Getty Oil Co. v. Occupational Safety and Health Review Com'n, No. 75--1828

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, GODBOLD and GEE; TUTTLE; GEE
Citation530 F.2d 1143
Docket NumberNo. 75--1828
Decision Date23 April 1976
Parties4 O.S.H. Cas.(BNA) 1121, 1975-1976 O.S.H.D. ( 20,649 GETTY OIL COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the United States Department of Labor, Respondents.

Page 1143

530 F.2d 1143
4 O.S.H. Cas.(BNA) 1121, 1975-1976 O.S.H.D. ( 20,649
GETTY OIL COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the
United States Department of Labor, Respondents.
No. 75--1828.
United States Court of Appeals,
Fifth Circuit.
April 23, 1976.
Rehearing Denied June 16, 1976.

Jack L. Brandon, Houston, Tex., for petitioner.

William S. McLaughlin, Executive Sec., OSHRC, John T. Dunlop, Secretary of Labor, Robert K. Salvers, Jr., Michael H. Levin, U.S. Dept. of Labor, Washington, D.C., for respondents.

Page 1144

On Petition for Review of an Order of the Occupational Safety and Health Review Commission (Texas Case).

Before TUTTLE, GODBOLD and GEE, Circuit Judges.

TUTTLE, Circuit Judge:

This is a petition for review of an Order of the Occupational Safety and Health Review Commission issued against petitioner Getty Oil Company on March 17, 1975, finding Getty guilty of a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act, and assessing a penalty of $550. Finding substantial evidence on the record as a whole to support the Commission's decision, we affirm its Order.

The facts surrounding the alleged violation are undisputed. Among its many interests, Getty owns and operates a gas and oil lease in Matagorda County, Texas. Located on this lease is a separation facility which gathers gas and oil from wells on the lease and transmits them to an outgoing pipeline at higher pressures. In late 1972 it became apparent to the company that the separation facility lacked the capacity to handle the level of fluids passing through the system. After studying the problem, Getty engineers decided to remedy it by installing a type of pressure vessel known as a fluid booster tank to step up the pressure in the lines. Getty's Area Engineer, Joseph King, designed the vessel and instructed one of the company's field mechanics, Robison, to have the vessel fabricated and pressure tested at a local welding shop. Throughout the course of discussing possible structural designs, King emphasized to Robison the necessity of pressure testing the vessel before placing it into operation.

On the morning of February 20, 1973 Robison went to the welding shop to pick up the vessel. The shop owner told Robison that the vessel had not yet been pressure tested but Robison simply shrugged his shoulders and left taking the vessel with him.

Some time that morning Robison telephoned King, by which conversation, according to the Findings of the Administrative Law Judge 'Robison informed King he was on his way to put the vessel into service.' 1 During this conversation King did not ask Robison whether it had actually been pressure tested either by the welding shop or by Robison himself.

By late that afternoon installation of the untested vessel had been completed. After a brief conversation with the lease operator and the production foreman, both Getty's employees and both of whom were present at the installation site, but neither of whom inquired of Robison as to whether the vessel had been tested, Robison proceeded to put the pressure vessel into operation by activating a valve. The pressure in the vessel increased from 300 to 930 pounds per square inch, and an explosion occurred, ripping the vessel loose and hurling it some forty-five feet. Gas and oil erupted from the vessel and ignited, fatally injuring Robison and severely burning the production foreman. The ensuing fire consumed one of the company's pickup trucks and was not extinguished until half an hour later.

The hearing conducted before the Administrative Law Judge established without dispute the facts that standard industry practice required the testing of pressure vessels before placing them into service, and that failure to conduct such tests is a recognized hazard in the oil-producing industry that would not only possibly, but probably, result in the kind of accident such as occurred in this case. As part of its defense, Getty put on evidence showing that Robison was a skilled worker with thirty years' previous experience with the company, and whose abilities and safety-consciousness were

Page 1145

regarded by King and others as beyond question.

Based on the above facts, the Administrative Law Judge conducting the hearing found Getty guilty of a 'serious violation' of Section 5(a)(1) of the Act, issued the company a citation for the violation, and assessed a fine of $550. 2 Getty unsuccessfully appealed the decision to the Occupational Safety and Health Review Commission, and now brings this action pursuant to the judicial review section of the Act, 29 U.S.C. § 660.

In considering petitioner's request to set aside the Commission's decision, we are bound by that body's findings on questions of fact if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 660(a). The section of the Act which Getty is charged with violating is the 'general duty' clause requiring every employer to

'furnish to 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 his employees.' 29 U.S.C. § 654(a)(1).

To establish a violation of the general duty section, 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 and Construction Co. v. OSHRC and Secretary, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265 (1973). The section is intended neither to impose liability on the employer for an employee's negligence on a respondeat superior basis, nor to create a standard of absolute liability. The clause instead requires employers to discover and exclude from the workplace '(a)ll (feasibly) preventable forms and instances of hazardous conduct,' id. at 1267 & nn. 34--37 (emphasis added).

The uncontroverted evidence in the record shows that failure to pressure test a pressure vessel before activation is a universally-recognized hazard in the oil industry and that omitting such tests was likely to cause serious injury and created an extremely high probability of rupture and ensuing harm in the instant case. Thus, it is clear that the hazard at issue here was both 'recognized' and likely to cause serious harm, as well as preventable by the simple expedient of pressure testing. Getty's recognition of this fact was thoroughly established by the fact that King had emphasized the need for testing.

Accordingly, the only issue before this Court is whether the Commission's determination that the Section 5(a)(1) violation which occurred was 'serious' within the meaning of the Act is supported by substantial evidence. Under Section 17(k) of the Act, 29 U.S.C. § 666(j), Getty cannot be found guilty of a 'serious' violation unless it did not, and could not 'with the exercise of reasonable diligence,' know of the presence of the violation. Since it is undisputed that the company did not have actual knowledge of the fact that the vessel had not been pressure tested, the sole remaining issue...

To continue reading

Request your trial
13 practice notes
  • Banovetz v. King, No. Civ. 98-956 JRT/RLE.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 25, 1999
    ...Inc. v. OSHRC, 660 F.2d 439, 444 (10th Cir.1981); Champlin Petroleum Co. v. OSHRC, 593 F.2d 637 (5th Cir.1979); Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir.1976); United States v. B & L Supply Co., 486 F.Supp. 26 (N.D.Tex.1980). "To establish a violation of the general duty clause, the S......
  • Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety and Health Review Com'n, EMPIRE-DETROIT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 22, 1978
    ...the National Realty test. See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d Cir. 1977); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. Petitioner does not dispute that water entrapped by molten slag is a hazard. Because petitioner admits knowledge of the dangerou......
  • Reich v. Arcadian Corp., No. 96-60126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 28, 1997
    ...579 F.2d 536, 540 (9th Cir.1978); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d Cir.1977); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir.1976). We have added a fourth element, namely, that the hazard must be preventable. Georgia Elec. Co., 595 F.2d at 321; Getty ......
  • Johns-Manville Sales Corp. v. International Ass'n of Machinists, Local Lodge 1609, JOHNS-MANVILLE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 16, 1980
    ...in addition to its duty to abide by specific standards. See Getty Oil Co. v. Occupational Safety and Health Review Commission, 530 F.2d 1143 (5th Cir. 1976). See also Advance Specialty Co., (1975-76) O.S.H.D. (CCH) P 20,490; Sun Shipbuilding and Drydock Co., (1973-74) O.S.H.D. (CCH) P 16,72......
  • Request a trial to view additional results
13 cases
  • Banovetz v. King, No. Civ. 98-956 JRT/RLE.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • August 25, 1999
    ...Inc. v. OSHRC, 660 F.2d 439, 444 (10th Cir.1981); Champlin Petroleum Co. v. OSHRC, 593 F.2d 637 (5th Cir.1979); Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir.1976); United States v. B & L Supply Co., 486 F.Supp. 26 (N.D.Tex.1980). "To establish a violation of the general duty clause, the S......
  • Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety and Health Review Com'n, EMPIRE-DETROIT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 22, 1978
    ...the National Realty test. See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d Cir. 1977); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. Petitioner does not dispute that water entrapped by molten slag is a hazard. Because petitioner admits knowledge of the dangerou......
  • Reich v. Arcadian Corp., No. 96-60126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 28, 1997
    ...579 F.2d 536, 540 (9th Cir.1978); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d Cir.1977); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir.1976). We have added a fourth element, namely, that the hazard must be preventable. Georgia Elec. Co., 595 F.2d at 321; Getty ......
  • Johns-Manville Sales Corp. v. International Ass'n of Machinists, Local Lodge 1609, JOHNS-MANVILLE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 16, 1980
    ...in addition to its duty to abide by specific standards. See Getty Oil Co. v. Occupational Safety and Health Review Commission, 530 F.2d 1143 (5th Cir. 1976). See also Advance Specialty Co., (1975-76) O.S.H.D. (CCH) P 20,490; Sun Shipbuilding and Drydock Co., (1973-74) O.S.H.D. (CCH) P 16,72......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT