Docket No. 2671

GETTY OIL COMPANY

OSHRC Docket No. 2671

Occupational Safety and Health Review Commission

March 17, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The only issue in this case is whether Respondent ("Getty") possessed the requisite knowledge to support a finding of a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970. 29 U.S.C. 654(a)(1). Getty denied that it knew, or could have with the exercise of reasonable diligence known, of the violation for which it was cited. * Judge J. Paul Brenton rejected that defense, upheld the citation, and assessed a $550 penalty. We affirm the Judge's decision and order.

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* Section 17(k) of the Act precludes a finding of a serious violation where "the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. § 666(j).

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The facts are undisputed. King, Getty's area engineer, designed a "fluid booster" to increase the pressure of oil and gas transmitted at a Getty separation facility in Texas. Field mechanic Robison was instructed [*2] to have the device fabricated at an independent welding shop, and he was informed that the device would have to be pressure-tested before it was put in service. Robison had performed similar work for King on two prior occasions, and the vessels were pressure-tested with King's knowledge before they were put into use.

When he picked up the fluid booster at the shop, Robison was informed that it had not been pressure-tested as required by recognized industry safety practices. Although Robison informed King that he was about to install the device, King did not ask if the fluid booster had been pressure-tested nor did any other Getty official make such inquiry. The device exploded immediately after it was installed, killing Robison and severely burning another Getty employee.

Judge Brenton found a serious violation concluding that reasonable diligence under 29 U.S.C. 666(j) would have required Getty to ask Robison prior to putting the fluid booster into operation whether or not it had been pressure-tested. We agree. Savannah Iron & Fence Corp., 10 OSAHRC 1, BNA 2 OSHC 1065, 1067, CCH E.S.H.G. para. 18,233, at 22,385 (1974).

Having reviewed the record and finding [*3] no prejudicial error, we adopt the judge's report, and it is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Respondent was charged with violating 29 U.S.C. § 654(a)(1), which provides that:

[e]ach 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.

For there to be a violation thereof, three elements must be proved:

The existence of a hazard which (1) must be recognized as such, (2) must arise out of a condition of employment, and (3) must be causing or likely to cause death or serious physical harm.

The evidence of record clearly establishes each one of these elements. Proof thereof does not necessarily mean, however, that a violation exists. The Act does not impose strict liability. See National Realty and Construction Company, Inc., v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973); REA Express, Inc., v. Brennan, 495 F.2d 822 (2d Cir., 1974); Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594 (1972); Secretary v. Ira Holiday Logging Company, Inc., 2 OSAHRC 1415 (1973).

The uncontroverted evidence [*4] of record establishes that this respondent had a safety policy for the construction of this vessel, requiring that it be pressure tested before installation. Assigned thereto was one Robison, a field mechanic with 30 years experience in the employ of this company. He knew of the pressure-test requirement for safety, had constructed similar vessels in compliance with such procedures, and was aware of the need therefor.

Rather than concluding, however, that Robison's unexpected failure to pressure test was an incident not imputable to respondent, my colleagues assert that respondent's failure to ask Robison whether or not the vessel had been tested meant that it had constructive knowledge of the existence of this hazard. I disagree.

A serious violation of the Act does not exist if the respondent has no knowledge, either actual or constructive, of the existence of this hazard. See Secretary v. Mountain States Telephone and Telegraph Co., 2 OSAHRC 168 (1972); Secretary v. Cam Industries, Inc., 7 OSAHRC 30 (1974); Secretary v. Republic Creosoting Company, 2 OSAHRC 400 (1973), affirmed in Brennan v. OSAHRC and Republic Creosoting Company, Division of Reilly [*5] Tar & Chemical Corporation, 501 F.2d 1196 (7th Cir., 1974).

29 U.S.C. § 666(j) provides that:

. . . a serious violation shall . . . exist . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (Emphasis added.)

I do not believe "reasonable diligence" here required that respondent ask a redundant question of one in whom reasonable reliance had been placed to test the vessel.

Robison's job was to test this vessel. He was a man of vast experience and considerable knowledge and understanding of its process of construction and installation. Is it necessary to ask such an employee if he had done his job?

When held in Secretary v. Hanovia Lamp Division, Canrad Precision Industries, Inc., 2 OSAHRC 55 (1972), remanded for other reasons in Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, Inc., 502 F.2d 946 (3d Cir., 1974), that

. . . it is unrealistic to expect an experienced and well-qualified [worker] . . . to be under constant scrutiny.

I believe that the close supervision required by my colleagues here transcends the "reasonabl[y] diligen[t]" test set forth in [*6] § 666(j).

Requiring that respondent ask such an experienced employee if he did his job seems merely to be a way of holding this employer strictly liable for this reckless and unexpected act.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq., hereinafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Slaughter Lease on FM Road 285, 1 1/4 miles east of Highway 35, Palacios, Texas, and described as follows "oil and gas production," the Respondent has violated Section 5(a)(1) of the Act by failing to provide a place of employment which was free from a recognized hazard that was likely to cause death or serious physical harm to employees, in that a pressure vessel was being made operational without having been pressure tested.

The Citation, which was issued on March 30, 1973, further [*7] alleges that the pressure vessel in question was a "fluid booster tank" and that it was located in the central portion of the working area at the time and place of the inspection, and that the violation alleged is a serious violation.

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 30, 1973, from Thomas T. Curry, Area Director of the Houston, Texas Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation alleged in the amount of $550.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Houston, Texas, on July 26, 1973.

FINDINGS OF FACT

1. Respondent admits that at the time and place of the alleged violation it was an employer subject to the provisions of the Job Safety Act (R. Answer).

2. Respondent has been engaged in operating oil fields for at least 30 years.

3. Robison, a 30-year field mechanic for Respondent, and an old hand in the oil field business, was instructed by Respondent's Area Engineer, Mr. King, with the approval [*8] of the Area Superintendent, to cause to be fabricated a certain pressure vessel at Harvey's Welding Shop for installation and service on its Slaughter Lease in the State of Texas.

4. Harvey fabricated the vessel and when Robison picked it up, during the morning of February 20, 1973, Harvey informed him that the vessel had not been pressure tested. Robison's only reaction was a shrug of his shoulders whereupon he left with the vessel (Court's Exh. 1).

5. At approximately 4:00 p.m. on February 20, 1973, Robison announced that the vessel installation was complete and that it was ready for the gas. Thereupon a valve was turned whereby pressure was activated within the vessel and it promptly ruptured, like an explosion, with an ensuing fire that consumed Robison and severely burned Respondent's Production Foreman, Mr. Calloway, who had recently arrived on the scene and was standing nearby.

6. Prior to this catastrophic event, King discussed with Robison, in the presence of Calloway, the need to pressure test the vessel; that its working pressure was 1200 pounds and it would have to be tested to 1500 pounds.

7. Robison had previously built similar vessels, apparently pressure [*9] tested them prior to putting them into service with no problems.

8. There is no direct nor circumstantial evidence that any Respondent employee, other than Robison, had any knowledge that the vessel had not been tested when it was carried from Harvey's Welding Shop.

9. The proposed penalty is $550.00, calculated by the Complainant on the basis that the alleged violation was serious and of high gravity. This mandates $1000 from which accounting was given for good faith, size and history. Eight employees were exposed, there was a strong possibility of death or injury upon failure to pressure test the vessel, and Respondent was committed to a program to assure safe and healthful working places and had no previous history of violations of safety or health standards.

10. Respondent conceded that the vessel in question was not pressure tested prior to its installation into service (R. Answer Paragraph VIII).

11. It is standard practice within the oil field industry and others engaged in the same general field of endeavor to pressure test a similar vessel before it is placed into service.

12. Respondent maintained an insistent practice of instructing its mechanics to [*10] pressure test field fabricated vessels prior to activation into service.

13. On at least two prior occasions, Robison caused to be field fabricated pressure vessels and the employer, the Respondent herein, made a determination that each vessel so fabricated had been pressure tested before it was placed into service.

14. At no time prior to the installation of the field fabricated vessel on February 20, 1973, did the Respondent determine or attempt to determine whether or not it had been pressure tested, although it had more than one opportunity so to do to wit:

(1) Telephone conversation between Mr. King, Respondent's Area Engineer and Robison on the morning of February 20, 1973, whereby Robison informed King he was on his way to put the vessel into service.

(2) The presence of Mr. Calloway, Respondent's Production Foreman, at the worksite a few minutes prior to the completion of the installation of the vessel and the turning of the gas to it.

(3) The presence of Mr. Orsak, Respondent's Lease Operator, at the worksite for a considerable length of time and the conversations between Robison, Calloway, and Orsak several minutes preceding the occurrence of the event.

PRELIMINARY [*11] ISSUE

At the beginning of the hearing the Secretary, by way of oral testimony of his Compliance Officer, offered in evidence that part of the Code of American Society of Engineers to show that this Society had codified a regulation requiring the pressure testing of any unfired pressure vessel before it is put into service and that the same is applicable to any industry making use of this instrumentality. The Respondent objected. Later on the Complainant offered Exhibit C-5, an extract of the alleged applicable provisions of that Code, and again Respondent objected. This evidence was received subject to inclusion or exclusion at the time of this Decision and Order.

It is the opinion here that Exhibit C-5 and the testimony relating thereto is admissible and it is therefore included. The weight and efficacy thereof goes basically to the issue of hazard recognition within an industry engaged in the production of oil and gas by operating oil fields.

There can be little or no doubt, upon the record made here, that the failure to pressure test the field fabricated vessel prior to placing it into service in an oil field is a recognized hazard in the oil producing industry. [*12] This rationale is conceded by the Respondent.

Further upon the record, as a whole, there is no dispute as to the seriousness of such a failure. In fact, the record discloses that not only is there a substantial probability that death or serious injury could occur but rather that in all common probability such will occur.

The decision here then turns upon the question of whether there has been a Section 17(k) violation of the Act, and if so, does it fit into Section 5(a)(1) of the Act for which Respondent is liable.

The placing of the non-pressure tested field fabricated vessel into service by Robison was a condition which existed at and within the place of employment of the Respondent. The Respondent did not know of this condition. It says it could not have known inasmuch as Robison was a long time experienced mechanic and had been repeatedly instructed to pressure test any and all field fabricated vessels before putting this kind of instrumentality into service. And in the instant case there was more than one specific instruction so to do.

It appears reasonable to presume, under all the facts and circumstances, that had there been a pressure test the employment and place [*13] of employment furnished by the employer, Respondent herein, would have been free from this recognized hazard that is likely to cause death or serious physical harm to employees.

Having established that there was a Section 5(a)(1) violation by the employee, Robison, the primary issue comes to the fore. Is this violation attributable to Respondent or is it solely that of the employee? Under the Act Respondent is duty bound to furnish employment and a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm to employees. This duty has been determined to be nothing more than a general duty to exercise that degree of care that will assure safe and healthful working conditions and places. Richmond Block, Inc., OSAHRC Doc. No. 82. There is no imposition of strict liability.

The employer has primary control of the work environment, thereby must exercise reasonable control over the conduct of his employees in the performance of their work. This is to say that he has a duty under the Act to exercise such reasonable and necessary action that should insure the work environment safe and healthful.

III

Respondent [*14] contends that the facts in this case show that there was no failure on its part to pressure test the vessel. It reaches this conclusion on the proposition that Robison knew of the necessity to test pressure vessels, that he had done so on two previous occasions, he was a mechanic of long experience, the Area Engineer had the utmost confidence in him, and had no reason to believe Robison would not so test having been so instructed so to do on more than one occasion. Further that Robison, a nonsupervisory employee, was the only person in the employ of Respondent that knew the vessel had not been pressure tested.

This argument, in some quarters, might well sustain Respondent's contention if it was solely an infraction of its safety rule as to pressure testing of field fabricated vessels which expose only the actor employee to the hazardous condition. But here other employees were exposed. Respondent knew of the labor crew assisting Robison, and that its Production Foreman and Lease Operator would frequent the workplace in question. Furthermore, on all previous like situations Respondent, by some design or practice ascertained that each such vessel had been pressure tested [*15] by this same mechanic before it was placed into service by him.

It just seems, under the facts and circumstances existing in this case, that the Respondent not only had the ability and capacity to control the condition that existed at the worksite, but also that under the Act it had a duty to exercise reasonable precautions to prevent the condition which ultimately existed.

Respondent did not know of the violation so the question remains as to whether it could have known by the exercise of reasonable diligence.

Diligence means constant and earnest effort to accomplish what is undertaken. It also means unremitting, untiring, indefatigable, sedulous, painstaking and persevering attention in doing anything. City and County of Denver v. Northern Colorado Water Conservancy District, 276 P. 2nd 992, 130 Colo. 375; National Steel and Ship Building Company v. U.S., 419 Fed 2nd 863.

The Act only exacts reasonable diligence. Excessive diligence would no doubt require one on one supervision or at least a more sophisticated safety program than men of affairs are accustomed to exercise in like and similar situations. But reasonable only exacts sensible, wise, intelligent, [*16] equitable, fair and just processes. And in these days reasonable has taken on more and more the pragmatic idea of simple common sense.

"Diligence," such as Respondent must exercise in discovering the presence of the violation, is a relative term, incapable of exact definition, depending on varying circumstances. When the law imposes it as a duty upon an employer there is an implication that he should do those things he ought to do. It requires action, as well as forebearance to act, depending on light of peculiar circumstances.

In this case, then, the reasonable diligence imposed upon Respondent is that degree of attention and perseverance to the duty to discover the violation to prevent its diabolical effect in the workplace that an ordinary prudent employer would use under the same or similar circumstances.

It is self-evident, from the facts elicited in this case, that the Area Engineer and the Production Foreman were well aware of the fiendish propensities of placing a field fabricated vessel into service without first testing it for pressure.

This case is distinguishable from the cases cited by the Respondent. In each case, the only exposure was to the actor, [*17] a lone employee violating a safety rule of which he was aware. Also in those cases the opportunity to see or discover an existing condition in a workplace was minuscule at best if not nonexistent for all practicable purposes.

In Richmond Block, Inc., supra, an employee was killed upon failure to lock out the power before cleaning out a concrete mixer.

In National Realty & Construction Co., Inc., RC Doc. No. 85, CCH Employment and Safety Health Guide, 15188, a foreman was killed while riding as a passenger on a front end loader in violation of a company safety rule.

In Standard Glass Co., Inc., RC Doc. No. 259, an employee failed to wear hard hat, in an isolated brief instance.

In Clements Paper Company, RC Doc. No. 419, an employee was killed when a heavy load he lifted, contrary to instructions, fell on him.

Abdo S. Allen, RC Doc. No. 1741, driver of heavy equipment killed upon falling through the roof of a tunnel of which he was directed to avoid.

In the celebrated case of Hanovia Lamp Division of Canrad Precision Industries, RC Doc. No. 89, CCH Employment Safety and Health Guide, 15355, an employee was killed while alone in his laboratory having failed [*18] to observe electrical safety rules of which he had been aware for 21 years.

And in Moser Lumber Co., RC Doc. No. 1221, CCH Employment Safety and Health Guide, 16241, an employee with 22 years experience was killed when he released binders on load of logs on a truck before securing the load from rolling contrary to applicable standard of which he was well aware.

Moreover, an examination of these cases indicates that the employer did not have an opportunity to prevent the violation nor should he be required to, according to the peculiar facts in each case. Surely if the employer or a supervisory employee had been standing by and was made aware by any one or more of his senses that any such violation was about to occur or in progress and did nothing to prevent or suspend its occurrence, such employer should not escape liability under the Job Safety Act.

The violation in the instant case could not have occurred until after the vessel had been field fabricated. The time for the exercise of reasonable diligence commenced with the employer's knowledge that the fabrication had been completed. This knowledge was first acquired on the morning the day the vessel was placed [*19] into service when Robison called the Area Engineer and announced he was on his way to make the installation. Then during the course of the installation the Production Foreman arrived on the scene several minutes before the explosion and ensuing fire. And the Lease Operator had been on and off the job site during that installation and had been there for some time before the event occurred. Thus, Respondent employer was provided with ample opportunity to make certain that the vessel was fit for the use intended by the simple expediency of at least one of the three making inquiry of Robison that he had or had not conducted or caused to be conducted a pressure test after its fabrication and before placing it into service. With multi exposure and the extreme danger to be encountered reasonable diligence or simple common sense certainly requires nothing less.

It will never be known whether such inquiry would have prevented the tragedy. Arguably, however, inasmuch as it was subsequently learned that Robison was the only employee having knowledge that the vessel had not been pressure tested, he would have admitted this fact, and thus it could have been attended to. On the other hand, [*20] for reasons of his own, he may have indicated that everything was in order including the test. Speculation here, of course, does not resolve the question. Nevertheless, the rational conclusion from such an inquiry would seem to be that the employer would have learned of the violation and thereby been enabled to shut down further activity in the installation until after a test had been made. In any event, had inquiry been made, the employer would have demonstrated that it was exercising that degree of reasonable diligence required under the peculiar facts and circumstances in this case.

This decision here today is not adjudged on imputation of knowledge, nor on failure to constantly scrutinize, but upon the duty of the employer to be vigilant to the extent that he exercises such means, within his power so to do, to insure a safe place to work insofar as is possible under a given set of facts and circumstances.

The Congress in enacting Section 5(a)(1) of the Act has mandated that an employer furnish each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to [*21] his employees.

Here there is no dispute that the placing of a field fabricated vessel into service in an oil field operation without first testing its capacity to withstand the pressures to which it will be subjected is a well recognized hazard in the industry.

Further, it has been sufficiently demonstrated by the facts that Respondent could have known of the presence of the violation by the exercise of reasonable diligence. Some may say that the duty imposed here be labeled a double check, which is tantamount to constant supervision. Nevertheless, the strange notion exists that such is not the case. It merely requires that which an ordinary prudent employer would do under the same or similar facts and circumstances.

Here the employer's failure to exercise a simple common sense means to apprise itself of whether or not a hazardous condition existed at the work place, where several workmen were exposed, when the means was within its power to exercise, coupled with the fact that on all prior similar and like situations it had made such determination, is a violation as charged in the Citation and it should be affirmed.

Having determined that the violation here is a serious one, [*22] in the context of Section 17(k) of the Act, and finding that the Proposed Penalty was calculated in conformance with the criteria therefore, it likewise should be affirmed.

CONCLUSIONS OF LAW

1. An oil and gas producing field is a place of employment, thus the failure to pressure test a field fabricated pressure vessel prior to placing it into service in this field is a recognized hazard within the industry as contemplated by the provisions of Section 5(a)(1) of the Act.

2. Likewise when this condition is permitted to exist in a workplace there is a substantial probability that death or serious physical harm could result therefrom.

3. The application of reasonable diligence in Section 17(k) violation is equated with simple common sense attentiveness and perseverance in the performance of a duty cast upon the employer by the Act.

4. Where an employee knowingly causes a latent condition to exist in a place of employment that is a recognized hazard, likely to cause death or serious physical harm, of which he is cognizant, and where the employer, by ordinary circumspection, could ascertain and eliminate the condition, then a failure to exercise any degree of caution, [*23] within the confines of his means so to do, to discover the condition, is a serious violation of the general duty clause of the Act.

5. All the peculiar facts and circumstances of the instant case, as hereinabove delineated and discussed, considered as a whole, make out a case for a substantial showing that there has been a Section 17(k) violation of Section 5(a)(1) of the Act.

6. Where the evidence shows that the Secretary has substantially complied with the provisions of the Act in arriving at a proposed penalty it will not be disturbed.

ORDER

Wherefore, it is ORDERED and ADJUDGED that:

1. The Citation and Proposed Penalty be and each is hereby AFFIRMED.