members. (Exhibit C-85)Review of the training history of the 8 Shift Fire Crew members andShift Fire Crew Chief and Assistant Shift Fire Crew Chief who died inthe fire of July 23, 1984, discloses that one crew member had no firetraining within the year preceding the fire. (Exhibit C-10)Complainant has thus proved that not \”all\” fire brigade members wereprovided training \”at least annually.\” To confront such an untrainedemployee with a fire or potential fire in an oil refinery environmentwhere fire can escalate rapidly is to expose that employee to asubstantial probability that death or serious physical harm could result._Issue L_:Was the respondent in violation of 29 C.F.R. 1910.156(c)(3) as allegedIn Citation No. 1, item 3E?The standard requires that the training and education program for oilrefinery fire brigade members be similar to those conducted by Texas Aand M University, Lamar University, Reno Fire School or the DelawareState Fire School.Each of the recommended fire schools, as an essential part of its firetraining program, had a live fire field where the trainees wearingturnout gear would get hands-on experience extinguishing fires involvingflammable liquids and flammable gases. Approximately one-half of thetime of the trainees at these schools was devoted to this practical,hands-on training. (Tr. 4749-4757)Respondent’s Fire Chief Pirc considered live fire fighting drills to bea necessary part of fire brigade training. Yet the respondent preemptedthe live fire field to construct a production facility and left its FireDepartment without the means of offering to its Fire Crew members live,hands-on experience in extinguishing fires for more than a year, i.e.,between May 1983, and July 1984. (Tr. 2630-32)Respondent thus expressed a lack of concern for safety and fire trainingand rendered its fire brigade training program dissimilar to thoserecommended in the standard in a major and essential respect._Issue M_:Was the respondent in violation of 29 C.F.R. 1910.156(c)(4) as allegedin Citation No. 1, item 3F?In addition to informing fire brigade members about special hazards suchas storage and use of flammable liquids and gases, the standard requiresthe employer to develop and make available for inspection by firebrigade members written procedures that describe the actions to be takenin situations involving the special hazards and to include these in thetraining and education program.Although the properties of the flammable liquids and gases members ofrespondent’s fire brigades would be coping with were undoubtedlydiscussed at training sessions, respondent’s Fire Chief testified thatrespondent had no written preplan manual that described actions to betaken by a fire brigade when fighting a fire at the refinery’sprocessing units. (Tr. 2738)Complainant met its burden of proof with respect to Issue M._Issue N_:If the respondent was in violation of any or all of Issues H thru M(Citation No. 1, items 3A thru 3F), was such violation willful orfailing that serious, in whole or in part?For the elements which must be proved to make a violation of section5(a)(2) of the Act to be either \”Willful\” or \”Serious\” and cases soholding see the discussion under Issue F, _supra_ at pp. 49-51.Applying said principles to the facts of items 3A thru 3F of CitationNo. 1, which items were grouped for the purpose of fixing a singlepenalty based on a charge of willfulness, we determine the following:_Item 3A_: Respondent’s position that it made the determination torequire its Shift Fire Crews to respond to \”incipient stage fires\” andto train them accordingly does it no credit. The facts are at variancewith respondent’s position held at the hearing and through its briefing.Indeed, respondent’s position seems to have been adopted, at least inpart, in order to justify a claim that it was not required to furnish orrequire the wearing of protective clothing. In fact, respondent didfurnish both Day and Shift Fire Crews protective clothing. Respondentdid instruct the members of the Shift Fire Crews to wear protectiveclothing. Unfortunately, it tolerated failure of the crew members toheed its instructions. In fact, respondent did train its Shift FireCrews in the use of 2?and 3 inch hoses and 2?inch nozzles. Thusrespondent acknowledged that its Shift Fire Crew members may beconfronted with emergencies involving major fires, but it did notprovide training commensurate with such likelihood.Nevertheless, respondent required of its Shift Fire Crew that it remainat the scene and attempt to control a fire emergency beyond its trainingability until better trained help should arrive. Such a policy manifestsa plain indifference to the safety of the members of the Shift FireCrew. This violation was willful under the Act._Item 3B_: Since the training of respondent’s Shift Fire Crew leaderswas here found to have been more comprehensive than that given themembers of the Shift Fire Crew, no violation was found with regard toitem 3B._Item 3C_: Respondent failed to adequately respond to the continuedurging of its Fire Chief and to develop a method of enforcing attendanceof Shift Fire Crew members and Chiefs at training sessions prepared andoffered by its Fire Department. Although respondent justifiablyexpresses pride in the expertise and qualifications of its Fire Chief(Respondent’s Post-Trial Reply Memorandum, pp.41, 42), it nonethelessundermined his training efforts by denying him or the fire fightingpersonnel a live Fire Field for hands-on fire extinguishing for over oneyear from May 1983, to early in July 1984.Such failure to respond to the persistent urging of its Fire Chief anddeliberate removal of his essential training facility amounts to anintentional disregard for the requirements of the Act and manifests aplain indifference to employee safety, this violative conduct waswillful within the meaning of that term under the Act._Item 3D_: Although at least one of respondent’s Shift Fire Crew membersdid not receive at least annual training, it was clear from the evidencepresented at the hearing that respondent made a concerted effort to giveall of its production employees annual training and in addition to givebi-monthly training to its Shift Fire Crew members. Though it failed toaccomplish the frequency of training its Fire Chief held to beessential, it nonetheless would appear that failure of all Shift FireCrew members to receive at least annual training was more the exceptionthan the rule.Respondent’s conduct in this regard cannot be held to be willful. Thatthe violation was serious, however, is established by the fact that theone Shift Fire Crew member who had received no training for more thanone year, upon which this finding of violation is based, perished in thefire of July 23, 1984._Item 3E_: Respondent’s violative conduct which made out a violation ofitem 3E was the removal of the live fire field as a fire fightingtraining facility for a period exceeding one year. Respondent thusaccommodated its production department at the expense of employeesafety. Such conduct cannot be viewed other than manifesting carelessdisregard for the requirements of the Act and plain indifference toemployee safety. The violation of item 3E was willful as that term isused in the Act._Item 3F_: Although respondent failed to develop written procedures andmake them available for the inspection of fire brigade membersdescribing the actions to be taken in situations involving the specialhazards of flammable liquids and gases or to include same in its firebrigade training and education program, that fact only establishes aviolation of the standard at 29 C.F.R. 1910.156(c)(4).Facts necessary to show that failure to have been willful are lacking.Respondent’s omission of this mandated requirement of the Act when takenin conjunction with respondent’s other failures found in meeting therequirements of the various subsections of 29 C.F.R. 1910.156 compels afinding that this violation was serious.Respondent is thus held to be in willful violation of items 3A, 3C and3E. Violations of items 3D and 3F are held to be serious. Item 3B shouldbe vacated._Issue O_:What, if any, penalty or penalties would be appropriate for the willfulviolations of items 3A, 3C and 3E and the serious violations of items 3Dand 3F.Giving due consideration to the factors affecting the appropriateness ofpenalties to be assessed as set forth at section 17(j) of the Act, it ishere determined that the combined sum of $6,000.00 is an appropriatepenalty to be assessed for the willful violation of items 3A, 3C and 3Eand the combined sum of $1,000.00 is an appropriate penalty to beassessed for the serious violations of items 3D and 3F._Issue P_:Was the respondent in violation of section 5(a)(1) of the Act as allegedin serious Citation No. 2, item 1?For the elements which must be proved to make out a violation of section5(a)(1) of the Act and cases so holding, see the discussion under IssueA, _supra_ at pp. 23-24.The citation charges respondent with \”. . . the lack of effectiveemergency evacuation procedures and education and training of personnelin said procedures.\” In the citation the Secretary proposes theestablishment and implementation of a refinery \”emergency action plan\”which would include some twelve itemized elements as a minimum, allhaving to do with evacuation of employees.That the failure to institute emergency evacuation proceduresconstitutes a hazard which was present in respondent’s refinery andrecognized by respondent and the petroleum refining industry is clearfrom the evidence presented at hearing. It is axiomatic that theprocessing of petroleum products involves inherent potential dangers.Harry McAninch, an engineering consultant for the Secretary, testifiedthat the failure of pressure vessels to contain hydrocarbons can resultin fires and explosions as the escaping contents mix with oxygen in theair. (Tr. 1972-75) David White, a consultant in petrochemical refiningfire protection testifying for respondent, recognized that a refineryvessel leak may result in the release of rapidly expanding petroleumgases forming an invisible, flammable vapor. (Tr. 5186-90) Mr. White,respondent’s Fire Chief, and the Secretary’s expert, Lawrence Watrous,all agreed that the possibility of ignition of such vapors poses ahazard to personnel who may be exposed to the gases. (Tr. 2911, 5026-27,5189) Mr. Watrous testified that a preplanned evacuation procedure forgetting personnel safely out of an endangered area is a necessity toavoid jeopardizing the lives and safety of personnel at the emergencysite and to later rescue personnel. (Tr. 2909-2912) Mr. Pirc agreed thatevacuation of personnel downwind of an unignited leak was a necessity.(Tr. 5027) Both he and Mr. White testified that any sound emergencyresponse program should contain preplanned provisions for evacuation ofpersonnel. (Tr. 2724-25, 2734-40, 2743-44)It is clear that the failure to preplan evacuation procedures may resultin death or serious bodily harm and that evacuation measures wouldmaterially reduce the risk of serious bodily harm. Refinery firesinvolving large quantities of flammable liquids and gases subjectemployees to the dangers of asphyxiation, serious burns or death due tothe presence of those employees in areas of high gas concentrations.(Tr. 2911-12) A procedure by which refinery employees may execute anorderly evacuation from fire and explosion sites without confusion andresulting loss of time clearly would increase such employees’ chances ofescaping bodily harm. (Tr. 2915-2916)Respondent argues that it is impossible to plan in advance for each andevery possible emergency which may arise in a petroleum refinery.However, under the language of the Act, a safety measure need notcompletely eliminate a recognized hazard; if such measure willmaterially reduce the hazard, it may be required under 5(a)(1). See_Litton Systems, Inc._, _Ingalls Shipbuilding Division_, 10 BNA OSHC1179, 1182 (No. 79-900, 1981). The diversity of possible emergenciesdoes not prevent a refinery from developing the rudiments of anevacuation plan, including designation of personnel to determine theneed to begin evacuation, setting of a preassigned signal to report tosuch personnel and a system for accounting for all personnel.That evacuation preplanning is feasible is demonstrated by thetestimony. Mr. Watrous testified to the institution of evacuation plansby numerous other refineries. (Tr. 2907-09, 2855-57, 2914) Mr. Whitetestified that as part of his consulting business, he assisted SaudiArabian refineries develop their own evacuation programs. (Tr. 5158-59)The Secretary also introduced published guidelines outlining possibleevacuation procedures. See, Fire Protection Manual For HydrocarbonProcessing Plants, 2d ed., 1973, Exhibit C-95, p. 455. Moreover,respondent admits the feasibility of an evacuation plan in its SurreplyMemorandum stating that it developed such a plan in 1986 to comply withnew state law. (Respondent’s Surreply Memorandum at p.11)Respondent defends, stating that even if the Secretary has established aduty to implement an evacuation plan, he has failed to prove thatrespondent’s emergency procedures were inadequate to meet therequirements of the Act.Prior to and at the time of the July 1984 fire, respondent’s methods fordealing with fire and explosion emergencies were contained in itsEmergency Procedures (Exhibit C-9), containing respondent’s 222 AlarmSystem. Any employee sighting fire or potential fire was to dial 222 onthe refinery phone system. (Tr. 4869-70) A plant guard would receive theemployee’s information and sound the appropriate alarm, followed by anannouncement on the public address system and the fire frequenciesgiving the location and the nature of the emergency. (Tr. 4871, 4874-75)On the sounding of the alarm, vehicle traffic and work which mightprovide an ignition source was to cease (Tr. 4871-72), and nonessentialpersonnel, i.e., maintenance workers or independent contractors, were toleave the battery limits of the endangered unit. (Tr. 4874) Operatingpersonnel were to remain and attempt to control the operations andcontain the emergency on the unit. (Tr. 4875-77) Shift operatingpersonnel were to remain and be under the supervision of the respondingShift Fire Chief, who had the ultimate responsibility for determiningthe necessity and manner of removing personnel from the area on an adhoc basis. (Tr. 2745- 47) Respondent asserts that over and above theforegoing. \”All of respondent’s outside operators . . . are instructed .. . that in any circumstance when such individual feels that he is in alife threatening situation, that he is immediately to leave such area.\”Such reliance on the instinct for self preservation is no substitute foran emergency evacuation preplan.Refinery personnel were trained in the function of the 222 system attheir initial orientation; the various alarm codes were tested weeklybut only during the day shift. (Tr. 4876) Several of respondent’semployees and Shift Fire Crew members testified that they were unawareof the existence of any evacuation plan and had received no training inthat regard. (Tr. 348, 527, 2202-03, 2251-52, 2300-01, 2350, 2414-15,2431-32) Two of the victims caught in the explosion were listed ascontract guards, non-essential personnel who under the respondent’sstated policy should have left the endangered area. (Exhibit C-23)On the day of the explosion, there was no attempt to instituteevacuation procedures. (Tr. 120) Operating personnel on an adjacent unitdid not know whether to remain on the unit or head for the nearest exit.(Tr. 2296-2301) Seven employees in the FCC unit control room remained attheir posts following the initial explosion while a number ofsupervisory personnel entered and left; finally a day process supervisorand a shift supervisor conferred and ordered the room clearedapproximately 45 minutes later. (Tr. 519-27)Mr. Watrous testified that an effective evacuation plan containseducation of supervisory personnel as to when evacuation proceduresshould be implemented, provisions for notifying personnel of thenecessity of evacuation, route planning for evacuation and a method of\”counting heads\” to determine whether all personnel are accounted for.(Tr. 2907-08) Respondent’s Fire Chief admitted that respondent’sEmergency Procedures (Exhibit C-9) contained none of these basicrequirements. (Tr. 5032-33)Whatever elements respondent’s emergency response program did contain,it was silent respecting evacuation other than requiring maintenancepersonnel and independent contractors to leave the battery limits of theendangered unit. Respondent’s delegation of evacuation duties to theShift Fire Chief, who must of necessity be otherwise occupied in hisfire fighting activities at a time when the need for evacuation arises,seems manifestly unreasonable. Such a \”plan\” is no plan at all and doesnothing to advance the purposes of preplanning, i.e. avoiding confusionand delay. Moreover, it is clear that even those so called \”procedures\”contained in respondent’s emergency plan were inadequately communicatedto personnel, many of whom had no understanding regarding thepossibility of evacuation, how it would be carried out, or from whominstructions would come.Complainant met its burden of proof with respect to item 1 of SeriousCitation No. 2._Issue Q_:Would an evacuation plan as proposed by complainant create a greaterhazard to respondent’s employees and thus become other than feasible?In addition to generally denying the alleged violation, set forth initem 1 of Serious Citation No. 2, respondent raises the affirmativedefense of Greater Hazard by way of specific exception to the secondelement of the Secretary’s proposed emergency evacuation plan which reads:\”A feasible emergency action plan which includes . . .* * *(b) Procedures to be followed by employees who remain to operatecritical plant operations before they evacuate.Respondent claims that an evacuation plan mandating the evacuation ofall personnel from a fire or potential fire site would leave the siteunattended, allowing the emergency situation to develop uncontrolled,thus increasing the hazard for all refinery personnel.Respondent’s Fire Chief, Dale Pirc, testified that during a fire orpotential fire emergency, operating personnel are to remain on theirunit to isolate or block in the unit in order to contain the emergency.(Tr. 4877) Mr. McAninch, testifying for the Secretary, agreed that inthe event of a leakage of hydrocarbons, operating personnel must bepresent to segregate and depressurize a leaking vessel and disperseescaping vapors. (Tr. 1989-91) However, as Mr. McAninch furthertestified, where a situation progresses beyond the operators’ control,those operators must leave for their own safety. (Tr. 1978, 1991)Respondent assumes that the Secretary’s abatement plan calls foressential operating personnel to abandon their posts during criticalperiods as an emergency develops. The Secretary’s plan calls for no suchmeasure. All that, is required under item (b) of the suggested plan isthe development of \”[p]rocedures to be followed by employees who remainto operate critical plant operations before they evacuate.\”Respondent’s Contention that because of this element an evacuationpreplan would result in an increased hazard is without merit. See _Brown& Root, Inc._, 8 BNA OSHC 2140, 2144 (No. 76-1296, 1980); _Cerro MetalProducts Division, Marmon Group, Inc._, 12 BNA OSHC 1821 (No. 78-5159,1986)._Issue R_:If the respondent was in violation of section 5(a)(1) of the Act as setforth in Issue P above, what penalty would be appropriate?Again, giving due consideration to the statutory requirements set forthat section 17(j) of the Act, the penalty proposed by the Secretary inthe sum of $1,000.00 for this violation of section 5(a)(1) of the Act isfound to be appropriate.____________________________Now, having observed the demeanor of the witnesses and having weighedthe credibility thereof, there are here entered the following:_Findings of Fact_1. Respondent is, and at all times pertinent hereto was, a corporation,with an office and place of business at 135th Street and New Avenue,Lemont, Illinois, where, at all times herein mentioned, it was engagedin the business of refining raw petroleum into fuels and lubricants.2. Respondent at all times pertinent hereto was engaged in a businessaffecting interstate commerce in that respondent was engaged inproducing goods a substantial portion of which were being produced forinterstate commerce and were being shipped or delivered or sold topersons or firms in states other than the state wherein so produced andin that respondent was engaged in handling goods which had been moved ininterstate commerce.3. Respondent at times pertinent hereto employed approximately 680 to700 employees at the above described workplace, known as the ChicagoRefinery, and was an employer within the meaning of the Act.4. Facts set forth under The Catastrophic Event portion of this decisionand elsewhere herein are here incorporated by reference as thoughspecifically again set forth at this point.5. Vessel 12D7016 was fabricated from A516-Grade 70 carbon steel and inaccordance with Section VIII of the ASME Boiler and Pressure VesselCode. (Tr. 718)6. The respondent’s inspection department conducted periodic inspectionsof pressure vessels in the refinery, including vessel 12D701, duringregularly scheduled refinery shutdown periods,known as turnarounds aswell as on-stream inspections. (Tr. 3530)7. Pressure vessel 12D701 was inspected internally at the time ofinitial installation and during turnarounds in 1972, 1974, 1976, 1978,1980, 1982 and 1984. (Tr. 667, 1897, 3578; Exhibits C-27 thru C-33)8. During each turnaround inspection of vessel 12D701 straight beamultrasound thickness tests were performed on the vessel. (Tr. 3615,3616; Exhibit C-16)9. Scheduled refinery shutdown for inspections is a practice recognizedthroughout the petroleum and oil refinery industry. (Tr. 4524, 4692)10. Respondent maintained records of the various inspections which wereconducted of each of its pressure vessels, including pressure vessel12D701. (Tr. 599, 614; Exhibits C-27 thru C-33)11. Respondent conducted training of the members of its inspectiondepartment in the conducting of inspection of its pressure vessels. (Tr.3450, 3466, 3472-73, 3529, 3583-85; Exhibit C-71)12. During turnaround inspections, respondent on occasion employedinspectors from outside companies to supplement respondent’s inspectiondepartment. (Tr. 3475-3477)13. Prior to the April 1984 turnaround inspection respondent engaged B.Ostrofsky Associates, Inc. to provide inspectors to supplementrespondent’s inspection personnel in conducting pressure vesselinspections including vessel 12D701. (Tr. 3475-3477, 3638)14. Mr. P. J. Krol, an inspector supplied respondent by B. OstrofskyAssociates, Inc., conducted an internal inspection of vessel 12D701 withand under the supervision of Mr. J. Gallagher, a member of respondent’sinspection department during the 1984 turnaround inspection. (Tr. 1801,1897, 3862-3872)15. The results of the inspection of vessel 12D701 during the 1984turnaround were recorded in the file maintained by the respondent forsaid vessel. (Tr. 1881; Exhibit C-34)16. Failure to adequately inspect for the presence of cracking or cracksin or about, field welds performed at respondent’s refinery, or in thewalls of pressure vessels exposed to hydrogen environment, increased thelikelihood of fire or explosion to which respondent’s employees would beexposed.17. The increased likelihood of fire or explosion at respondent’sChicago Refinery from undetected cracks in pressure vessels wasrecognized by the respondent and by the oil refinery industry.18. Fire and\/or explosion, if they occur, are likely to cause death orserious physical harm to employees exposed thereto.19. Cracks which may escape visual inspection can be detected byMagnetic Particle Testing, Liquid Dye Penetrant Testing, or Angle BeamUltrasonic Testing, all. of which methods were recommended and acceptedby the industry of which respondent was a part and known to therespondent, and respondent had the means of performing said tests.20. Other than visual inspection respondent did nothing to detect cracksin vessel 12D701 and respondent was in violation of item 1 of CitationNo. 1. (Issue A)21. Respondent’s violation of Citation No. 1, item 1 was willful as thatterm is used in the Act. (Issue C)22. The sum of $10,000.00 is an appropriate penalty to be assessed forrespondent’s willful violation of the Act as set forth in Citation No.1, item 1. (Issue D)23. The respondent did not provide fire protective clothing to operatingpersonnel on respondent’s various production units nor require usethereof by said personnel.24. Respondent’s operations personnel were required to handle fires orpotential fires occurring in the production units of respondent’sChicago refinery from the initial stages and until said operationspersonnel were allowed to evacuate the unit by the chief of the firecrew which responded to the fire or potential fire alarm. (Tr. 2745) Insuch situations operations personnel were exposed to the same hazard offire or explosion as the members of respondent’s fire crews who werefurnished and required to wear fire protective clothing.25. Respondent was in violation of item 2 of Citation No. 1. (Issue E)26. Respondent’s violation of item 2 of Citation No. 1 was willful asthat term is used in the Act. (Issue F)27. The sum of $4,000.00 is an appropriate penalty to be assessed forrespondent’s willful violation of the Act as set forth in item 2 ofCitation No. 1. (Issue G)28. Members of respondent’s shift fire crews were exposed to the hazardsof fire or explosion without being provided training and educationcommensurate with the duties and functions they were expected to perform.29. Respondent was in violation of the standard at 29 C.F.R.1910.156(c)(1) with respect to its shift fire brigades (crews) ascharged in item 3A of citation No. 1. (Issue H)30. Respondent’s fire brigade leaders and instructors were providedtraining and education more comprehensive than that provided the firebrigade members.31. Respondent was not in violation of the standard at 29 C.F.R.1910.156(c)(1) with respect to its fire brigade leaders and instructorsas charged in item 3B, Citation No. 1. (Issue I)32. Respondent failed to assure that training and education of membersof its shift fire crews was conducted frequently enough to assure thateach member was able to perform assigned functions satisfactorily and ina manner not to endanger fire brigade members or other employees.33. Respondent was in violation of the regulation at 29 C.F.R.1910.156(c)(2) as charged in item 3C, Citation No. 1. (Issue J)34. Not all fire brigade members were provided training at least annually.35. Respondent was in violation of the regulation at 29 C.F.R.1910.156(c)(2) as charged in item 3D, Citation No. 1. (Issue K)36. The training and education program for respondent’s fire brigademembers was not similar to a substantial degree to that conducted byTexas A and M University, Lamar University, Reno Fire School or theDelaware State Fire School.37. Respondent was in violation of the regulation at 29 C.F.R.1910.156(c)(3) as charged in item 3E, Citation No. 1. (Issue L)38. Respondent failed to develop and make available for inspection byfire brigade members written procedures that described the actions to betaken in situations involving flammable liquids and gases and to includethese in the training and education program.39. Respondent was in violation of the regulation at 29 C.F.R.1910.156(c)(4) as charged in item 3F, Citation No. 1. (Issue M)40. Respondent’s violations of items 3A, 3C and 3E of Citation No. 1were willful as that term is used in the Act and a combined penalty of$6,000.00 is appropriate for said violations. (Issue N and Issue O)41. Respondent’s violations of items 3D and 3F of Citation No. 1 wereserious as that term is defined at section 17(k) of the Act and acombined penalty of $1,000.00 is appropriate for said violations. (IssueN and issue O)42. Failure to preplan and assign suitable responsibility for evacuationof personnel of oil refineries handling massive quantities of flammableliquids and liquefied petroleum gases under pressure exposes saidemployees to the increased risk of serious physical harm or death fromfire or explosion which may occur.43. The hazard of potential fire or explosion in an oil refinery and thefact that it may occur is recognized by the respondent.44. The need for evacuation preplanning is recognized by the oilrefinery industry of which respondent is a part.45. Respondent on July 23, 1984, had no effective evacuation preplancovering operations unit personnel at its Chicago Refinery.46. Respondent’s operations units personnel were exposed on July 23,1984, to the hazard of fire and explosion and there was no preplan forevacuation including such rudiments as an evacuation signal, assignmentof suitable individual or individuals to initiate evacuation and asystem for accounting for personnel.47. Development and installing of an evacuation preplan is feasible andhas been accomplished by other oil refineries.48. The consideration and inclusion of procedures to be followed byemployees who remain to operate critical plant operations beforeevacuation in an evacuation preplan would not create a greater hazard toemployees. (Issue Q)49. Respondent was in violation of section 5(a)(1) as charged in item 1of Citation No. 2. (Issue P)50. An appropriate penalty to be assessed for respondent’s violation ofitem 1, Citation No. 2 is $1,000.00. (Issue R)_Conclusions of Law_1. Jurisdiction of this action is conferred upon the Commission bysection 10(c) of the Act and the Commission has Jurisdiction of theparties hereto.2. The presence of the Illinois Boiler and Pressure Vessel Safety Act inno way acts as a bar to the complainant proceeding against therespondent herein under section 5(a)(1) of the Occupational Safety andHealth Act of 1970. (Issue B)3. Respondent was in willful violation of item 1 of Citation No. 1,issued to respondent January 11, 1985, which should be affirmed and apenalty of $10,000.00 should be assessed.4. The standard at 29 C.F.R. 1910.132(a) under which respondent wascharged in Citation No. 1, item 2, issued to respondent January 11,1985, is not applicable to respondent’s fire brigade members, but isapplicable to respondent’s operations personnel who are required byrespondent to handle fires or potential fires in their units untilallowed to evacuate by the chief of the responding fire crew. (Tr. 2745)Said operations personnel were not members of respondent’s firebrigades, nor were they trained as such.5. Respondent was in willful violation of item 2 of Citation No. 1,issued to respondent January 11, 1985, which should be affirmed and apenalty of $4,000.00 should be assessed.6. The standard at 29 C.F.R. 1910.156(c)(1) applied to respondent withrespect to its fire brigades.7. The standard at 29 C.F.R. 1910.156(c)(2) applied to respondent’s firebrigades.8. The standard at 29 C.F.R. 1910.156(c)(3) applied to respondent’s firebrigades.9. The standard at 29 C.F.R. 1910.156(c)(4) applied to respondent’s firebrigades.10. Item 3B of Citation No. 1, issued to respondent January 11, 1985,should be vacated.11. Items 3A, 3C and 3E of Citation No. 1, issued to respondent January11, 1985, should be affirmed as willful violations of section 5(a)(2) ofthe Act and a combined penalty of $6,000.00 should be assessed.12. Items 3D and 3F of Citation No. 1 issued to respondent January 11,1985, should be affirmed as serious violations of section 5(a)(2) of theAct and a combined penalty of $1,000.00 should be assessed.13. Item 1 of serious Citation No. 2, issued to respondent January 11,1985, should be affirmed as a violation of section 5(a)(1) of the Actand a penalty of $1,000.00 should be assessed._ORDER_1. Item 1 of Citation No. 1, issued to respondent January 11, 1985, isAFFIRMED as a willful violation of section 5(a)(1) of the Act and apenalty of $10,000.00 is ASSESSED.2. Item 2 of Citation No. 1, issued to respondent January 11, 1985, isAFFIRMED as a willful violation of section 5(a)(2) of the Act and apenalty of $4,000.00 is ASSESSED.3. Item 3B of Citation No. 1, issued to respondent January 11, 1985, isVACATED.4. Items 3A, 3C and 3E of Citation No. 1, issued to respondent January11, 1985, are AFFIRMED as willful violations of section 5(a)(2) of theAct and a combined penalty of $6,000.00 is ASSESSED.5. Items 3D and 3F of Citation No. 1, issued to respondent January 11,1985, are AFFIRMED as serious violations of section 5(a)(2) of the Actand a combined penalty of $1,000.00 is ASSESSED.6. Item 1 of serious Citation No. 2, issued to respondent January 11,1985, is AFFIRMED as a violation of section 5(a)(1) of the Act and apenalty of $1,000.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: January 19, 1988FOOTNOTES:[[1\/]] In its decision and remand, the Court of Appeals presumed thatthe Commission would assess a penalty \”somewhere in between the $31,000that OSHA assessed and the $22,000 that the Commission awarded.\” Becausethe court reduced items 1 and 2 of citation 1 from willful, whichcarries a maximum penalty of $10,000, to non-willful, which carries amaximum penalty of $1,000, the penalties we assess are necessarily lessthan the amount presumed by the court. [[1\/]] Section 5(a)(1) of the Act:Sec.5.(a) Each employer–(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;[[2\/]] The citation reads:_Citation_Section 5(a)(1) of the Occupational Safety and Health Act 1970: Theemployer did not furnish employment and a place of employment which wasfree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed toserious hazards including being struck, crushed, burned or asphyxiatedresulting from increased likelihood of catastrophic failure ofimproperly and inadequately maintained pressure vessels. The employerfailed to establish, properly implement and manage an effective programof pressure vessel safety including maintenance inspection, rating,repair, alteration and\/or replacement. In addition, appropriate recordsnecessary for informed decision making, documenting the vessel’s actualcondition were not prepared, retained, or made available for inspection.Employees working throughout the refinery were exposed to these hazardson a daily basis including July 23, 1984, when a pressure vessel, AmineAbsorber 12D701, released hazardous quantities of flammable gases andvapors and corrosive liquid.A feasible and useful method of correcting these hazards related tocatastrophic pressure vessel rupture and failure is to establish andproperly implement an effective program including maintenanceinspection, rating, repair and alteration and\/or replacement of refinerypressure vessels and their associated safety devices. Such a programmust include the following elements as a minimum:(a) Ensure that persons who are authorized to perform inspections ofpressure vessels have education and experience equal to at least one ofthe following:(1) A degree in engineering plus 1 year of experience in the design,construction, repair, operation, or inspection of boilers or pressurevessels.(2) A two year certificate in engineering or technology from a technicalcollege plus two years of experience in the design, construction,repair, operation, or inspection of boilers or pressure vessels.(3) The equivalent of a high school education plus 3 years of experiencein the construction, repair, operation, or inspectionof boilers or pressure vessels.(b) Ensure the effective internal and external inspections are performedprior to returning pressure to use on a regular periodic basisthroughout their service life. Such inspections must include the following:(1) Properly prepare vessels for inspection to ensure the safety of theinspector and the effectiveness of the inspection. Among other steps,parts and components which prevent an effective inspection must be removed.(2) Proper inspection techniques and procedures must be used todetermine if stress corrosion cracking, hydrogen blistering and attack,embrittlement, metal fatigue, creep, erosion, carburization,graphitization or other form of corrosion, deterioration and defects arepresent. Where pressure vessels contain amine gas treating solutions,inspections must include the following:(i) Proper inspection procedures and techniques must be used byqualified inspectors to detect cracks at welds and at weld heat affectedzones of pressure vessels containing amine gas treating solutions. Dyepenetrant, magnetic particle or other equivalent inspection techniquesmust be used.(ii) Having detected cracks, qualified inspectors must use ultrasonicangle-beam transducers to evaluate the size and depth of cracks;(3) Prepare and maintain containing the following information as a minimum:(i) The results of inspections including the results of tests andmeasurements;(ii) Details regarding all maintenance, repair, rating and alterations;(iii) The identity and qualifications of personnel who have performedmaintenance, repair, rating and alterations;(iv) Details regarding procedures used in performing maintenance,repair, rating and alterations.(4) Recognized engineering principles must be used to determine if thevessel is or may become hazardous for continued operation.(5) Remove from service any vessel which is or may become hazardousuntil it has been properly repaired and reinspected.(6) Any vessel which has been repaired must be recertified prior tobeing returned to service.In addition to the above outlined general pressure vessel hazard controland abatement program, recognized engineering principles and practicesmust be implemented to safely construct, alter, replace and\/or repairthe vessels and their associated safety devices which contain amine gastreating solutions, so that they are safe for continued operation. Suchprinciples and practices include the following:(1) Utilize designs and select materials which are safe for thecontainment of amine gas treating solution for operating conditions; and(2) Utilize appropriate welding procedures and techniques, includingnecessary stress relief; and(3) Prepare and maintain records which document the actual condition ofpressure vessels containing amine gas-treating solutions and demonstratethat the vessels were constructed, altered and\/or repaired to ensurecontinued safe operation; and(4) Any pressure vessel containing amine gas-treating solution whichdoes not comply with subitems (1), (2) and (3) must be removed fromservice until its safe operation can be established.[[3\/]] The Citation and Standard read:_Citation_29 C.P.R. 1910.132(a): Protective equipment, including personalprotective equipment for eyes, face, head, and extremities, protectiveclothing, respiratory devices, and protective shields and barriers wasnot provided, used, and maintained in a sanitary and reliable conditionwherever it was necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact:(a) The employer did not assure the use of protective clothing for theshift brigade and unit operating personnel who were required to fightfires and provide control, suppression and extinguishing measures beyondthe incipient stage, including but not limited to the explosions andfire at Amine Absorber 12D701 on July 23, 1984. Operating personnel,shift fire brigade members and leaders who initially performed firebrigade emergency activities prior to the explosions and fires and otheremployees who entered the refinery to perform fire brigade activitiesdid not wear appropriate protective clothing, increasing exposure tofire hazards. Appropriate protective clothing consists of at least thefollowing components: foot and leg protection; hand protection; bodyprotection; eye, face and head protection._Standard__Subpart I–Personal Protective Equipment_?1910.132 General requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[4\/]] The Citation and Standard read:_Citation_3A29 C.F.R. 1910.156(c)(1): The employer did not provide training andeducation for all fire brigade members commensurate with those dutiesand functions that said fire brigade members were expected to perform.Said training and education was not provided to fire brigade membersbefore they actually performed fire brigade emergency activities:(a) Shift fire brigade members and some shift brigade leaders were nottrained to be proficient in the recognition and evaluation of the fire,explosive and related hazards associated with oil refinery industryfires, the safe positioning of personnel at the fire site, appropriateplacement of fire apparatus and service vehicles, necessary evacuationprocedures and other training and education matters necessary andappropriate to assure that each member is able to perform his\/herassigned duties and functions satisfactorily and in a safe manner so asnot to endanger fire brigade members or other employees.(b) Employees were assigned to work on the afternoon and evening shiftsand during weekends and holidays on a periodic basis due to changes inshift and job schedules. They were expected and\/or required to performas shift brigade members without appropriate training and education. Theemployer’s program for the shift fire brigade involved educating andtraining only those employees who routinely worked in the jobclassifications which made up the brigade.(c) Whenever a leak or a fire occurred, unit operators and otheremployees in their designated work areas were required to participateand function as fire brigade members until other fire fighting personnelarrived at the scene and to remain at the scene to assist as necessary.Said unit operators and other employees were not provided training andeducation in the hazards associated with oil refinery fires so as toassure that said employee is able to perform the assigned dutiessatisfactorily and in a safe manner so as not to endanger fire brigademembers or other employees.Standard ? 1910.156 Fire Brigades.(c) Training and education. (1) The employer shall provide training andeducation for all fire brigade members commensuratewith those duties and functions that fire brigade members are expectedto perform. Such training and education shall be provided to firebrigade members before they perform fire brigade emergency activities.Fire brigade leaders and training instructors shall be provided withtraining and education which is more comprehensive than that provided tothe general membership of the fire brigade.[[5\/]] The Citation reads:_Citation_3B29 C.F.R. 1910.156(c)(1): Fire brigade leaders and training instructorswere not provided with training and education which was morecomprehensive than that provided to the general membership of the firebrigade:(a) Several of the shift brigade leaders, including one of those on dutyat the time of the July 23, 1984 explosions and fires at the AmineAbsorber 12D701, had not received the more comprehensive training andeducation as required by the standard, in that they had not receivedappropriate training and education in the following areas: leadershipprinciples; strategies and tactics for fire control, suppression, and\/orextinguishment; and rescue and evacuation.[[6\/]] The Citation and Standard read:_Citation_3C29 C.F.R. 1910.156(c)(2): The employer did not assure that training andeducation was conducted frequently enough to assure that each member ofthe fire brigade was able to perform the member’s assigned duties andfunctions satisfactorily and in a safe manner so as not to endanger firebrigade members or other employees:(a) The employer’s program did not assure that each shift fire brigademember received the required frequent training and education. Anattendance goal of 80% was considered satisfactory for the bi-monthlytraining and education sessions provided by the employer.(b) The employer’s program required attendance of only those employeesworking regularly in the job classifications which make up the shiftfire brigade. Other employees, who could reasonably be expected tofunction as shift fire brigade members and leaders as a result ofchanges in shift or job assignment were not required to and did notattend and participate in training and education sessions prior to firebrigade assignment._Standard_? 1910.156 Fire Brigades.(c) Training and education. (2) The employer shall assure that trainingand education is conducted frequently enough to assure that each memberof the fire brigade is able to perform the member’s assigned duties andfunctions satisfactorily and in a safe manner so as not to endanger firebrigade members or other employees. All fire brigade members shall beprovided with training at least annually. In addition, fire brigademembers who are expected to perform interior structural fire fightingshall be provided with an education session or training at least quarterly.[[7\/]] The Citation reads:_Citation_3D29 C.F.R. 1910.156(c)(2): All fire brigade members were not providedwith training at least annually:(a) Fire brigade members were not provided with appropriate annualinstruction and hands-on training and practice in the operation of firefighting equipment including field training in the control, suppressionand extinguishment of oil refinery fires.[[8\/]] The Citation and Standard read:_Citation_3E29 C.F.R. 1910.156(c)(3): The employer did not provide a training andeducation program for oil refinery fire brigade members which wassimilar in quality to the programs conducted by Texas A & M University,Lamar University, Reno Fire School or the Delaware State Fire School:(a) Several shift fire brigade leaders, who were designated by theemployer to be in charge of fire ground control and suppression tacticsduring initial brigade operations, were not provided with the requiredtraining and education;(b) Shift brigade members, who were required to provide initial controland\/or suppression measures, were not provided with the requiredtraining and education:(c) Unit operators and other employees, who were expected to use handhose lines and monitor nozzles, had not been provided with the requiredtraining and education; and(d) Some of the off shift employees, who participated in fire fightingoperations during the July 23, 1984 explosions and fires were notprovided with the required training and education._Standard_? 1910.156 Fire Brigades.(c) Training and education. (3) The quality of the training andeducation program for fire brigade members shall be similar to thoseconducted by such fire training schools as the Maryland Fire and RescueInstitute; Iowa Fire Service Extension; West Virginia Fire ServiceExtension; Georgia Fire Academy, New York State Department, FirePrevention and Control; Louisiana State University Firemen TrainingProgram, or Washington State’s Fire Service Training Commission forVocational Education. (For example, for the oil refinery industry, withits unique hazards, the training and education program for those firebrigade members shall be similar to those conducted by Texas A & MUniversity, Lamar University, Reno Fire School, or the Delaware StateFire School.)[[9\/]] The Citation and Standard read:_Citation_3F29 C.F.R. 1910.156(c)(4): The employer did not inform fire brigademembers about special hazards to which they might be exposed during fireand other emergencies. The employer did not develop and make availableto fire brigade members written procedures that describe the actions tobe taken in situations involving the special hazards.(a) An appropriate written special hazard information program was notdeveloped and implemented as part of the training and education of theshift fire brigade and unit operating personnel who had fire fightingduties. Such a program must include written procedures describing theactions to be taken in situations involving oil refinery specialhazards, including but not limited to the failure of a pressure vesseland the sudden massive release of flammable vapors and\/or gases such asthe incident which occurred an July 23, 1984. The program must describeactions to be taken, how to carry out fire fighting operations and theprotective equipment and clothing that must be worn during fire andother emergencies._Standard_? 1910.156 Fire Brigades.(c) Training and education. (4) The employer shall inform fire brigademembers about special hazards such as storage and use of flammableliquids and gases, toxic chemicals, radioactive sources, and waterreactive substances, to which they may be exposed during fire and otheremergencies. The fire brigade members shall also be advised of anychanges that occur in relation to the special hazards. The employershall develop and make available for inspection by fire brigade members,written procedures that describe the actions to be taken in situationsinvolving the special hazards and shall include these in the trainingand education program.[[10\/]] The Citation reads:_Citation_Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Theemployer did not furnish employment and a place of employment which wasfree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed toserious hazards including being struck, crushed, burned or asphyxiatedresulting from the lack of effective emergency evacuation procedures andeducation and training of personnel in said procedures.Employees working throughout the refinery were exposed to these hazardson a daily basis including July 23, 1984, when a pressure vessel, AmineAbsorber 12D701, released hazardous quantities of flammable gases vaporsand corrosive liquid.A feasible and useful method of correcting these hazards is to establishand properly implement a refinery emergency action plan which includesthe following elements as a minimum:(a) Emergency escape procedures and emergency escape route assignments;(b) Procedures to be followed by employees who remain to operatecritical plant operations before they evacuate;(c) Procedures to account for all employees after emergency evacuationhas been completed;(d) Rescue and medical duties for those employees who are to perform them;(e) The preferred means of reporting fires and other emergencies;(f) Names and regular job titles of persons who can be contacted forfurther information or explanation of duties under the plan;(g) An alarm and notification system adequate to alert personnel in allareas of the need for evacuation and control procedures;(h) Establish the types of evacuation to be used in emergencycircumstances;(i) Before implementing the emergency action plan, designate and train asufficient number of persons to assist to the safe and orderly emergencyevacuation of employees;(j) Review the plan with each employee covered by the plan at thefollowing times:(1) Initially when the plan is developed;(2) Whenever the employee’s responsibilities or designated actions underthe plan change; and(3) Whenever the plan is changed.(k) Review with each employee upon initial assignment those parts of theplan which the employee must know to protect the employee in the eventof an emergency.(l) Maintain the written plan at the workplace and make it available foremployee review.Step 1 Submit to the Area Director a written detailed plan of abatementoutlining a schedule for the implementation of the emergency evacuationprocedure and emergency evacuation procedure and the education andtraining of personnel in those procedures.Step 2 – Abatement shall have been completed by the implementation andverification of the effectiveness of the emergency evacuation program.[[11\/]] Illinois Boiler and Pressure Vessel Safety Act:Section 10. Inspection of Boilers and Pressure Vessels. (A) Each boileror pressure vessel . . . shall be thoroughly inspected as to itsconstruction, installation, condition and operation as follows:* * *3. Pressure Vessels subject to internal corrosion shall receive acertificate inspection as required by rules and regulations of theBoard. However, the standards of inspection and repair of pressurevessels in service by an owner user qualified under Section 15 shall, atthe option of such owner user, be either (1) the applicable rules andregulations embodied in the National Board Inspection Code, 1972Edition; or (2) the applicable rules and regulations embodied in theAmerican Petroleum Institute published codification known as API RP 510,1975 Edition API Recommended Practice for Inspection Repair, and Ratingof Pressure Vessels in Petroleum Refining Service, with such revisions,reissues, amendments and interpretations of either of the foregoinginspection standards as are subsequently approved and adopted. (ExhibitC-59)[[12\/]] Illinois Boiler and Pressure Vessel Safety Act:Section 8. Special Inspectors–How Appointed–Duties. (a) In addition tothe Deputy Boiler Inspectors authorized by section 7 of this Act, theState Fire Marshal shall, upon the request of any company authorized toinsure against loss from explosion of boilers in this State orauthorized under section 15 of this Act to self-insure against suchloss, issue to any boiler inspectors of such company commissions asSpecial Inspectors, provided that each such inspector before receivinghis commission shall satisfactorily pass the examination provided for inSection 9 of this Act, or, in lieu of such examination, shall hold aCertificate of Competency as an inspector of boilers or pressure vesselsfor a State that has a standard of examination substantially equal tothat of the State of Illinois or a Certificate as an inspector ofboilers from the National Board of Boiler and Pressure Vessel Inspectors.[[13\/]] API Pressure Vessel Inspection Code:2.2 Inspector QualificationsInspectors employed by an owner-user inspection organization shall haveeducation and experience equal to at least one of the following:1. A degree in engineering plus 1 year of experience in the design,construction, repair, operation, or inspection of boilers or pressurevessels.2. A 2-year certificate in engineering or technology from a technicalcollege plus 2 years of experience in the design, construction, repair,operation, or inspection of boilers or pressure vessels.3. The equivalent of a high school education plus 3 years of experiencein the construction, repair, operation, or inspection of boilers orpressure vessels. (Exhibit C-60, p.3)”