CHAMPLIN PETROLEUM CO.
OSHRC Docket No. 13081
Occupational Safety and Health Review Commission
June 29, 1977
[*1]
Before BARNAKO, Chairman and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
David L. Motloch, Champlin Petroleum Co., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Judge J. Paul Brenton is before us for review pursuant to 29 U.S.C. 661(i). Judge Brenton vacated a citation alleging that Respondent committed a serious violation of section 5(a)(1) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). The citation concerns the procedures followed in bleeding a pipeline containing hot crude oil. For the reasons which follow, we reverse the Judge's decision, affirm the citation, and assess a penalty of $800.
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n1 Section 5(a)(1) provides:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
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The alleged violation occurred [*2] at Respondent's oil refinery in Corpus Christi, Texas. A control value in a pipeline carrying crude oil was malfunctioning and had to be removed. A crew of three employees proceeded to perform this task. Before the control valve could be removed, it was nece sary to isolate the section of pipeline containing the valve and drain the oil from that section. The oil in the pipeline was hotter than the temperature at which it would ignite spontaneously in contact with air (auto-ignition temperature). It was therefore necessary to cool the oil before draining it.
The flow of oil through the section of pipeline containing the control valve was stopped by closing two block valves on either side of the control valve. The oil in that section was permitted to cool for approximately three hours. The crew then proceeded to drain the oil through a bleeder valve. Normally, the bleeder valve would be equipped with a handle to facilitate its being opened and closed. The handle, however, was missing from this particular valve, so one of the crew members used a crescent wrench to open the valve. A small stream of oil ran out of the pipe into a bucket. Shortly thereafter, smoke emerged from [*3] the valve, indicating that oil above the auto-ignition temperature would soon be coming out. The employee who had opened the valve attempted to close it with the wrench, but a flash fire occurred before he could shut off the oil flow. One member of the crew died and the other two were injured in the fire.
The fire apparently resulted from hot oil reaching the section of the pipeline the crew had attempted to isolate. It is possible for coke, slag, or other foreign matter in the crude oil to become lodged in one of the block valves, preventing the valve from completely closing. If this occurs, then when the bleeder valve is opened, the difference in pressure between the two sides of the block valve can cause such sediment to become dislodged, and allow hot oil to flow into the section of pipe which is supposedly isolated. Respondent recognized that such a possibility existed, and knew that hot oil reaching the section of pipeline being bled was potentially hazardous. Normally, however, the hazard would not exist if the bleeder valve was equipped with a handle, for once smoke was observed coming from the valve, it could be closed sufficiently quickly by means of the handle to [*4] prevent the hot oil from emerging.
Respondent's chief supervisor agreed that it was hazardous to open the bleeder valve without the use of a handle. He stated it was against company policy to do so, and that a handle could have been obtained within twenty minutes.
The deceased employee was the operator of the unit containing the defective control valve, and was in charge of the operation. He had worked for Respondent over 21 years, and had a good reputation for working safely. The other two members of the crew were maintenance employees, who had worked for Respondent for five and ten years respectively.
The bleeder valve had been opened by one of the maintenance employees. The employee testified that he could not recall being told of a prohibition against opening a valve without a handle, but stated that it was possible such a rule had been mentioned in a safety meeting. He also stated that common sense told him it was improper to open a valve without a handle, and that he knew it was not normal procedure to do so. The other employee in the crew stated that he had never been told that it was improper to open a valve which lacked a handle. Another of Respondent's employees, [*5] who operated a different unit then that involved in the accident and had worked for Respondent for 24 years, testified that he could vaguely recall being told not to open a valve without a handle.
Judge Brenton found that opening the bleeder valve without the use of a handle was a recognized hazard within the meaning of section 5(a)(1). He determined, however, that under the circumstances of this case the hazard was unpreventable by Respondent, and that Respondent was therefore not in violation. He reached this conclusion upon finding that "respondent maintained, as disclosed by the evidence, an unwritten safety rule, of long standing, against opening a bleeder valve on a hot line without a handle. Each unit operator and each maintenance employee was totally familiar with and aware of this safety policy and standard of conduct established by respondent." (Judge's decision at p. 5).
We reject the Judge's finding that Respondent's unit operators and maintenance employees were "totally familiar" with its policy against opening valves not equipped with handles. Of the three employees who testified at the hearing, one stated unequivocally he had never been informed of such a rule. [*6] Another stated he could not recall, but might have been told of the rule. The third could vaguely recall being so informed. Furthermore, although the deceased employee was a highly experienced employee with a good reputation for safety, he permitted the bleeder valve to be opened without the use of a handle. Thus, the record shows that Respondent's employees were generally unaware or if aware ignored Respondent's rule against opining bleeder valves without using a handle. See: Candler-Rusche, Inc., 76 OSAHRC 56/A2, 4 OSHC 1232, OSHD para. 20,723 (1976).
Accordingly, we reject the Judge's conclusion that the violation was unpreventable by Respondent. We have held that an employer is not responsible for a violation when its safety program would normally be adequate to prevent the violation. Among the elements of such a safety program are work rules designed to prevent violations, and effective communication of these rules to employees. Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 OSHC 1681, 1976-77 OSHD para. 21,098 (1976); The Weatherhead Co., 76 OSAHRC 61/E7, 4 OSHC 1296, 1976-77 OSHD para. 20,784 (1976). Since the evidence in this case shows that Respondent's [*7] employees were unaware of the rule requiring the use of handles, it cannot be said that such a rule was effectively communicated to Respondent's employees. n2
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n2 The Secretary also alleged that the hazard could be eliminated by the use of a drain pipe and hose to carry the oil from the bleeder valve to a location sufficiently distant from employees that they would not be endangered in the event of a flash fire. Respondent contended, and Judge Brenton found that the use of such a drainage system would not be feasible. In his brief on review, the Secretary continues to argue that the use of a drain pipe and hose was feasible. He only argues, however, that such a system would be needed when the valve is opened without a handle. He does not contend that a valve handle as well as a drain pipe and a hose are necessary. And I note that his compliance officer considered that the hazard would have only been non-serious had a handle or a drain pipe and hose been provided. A non-serious hazard would not constitute a recognized hazard within the meaning of 29 USC 654(a)(1) since it is not likely to cause death or serious physical harm. Thus, since we find a violation with respect to the failure to use a handle, we need not consider whether the Judge erred in finding that the use of a drain pipe and hose would be infeasible.
[*8]
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Respondent argues, however, that the Judge's decision was based on his judgment of the credibility of the witnesses and should therefore not be disturbed. We will normally, of course, accept a Judge's credibility findings. Paul L. Heath Contracting Co., 20 OSAHRC 297, 3 OSHC 1550, 1975-76 OSHD para. 20,006 (1975). The critical issue in this case however, is whether Respondent's safety rule was effectively communicated to employees. It cannot be said that the Judge's finding on this issue was based on credibility determinations, for all the evidence points in the same direction and indicates that the rule was not effectively communicated. Accordingly, the Judge's finding is contrary to the preponderance of the evidence and must be rejected. Armor Elevator Co., 5 OSAHRC 260, 1 OSHC 1409, 1973-74 OSHD para 16,958 (1973).
Turning to the assessment of an appropriate penalty, we note that Respondent is a large company, and has apparently acted in good faith. The gravity of the violation is high in view of the extreme hazard presented by crude oil hotter than the auto-ignition temperature escaping [*9] to the atmosphere. On balance, we conclude that the $800 penalty proposed by the Secretary is appropriate.
Accordingly, the citation for violation of section 5(a)(1) is affirmed, and a penalty of $800 is assessed.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, CONCURRING:
Although I concur in affirming the citation and assessing an $800 penalty, I would not limit the violation in this case to respondent's failure to effectively enforce a requirement that bleeder valves be operated only with fixed handles. n3
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n3 I specifically agree with the portions of the lead opinion wherein it is found that respondent failed to communicate effectively a rule requiring the use of handles on bleeder valves.
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As noted in the lead opinion, even if the section of pipe is closed and its contacts are allowed to cool, there is always a possibility that oil at its auto-ignition temperature could be released when the bleeder valve is opened. In order to reduce significantly the grave hazards that are associated with this possibility, respondent should [*10] have required the use of a drain pipe ("blowdown pipe") attached to the bleeder valve as well as the use of a handle to operate the valve. Completer relief in the instant case includes both methods of abatement prescribed by complainant.
It is clear that respondent did not require the use of a drain pipe or a handle during the bleeding operation. A handle on the bleeder valve would enable the operator to close the valve quickly upon encountering hot oil. A drain pipe attached to the bleeder valve would further reduce the hazard to the operator by channeling the oil released during the bleeding operation to a point sufficiently distant from the operator to eliminate exposure to a flash fire. Without a drain pipe, the oil released during bleeding was drained directly into a bucket hung beneath the valve, resulting in the flow from the bleeder valve being directly beneath the operator.
The record does not support a conclusion that operation of the bleeder valve with a handle was sufficient to eliminate the hazard to operators. Rather, it shows that, even if the valve is operated with a handle, there is a strong possibility that an employee could be seriously burned. In the event [*11] a "washout" occurs and hot oil enters the section of pipe that is supposed to be closed off, the hot oil will often appear at the bleeder valve as a sudden forceful stream. n4 If an employee operating the valve does not react quickly to close the bleeder valve, the employee may be enveloped by flames because a flash fire will appear directly beneath the valve. n5
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n4 Oil at its auto-ignition temperature will be released if a "wash out" occurs. The opening of the bleeder valve causes a pressure differential at the "upstream" block valve. The pressure difference can dislodge any sediment in the block valve thereby breaking its seal. Thus, the section under repair is no longer isolated from the rest of the system. Pressurized hot oil enters the previously isolated section of pipe and exits with sudden force through the bleeder valve.
n5 The compliance officer's conclusional testimony that the failure to use only one of the precautions would constitute a nonserious violation is contrary to the facts. Also, the Area Director, rather than a compliance officer, issues a citation and is responsible for determining whether a violation is cited as serious. See Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975). In addition, it is important to emphasize that the Commission has never held that the word "likely" as used in § 5(a)(1) of the Act is synonymous with the term "substantial probability" as used in § 17(k) of the Act, thereby precluding a finding of a nonserious § 5(a)(1) violation.
[*12]
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On the other hand, if a drain pipe is used in conjunction with a handle, any flash fire will occur at a safe distance from an employee operating the valve. Consequently, dependence upon an employee's reaction time is eliminated. The purpose of the Act is better served by an abatement order that includes a requirement that a drain pipe be used during bleeding operations. This simple, inexpensive form of abatement would probably have prevented the fatality in the instant case. Moreover, use of a drain pipe under similar circumstances in the future might very well prevent future fatalities.
I do not agree with my colleague's reading of the Secretary's brief as arguing that a drain pipe is needed only when valve is opened without a handle. I read the brief as arguing that both precautions (the handle and the drain pipe) are necessary, but vary in the degree of their importance. Accordingly, in my view the merits of the abatement method incorporating a drain pipe must be addressed by us.