Champlin Petroleum Co. v. Occupational Safety and Health Review Com'n, 77-2740

• Decision Date: 20 April 1979
• Docket Number: No. 77-2740,77-2740
• Citation: 593 F.2d 637
• Parties: 7 O.S.H. Cas.(BNA) 1241, 1979 O.S.H.D. (CCH) P 23,487 CHAMPLIN PETROLEUM COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 637

593 F.2d 637

7 O.S.H. Cas.(BNA) 1241, 1979 O.S.H.D. (CCH) P 23,487

CHAMPLIN PETROLEUM COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Respondents.

No. 77-2740.

United States Court of Appeals Fifth Circuit.

April 20, 1979.

W. N. Woolsey, Ralph B. Weston, Corpus Christi, Tex., for petitioner.

Ray H. Darling, Jr., OSHRC, Washington, D. C., Diane E. Burkley, Atty., Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Assoc., Allen H. Feldman, Acting Counsel, Dennis K. Kade, Asst. Counsel, U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GEWIN, RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge:

An employer appeals an order of the Occupational Safety and Health Review Commission (Commission) finding a violation of the general duty clause of the Occupational Safety and Health Act (OSHA) which obligates the employer to

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.

29 U.S.C.A. § 654(a)(1). The recognized hazard to which employees were exposed was the escape of hot oil. The Commission's order was based on the employer's failure to prevent such exposure by effectively communicating a rule against opening valves, through which the oil might escape, unless they are equipped with handles. Because we fail to find substantial evidence on the record considered as a whole, 29 U.S.C.A. § 660(a), that either the use of handles on valves or the effective communication of a rule against opening valves without them would have materially reduced the hazard of oil fire injuries, we reverse.

A pipeline control valve malfunctioned at the Corpus Christi, Texas oil refinery of employer, Champlin Petroleum Company (Champlin). Isolation of the pipeline section and draining of its contents were necessary before the defective valve could be removed. A block valve was closed on each side of the control valve to permit the isolated crude oil, which flowed at a temperature hot enough to ignite on contact with air (auto-ignition temperature), to cool before draining through the bleeder valve. Several hours later, the unit operator, Cobb, and two maintenance employees, Benson and Bennett, prepared to bleed the control valve. Bennett stood up on the pipes a few feet to the side of the bleeder valve. Cobb stood to the right of and below the valve with the valve at waist or shoulder height. Benson stood up on the pipes on the same level as the valve. The valve had been newly installed with a handle four days before. On this occasion, however, the handle, a circle 21/2 inches in diameter, was missing. Benson reached down and opened the valve by turning the valve stem with a crescent wrench. A thin stream of oil ran into the bucket which had been suspended from the valve. Shortly thereafter, smoke emerged from the valve indicating that auto-ignitable oil would follow. Benson was unable to close the valve, and in the ensuing flash fire the three employees were injured, Cobb fatally. Foreign matter had apparently been trapped in one of the block valves, preventing it from completely closing. The pressure created by opening the bleeder valve dislodged the sediment, permitting hot oil to flow into the isolated section.

Following inspection of the refinery by an OSHA compliance officer, a citation was issued charging a general duty clause violation in that:

(a) There was no fixed handle on the bleeder valve to control the flow of liquid hydrocarbons from the line. Employees were using a pair of pliers on the valve stem since the handle was missing.

(b) Liquid hydrocarbons were not piped away from the bleeder valve located approximately 3 feet from an in service heater unit.

An $800 penalty was proposed.

The administrative law judge vacated the citation and proposed penalty, finding the hazard of exposure to auto-ignitable oil unpreventable because the employer could not have foreseen that its employee would open the valve without a handle in violation of the company's well established safety policy. Reversing the administrative law judge, the Commission affirmed the citation and penalty, concluding that the company's safety policy was ineffectively communicated to employees.

We observe that in reversing the decision of the Commission we need not and do not assess the sufficiency of support for the administrative law judge's conclusions. The relationship between the ALJ and Commission differs from that of trial and appellate courts in that OSHA contemplates that the Commission be charged with fact-finding responsibility, 29 U.S.C.A. § 659(c), and the ALJ is merely an arm of the Commission for that purpose. Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), Cert. denied,425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). See 29 U.S.C.A. § 661(i). While the findings of the ALJ are to be considered on review and may weaken the contrary conclusion of the Commission, D. Federico Co. v. OSHRC,558 F.2d 614, 617 (1st Cir. 1977) (Coffin, C. J., concurring), we disturb the Commission's decision only because it lacks the support of substantial evidence. 29 U.S.C.A. § 660(a).

To establish a general duty clause violation, the Secretary must prove "(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.' " National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973); Getty Oil Co. v. OSHRC,530 F.2d 1143, 1145 (5th Cir. 1976). The general duty obligation, however, is not designed to impose absolute liability or respondeat superior liability for employees' negligence. Rather it requires the employer to eliminate only "feasibly preventable" hazards. Getty Oil, 530 F.2d at 1145. It is the Secretary's burden to show that demonstrably feasible measures would materially reduce the likelihood that such injury as that which resulted from the cited hazard would have occurred. Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 543-44 (9th Cir. 1978) (regarding fire spread by accumulations of titanium dust, Secretary's metallurgy expert testified that fires could be minimized by isolating particles as, for example, by more frequent washdowns). The Secretary must specify the particular steps the employer should have taken to avoid citation, and he must demonstrate the feasibility and likely utility of those measures. National Realty, 489 F.2d at 1268.

At the hearing it was suggested by the OSHA compliance officer that such flash fires are preventable by attaching a drain pipe to the valve so hot oil would be piped away from the area of employee exposure and by maintaining handles on bleeder valves so they may be turned off quickly when smoke appears. Where...