“Docket No. 85-0111 SECRETARY OF LABOR, Complainant, v. UNION OIL COMPANY OF CALIFORNIA, Respondent.OSHRC Docket No. 85-0111DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:The United States Court of Appeals for the Seventh Circuit has remanded this case tous so that we may determine the penalty to be assessed Union Oil Company of California. McLaughlinv. Union Oil Co. of California, 869 F.2d 1039 (7th Cir. 1989).The Secretary of Labor issued Union Oil two citationsalleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651 etseq. (\”the Act\”). Citation 1 alleged that Union Oil had committed threewillful violations; citation 2 alleged one serious violation. The Secretary proposed themaximum penalties permitted under the Act, $10,000 for each of the three willful items and$1,000 for the one 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 ofsection 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), known as the \”general dutyclause.\” Item 2 alleged a willful violation of 29 C.F.R. ? 1910.132(a). Item 3contained six sub-items alleging violations of various subsections of 29 C.F.R. ?1910.156(c). These sub-items together allegedly constituted one willful violation ofsection 1910.156(c). Citation 2 alleged that Union Oil had committed one serious violationof section 5(a)(1).The administrative law judge who heard the case foundthat Union Oil had committed 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 administrativelaw judge concluded that the requirements of 29 C.F.R. ? 1910.132(a) applied to certainclasses of Union Oil’s employees but not to others. He consequently found a violation, butonly as to some of the employees covered by item 2 of citation 1. He found that theviolation was willful as to the employees covered, but he reduced the penalty from $10,000to $4,000.The judge affirmed five of the six sub-items of item3. He found that the violations alleged in sub-items 3A, 3C, and 3E were willful andassessed a combined penalty of $6,000 for the three. The judge affirmed sub-items 3D and3F as serious, rather than willful, violations and assessed a $1,000 penalty for these. Hevacated the remaining sub-item, 3B.In citation 2, the judge found that there had been aserious violation of 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 bythe Commission, and both parties appealed to the court of appeals.The court held that the judge had erred in limitinghis finding of a violation of section 1910.132(a) to certain employees. It said that allthe employees described in item 2 of citation 1 had to be provided with protectiveequipment under that standard. The court held, however, that the violation of section1910.132(a) was not willful because Union Oil’s interpretation of the standard was notfrivolous. The court also disagreed with the administrative law judge’s finding that item1 of citation 1 was willful.Although Union Oil challenged on appeal the judge’sfindings with regard to the five sub-items in item 3 of citation 1 that were affirmed bythe administrative law judge, the court did not address these items specifically. It foundthat the judge committed no clear error in finding that one group of employees wasinadequately trained. The court saw no need to discuss Union Oil’s other challenges to thejudge’s findings, holding that those challenges had no merit. The court similarly rejectedUnion Oil’s challenge to the judge’s affirmance of citation 2. The judge’s disposition ofitem 3 of citation 1 and of citation 2 therefore stands.Under section 17(j) of the Act, 29 U.S.C. ? 666(j),in assessing penalties, 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’shistory of previous violations. Having considered those factors, we modify the judge’sdecision to assess the following penalties for the violations found non-willful by thecourt: $1,000 for item 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 penalty assessments for thoseviolations not disturbed by the court: $7,000 for item 3 of citation 1 (section1910.156(c)), and $1,000 for citation 2 (section 5(a)(1)). We therefore assess a total of$10,000 in penalties.[[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 WORKERS INTERNATIONAL UNION, AFL-CIO, and its Local 7-517, Authorized Employee Representative.OSHRC DOCKET NO. 85-0111DECISION AND ORDER Child, JudgeAPPEARANCES: For the Complainant:Richard J. Fiore, Esq., Chicago, Illinois Lisa R. Williams, Esq., Chicago, Illinois Mark A. Holbert, Esq., Chicago, Illinois Peter D. Broitman, Esq., Chicago, IllinoisFor the Respondent:Mark A. Lies, II, Esq., Chicago, Illinois Robert H. Joyce, Esq., Chicago, Illinois Robert E. Mann, Esq., Chicago, IllinoisFor the Authorized Employee Representative: Bill Wittig, Lemont, IllinoisGary Woods, Lemont, IllinoisRobert B. Hattendorf, Lemont, Illinois Statement of the CaseThis matter is before the Occupational Safety andHealth Review Commission (the Commission) pursuant to section 10(c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq., (the Act).Complainant seeks affirmance of Citation No. 1 issued to respondent January 11, 1985,charging: one item of willful violation of section 5(a)(1) of the Act[[1\/]] for allegedfailure to furnish a place of employment free of the hazard of fire and explosionresulting from failure to properly repair and adequately inspect for corrosion anddeterioration pressure vessels containing liquefied petroleum products in process ofproduction, and two items of willful violation of section 5(a)(2) of the Act for allegedfailure of the respondent to comply with various standards adopted by the Secretary ofLabor having to do with personal protective equipment and training to be provided employeefire fighting personnel. Complainant seeks affirmance of the proposed penalty of$30,000.00 for these allegedly willful violations.Complainant also seeks affirmance of Citation No. 2,issued to respondent January 11, 1985, charging one item of violation of section 5(a)(1)of the Act for alleged \” . . . lack of effective emergency evacuation procedures andeducation and training of personnel in said procedures,\” and of the penalty proposedthereon 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 day of June1987. The parties were permitted to submit posthearing briefs, proposed findings of factand conclusions of law, replies and sur-replies as they desired. Each has submittedpost-hearing briefs. Respondent has submitted proposed findings of fact and conclusions oflaw. Complainant and respondent have each submitted replies to the other’s post-hearingbrief and sur-replies to the other’s reply.To the extent proposed findings of fact andconclusions of law submitted by the respondent are consistent with those entered hereinthey are accepted; to the extent they are not so consistent they are rejected.As stated at pages 89-91 of respondent’s Post-Trialmemorandum the only \”affirmative defenses\” claimed by the respondent are: (1)compliance with the Illinois Boiler and Pressure Vessel Safety Act regarding respondent’spressure vessel inspection program and the records maintained thereof in effect preemptsan action brought by the Secretary claiming violation of the \”general dutyclause\” of the Act (Citation No. 1, item 1), and (2) compliance with certain aspectsof the complainant’s proposed evacuation program, requiring evacuation of all employeesfrom the operating units, would create an increased hazard (Citation No. 2, item 1). Therecan be no greater hazard affirmative defense to an alleged violation of the general dutyclause. Secretary v. Royal Logging Company, 7 BNA OSHC 1744, 1751 (No. 15169,1979), affirmed 645 F.2d 822, 830 (Ninth Cir. 1981). See Issue Q, infra.Jurisdiction of the subject matter and of the partieshas been admitted and is not an issue.The Issues:Issues raised by the citations and the pleadings tobe here determined are:A. Was the respondent in violation of section 5(1)(1) of the Act as alleged inCitation No. 1, item 1?[[2\/]]B. Would compliance by the respondent with theIllinois Boiler and Pressure Vessel Safety Act, if compliance there be, constitute a barto complainant proceeding under section 5(a)(1) of the Act?C. If respondent was in violation of section 5(a)(1)of the Act as set forth in Issue A, was that violation willful?D. If respondent was in violation of section 5(a)(1)of the Act as set forth in Issue A what penalty would be appropriate?E. Was the respondent in violation of 29 C.F.R.1910.132(a) for failure to provide and require the use of protective fire fightingequipment as alleged in Citation No. 1, item 2?[[3\/]]F. If respondent was in violation of the standard asalleged in Issue E, was that violation willful, or failing that, serious?G. If respondent was in violation of the standard asalleged 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) as alleged in Citation No. 1, item 3A?[[4\/]] I. Was the respondent in violation of 29 C.F.R.1910.156(c)(1) as alleged in Citation No. 1, item 3B?[[5\/]]J. Was the respondent in violation of 29 C.F.R.1910.156(c)(2) as alleged in Citation No. 1, item 3C?[[6\/]]K. Was the respondent in violation of 29 C.F.R.156(c)(2) as alleged in Citation No. 1, Item 3D?[[7\/]]L. Was the respondent in violation of 29 C.F.R.156(c)(3) as alleged in Citation No. 1, item 3E?[[8\/]]M. Was the respondent in violation of 29 C.F.R.1910.156(c)(4) as alleged in Citation No. 1, item 3F?[[9\/]]N. If the respondent was in violation of any or allof 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 allof Issues H thru M (items 3A thru 3F) what, if any, penalty or penalties would beappropriate?P. Was the respondent in violation of section 5(a)(1)of the Act as alleged in serious Citation No. 2, item 1?[[10\/]]Q. Would an evacuation plan as proposed bycomplainant create a greater hazard to respondent’s employees and thus become other thanfeasible?R. If respondent was in violation of section 5(a)(1)of the Act as set forth in Issue P, above, what penalty would be appropriate?The Catastrophic EventDuring the afternoon shift on July 23, 1984, a vaporcloud was observed to 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 as12D701, was 8? feet in diameter and rose in excess of 53 feet above the ground. Known asthe amine absorber, 12D701 received liquefied propane and butane gas (C3-C4) rich inhydrogen sulfide (H2S) at a port near the bottom of the vessel. The liquefiedpropane and butane gas would rise in the vessel through a series of perforated trays,exiting at the top relatively lean of H2S. An amine solution consisting ofmonoethanolamine in water (MEA) would enter the vessel at the top and, flowing downwardcounter to the flow of the liquefied petroleum product through the perforated trays, wouldstrip the H2S from the liquefied propane and butane gases. The amine solutionwould exit the vessel at the bottom having in the process become rich in H2S.The liquefied propane and butane gases would flow tothe next pressure vessel 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 atthe Fluid Catalytic Cracking Complex (FCC unit) received warning by telephone frompersonnel from an adjacent unit of a possible leak. (Tr. 355) Upon receiving the telephonewarning, outside operator Wayne Kielma and assistant operators Robert Gomer, George Smithand Robert Haggard left the field shelter, referred to as the unit satellite, and observeda vapor cloud about 15-20 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 ahorizontal crack at 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 this point was throughthe fixed ladder that goes up the side of the vessel to the top of the vessel. Itprevented climbing to the top of the vessel to actuate a mechanically operated pressurerelief valve. (Tr. 383, 384)Mr. Kielma by means of the portable radio on hisperson informed the inside operator on the unit of the leak and its size and location. Theinside operator had a telephone connection with the guard gate from whence a 222 alarmwould be sounded. After Mr. Kielma made his initial report to the inside operator he heardthe 222 alarm sounding. (Tr. 389, 506, 507) He then walked around the tower and determinedthere were no other leaks and asked the assistant outside operators to lay out and connectsteam hoses and direct steam at the leak. (Tr. 360, 447) He also asked one of theassistants to get a ladder.The purpose of the ladder was to permit access tosome valves elevated on the east side of vessel 12D701. These valves if operated wouldpermit redirecting the flow of \”product\” to a different vessel, thus bypassing12D701. The ladder, when brought, was only about an 8 foot A frame ladder and to reach thevalves Mr. Kielma had to stand on the very top of the ladder. This left him inadequate\”leverage\” to open or close the valves. (Tr. 360-362) He was unable to operateany of the four valves at that location which, had he been successful, would have isolatedthe vessel by eliminating the flow in and out. After descending from the ladder he toldone of his assistants they would have to shut the whole unit down. (Tr. 363) By this timethe crack had lengthened to the west and now appeared to him to be 1? to 2 feet inlength. (Tr. 364)While Mr. Kielma was attempting to thus bypass 12D701a fire truck arrived at the unit and Mr. Kielma saw Perry Parker, a member of the shiftfire brigade standing next to the truck approximately 12-18 feet southwest of 12D701. Mr.Parker was wearing no fire fighting equipment at that time. (Tr. 368, 369; Exhibit C-23)During the attempt to control the escaping vapor by directing steam on it, Chris Watkins,another member of the shift fire crew was observed to enter the unit wearing only bluejeans and a flannel shirt, i.e., not wearing turnout gear. (Tr. 452, 2197, 2201, 2216)Mr. Kielma then told Bill Drury, cracking shiftsupervisor, while the two were standing about 25 feet from vessel 12D701 that he wasunable to isolate the vessel and it would be necessary to shut down the entire unit whichwould take 30-45 minutes. Mr. Drury approved and said he would get Mr. Kielma some help.Mr. Drury took a step northeasterly toward the control center and Mr. Kielma took a steptoward the FCC side of the complex. (Tr. 371, 372)At this point 12D701 failed. Mr. Kielma experiencedan explosion which threw him northerly followed in 2 or 3 seconds by a wall of fire. (Tr.372-374)As a result of the explosion the upper portionconsisting of six courses of this seven course tower, vessel 12D701, was propelled throughthe air coming to rest 3200 feet from point of origin, spewing its contents as it went.The explosion and following conflagration resulted inthe deaths of 17 employees and lost worktime injuries to 14 other employees of respondent.(Exhibit C-23)The Occupational Safety and Health Administration(OSHA) conducted an investigation into the causes of failure of vessel 12D701 and thefire, explosion, deaths and injuries which resulted therefrom which culminated in theissuance of the citations, subject of this action. (Tr. 3190, 3196)Metallurgical examination of significant portions ofvessel 12D701 was conducted by the United States National Bureau of Standards after theincident of July 23, 1984. (Tr. 853, 878, 884; Exhibit C-44) This examination revealedthat pressure vessel 12D701 had fractured along a path adjacent to a circumferentialrepair weld joining Course 1 and Course 2 performed in 1974 at the time of the replacementof Course 2. (Tr. 928, 1031-32) This repair welding had caused a hard microstructure toform in the area of the metal where the base metal and the weld metal joined. (Tr. 1031,1032) This area is referred to as the heat-affected zone. (Tr. 930) This hardmicrostructure, identified as \”martensite,\” developed as a result of rapidcooling of the carbon steel creating a region of metal that was more brittle than theadjacent base metal and therefore more susceptible to both cracking and crack propagation.(Tr. 1032)The examination disclosed that at the time of thecatastrophic rupture of pressure vessel 12D701, there existed four pre-existing cracksadjacent to the weld connecting courses 1 and 2 equal to approximately forty percent ofcircumference of the vessel. These cracks, open to the inside surface of the vessel,extended to depths beyond midthickness of the one inch vessel wall. (Exhibit C-49) Thesurfaces of these pre-existing cracks were blackened by deposits of iron sulfide, theknown by-product of the corrosion process produced when steel comes in contact withhydrogen sulfide. (Tr. 921-926; Exhibit C-48) Exhibit C-49 depicts by hash marks, thegeneral location of these pre-existing cracks in the vessel wall adjacent to the weldconnecting courses 1 and 2.The investigation disclosed that when the deepest ofthe pre-existing cracks extended through more than ninety (90) percent of the wallthickness, the remaining 1\/10 inch ligament of steel, weakened by the absorbed hydrogenhad insufficient remaining strength to contain the pressurized liquefied propane andbutane gases. This remaining 1\/10 inch ligament of vessel wall therefore broke throughcausing the initial crack and resulting leak. This crack continued to tear and propagatealong the hydrogen weakened and embrittled vessel until complete separation of the upperand lower sections of the vessel occurred. (Tr. 960-63)DiscussionIssue A:Was the respondent in violation of section 5(a)(1) ofthe Act as alleged in Citation No. 1, item 1?To establish a violation of section 5(a)(1) of theAct, commonly referred to as the \”general duty clause,\” the Secretary must proveby a preponderance of the evidence (1) that a condition or activity in the employer’sworkplace presented a hazard to employees, (2) the hazard was recognized either by theemployer or generally within the employer’s industry, (3) the hazard was likely to causedeath or serious physical harm, and (4) that feasible means existed to eliminate ormaterially reduce the hazard. See Inland Steel Co., 12 BNA OSHC 1968, 1986CCH OSHD ? 27,647 (OSHRC No. 79-3286, 1986); Pelron Corporation, 12 BNA OSHC 1833,1835 (No. 82-388, 1986); Phillips Petroleum Co., 11 BNA OSHC 1776, 1984 CCH OSHD ?26,783 (OSHRC No. 78-1816, 1984); Chevron Oil Company, 11 BNA OSHC 1329, 1331 (No.10799, 1983); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (1 BNAOSHC 1422) (D.C. Cir. 1973).(1)Due to the known flammable and explosive propertiesof petroleum products, and particularly of liquefied petroleum gases which must bemaintained under pressure, petroleum refineries must necessarily be designed andmaintained in such fashion as to reduce the potential of fire and explosion resulting fromunintended escape of the product in process of refinement. Where that product movesthrough vessels under pressure, the integrity of such vessels to support the expectedpressures must be safeguarded.Fire and explosion can result when liquefiedpetroleum gases are allowed to escape into the atmosphere during the process ofrefinement.Leaks of product from pressure vessels occur fromcracks which are allowed to grow. Cracks in the walls of pressure vessels are known tooccur (1) in heat affected zones adjacent to welds where a hard or brittle condition knownas martensite is allowed to occur or remain following welding operations, and (2) wherecarbon steel of the type utilized in vessel 12D701 is exposed to H2S,particularly where evidence of corrosion in the form of hydrogen attack is observed.Failure to apply recognized welding procedures orpost-weld treatment to reduce or eliminate martensite and inadequate inspection to detectthe presence or development of stress cracking or hydrogen induced cracking would permitcracking to develop to the point of vessel failure and increase the likelihood of fire andexplosion of petroleum product to which hazard operations personnel are exposed. See NationalRealty, supra, 1 BNA OSHC at 1427. See also Pelron Corporation, supra,12 BNA OSHC at 1835.(2)That the increased hazard of fire and explosion ofrefinery product was preventable and could be eliminated or could be materially reducedwas recognized by the respondent is established by the existence since 1957 of aninspection department at respondent’s Chicago refinery. This department, sometimesreferred to as the Corrosion and Fouling Department, was responsible for monitoring thecondition of pressure vessels located at the refinery to assure their ability to operatesafely. (Tr. 553-54, 564, 572, 690-93, 1674, 1679, 1680, 1804-05, 3718). Following 1975the inspection department was intended to qualify under and assure respondent’s compliancewith The Illinois Boiler and Pressure Vessel Safety Act (hereinafter \”The IllinoisAct\”). (Illinois Revised Statutes, Chapter 111?, ? 3201 et. seq., ExhibitC-59; Respondent’s Post Trial memorandum p. 3; Tr. 3607, 3625, 3626; Exhibit R-6)From the time of its creation in 1957, the inspectiondepartment at respondent’s Chicago Refinery was guided by the recommended practices forinspection of pressure vessels published by the American Petroleum Institute (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 TheIllinois Act after its adoption in 1975, The respondent as an \”owner user\” underthat act elected to be governed by API 510.[[11\/]] (Tr. 3620, 3621; Exhibit R-6)The Illinois Act contemplated that inspections ofpressure vessels within that state would be performed by the state’s Chief Inspector or bya Deputy Inspector or in the case of qualified owner user situations, i.e., therespondent, by Special Inspectors.[[12\/]]Section 2.2 of API 510 contains its own set ofrequirements for inspector qualifications.[[13\/]]API 510 by its terms applies to vessels after theyhave been placed in service. (Exhibit C-60, p.1, section 1.1.1) However, API incorporatesin principle the provisions of the Boiler and Pressure Vessel Code published by theAmerican Society of Mechanical Engineers (ASME Code). In doing so, the API states thatalthough the ASME Code is written for new construction, most of its requirements apply tomaintenance inspection, repair and alteration of operating vessels. Where the ASME Codeprovisions do not apply, API 510 applies in lieu of strict conformance with the ASME Code.(Exhibit C-60, p.1&2, sections 1.2.2 and 1.2.3; Tr. 802, 803)Section V of the ASME Code is specifically referredto at Section 3.5 of API 510 as a guide to performing many of the non-destructiveexamination techniques utilized in inspection; and Section V of the ASME Code adopts theguidelines for determining qualifications of persons utilizing nondestructive examinationmethods as they appear in \”Recommended Practice for Nondestructive Testing PersonnelQualification and Certification\” 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 with the ASME Codewhich governs the fabrication of pressure vessels. It was constructed of A516-70 carbonsteel, one inch thick consisting of a top and bottom head and seven cylindrical sectionsreferred to as courses all joined by circumferential welds. Designed to operate at amaximum operating pressure of 230 psi at a maximum temperature of 140? F, 12D701 wasplaced in service in the spring of 1970. (Exhibits C-35, p.00622 and C-44) As operated,the pressure was maintained at 230 psi measured at the top of the tank with the practicalresult that the lower courses exerted greater pressure on the walls of the tank due to theweight of the product above. (Tr. 100, 105)Commencing in 1972 and biannually thereafter 12D701was subjected to a turnaround inspection which involved shutdown of the operationaffecting the vessel, external and internal inspection of the vessel and its componentsand repairs where necessary. (Tr. 589-591)In the course of the 1972 turnaround, inspectiondisclosed corrosion defects in the walls of 12D701 resulting from the action of hydrogenon the A516-70 carbon steel. Hydrogen in its atomic form passes through the steel anddissipates harmlessly into the atmosphere. However, if hydrogen atoms in passing throughthe steel encounter flaws which occur at the time of pouring and\/or rolling the steelduring its manufacture consisting of inclusions of foreign material, the atomic hydrogenthere accumulates and converts to molecular hydrogen. In the process tremendous heat andpressure is exerted causing the inclusion to become a lamination within the steel. Wherethese laminations occur near the surface of the steel they appear as blisters. Shouldlaminations, which generally run parallel to the surface of the steel, be joined by crackswhich tend to run at right angle to the surface, hydrogen step cracking is said to haveoccurred. (Exhibits C-51 and C-52) Also, pitting can occur on the interior surface of thevessel as a result of hydrogen attack. Pitting and blistering were observed to haveoccurred on the interior of 12D701. Notes of the inspection disclose: \”The secondsheet up has a large area of dirty metal or laminations and some hydrogen blistering hastaken place.\” A coupon was removed through one of the hydrogen blisters and sent torespondent’s research center in Brea, California, for observation. (Exhibits C-16 andC-34, pp. 30-31)The coupon removed came away in two pieces, separatedat the lamination. The inner piece had a thickness of .30 inch. The research centerreported to the inspection department at respondent’s Chicago refinery in May of 1972 thatits examination disclosed a large number of \”opened laminations,\” more appearingon the inner portion of the wall than the outer portion. Also, the steel was found to bewithin specifications with hardness \”. . .well below the critical hardness at whichpoint one might expect hydrogen embrittlement.\” Finally, the report disclosed:\” . . .Most of the laminations which separated were parallel to the walls of thevessel, although I did find several that had joined in a direction perpendicular to thewall thickness. . . . joining of the laminations can lower the strength of the wall;\”(Exhibit C-18)Due to the corrosion deterioration of the 2nd courseof 12D701, that course was scheduled to be replaced during the 1974 turnaround. Using thesame grade of carbon steel, to-wit: A516-70, the new replacement second course wasinstalled in 1974 in three pieces requiring three vertical and two circumferential weldsaccomplished without dismantling the tower and while it remained standing. The firstcontractor engaged to do the repair proved unsatisfactory and the repair was cleaned up byremoving welds performed and completed by a second contractor. In addition to thereplacement of the second course, a process change was performed on 12D701 during this1972 turnaround. The size of the perforations in the 9 trays were enlarged from 5\/16\”to 3\/8\” to permit an increase in the flow or \”throughput\” of petroleumproduct treated. (Exhibits C-15, C-17 and C-34, p.29)Visual inspection of the balance of 12D701 during the1974 turnaround disclosed continuing corrosion and attack by hydrogen in the form ofnumerous small hydrogen blisters on the interior of the first course of the vessel.After completion of second course replacement andtray perforation enlargement the vessel was returned to service. Ultrasonic thickness examination of the first coursein October of 1975 caused the respondent’s inspection department to conclude \”dirtysteel bottom ring.\” (Exhibit C-34, p.29) Straight beam ultrasonic (Sonoray) examination causesan ultrasonic beam from the surface to measure the thickness of a wall of steel. Aninterruption of that beam caused by meeting a place where a lamination has occurred willcause the thickness of the wall to appear to be the distance from the surface point oforigin of the beam to the point of the lamination. Thus false readings of wall thicknesswould be interpreted as disclosing laminations, sometimes referred to as discontinuities.In the spring of 1976 a turnaround inspection wasagain done on 12D701. This time visual inspection disclosed:\”Small ‘raindrop’ like blisters on top of #7 and #8 downcomers. . . . Blisteringoccurring on second ring southwest side. . . . The entire surface of shell plate, ring #1had many blisters ranging in size from ?\” to 1\” in diameter. The lamination ofthe 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 good condition except that many areas have dirty metal orlamination.\” (Exhibit C-34, p.28)In order \”to arrest the hydrogen attack on theplate,\” a monel metal liner was welded orange peel fashion to the bottom head of thevessel and monel metal liner was welded to the entire interior surface of the firstcourse, excepting only a distance of ten inches below a portion of the circumferentialweld connecting the first and second courses at which point one of the perforated traysinterfered. The vessel was again returned to service.By entry dated November 1977, a member ofrespondent’s inspection department 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 of subsurface discontinuities. (Exhibit C-34, p.27)Following the 1982 turnaround the following recommendation was entered in the historyrecord 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 conductedin or around April 1984 included: \”All ultrasonic thickness readings taken on shellare above nominal thickness\” and \”Six scattered hydrogen blisters, ?\”diameter max., were found in feed tray area, all located within 1 foot of circumferentialweld.\” (Exhibit C-34, p.24) That the circumferential weld referred to is that joiningcourse 1 and course 2 is apparent from the additional entry for that turnaround,\”bottom head and shell below feed tray has Monel lining.\” It will be rememberedthat the presence of the 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 1984turnaround was performed by one of respondent’s trainee inspectors, who nonetheless heldthe title of \”Inspection Supervisor\”. (Tr. 1682, 1687; Exhibit C-71, p.1)Respondent’s \”Inspection Supervisor\” was assisted in this inspection by anindependent inspector supplied to respondent under a contract entered into betweenrespondent and an independent inspection contracting company.The head of respondent’s inspection departmenttestified that respondent’s \”Inspection Supervisor\” was not the \”teamleader\” of the two-man team that inspected 12D701 during the 1984 turnaround, (Tr.1683) that he was in fact receiving training in inspecting 12D701 at that time, (Tr. 1688)and that he was receiving the \”expert guidance\” of the independent inspector whowas working with him. (Tr. 1689) This position on part of the respondent belies the facts.The independent inspector who participated in theinspection of 12D701 during the 1984 turnaround was supplied under a contract whichprovided:The contractor will provide experienced personnel qualified to perform inspection ofPetroleum Refinery process equipment and other field inspection as directed by UnionOil Company Representative. . . . This work is to be done under the supervision of theCompany Inspection Supervisors. (Emphasis added) (Exhibit C-75, p.1)Also the independent inspector who participated in the inspection of vessel 12D701testified: that in the 1984 turnaround Mr. Granot, head of respondent’s inspectiondepartment, assigned him to work with respondent’s inspection supervisor in question; thathe knew nothing of the inspection supervisor’s background or credentials; that he was toldthat he was to do inspection work with respondent’s inspection supervisor; that heperformed no training activities; that the inspection supervisor would inform him whatthey had to do on a daily basis; that the inspection supervisor was his contact with Mr.Granot; that he took no notes, they were rather taken by the inspection supervisor; thathe made no recommendations with respect to repair or alterations of any vessels; thatduring the three weeks he was there he neither certified nor decertified any vessel; thatthey would inspect from two to five vessels each day; and that he initialed no documentsduring the turnaround. (Tr. 1878-1885)This independent inspector has for many years beenlicensed by the State of Indiana, pursuant to examination, as an Unfired Pressure VesselInspector. Before retiring in 1981 he worked for Amoco Oil Refinery where he inspectedpressure vessels from 1961 until retirement. He holds no other certifications and hastaken no courses given by the American Society of Nondestructive Testing. He consideredthe interior inspections 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 inspectedvessel 12D701 was a Special Inspector as that term is defined in the Illinois Act whichprovides:The inspections herein required shall be made by . . . a Special Inspector providedfor in this Act. (Exhibit C-59, sec. 10(7))Notwithstanding the foregoing, Mr. Granot, head ofrespondent’s inspection department, who made no inspection of vessel 12D701 certified tothe State of Illinois as required in the Illinois Act that 12D701 was inspected in 1984 asrequired by the Act. Mr. Granot was himself a qualified Special Inspector under theIllinois Act. This procedure of certifying to the State without having seen the vessel hadalso been followed in the course of the turnaround inspections since Mr. Granot headed upthe inspection department at respondent’s Chicago Refinery in 1977. (Tr. 1802-1804, 3441,3442)________________________Following the repair of vessel 12D701 in 1974 respondent tested the quality of therepair in three particulars: (1) it submitted the welds to visual inspection, (2) itsubjected the repair welds to radiography, and (3) the vessel was hydrostatically pressuretested 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 second course of 12D701 in1974 has known since the 1960’s that if welds in an environment where atomic hydrogen canbe generated have a Brinelle hardness over 220, the likelihood of cracking is apossibility. (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 wasremoved and re performed by a second contractor. Also respondent’s records disclose that\”Very poor cuts on plates in D701 caused excessive rewelding.\” Notwithstandingthese problems no hardness tests were performed on the repair welds after their completionin 1974 or at any time thereafter. (Exhibits C-22 p.2, C-34 pp.24-30) Likewise respondentappears to have given no consideration to the likelihood that hardening of the base metalin the heat affected zone adjacent to the extensive repair welds might have resulted fromthis torturously performed 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 aswell as Chapters V and VIII of the ASME Boiler and Pressure Vessel Code bear abundantwitness that the petroleum refinery industry recognized the potential for hydrogen inducedcracking and pressure vessel failure where hard welds or martensite were allowed to bepresent as a result of field or repair welding. Also the literature warned of permittingunrelieved residual stresses to remain as a product of repair welds. The literature warnedthat such conditions could give rise to Hydrogen Stress Cracking where allowed to exist inan environment exposed to H2S and advised methods both of avoiding theconditions and inspecting for the existence, development or growth of hydrogen cracking.(Exhibit C-62 pp.35, 36, 47, 48; Exhibit C-63 p.4; Exhibit C-64 p.5, 6; Exhibit C-66 p.7;Appendix A, attached to Complainant’s Post Trial Brief, pp.10, 12 of the 1958 Edition andpp.10, 12 of the 1970 Edition)Particularly useful for the detection of cracksformed or in process in the shells of pressure vessels were Magnetic Particle Testing andLiquid Dye Penetrant Testing. Also Ultrasonic Testing was useful in detecting cracks ifangle beam, also referred to as shear beam ultrasonic testing method, was utilized. Therespondent utilized the straight beam method of ultrasonic testing which serves only tomeasure wall thickness or the depth of discontinuities or laminations. (Tr. 689)Respondent had on hand a portable Telebrinellerhardness measuring instrument and actually measured the hardness of welds at the secondcourse of 12D701 in 1972. (Exhibit C-34, p.30) Respondent also had on hand the equipmentfor performing the ultrasonic testing, the magnetic particle testing and the liquid dyepenetrant testing for cracks. Notwithstanding such capability and awareness of ongoinghydrogen attack respondent did nothing following the repair welds of 12D701 in 1974 toeither measure the hardness of the repair welds or the base metal in the heat affectedzone adjacent to those welds; nor did respondent conduct any tests to rule out thepresence of cracking in pressure vessel 12D701._______________________________Respondent expresses a defense to be that it should not be responsible for failure todetect a \”microscopic\” crack among 700 pressure vessels. There is no evidencethe cracks found to be present in vessel 12D701 were \”microscopic.\” The evidenceis that four cracks covering some 40% of the circumference of the vessel in the vicinityof the horizontal weld joining courses one and two occurred in the\”microstructure\” of the metal in the weld heat affected zone whichmicrostructure took on the properties of martensite as a result of the welding proceduresfollowed in 1974. (Tr. 1032, 1044, 1055; Exhibit (C-49)(3) That fire or explosion and the increased likelihoodthereof resulting from undetected cracks would likely cause death or serious physical harmis amply born out by the events at respondent’s Chicago Refinery on July 23, 1984.Seventeen employees died and fourteen received injuries resulting in lost work time as aresult of the ignition of refinery product which began its escape from an undetected crackin pressure vessel 12D701 and which crack rapidly connected with others around thecircumference of the corrosion weakened wall.(4) Respondent had the feasible means of detecting cracksin the welds or base metal of pressure vessels at its refinery from prior to 1974 andthrough the time of the catastrophe on July 23, 1984. The timely detection of hydrogenstress cracks in pressure vessel 12D701 could have eliminated or materially reduced thelikelihood of the leak of product which 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 IllinoisAct, if compliance there be, constitute a bar to complainant proceeding under section5(a)(1) of the Act?Section 18(a) of the Act addresses State jurisdictionover occupational safety and health issues with respect to which no standard is in effectunder section 6 of the Act. In effect section 18(a) makes no interference with the rightof any State agency or court to assert concurrent jurisdiction over occupational safetyand health issues where the Secretary of Labor acting through OSHA has promulgated nospecific regulation.In the case before us respondent may have failed tocomply with the requirement of the Illinois Act that inspection of its pressure vessels beperformed by \”Special Inspectors\” commissioned by the State of Illinois. Shouldthe State of Illinois desire to assert jurisdiction and proceed against the respondent forthat 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 thelegislative history to suggest that Congress intended compliance with the standards ofapplicable state law to create an exemption from the Act’s general duty clause. See PuffersHardware, Inc. v. Donovan, 742 F.2d 12, 16-17 (1st. Cir. 1984), OSHRC No. 83- 1863.The existence of the Illinois Act or compliancetherewith would not act as a bar to the Secretary proceeding under the general duty clauseof the Act as set forth in Citation No. 1, item 1.Issue C:If respondent was in violation of section 5(a)(1) ofthe Act as set forth in Issue A, was that violation willful?In order to show a violation of section 5(a)(1) ofthe Act to have been willful, the Secretary has the burden of demonstrating by apreponderance of the evidence the employer’s disregard of or plain indifference to itsstatutory duty to furnish a workplace free from recognized hazards. The evidence producedmust be such that it convincingly establishes that the employer intentionally disregardedor was indifferent to employee safety. The Secretary may satisfy his burden by showingaggravating circumstances such as: the employers failure to remedy a visibly dangerouscondition actually known to the employer or its supervisory personnel, (Central Soya DePuerto Rico v. Secretary of Labor, 653 F.2d 38 (1st Cir. 1981); Kus-tum Builders,Inc., 10 BNA OSHC 1128, 1131 (No. 76-2644, 1981); Babcock & Wilcox Company,7 BNA OSHC 1194 (No. 77-3575-A, 1979); St. Joe Mineral Corp. v. OSHRC, 647 F.2d840, 848 (8th Cir. 1981)) or the employer’s deliberate disregard of known safetyrequirements, (Ensign-Bickford Co. v. OSHA, 10 BNA OSHC 1639 (No. 78-4945, 1982),aff’d., 717 F.2d 1419 (D.C. Cir. 1983).Respondent suggests that this case should be governedby the Commission’s reasoning in United States Steel Corporation, 12 BNA OSHC 1693(No. 79-1998, 1986) which ruled the employer not guilty of a willful violation where ithad developed a strategy for dealing with the hazard based on the judgment of its managersas to the existence of conditions 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 applicableindustry safety standards including the API Pressure Vessel Inspection Code and InspectionGuides and that respondent had knowledge of those standards. Respondent had in factobligated itself to observe the API standards by electing, as permitted by the IllinoisAct, to conduct its own inspection program in accordance with API rules and regulationsutilizing \”Special Inspectors\” qualified under the Illinois Act, rather than tosubmit to state inspection of its pressure vessels.Notwithstanding continued observations of ongoinghydrogen attack on pressure vessel 12D701 over the ten year period between 1974 to 1984,respondent failed to utilize recommended and available repair methods to avoid thepotential for cracking, or testing techniques to determine the presence or absence ofcracks in the vessel walls or welds. Furthermore, respondent followed a course of conductwhich certified to the State of Illinois on a continuing basis that inspection of pressurevessels was accomplished by inspectors qualified under the Illinois Act when such wascontrary to the fact. Respondent’s repeated failure to test for cracks and itsmisrepresentation of the quality of the inspections performed is convincing evidence ofplain indifference to employee safety and the statutory duty to furnish a workplace freefrom the recognized hazard of fire or explosion which could result from leak of productfrom undetected cracks allowed to form in pressure vessels.Complainant has met its burden of proof with respectto the willful nature of the 5(a)(1) violation set forth in Issue A. Issue DIf respondent was in violation of section 5(a)(1) ofthe Act as set forth in Issue A, what penalty would be appropriate? Giving due consideration to the factors set forth atSection 17(j) of the Act and by reason of the disregard shown by the respondent of theknown safety requirements of the Illinois Act, and of the various American PetroleumInstitute recommendations regarding welding repairs, inspecting for cracks and inspectionsconducted by qualified inspectors, it is here determined that the proposed penalty of$10,000 for this willful violation is appropriate.Issue EWas the respondent in violation of 29 C.F.R.1910.132(a) for failure to provide and require the use of protective fire fightingequipment as alleged in Citation No. 1, item 2?To prove a violation of section 5(a)(2) of the Act,the complainant must prove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard created by the violativecondition. Otis Elevator Co., 6 BNA OSHC 2048, 1978 CCH 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 caseif a reasonable person familiar with the circumstances, including facts unique to anindustry, would recognize a hazardous condition requiring the use of personal protectiveequipment. Tube-Lok Products, 9 BNA OSHC 1369, 1981 CCH OSHD ? 25,235 (No. 16200,1981); General Electric Co., 7 BNA OSHC 2183, 1980 CCH OSHD ? 24,268 (No. 15037,1980); Lukins Steel 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 bothconstructive and actual knowledge of a hazardous condition warranting the use of fireprotective clothing by all members of the shift fire crews and operating personnelrequired to contain fires and potential fires in the operations areas of the refinery.Complainant’s expert, Mr. Lawrence Watrous, alicensed Fire Protection Engineer, testified that because of the large amounts of fuelinvolved, an oil refinery fire may develop from the incipient or small stage into a majorfire within a very short period. Thus operating personnel and the Shift Fire Crew maynecessarily be required to confront major emergencies before the Day Fire Crew can becalled in. (Tr. 2868, 2879; Exhibit C-92) Mr. Watrous further testified that protectivegear should be provided to all personnel who may be thus faced with possible vaporignition. (Tr. 2871-72, 2893-95) Internal memoranda clearly demonstrate that respondent’sFire Chief and other supervisory personnel recognized that refinery fires wereunpredictable and that the possibility of encountering a hazardous situation alwaysexisted. (Exhibit C-86, pp.18452, 18458-59; Tr. 2595-97)At the time of the 1984 explosion and prior thereto,respondent had written emergency procedures. (Exhibit C-9; Tr. 2630) Under its policies:(1) All operating personnel at the refinery were expected to extinguish or contain minorfires located in their work areas as part of their regular duties. (Exhibit C-9, p.30012;Tr. 2516); (2) Fires and potential fires beyond the capabilities of the operatingpersonnel were to 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 filling designated refinerypositions and trained to \”adequately\” perform firefighting duties (Exhibit C-9,29988; Tr. 2590), were to respond at times 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 DayFire Crew from their homes should a fire develop beyond their capabilities. (Exhibit C-9,p. 29991; Tr. 2524)No protective clothing was provided for or requiredto be worn by regular operating personnel. (Tr. 2519) All members of the fire crews wererequired under standing orders to obtain fire protective turnout gear consisting of boots,helmet, coat and gloves before reporting to a fire 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 records disclose that this practice was known torespondent’s Fire Chief, who expressed concern over the likelihood of serious injuryresulting therefrom in January 1984. (Exhibit C-86, p.18458; Tr. 2794-99) On the day ofthe explosion giving rise to this action, Shift Fire Crew members who died in the ensuingevents were seen to arrive at the scene of the potential 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 following defense:Initially, this citation is legally unenforceable relating to personnel who areassigned to the shift fire brigade, since 29 C.F.R. 1910.156, relating to fire brigade,does not require the use of personal protective equipment for shift fire brigadeswho are required to respond to \”incipient\” stage fires. Further, since the shiftfire brigade was only required to respond to incipient stage fires, there is no factualbasis for asserting a more general regulation (1910.132) than that which is specificallyapplicable to the shift fire brigade.Other than refuting respondent’s indefensible claimthat its fire brigades were \” . . .only required to respond to incipient stagefires,\” complainant makes no reply to this defense. Neither party cites any cases orauthorities in support of their respective positions. 29 C.F.R. 1910, Subpart L – FireProtection, 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, and all portableand fixed fire suppression equipment, fire detection systems, and fire or employee alarmsystems installed to meet the fire protection requirements of 29 C.F.R. Part 1910.(b) Application. This subpart applies to all employments except for maritime,construction and agriculture.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 * ? 1910.156 Fire Brigades.(a) Scope and application–(1) Scope. This section contains requirements forthe organization, training, and personal protective equipment of fire brigades wheneverthey are established by an employer.(2) Application. The requirements of this section apply to fire brigades,industrial fire departments and private or contractual type fire departments. Personalprotective equipment, requirements apply only to members of fire brigades performinginterior structural fire fighting. The requirements of this section do not apply toairport crash rescue or forest fire fighting operations.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(e) Protective clothing. The following requirements apply to those employees whoperform interior structural fire fighting. The requirements do not apply to employees whouse fire extinguishers or standpipe systems to control or extinguish fires only in theincipient stage.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *Under \”protective clothing\” the standard lists foot and leg protection, bodyprotection, hand protection, head, eye and face protection. Said protective clothing isalso referred to therein as \”equipment.\” The reference to \”incipientstage\” fires in ? 1910.156(e) is viewed as applying only to employees performing\”interior structural fire fighting\” referred to also in that paragraph.Nevertheless, the Secretary has, perhaps unwittingly,managed to give notice in this Subpart L that in all employments except maritime,construction and agriculture, personal protective equipment need not be furnished to orworn by members of employer established fire brigades unless said brigades are engaged ininterior structural fire fighting and then only if the fire is beyond the incipient stage.Subpart L, dealing as it does specifically with fireprotection and the need for fire protective clothing for employer established firebrigades in industries including the oil refining industry, we are constrained to followthe Commission’s reasoning in Williams Enterprises of Georgia, Inc., 12 BNA OSHC2097 (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 heldnot to apply to the members of respondent’s fire brigades to whom respondent furnishedprotective clothing. Nevertheless the standard does apply to respondent’s operationpersonnel who are required to handle the fire or potential fire until allowed to evacuateby the Chief of the responding fire crew. Respondent furnished no protective clothing tothese operations employees. Just as Scott Air Pack respirators hung on the walls at therespective satellites, so also could have hung protective clothing.The complainant has met its burden of proving aviolation of 29 C.F.R. 1910.132(a) with respect to operating personnel, but not withrespect to respondent’s fire brigade members.Issue F:If respondent was in violation of the standard asalleged in Issue E, was that violation willful, or failing that, serious?In order to show a violation of a standard orregulation under 5(a)(2) of the Act to have been willful the Secretary has the burden ofproving by a preponderance of the evidence the respondent’s violative conduct to have beenvoluntarily done with intentional or careless disregard for the requirements of the Act orwith plain indifference to employee safety. See Williams Enterprises v. Donovan,744 F.2d 170, 179-180 (D.C. Cir. 1984) 13 BNA OSHC 1249 (No. 85-355, 1987); AsbestosTextile Company, Inc., 12 BNA OSHC 1062, 1063 (No. 79-3831, 1984); D.A.&L.Caruso, Inc., 11 BNA OSHC 2138, 2142 (No. 79-5675, 1984); Daniel InternationalCorporation v. Donovan, 705 F.2d 382 (10th Cir. 1983), 11 BNA OSHC 1305 (No. 81-1714,1983). Thus, no showing of malicious intent or of obstinate refusal to comply with therequirements of the Act need be shown to establish a willful violation. In Tri-CityConstruction Co., 8 BNA OSHC 1567 (No. 77-3668, 1980) the Commission stated:While we agree. . . \”that a willful violation is established when. . . therespondent. . . made a conscious and deliberate decision not to comply\” with a knownrequirement of the Act, we would also find a willful violation when the respondent’sconduct is properly characterized as showing a careless disregard of the requirementsof the Act or an indifference to employee safety. (8 BNA OSHC at 1571) (emphasisadded).A violation is said to be \”serious\” underthe Act \”. . . if there is a substantial probability that death or serious physicalharm could result. . .\” (Section 17 (k))Applying the foregoing principles to respondent’sfailure to provide fire protective clothing to its operations personnel who were first tohandle fires or potential fire emergencies on respondent’s production units and who wereexpected to remain at the scene until allowed to evacuate by the chief of the respondingfire crew, (Tr. 2745) we are compelled to find that said violation on the part of therespondent was at the least serious.The hazard presented employees dealing with escapingflammable liquids or 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 apparentfrom its providing its shift fire crews with fire protective clothing and training them inthe use of 2? inch and 3 inch hoses and 2? inch nozzles, notwithstanding respondent’sclaim that its shift fire crews were expected to handle only \”incipient stagefires.\” Respondent’s training of operations personnel tohandle incipient stage fires and its failure to provide fire protective clothing topersonnel in the production units who might be faced with controlling escaping flammableliquids or gases while it provided the fire crew members expected to come to the scenewith such protective clothing must be viewed as conduct voluntarily done with carelessdisregard for the requirements of the Act and with plain indifference to the safety ofoperations personnel.Complainant has proved respondent’s violation of item2 of Citation No. 1 to have been willful.Issue G:If respondent was in violation of the standard asalleged in Issue E, what, if any, penalty would be appropriate?Giving due consideration to the factors set forth atsection 17(j) of the Act and the fact that whereas complainant charged this violation tohave affected shift fire brigade members and unit operating personnel, whereas it has beenhere found that the regulation violated was applicable only to the unit operationspersonnel; it is here determined that the sum of $4,000.00 is an appropriate penalty to beassessed against 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 alleged in Citation No. 1, item 3A?The complainant must prove by a preponderance of theevidence that 1910.156(c)(1) was applicable to the facts of this case, that respondentfailed to comply with the standard by failing to provide adequate training to firebrigade members and employee exposure to the hazard created by the violative condition. OtisElevator Co., supra., Issue E, p.44.General knowledge and the evidence presented at thehearing compel an awareness of the rapidity with which an incipient stage fire or even apotential fire not yet ignited can become a major conflagration in an oil refineryenvironment. (Tr. 2865-67) Flammable vapors emitted from a leaking vessel, given a sourceof ignition, can ignite in an instant enveloping personnel in the vicinity. Respondent’sknowledge of the flammable properties of its various products is beyond dispute.Notwithstanding the foregoing, respondent claims tohave required its shift 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 Departmentat respondent’s Chicago Refinery considered its \”fire suppression force\” to beorganized and trained as follows:A. PERSONNEL1. All Refinery EmployeesEach employee is expected to fight fires in his orher work area and to be proficient in the use of the fire fighting equipment provided.This includes portable hand held fire extinguishers, hose reels and monitors. Allemployees will attempt to safely extinguish minor fires using the above equipment orcontain the fire until additional fire fighting personnel and equipment have arrived.2. Shift Fire CrewThe Shift Fire Crew shall provide initial control andsuppression measures during nights, weekends and holidays. The Shift Fire Crew shall becomposed of the Laboratory Personnel, Coke Handlers, Pumpers and Shift-fitters. Trainingfor these personnel shall be held on a bi-monthly basis to ensure familiarity with theequipment available to them.3. Day Fire Crew of The Fire DepartmentThe Fire Department is composed of members who, on avoluntary basis, have agreed to attend monthly training sessions to become proficient inthe handling of in-plant emergencies. Members of the Fire Department will also, after agiven period of membership (usually 2 years) and with the individual’s consent, attend asecond monthly class to learn the proper method of operation of all mobile firefightingequipment.The Shift Fire Crew and Day Fire Crew and theirtraining were further defined:SHIFT FIRE CREWThe purpose of the Shift Fire Crew is to provide fireprotection when the Day Fire Crew is not present. The Shift Fire Crew is headed by thePetrochemical Department Shift Supervisor unless the incident involves the PetrochemicalOperating Area. In this case, the Blending and Transfer Shift Supervisor shall assume theresponsibilities as head of the Shift Fire Crew. Whenever possible, both the Petrochemicaland Blending and Transfer Shift Supervisor shall respond, with the Blending and TransferShift Supervisor assisting the Petrochemical Shift Supervisor when both are present. Theacting coordinator of the Shift Fire Crew shall hereafter be referred to as the Shift FireChief.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-monthly basis. Classesconsist of practical and classroom instruction to enable members to adequately performfire fighting duties.DAY (VOLUNTEER) FIRE CREWThe Day Fire Crew provides fire protection duringweekdays, between 7:30 A.M. and 4:00 P.M. and assists the Shift Fire Crew upon request.Membership consists of both salaried and hourly personnel who normally work straight daysand who have volunteered for membership. Training sessions for the Day Fire Crew are held on a monthly basis. Additional half-dayclasses will be held monthly for members classified as apparatus engineers. Apparatusengineers will be certified after passing a comprehensive written and practicalexamination.(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 as firefighters alongwith their Shift Fire Crew Chiefs as part of their refinery job description, received lessand inferior training than the Day Fire Crew, who volunteered to serve and agreed toattend monthly training session. (Tr. 2748-49)That respondent actually expected its Shift FireCrews to respond to and handle fires greater than incipient stage is manifest byrespondent’s furnishing fire protective clothing to be worn by the members of said crews.(Tr. 4825)Respondent had a written rule in its emergencyprocedures plan that protective clothing would be put on by members of the fire crewsbefore reporting to the scene of a fire or potential fire. (Exhibit C-9, pp. 29989, 29991,30014; Tr. 2525-26) Respondent’s Fire Chief expressed his concern when the rule requiringthe wearing of turnout gear was not obeyed by fire crew members. (Exhibit C-86, p.18458;Tr. 2794-99)That respondent knew its Shift Fire Crews would inall likelihood be facing major fires rather than \”incipient stage fires\” isfurther apparent from a review of respondent’s Shift Fire Crew training records whichreveal that at eleven training sessions in 1983 alone, training involved use of 3 inchhose, 2? inch hose and 2? inch nozzles. (Exhibit C-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 worked out inthe operating units (regardless of job classification) were to receive annual fire-fighting training, consisting of hands-on training at the respondent’s fire field at therefinery, as well as classroom instruction in the use of handheld fire extinguishers, oneand one-half inch 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 or beginningstage and which can be controlled or extinguished by portable fire extinguishers, Class IIstandpipe or small hose systems without the need for protective clothing of breathingapparatus.Thus the general production employee population at respondent’s Chicago refinery, wastrained to respond to \”incipient stage fires.\”Apart from that minimal training afforded allemployees, respondent established two classifications of Fire Brigade. The Day Fire Crewsometimes referred to as The Fire Department was made up of volunteers who were trained tobe \”. . .proficient in the handling of in-plant emergencies.\” The members agreedto and were expected to attend, at minimum, monthly training sessions. Some were expectedto attend two monthly sessions \”. . .to learn the proper method of operation of allmobile firefighting equipment.\” The members of this Day Fire Crew were issued theirown personal protective clothing which was kept on the Fire Department Mobile CommandCenter truck. Fire Department Officers were to be appointed by the Chief based onexperience and ability. The Day Fire Crew members were divided into squads directed bylieutenants. Respondent’s Fire Chief and Deputy Fire Chief worked the day shift. (ExhibitC-9)Finally, the second Fire Brigade classificationestablished by the respondent was the Shift Fire Crew. Although turnout gear of varioussizes was placed in the back of the pickup truck assigned to the Shift Fire Crew Chief andmembers of the Shift Fire Crew were instructed to put on turnout gear before reporting tothe scene of a fire or potential fire, these members were not assigned or furnishedprotective clothing for their individual use. (Tr. 2824) Certain job descriptions, to-wit:Pumpers, Laboratory personnel, Coke Handlers and Shift Pipefitters carried with them theincidental requirement that the person awarded the job would be automatically a member ofthe Shift Fire Crew and required to respond to the scene of fire or potential fire whenthe alarm sounded. (Tr. 2822) By job description the Petrochemical Department ShiftSupervisor became automatically the Shift Fire Crew Chief unless the emergency was in hisoperating area in which event the Blending and Transfer Shift Supervisor, who wasotherwise to act as Assistant Chief, was to assume the responsibility of head of the ShiftFire Crew. The Shift Fire Crew was \”. . .to provide fire protection when the Day FireCrew is not present.\” Training was to be bimonthly consisting of practical andclassroom instruction to enable members to \”adequately\” perform fire fightingduties. (Exhibit C-9, p. 29988) Elsewhere training for Shift Fire Crew is described \”. . .to ensure familiarity with the equipment available to them.\” (Exhibit C-9, p.33012)The refinery operated 24 hours a day, 7 days eachweek. A serious fire emergency could occur during any shift at any time of the day. Therewas no reason to assume that the hazard of fire or potential fire would be greater at anygiven point in time be it day or night. (Tr. 2525, 2820)Realistically, the respondent trained its Day FireCrew to meet fire emergencies which could arise in its Chicago refinery plant.Unrealistically, respondent trained its Shift Fire Crew to respond only to incipient stagefires (Tr. 4742) and then changed it with the responsibility to \”. . . provide fireprotection when the Day Fire Crew is not present.\” The hazards they were to face wereidentical. If the Shift 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 help arrived. Thathelp was intended to be not merely more manpower, but better trained personnel. (Tr. 2524)Such a plan and strategy on the part of therespondent merely put untrained personnel in harm’s way.Respondent failed to train and educate members of itsShift Fire Crews commensurate with those duties and functions they were expected toperform.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 in Citation No. 1, item 3B?The standard requires that fire brigade leaders beprovided with training and education which is more comprehensive than that provided thegeneral membership of the fire brigade.Complainant alleges that in reference to the ShiftFire Crew Chiefs, this was not done.Respondent made an attempt to provide additionaltraining to its Shift Fire Crew Chiefs over and above what they would receive in attendingthe bimonthly Shift Fire Crew classes.As of 1979, all Shift Fire Crew Chiefs had attendedan out-of-refinery training 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 tenShift Fire Crew Chiefs and as of 1979 respondent had a program to send two of these chiefsto the above mentioned outside fire training schools each year. Thus each Fire Crew Chiefwas anticipated to attend an outside training school each five years. (Tr. 4896, 4897)One Shift Fire Crew Chief attended the Union Oilsponsored Fire Training School at Reno the year of its inception in 1981. (Tr. 4898) In1982 the respondent effected a reorganization which interfered with the Fire Department’straining plans and five Shift Fire Crew Chiefs were sent to the Reno Fire Training Schoolthat year. (Tr. 4899) Shift Crew Chiefs from the Chicago refinery attended the Reno FireTraining School in 1983. (Tr. 4899) By the fall of 1983 every new Shift Fire Chief was tohave attended a week long out of state fire training school. (Exhibit C-86, p. 018449)Early in 1984 the Fire Department of the respondent commenced Shift Fire Chief classes onMonday afternoons. Each class was repeated on four consecutive Mondays in order to allowthese shift workers each the opportunity of attending the given class. (Tr. 4894-4896) Inthese classes incidents which had occurred in the refinery would be discussed and how theymay have been handled differently. (Tr. 4894)In view of the foregoing it can hardly be said thatrespondent’s Fire Brigade 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 and established the need for more concern on the part of the respondent formore adequate fire training. (Tr. 2892-2897) Nevertheless the facts are that therespondent provided training to its Shift Fire Crew Chiefs which was more comprehensivethan that given the crew members. The result may have been that the poorly trained werebeing led by the less poorly trained, but complainant failed to meet its burden of provinga violation of Issue I.Issue J:Was the respondent in violation of 29 C.F.R.1910.156(c)(2) as alleged in Citation No. 1, item 3C? The standard requires that fire brigade members beprovided training frequently enough to assure that each member is able to perform assignedduties and functions satisfactorily and in a safe manner so as not to endanger firebrigade members or other employees.After becoming Fire Safety Supervisor for therespondent in 1975, Dale T. Pirc, by letter dated May 29, 1979, called attention of hiscorporate superiors to difficulties in getting Shift Fire Crew personnel to attend firetraining sessions. He pointed out that the problem had existed for many years, and stated:\”. . . The lack of attendance at trainings and response to off-shift emergenciescannot be ignored any longer. The potential of the loss of life and property without anefficient off-shift fire and rescue squad is too great.\” (Exhibit C-86, p. 018431;Tr. 4739)Again, by letter dated August 7, 1979, Chief Pirccomplained to his corporate superiors, \”. . . In the past we have managed to slip bywith the few capable people we have on shift and merely turning our heads the other waywith those who choose not to participate. Needless to say, some day our luck will run outand we will suffer the consequences. . .\” (Exhibit C-86, p. 018433) In May of 1981, Chief Pirc reported that Shift FireCrew attendance at training classes was up to an \”acceptable\” 70%. He reportedthat attending personnel had for the first time been subjected to \”live fire\” atthe fire training field. He noted that whereas the Shift Fire Crew Chief’s had a 60%attendance, it should be 100% since they have \”. . .overall responsibility of shiftfire emergencies.\” (Exhibit C-86, p. 018438)Incidentally, in the above report of May 14, 1981,Chief Pirc noted that all personnel at the training field \”. . .used full protectiveclothing,\” and that in the upcoming Shift Fire Crew classes for July there would be areview of \”. . . 2? handline operations.\” (emphasis added)By letter to his corporate superiors dated December23, 1981, Chief Pirc expressed disappointment in the attendance of Shift Fire Crewpersonnel at training sessions throughout 1981. The Shift Fire Crew Chiefs had only a 66%attendance. Chief Pirc there noted: \”. . . We have determined that if eachclassification in the Shift Fire Crew achieves an 80% attendance in each of the six annualclasses, they should be able to maintain the basic skills required for that job. . . . Webelieve that attendance below this minimum greatly increases the risk of property damageand personal injury to the members themselves.\” (Exhibit C-86, p.018440)By letter to his corporate superior dated March 25,1983, Chief Pirc noted that the Shift Fire Chiefs from the \”North Plant\” had a0% attendance at the March 1983 training classes. Chief Pirc noted: \”The problem isnow to the point that not only I seriously question the Shift Fire Chief’s ability, butmany members of the Shift Crew. . . have also begun to ask the same question. . . . Such alack of confidence would prove disastrous to any progress we have made with the Shift FireCrew over the past few years.\” (Exhibit C-86, p. 018444)Continuing neglect of training by the Shift Fire CrewChiefs is noted by Chief 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 corporateladder in a letter dated June 28, 1983, wherein it was noted: \”. . . Since theOperating Department reorganization in September (1982), attendance of the Shift FireChiefs as a group has averaged 33%. The last time a Shift Supervisor from thePetrochemical Department attended a shift fire training class was January 1983.\” Thewriter also notes: \”Thus far, our request for recommendations from the OperatingDivision have not provided any significant solutions. We are putting a select group ofindividuals into nonroutine, unpredictable and hazardous situations for which trainingplays a major part in both effectiveness and safety of the entire Shift Fire Crew.\”(Exhibit C-86, p. 018452)By January 18, 1984, Chief Pirc noted in a letter tohis superior the attendance of Shift Fire Chiefs at training sessions had risen to lessthan 50%. Shift Crew member attendance had improved and was observed to be\”marginally acceptable.\” (Exhibit C-86, p. 018457)Perhaps the biggest flaw in respondent’s Shift FireCrew concept was that although membership was mandated by job description including thepositions of Chief, participation in training or even appearance at a sounded emergencyalarm was not enforced. Chief Pirc, who had no input in the selection of shift crewmembers or chiefs, (Tr. 2588) on at least two occasions suggested that Shift Fire Crewmembers should be replaced in their job classifications if they failed to havesatisfactory attendance at training sessions or failed a written competence test. Hedidn’t venture so bold as to suggest the same requirement of Chiefs who held supervisorypositions in operations. (Tr. 4938-40, 2442-44, 2451-53, 2590; Exhibit C-86, pp. 018454,018456) There is no evidence in the record that management took Chief Pirc’s suggestionsseriously.That respondent gave production priority over safetyfire training is demonstrated in the closure of the Fire Training Field in 1983.Respondent without first providing an alternative fire training site preempted the spaceand constructed a new production facility thereon. From May of 1983 until around the firstof July 1984 the respondent’s Fire Department was without a live training field where itcould provide hands-on training in putting out actual fires to its fire fightingpersonnel. Chief Pirc considered live firefighting drills to be a necessary part of thetraining. (Tr. 2630-32)Respondent’s failure to respond effectively to theimportuning of its Fire Department Chief that more frequent attendance at fire trainingsessions be required of Shift Fire Crew members and Chiefs and respondent’s disabling ofthe live fire training field without providing an alternative for a period exceeding oneyear constituted a failure to provide fire training to its Shift Fire Crew \”. ..frequently enough to assure that each member of the fire brigade was able to perform hisor her assigned duties and functions satisfactorily and in a safe manner so as not toendanger fire brigade members or other employees.\”Complainant has met its burden of proof with respectto Issue J.Issue K:Was the respondent in violation of 29 C.F.R.1910.156(c)(2) as alleged in Citation No. 1, item 3D?The standard requires in addition to sufficientfrequency of training that \”all fire brigade members shall be provided with trainingat least annually.\”As of July 23, 1984, the respondent had 10 Shift FireCrew Chiefs or Assistant Chiefs and 65 Shift Fire Crew members. (Exhibit C-85)Review of the training history of the 8 Shift FireCrew members and Shift Fire Crew Chief and Assistant Shift Fire Crew Chief who died in thefire of July 23, 1984, discloses that one crew member had no fire training within the yearpreceding the fire. (Exhibit C-10)Complainant has thus proved that not \”all\”fire brigade members were provided training \”at least annually.\” To confrontsuch an untrained employee with a fire or potential fire in an oil refinery environmentwhere fire can escalate rapidly is to expose that employee to a substantial probabilitythat death or serious physical harm could result.Issue L:Was the respondent in violation of 29 C.F.R.1910.156(c)(3) as alleged In Citation No. 1, item 3E?The standard requires that the training and educationprogram for oil refinery fire brigade members be similar to those conducted by Texas A andM University, Lamar University, Reno Fire School or the Delaware State Fire School.Each of the recommended fire schools, as an essentialpart of its fire training program, had a live fire field where the trainees wearingturnout gear would get hands-on experience extinguishing fires involving flammable liquidsand flammable gases. Approximately one-half of the time of the trainees at these schoolswas devoted to this practical, hands-on training. (Tr. 4749-4757)Respondent’s Fire Chief Pirc considered live firefighting drills to be a necessary part of fire brigade training. Yet the respondentpreempted the live fire field to construct a production facility and left its FireDepartment without the means of offering to its Fire Crew members live, hands-onexperience in extinguishing fires for more than a year, i.e., between May 1983, and July1984. (Tr. 2630-32)Respondent thus expressed a lack of concern forsafety and fire training and rendered its fire brigade training program dissimilar tothose recommended 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 alleged in Citation No. 1, item 3F?In addition to informing fire brigade members aboutspecial hazards such as storage and use of flammable liquids and gases, the standardrequires the employer to develop and make available for inspection by fire brigade memberswritten procedures that describe the actions to be taken in situations involving thespecial hazards and to include these in the training and education program.Although the properties of the flammable liquids andgases members of respondent’s fire brigades would be coping with were undoubtedlydiscussed at training sessions, respondent’s Fire Chief testified that respondent had nowritten preplan manual that described actions to be taken by a fire brigade when fightinga fire at the refinery’s processing units. (Tr. 2738)Complainant met its burden of proof with respect toIssue M.Issue N:If the respondent was in violation of any or all ofIssues H thru M (Citation No. 1, items 3A thru 3F), was such violation willful or failingthat serious, in whole or in part?For the elements which must be proved to make aviolation of section 5(a)(2) of the Act to be either \”Willful\” or\”Serious\” and cases so holding see the discussion under Issue F, supra atpp. 49-51.Applying said principles to the facts of items 3A thru 3F of Citation No. 1, which itemswere grouped for the purpose of fixing a single penalty based on a charge of willfulness,we determine the following:Item 3A: Respondent’s position that it made the determination to require itsShift Fire Crews to respond to \”incipient stage fires\” and to train themaccordingly does it no credit. The facts are at variance with respondent’s position heldat the hearing and through its briefing. Indeed, respondent’s position seems to have beenadopted, at least in part, in order to justify a claim that it was not required to furnishor require the wearing of protective clothing. In fact, respondent did furnish both Dayand Shift Fire Crews protective clothing. Respondent did instruct the members of the ShiftFire Crews to wear protective clothing. Unfortunately, it tolerated failure of the crewmembers to heed its instructions. In fact, respondent did train its Shift Fire Crews inthe use of 2? and 3 inch hoses and 2? inch nozzles. Thusrespondent acknowledged that its Shift Fire Crew members may be confronted withemergencies involving major fires, but it did not provide training commensurate with suchlikelihood.Nevertheless, respondent required of its Shift FireCrew that it remain at the scene and attempt to control a fire emergency beyond itstraining ability until better trained help should arrive. Such a policy manifests a plainindifference to the safety of the members of the Shift Fire Crew. This violation waswillful under the Act.Item 3B: Since the training of respondent’sShift Fire Crew leaders was here found to have been more comprehensive than that given themembers of the Shift Fire Crew, no violation was found with regard to item 3B.Item 3C: Respondent failed to adequatelyrespond to the continued urging of its Fire Chief and to develop a method of enforcingattendance of Shift Fire Crew members and Chiefs at training sessions prepared and offeredby its Fire Department. Although respondent justifiably expresses pride in the expertiseand qualifications of its Fire Chief (Respondent’s Post-Trial Reply Memorandum, pp.41,42), it nonetheless undermined his training efforts by denying him or the fire fightingpersonnel a live Fire Field for hands-on fire extinguishing for over one year from May1983, to early in July 1984.Such failure to respond to the persistent urging ofits Fire Chief and deliberate removal of his essential training facility amounts to anintentional disregard for the requirements of the Act and manifests a plain indifferenceto employee safety, this violative conduct was willful within the meaning of that termunder the Act.Item 3D: Although at least one of respondent’sShift Fire Crew members did not receive at least annual training, it was clear from theevidence presented at the hearing that respondent made a concerted effort to give all ofits production employees annual training and in addition to give bi-monthly training toits Shift Fire Crew members. Though it failed to accomplish the frequency of training itsFire Chief held to be essential, it nonetheless would appear that failure of all ShiftFire Crew members to receive at least annual training was more the exception than therule.Respondent’s conduct in this regard cannot be held tobe willful. That the violation was serious, however, is established by the fact that theone Shift Fire Crew member who had received no training for more than one year, upon whichthis finding of violation is based, perished in the fire of July 23, 1984.Item 3E: Respondent’s violative conduct whichmade out a violation of item 3E was the removal of the live fire field as a fire fightingtraining facility for a period exceeding one year. Respondent thus accommodated itsproduction department at the expense of employee safety. Such conduct cannot be viewedother than manifesting careless disregard for the requirements of the Act and plainindifference to employee safety. The violation of item 3E was willful as that term is usedin the Act.Item 3F: Although respondent failed to developwritten procedures and make them available for the inspection of fire brigade membersdescribing the actions to be taken in situations involving the special hazards offlammable liquids and gases or to include same in its fire brigade training and educationprogram, that fact only establishes a violation of the standard at 29 C.F.R.1910.156(c)(4).Facts necessary to show that failure to have beenwillful are lacking.Respondent’s omission of this mandated requirement ofthe Act when taken in conjunction with respondent’s other failures found in meeting therequirements of the various subsections of 29 C.F.R. 1910.156 compels a finding that thisviolation was serious.Respondent is thus held to be in willful violation ofitems 3A, 3C and 3E. Violations of items 3D and 3F are held to be serious. Item 3B shouldbe vacated.Issue O:What, if any, penalty or penalties would beappropriate for the willful violations of items 3A, 3C and 3E and the serious violationsof items 3D and 3F.Giving due consideration to the factors affecting theappropriateness of penalties to be assessed as set forth at section 17(j) of the Act, itis here determined that the combined sum of $6,000.00 is an appropriate penalty to beassessed for the willful violation of items 3A, 3C and 3E and the combined sum of$1,000.00 is an appropriate penalty to be assessed for the serious violations of items 3Dand 3F.Issue P:Was the respondent in violation of section 5(a)(1) ofthe Act as alleged in serious Citation No. 2, item 1?For the elements which must be proved to make out aviolation of section 5(a)(1) of the Act and cases so holding, see the discussion underIssue A, supra at pp. 23-24.The citation charges respondent with \”. . . thelack of effective emergency evacuation procedures and education and training of personnelin said procedures.\” In the citation the Secretary proposes the establishment andimplementation of a refinery \”emergency action plan\” which would include sometwelve itemized elements as a minimum, all having to do with evacuation of employees.That the failure to institute emergency evacuationprocedures constitutes a hazard which was present in respondent’s refinery and recognizedby respondent and the petroleum refining industry is clear from the evidence presented athearing. It is axiomatic that the processing of petroleum products involves inherentpotential dangers. Harry McAninch, an engineering consultant for the Secretary, testifiedthat the failure of pressure vessels to contain hydrocarbons can result in fires andexplosions as the escaping contents mix with oxygen in the air. (Tr. 1972-75) David White,a consultant in petrochemical refining fire protection testifying for respondent,recognized that a refinery vessel leak may result in the release of rapidly expandingpetroleum gases forming an invisible, flammable vapor. (Tr. 5186-90) Mr. White,respondent’s Fire Chief, and the Secretary’s expert, Lawrence Watrous, all agreed that thepossibility of ignition of such vapors poses a hazard to personnel who may be exposed tothe gases. (Tr. 2911, 5026-27, 5189) Mr. Watrous testified that a preplanned evacuationprocedure for getting personnel safely out of an endangered area is a necessity to avoidjeopardizing the lives and safety of personnel at the emergency site and to later rescuepersonnel. (Tr. 2909-2912) Mr. Pirc agreed that evacuation of personnel downwind of anunignited leak was a necessity. (Tr. 5027) Both he and Mr. White testified that any soundemergency response program should contain preplanned provisions for evacuation ofpersonnel. (Tr. 2724-25, 2734-40, 2743-44)It is clear that the failure to preplan evacuationprocedures may result in death or serious bodily harm and that evacuation measures wouldmaterially reduce the risk of serious bodily harm. Refinery fires involving largequantities of flammable liquids and gases subject employees to the dangers ofasphyxiation, serious burns or death due to the presence of those employees in areas ofhigh gas concentrations. (Tr. 2911-12) A procedure by which refinery employees may executean orderly evacuation from fire and explosion sites without confusion and resulting lossof time clearly would increase such employees’ chances of escaping bodily harm. (Tr.2915-2916)Respondent argues that it is impossible to plan inadvance for each and every possible emergency which may arise in a petroleum refinery.However, under the language of the Act, a safety measure need not completely eliminate arecognized hazard; if such measure will materially reduce the hazard, it may be requiredunder 5(a)(1). See Litton Systems, Inc., Ingalls Shipbuilding Division, 10BNA OSHC 1179, 1182 (No. 79-900, 1981). The diversity of possible emergencies does notprevent a refinery from developing the rudiments of an evacuation plan, includingdesignation of personnel to determine the need to begin evacuation, setting of apreassigned signal to report to such personnel and a system for accounting for allpersonnel.That evacuation preplanning is feasible isdemonstrated by the testimony. Mr. Watrous testified to the institution of evacuationplans by numerous other refineries. (Tr. 2907-09, 2855-57, 2914) Mr. White testified thatas part of his consulting business, he assisted Saudi Arabian refineries develop their ownevacuation programs. (Tr. 5158-59) The Secretary also introduced published guidelinesoutlining possible evacuation procedures. See, Fire Protection Manual For HydrocarbonProcessing Plants, 2d ed., 1973, Exhibit C-95, p. 455. Moreover, respondent admits thefeasibility of an evacuation plan in its Surreply Memorandum stating that it developedsuch a plan in 1986 to comply with new state law. (Respondent’s Surreply Memorandum atp.11)Respondent defends, stating that even if theSecretary has established a duty to implement an evacuation plan, he has failed to provethat respondent’s emergency procedures were inadequate to meet the requirements of theAct.Prior to and at the time of the July 1984 fire,respondent’s methods for dealing with fire and explosion emergencies were contained in itsEmergency Procedures (Exhibit C-9), containing respondent’s 222 Alarm System. Any employeesighting fire or potential fire was to dial 222 on the refinery phone system. (Tr.4869-70) A plant guard would receive the employee’s information and sound the appropriatealarm, followed by an announcement on the public address system and the fire frequenciesgiving the location and the nature of the emergency. (Tr. 4871, 4874-75) On the soundingof the alarm, vehicle traffic and work which might provide an ignition source was to cease(Tr. 4871-72), and nonessential personnel, i.e., maintenance workers or independentcontractors, were to leave the battery limits of the endangered unit. (Tr. 4874) Operatingpersonnel were to remain and attempt to control the operations and contain the emergencyon the unit. (Tr. 4875-77) Shift operating personnel were to remain and be under thesupervision of the responding Shift Fire Chief, who had the ultimate responsibility fordetermining the necessity and manner of removing personnel from the area on an ad hocbasis. (Tr. 2745- 47) Respondent asserts that over and above the foregoing. \”All ofrespondent’s outside operators . . . are instructed . . . that in any circumstance whensuch individual feels that he is in a life threatening situation, that he is immediatelyto leave such area.\” Such reliance on the instinct for self preservation is nosubstitute for an emergency evacuation preplan.Refinery personnel were trained in the function ofthe 222 system at their initial orientation; the various alarm codes were tested weeklybut only during the day shift. (Tr. 4876) Several of respondent’s employees and Shift FireCrew members testified that they were unaware of the existence of any evacuation plan andhad received no training in that 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 as contractguards, non-essential personnel who under the respondent’s stated policy should have leftthe endangered area. (Exhibit C-23)On the day of the explosion, there was no attempt toinstitute evacuation procedures. (Tr. 120) Operating personnel on an adjacent unit did notknow whether to remain on the unit or head for the nearest exit. (Tr. 2296-2301) Sevenemployees in the FCC unit control room remained at their posts following the initialexplosion while a number of supervisory personnel entered and left; finally a day processsupervisor and a shift supervisor conferred and ordered the room cleared approximately 45minutes later. (Tr. 519-27)Mr. Watrous testified that an effective evacuationplan contains education of supervisory personnel as to when evacuation procedures shouldbe implemented, provisions for notifying personnel of the necessity of evacuation, routeplanning for evacuation and a method of \”counting heads\” to determine whetherall personnel are accounted for. (Tr. 2907-08) Respondent’s Fire Chief admitted thatrespondent’s Emergency Procedures (Exhibit C-9) contained none of these basicrequirements. (Tr. 5032-33)Whatever elements respondent’s emergency responseprogram did contain, it was silent respecting evacuation other than requiring maintenancepersonnel and independent contractors to leave the battery limits of the endangered unit.Respondent’s delegation of evacuation duties to the Shift Fire Chief, who must ofnecessity be otherwise occupied in his fire fighting activities at a time when the needfor evacuation arises, seems manifestly unreasonable. Such a \”plan\” is no planat all and does nothing 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 communicated to personnel, manyof whom had no understanding regarding the possibility of evacuation, how it would becarried out, or from whom instructions would come.Complainant met its burden of proof with respect toitem 1 of Serious Citation No. 2.Issue Q:Would an evacuation plan as proposed by complainantcreate a greater hazard to respondent’s employees and thus become other than feasible?In addition to generally denying the allegedviolation, set forth in item 1 of Serious Citation No. 2, respondent raises theaffirmative defense of Greater Hazard by way of specific exception to the second elementof the Secretary’s proposed emergency evacuation plan which reads:\”A feasible emergency action plan which includes. . .*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Procedures to be followed by employees who remain to operate critical plant operationsbefore they evacuate.Respondent claims that an evacuation plan mandatingthe evacuation of all personnel from a fire or potential fire site would leave the siteunattended, allowing the emergency situation to develop uncontrolled, thus increasing thehazard for all refinery personnel.Respondent’s Fire Chief, Dale Pirc, testified thatduring a fire or potential fire emergency, operating personnel are to remain on their unitto isolate or block in the unit in order to contain the emergency. (Tr. 4877) Mr.McAninch, testifying for the Secretary, agreed that in the event of a leakage ofhydrocarbons, operating personnel must be present to segregate and depressurize a leakingvessel and disperse escaping vapors. (Tr. 1989-91) However, as Mr. McAninch furthertestified, where a situation progresses beyond the operators’ control, those operatorsmust leave for their own safety. (Tr. 1978, 1991)Respondent assumes that the Secretary’s abatementplan calls for essential operating personnel to abandon their posts during criticalperiods as an emergency develops. The Secretary’s plan calls for no such measure. Allthat, is required under item (b) of the suggested plan is the development of\”[p]rocedures to be followed by employees who remain to operate critical plantoperations before they evacuate.\”Respondent’s Contention that because of this elementan evacuation preplan would result in an increased hazard is without merit. See Brown& Root, Inc., 8 BNA OSHC 2140, 2144 (No. 76-1296, 1980); Cerro Metal ProductsDivision, 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 set forth in Issue P above, what penalty would be appropriate?Again, giving due consideration to the statutoryrequirements set forth at section 17(j) of the Act, the penalty proposed by the Secretaryin the sum of $1,000.00 for this violation of section 5(a)(1) of the Act is found to beappropriate.____________________________Now, having observed the demeanor of the witnesses and having weighed the credibilitythereof, there are here entered the following:Findings of Fact1. Respondent is, and at all times pertinent heretowas, 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 engaged in the business ofrefining raw petroleum into fuels and lubricants.2. Respondent at all times pertinent hereto wasengaged in a business affecting interstate commerce in that respondent was engaged inproducing goods a substantial portion of which were being produced for interstate commerceand were being shipped or delivered or sold to persons or firms in states other than thestate wherein so produced and in that respondent was engaged in handling goods which hadbeen moved in interstate commerce.3. Respondent at times pertinent hereto employedapproximately 680 to 700 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 Eventportion of this decision and elsewhere herein are here incorporated by reference as thoughspecifically again set forth at this point.5. Vessel 12D7016 was fabricated from A516-Grade 70carbon steel and in accordance with Section VIII of the ASME Boiler and Pressure VesselCode. (Tr. 718)6. The respondent’s inspection department conductedperiodic inspections of pressure vessels in the refinery, including vessel 12D701, duringregularly scheduled refinery shutdown periods,known as turnarounds as well as on-streaminspections. (Tr. 3530) 7. Pressure vessel 12D701 was inspected internally atthe time of initial 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 12D701straight beam ultrasound thickness tests were performed on the vessel. (Tr. 3615, 3616;Exhibit C-16)9. Scheduled refinery shutdown for inspections is apractice recognized throughout the petroleum and oil refinery industry. (Tr. 4524, 4692)10. Respondent maintained records of the variousinspections which were conducted of each of its pressure vessels, including pressurevessel 12D701. (Tr. 599, 614; Exhibits C-27 thru C-33)11. Respondent conducted training of the members ofits inspection department 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 onoccasion employed inspectors from outside companies to supplement respondent’s inspectiondepartment. (Tr. 3475-3477)13. Prior to the April 1984 turnaround inspectionrespondent engaged B. Ostrofsky Associates, Inc. to provide inspectors to supplementrespondent’s inspection personnel in conducting pressure vessel inspections includingvessel 12D701. (Tr. 3475-3477, 3638)14. Mr. P. J. Krol, an inspector supplied respondentby B. Ostrofsky Associates, Inc., conducted an internal inspection of vessel 12D701 withand under the supervision of Mr. J. Gallagher, a member of respondent’s inspectiondepartment during the 1984 turnaround inspection. (Tr. 1801, 1897, 3862-3872)15. The results of the inspection of vessel 12D701during the 1984 turnaround were recorded in the file maintained by the respondent for saidvessel. (Tr. 1881; Exhibit C-34)16. Failure to adequately inspect for the presence ofcracking or cracks in or about, field welds performed at respondent’s refinery, or in thewalls of pressure vessels exposed to hydrogen environment, increased the likelihood offire or explosion to which respondent’s employees would be exposed.17. The increased likelihood of fire or explosion atrespondent’s Chicago Refinery from undetected cracks in pressure vessels was recognized bythe respondent and by the oil refinery industry.18. Fire and\/or explosion, if they occur, are likelyto cause death or serious physical harm to employees exposed thereto.19. Cracks which may escape visual inspection can bedetected by Magnetic Particle Testing, Liquid Dye Penetrant Testing, or Angle BeamUltrasonic Testing, all. of which methods were recommended and accepted by the industry ofwhich respondent was a part and known to the respondent, and respondent had the means ofperforming said tests.20. Other than visual inspection respondent didnothing to detect cracks in vessel 12D701 and respondent was in violation of item 1 ofCitation No. 1. (Issue A)21. Respondent’s violation of Citation No. 1, item 1was willful as that term is used in the Act. (Issue C)22. The sum of $10,000.00 is an appropriate penaltyto be assessed for respondent’s willful violation of the Act as set forth in Citation No.1, item 1. (Issue D)23. The respondent did not provide fire protectiveclothing to operating personnel on respondent’s various production units nor require usethereof by said personnel.24. Respondent’s operations personnel were requiredto handle fires or potential fires occurring in the production units of respondent’sChicago refinery from the initial stages and until said operations personnel were allowedto evacuate the unit by the chief of the fire crew which responded to the fire orpotential fire alarm. (Tr. 2745) In such situations operations personnel were exposed tothe same hazard of fire 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 CitationNo. 1. (Issue E)26. Respondent’s violation of item 2 of Citation No.1 was willful as that term is used in the Act. (Issue F)27. The sum of $4,000.00 is an appropriate penalty tobe assessed for respondent’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 wereexposed to the hazards of 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 29C.F.R. 1910.156(c)(1) with respect to its shift fire brigades (crews) as charged in item3A of citation No. 1. (Issue H)30. Respondent’s fire brigade leaders and instructorswere provided training and education more comprehensive than that provided the firebrigade members.31. Respondent was not in violation of the standardat 29 C.F.R. 1910.156(c)(1) with respect to its fire brigade leaders and instructors ascharged in item 3B, Citation No. 1. (Issue I)32. Respondent failed to assure that training andeducation of members of its shift fire crews was conducted frequently enough to assurethat each member was able to perform assigned functions satisfactorily and in a manner notto endanger fire brigade members or other employees.33. Respondent was in violation of the regulation at29 C.F.R. 1910.156(c)(2) as charged in item 3C, Citation No. 1. (Issue J) 34. Not all fire brigade members were providedtraining at least annually.35. Respondent was in violation of the regulation at29 C.F.R. 1910.156(c)(2) as charged in item 3D, Citation No. 1. (Issue K)36. The training and education program forrespondent’s fire brigade members was not similar to a substantial degree to thatconducted by Texas A and M University, Lamar University, Reno Fire School or the DelawareState Fire School.37. Respondent was in violation of the regulation at29 C.F.R. 1910.156(c)(3) as charged in item 3E, Citation No. 1. (Issue L)38. Respondent failed to develop and make availablefor inspection by fire brigade members written procedures that described the actions to betaken in situations involving flammable liquids and gases and to include these in thetraining and education program.39. Respondent was in violation of the regulation at29 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 ofCitation No. 1 were 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 ofCitation No. 1 were serious as that term is defined at section 17(k) of the Act and acombined penalty of $1,000.00 is appropriate for said violations. (Issue N and issue O)42. Failure to preplan and assign suitableresponsibility for evacuation of personnel of oil refineries handling massive quantitiesof flammable liquids and liquefied petroleum gases under pressure exposes said employeesto the increased risk of serious physical harm or death from fire or explosion which mayoccur.43. The hazard of potential fire or explosion in anoil refinery and the fact that it may occur is recognized by the respondent.44. The need for evacuation preplanning is recognizedby the oil refinery industry of which respondent is a part.45. Respondent on July 23, 1984, had no effectiveevacuation preplan covering operations unit personnel at its Chicago Refinery.46. Respondent’s operations units personnel wereexposed on July 23, 1984, to the hazard of fire and explosion and there was no preplan forevacuation including such rudiments as an evacuation signal, assignment of suitableindividual or individuals to initiate evacuation and a system for accounting forpersonnel.47. Development and installing of an evacuationpreplan is feasible and has been accomplished by other oil refineries.48. The consideration and inclusion of procedures tobe followed by employees who remain to operate critical plant operations before evacuationin an evacuation preplan would not create a greater hazard to employees. (Issue Q)49. Respondent was in violation of section 5(a)(1) ascharged in item 1 of Citation No. 2. (Issue P)50. An appropriate penalty to be assessed forrespondent’s violation of item 1, Citation No. 2 is $1,000.00. (Issue R)Conclusions of Law1. Jurisdiction of this action is conferred upon theCommission by section 10(c) of the Act and the Commission has Jurisdiction of the partieshereto.2. The presence of the Illinois Boiler and PressureVessel Safety Act in no way acts as a bar to the complainant proceeding against therespondent herein under section 5(a)(1) of the Occupational Safety and Health Act of 1970.(Issue B)3. Respondent was in willful violation of item 1 ofCitation 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 whichrespondent was charged in Citation No. 1, item 2, issued to respondent January 11, 1985,is not applicable to respondent’s fire brigade members, but is applicable to respondent’soperations personnel who are required by respondent to handle fires or potential fires intheir units until allowed to evacuate by the chief of the responding fire crew. (Tr. 2745)Said operations personnel were not members of respondent’s fire brigades, nor were theytrained as such.5. Respondent was in willful violation of item 2 ofCitation 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) appliedto respondent with respect to its fire brigades.7. The standard at 29 C.F.R. 1910.156(c)(2) appliedto respondent’s fire brigades.8. The standard at 29 C.F.R. 1910.156(c)(3) appliedto respondent’s fire brigades.9. The standard at 29 C.F.R. 1910.156(c)(4) appliedto respondent’s fire brigades.10. Item 3B of Citation No. 1, issued to respondentJanuary 11, 1985, should be vacated.11. Items 3A, 3C and 3E of Citation No. 1, issued torespondent January 11, 1985, should be affirmed as willful violations of section 5(a)(2)of the Act and a combined penalty of $6,000.00 should be assessed.12. Items 3D and 3F of Citation No. 1 issued torespondent January 11, 1985, should be affirmed as serious violations of section 5(a)(2)of the Act and a combined penalty of $1,000.00 should be assessed.13. Item 1 of serious Citation No. 2, issued torespondent January 11, 1985, should be affirmed as a violation of section 5(a)(1) of theAct and a penalty of $1,000.00 should be assessed.ORDER1. Item 1 of Citation No. 1, issued to respondentJanuary 11, 1985, is AFFIRMED 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 respondentJanuary 11, 1985, is AFFIRMED 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 respondentJanuary 11, 1985, is VACATED.4. Items 3A, 3C and 3E of Citation No. 1, issued torespondent January 11, 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 torespondent January 11, 1985, are AFFIRMED as serious violations of section 5(a)(2) of theAct and a combined penalty of $1,000.00 is ASSESSED. 6. Item 1 of serious Citation No. 2, issued torespondent January 11, 1985, is AFFIRMED as a violation of section 5(a)(1) of the Act anda penalty of $1,000.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: January 19, 1988FOOTNOTES: [[1\/]] In its decision and remand, the Court ofAppeals presumed that the Commission would assess a penalty \”somewhere in between the$31,000 that OSHA assessed and the $22,000 that the Commission awarded.\” Because thecourt reduced items 1 and 2 of citation 1 from willful, which carries a maximum penalty of$10,000, to non-willful, which carries a maximum penalty of $1,000, the penalties weassess are necessarily less than the amount presumed by the court.\u00a0[[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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees;[[2\/]] The citation reads:CitationSection 5(a)(1) of the Occupational Safety and Health Act 1970: The employer did notfurnish employment and a place of employment which was free from recognized hazards thatwere causing or likely to cause death or serious physical harm to employees in thatemployees were exposed to serious hazards including being struck, crushed, burned orasphyxiated resulting from increased likelihood of catastrophic failure of improperly andinadequately maintained pressure vessels. The employer failed to establish, properlyimplement and manage an effective program of pressure vessel safety including maintenanceinspection, rating, repair, alteration and\/or replacement. In addition, appropriaterecords necessary for informed decision making, documenting the vessel’s actual conditionwere not prepared, retained, or made available for inspection. Employees workingthroughout the refinery were exposed to these hazards on a daily basis including July 23,1984, when a pressure vessel, Amine Absorber 12D701, released hazardous quantities offlammable gases and vapors and corrosive liquid.A feasible and useful method of correcting thesehazards related to catastrophic pressure vessel rupture and failure is to establish andproperly implement an effective program including maintenance inspection, rating, repairand alteration and\/or replacement of refinery pressure vessels and their associated safetydevices. Such a program must include the following elements as a minimum:(a) Ensure that persons who are authorized to performinspections of pressure vessels have education and experience equal to at least one of thefollowing:(1) A degree in engineering plus 1 year of experience in the design, construction, repair,operation, or inspection of boilers or pressure vessels.(2) A two year certificate in engineering or technology from a technical college plus twoyears of experience in the design, construction, repair, operation, or inspection ofboilers or pressure vessels.(3) The equivalent of a high school education plus 3 years of experience in theconstruction, repair, operation, or inspection of boilers or pressure vessels.(b) Ensure the effective internal and external inspections are performed prior toreturning pressure to use on a regular periodic basis throughout their service life. Suchinspections must include the following:(1) Properly prepare vessels for inspection to ensure the safety of the inspector and theeffectiveness of the inspection. Among other steps, parts and components which prevent aneffective inspection must be removed.(2) Proper inspection techniques and procedures must be used to determine if stresscorrosion cracking, hydrogen blistering and attack, embrittlement, metal fatigue, creep,erosion, carburization, graphitization or other form of corrosion, deterioration anddefects are present. Where pressure vessels contain amine gas treating solutions,inspections must include the following:(i) Proper inspection procedures and techniques must be used by qualified inspectorsto detect cracks at welds and at weld heat affected zones of pressure vessels containingamine gas treating solutions. Dye penetrant, magnetic particle or other equivalentinspection techniques must be used.(ii) Having detected cracks, qualified inspectors must use ultrasonic angle-beamtransducers 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 and measurements;(ii) Details regarding all maintenance, repair, rating and alterations;(iii) The identity and qualifications of personnel who have performed maintenance, repair,rating and alterations;(iv) Details regarding procedures used in performing maintenance, repair, rating andalterations.(4) Recognized engineering principles must be used to determine if the vessel is or maybecome hazardous for continued operation.(5) Remove from service any vessel which is or may become hazardous until it has beenproperly repaired and reinspected.(6) Any vessel which has been repaired must be recertified prior to being returned toservice.In addition to the above outlined general pressure vessel hazard control and abatementprogram, recognized engineering principles and practices must be implemented to safelyconstruct, alter, replace and\/or repair the vessels and their associated safety deviceswhich contain amine gas treating solutions, so that they are safe for continued operation.Such principles and practices include the following:(1) Utilize designs and select materials which aresafe for the containment of amine gas treating solution for operating conditions; and(2) Utilize appropriate welding procedures andtechniques, including necessary stress relief; and(3) Prepare and maintain records which document theactual condition of pressure vessels containing amine gas-treating solutions anddemonstrate that the vessels were constructed, altered and\/or repaired to ensure continuedsafe operation; and(4) Any pressure vessel containing amine gas-treatingsolution which does not comply with subitems (1), (2) and (3) must be removed from serviceuntil its safe operation can be established.[[3\/]] The Citation and Standard read: Citation29 C.P.R. 1910.132(a): Protective equipment,including personal protective equipment for eyes, face, head, and extremities, protectiveclothing, respiratory devices, and protective shields and barriers was not provided, used,and maintained in a sanitary and reliable condition wherever it was necessary by reason ofhazards of processes or environment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact:(a) The employer did not assure the use of protective clothing for the shift brigadeand unit operating personnel who were required to fight fires and provide control,suppression and extinguishing measures beyond the incipient stage, including but notlimited to the explosions and fire at Amine Absorber 12D701 on July 23, 1984. Operatingpersonnel, shift fire brigade members and leaders who initially performed fire brigadeemergency activities prior to the explosions and fires and other employees who entered therefinery to perform fire brigade activities did not wear appropriate protective clothing,increasing exposure to fire hazards. Appropriate protective clothing consists of at leastthe following components: foot and leg protection; hand protection; body protection; eye,face and head protection.Standard Subpart I–Personal Protective Equipment ?1910.132 General requirements.(a) Application. Protective equipment, including personal protective equipment foreyes, face, head, and extremities, protective clothing, respiratory devices, andprotective shields and barriers, shall be provided, used, and maintained in a sanitary andreliable condition wherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanical irritants encounteredin a manner capable of causing injury or impairment in the function of any part of thebody through absorption, inhalation or physical contact. [[4\/]] The Citation and Standard read:Citation3A29 C.F.R. 1910.156(c)(1): The employer did notprovide training and education for all fire brigade members commensurate with those dutiesand functions that said fire brigade members were expected to perform. Said training andeducation was not provided to fire brigade members before they actually performed firebrigade emergency activities:(a) Shift fire brigade members and some shift brigade leaders were not trained to beproficient in the recognition and evaluation of the fire, explosive and related hazardsassociated with oil refinery industry fires, the safe positioning of personnel at the firesite, appropriate placement of fire apparatus and service vehicles, necessary evacuationprocedures and other training and education matters necessary and appropriate to assurethat each member is able to perform his\/her assigned duties and functions satisfactorilyand in a safe manner so as not to endanger fire brigade members or other employees.(b) Employees were assigned to work on the afternoon and evening shifts and duringweekends and holidays on a periodic basis due to changes in shift and job schedules. Theywere expected and\/or required to perform as shift brigade members without appropriatetraining and education. The employer’s program for the shift fire brigade involvededucating and training 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 other employees in theirdesignated work areas were required to participate and function as fire brigade membersuntil other fire fighting personnel arrived at the scene and to remain at the scene toassist as necessary. Said unit operators and other employees were not provided trainingand education in the hazards associated with oil refinery fires so as to assure that saidemployee is able to perform the assigned duties satisfactorily and in a safe manner so asnot to endanger fire brigade members or other employees.Standard ? 1910.156 Fire Brigades.(c) Training and education. (1) The employer shall provide training and education forall fire brigade members commensuratewith those duties and functions that fire brigade members are expected to perform. Suchtraining and education shall be provided to fire brigade members before they perform firebrigade emergency activities. Fire brigade leaders and training instructors shall beprovided with training and education which is more comprehensive than that provided to thegeneral membership of the fire brigade.[[5\/]] The Citation reads:Citation3B29 C.F.R. 1910.156(c)(1): Fire brigade leaders andtraining instructors were not provided with training and education which was morecomprehensive than that provided to the general membership of the fire brigade:(a) Several of the shift brigade leaders, including one of those on duty at the timeof the July 23, 1984 explosions and fires at the Amine Absorber 12D701, had not receivedthe more comprehensive training and education as required by the standard, in that theyhad not received appropriate training and education in the following areas: leadershipprinciples; strategies and tactics for fire control, suppression, and\/or extinguishment;and rescue and evacuation.[[6\/]] The Citation and Standard read: Citation3C29 C.F.R. 1910.156(c)(2): The employer did not assurethat training and education was conducted frequently enough to assure that each member ofthe fire brigade was able to perform the member’s assigned duties and functionssatisfactorily and in a safe manner so as not to endanger fire brigade members or otheremployees:(a) The employer’s program did not assure that each shift fire brigade member received therequired frequent training and education. An attendance goal of 80% was consideredsatisfactory for the bi-monthly training and education sessions provided by the employer.(b) The employer’s program required attendance of only those employees working regularlyin the job classifications which make up the shift fire brigade. Other employees, whocould reasonably be expected to function as shift fire brigade members and leaders as aresult of changes in shift or job assignment were not required to and did not attend andparticipate in training and education sessions prior to fire brigade assignment.Standard? 1910.156 Fire Brigades.(c) Training and education. (2) The employer shall assure that training and educationis conducted frequently enough to assure that each member of the fire brigade is able toperform the member’s assigned duties and functions satisfactorily and in a safe manner soas not to endanger fire brigade members or other employees. All fire brigade members shallbe provided with training at least annually. In addition, fire brigade members who areexpected to perform interior structural fire fighting shall be provided with an educationsession or training at least quarterly.[[7\/]] The Citation reads:Citation3D29 C.F.R. 1910.156(c)(2): All fire brigade memberswere not provided with training at least annually:(a) Fire brigade members were not provided with appropriate annual instruction andhands-on training and practice in the operation of fire fighting equipment including fieldtraining in the control, suppression and extinguishment of oil refinery fires.[[8\/]] The Citation and Standard read: Citation3E29 C.F.R. 1910.156(c)(3): The employer did notprovide a training and education program for oil refinery fire brigade members which wassimilar in quality to the programs conducted by Texas A & M University, LamarUniversity, Reno Fire School or the Delaware State Fire School:(a) Several shift fire brigade leaders, who were designated by the employer to be incharge of fire ground control and suppression tactics during initial brigade operations,were not provided with the required training and education;(b) Shift brigade members, who were required to provide initial control and\/orsuppression measures, were not provided with the required training and education:(c) Unit operators and other employees, who were expected to use hand hose lines andmonitor nozzles, had not been provided with the required training and education; and(d) Some of the off shift employees, who participated in fire fighting operationsduring the July 23, 1984 explosions and fires were not provided with the required trainingand education.Standard? 1910.156 Fire Brigades.(c) Training and education. (3) The quality of the training and education program for firebrigade members shall be similar to those conducted by such fire training schools as theMaryland Fire and Rescue Institute; Iowa Fire Service Extension; West Virginia FireService Extension; Georgia Fire Academy, New York State Department, Fire Prevention andControl; Louisiana State University Firemen Training Program, or Washington State’s FireService Training Commission for Vocational Education. (For example, for the oil refineryindustry, with its unique hazards, the training and education program for those firebrigade members shall be similar to those conducted by Texas A & M University, LamarUniversity, Reno Fire School, or the Delaware State Fire School.)[[9\/]] The Citation and Standard read: Citation3F29 C.F.R. 1910.156(c)(4): The employer did not informfire brigade members about special hazards to which they might be exposed during fire andother emergencies. The employer did not develop and make available to fire brigade memberswritten procedures that describe the actions to be taken in situations involving thespecial hazards.(a) An appropriate written special hazard information program was not developed andimplemented as part of the training and education of the shift fire brigade and unitoperating personnel who had fire fighting duties. Such a program must include writtenprocedures describing the actions to be taken in situations involving oil refinery specialhazards, including but not limited to the failure of a pressure vessel and the suddenmassive release of flammable vapors and\/or gases such as the incident which occurred anJuly 23, 1984. The program must describe actions to be taken, how to carry out firefighting operations and the protective equipment and clothing that must be worn duringfire and other emergencies.Standard? 1910.156 Fire Brigades.(c) Training and education. (4) The employer shall inform fire brigade members aboutspecial hazards such as storage and use of flammable liquids and gases, toxic chemicals,radioactive sources, and water reactive substances, to which they may be exposed duringfire and other emergencies. The fire brigade members shall also be advised of any changesthat occur in relation to the special hazards. The employer shall develop and makeavailable for inspection by fire brigade members, written procedures that describe theactions to be taken in situations involving the special hazards and shall include these inthe training and education program.[[10\/]] The Citation reads:CitationSection 5(a)(1) of the Occupational Safety and HealthAct of 1970: The employer did not furnish employment and a place of employment which wasfree from recognized hazards that were causing or likely to cause death or seriousphysical harm to employees in that employees were exposed to serious hazards includingbeing struck, crushed, burned or asphyxiated resulting from the lack of effectiveemergency evacuation procedures and education and training of personnel in saidprocedures. Employees working throughout the refinery were exposed to these hazards on a daily basisincluding July 23, 1984, when a pressure vessel, Amine Absorber 12D701, released hazardousquantities of flammable gases vapors and corrosive liquid.A feasible and useful method of correcting thesehazards is to establish and properly implement a refinery emergency action plan whichincludes the following elements as a minimum:(a) Emergency escape procedures and emergency escape route assignments;(b) Procedures to be followed by employees who remain to operate critical plant operationsbefore they evacuate;(c) Procedures to account for all employees after emergency evacuation has 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 for further informationor explanation of duties under the plan;(g) An alarm and notification system adequate to alert personnel in all areas of the needfor evacuation and control procedures;(h) Establish the types of evacuation to be used in emergency circumstances; (i) Before implementing the emergency action plan, designate and train a sufficient numberof persons to assist to the safe and orderly emergency evacuation of employees;(j) Review the plan with each employee covered by the plan at the following times:(1) Initially when the plan is developed; (2) Whenever the employee’s responsibilities or designated actions under the plan change;and (3) Whenever the plan is changed.(k) Review with each employee upon initial assignment those parts of the plan which theemployee must know to protect the employee in the event of an emergency.(l) Maintain the written plan at the workplace and make it available for employee review.Step 1 Submit to the Area Director a written detailed plan of abatement outlining aschedule for the implementation of the emergency evacuation procedure and emergencyevacuation procedure and the education and training of personnel in those procedures.Step 2 – Abatement shall have been completed by the implementation and verification of theeffectiveness of the emergency evacuation program.[[11\/]] Illinois Boiler and Pressure Vessel SafetyAct:Section 10. Inspection of Boilers and PressureVessels. (A) Each boiler or pressure vessel . . . shall be thoroughly inspected as to itsconstruction, installation, condition and operation as follows:*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *3. Pressure Vessels subject to internal corrosion shall receive a certificate inspectionas required by rules and regulations of the Board. However, the standards of inspectionand repair of pressure vessels in service by an owner user qualified under Section 15shall, at the option of such owner user, be either (1) the applicable rules andregulations embodied in the National Board Inspection Code, 1972 Edition; or (2) theapplicable rules and regulations embodied in the American Petroleum Institute publishedcodification known as API RP 510, 1975 Edition API Recommended Practice for InspectionRepair, and Rating of Pressure Vessels in Petroleum Refining Service, with such revisions,reissues, amendments and interpretations of either of the foregoing inspection standardsas are subsequently approved and adopted. (Exhibit C-59)[[12\/]] Illinois Boiler and Pressure Vessel SafetyAct:Section 8. Special Inspectors–How Appointed–Duties.(a) In addition to the Deputy Boiler Inspectors authorized by section 7 of this Act, theState Fire Marshal shall, upon the request of any company authorized to insure againstloss from explosion of boilers in this State or authorized under section 15 of this Act toself-insure against such loss, issue to any boiler inspectors of such company commissionsas Special Inspectors, provided that each such inspector before receiving his commissionshall satisfactorily pass the examination provided for in Section 9 of this Act, or, inlieu of such examination, shall hold a Certificate of Competency as an inspector ofboilers or pressure vessels for a State that has a standard of examination substantiallyequal to that of the State of Illinois or a Certificate as an inspector of boilers fromthe 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 have education andexperience equal to at least one of the following:1. A degree in engineering plus 1 year of experiencein the design, construction, repair, operation, or inspection of boilers or pressurevessels.2. A 2-year certificate in engineering or technologyfrom a technical college 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 3years of experience in the construction, repair, operation, or inspection of boilers orpressure vessels. (Exhibit C-60, p.3)”