This is an interesting turn of events! The ALJ upholds most of the citations and then OSHRC vacates them all. This after a 750-pound release of butylene oxide that occurred during a line break activity and was caused by an IMPROPER energy control plan. One worker was diagnosed with “chemical pneumonia” due to his exposure to the cloud and the two workers directly involved had to decon in a safety shower to stop the burning of their skin. The contractor fired their employee involved for not following SWPs and the facility fired the operator for the improper energy isolation. Yet the OSHRC vacated the citations on what I can only call “technicalities”. But wow… if lawyering up can get you to NO citations after an incident like this…just wow! Here’re the facts as presented in the OSHRC decision..
A contractor was engaged to perform maintenance at a chemical production plant in May 2010. Both the plant and the contractor were engaged in a process known as a “Test and Inspect turnaround” (“T&I”), which required the shutdown of certain equipment for maintenance purposes. As part of the T&I, a contractor crew was assigned to remove eight emergency shutdown devices (“ESDs”) on some chemical lines and replace them with new ESDs. This required that the ESDs first be isolated pursuant to the plant’s energy control procedures. During the isolation process, a gate valve on a butylene oxide line was found to be leaking and had to be replaced before the ESD work could continue. The plant did not assign this particular work to the contractor and indicated that plant personnel would perform the work. Nevertheless, after an operator mentioned the job task over the radio, a contractor employee offered to assist.
The contractor was a maintenance contractor at the facility, where the plant produces specialty chemicals. To do this, the facility processes, among other chemicals, ethylene oxide, propylene oxide, butylene oxide, ammonia, and isopropyl alcohol. The facility consists of several different units. The unit at issue in this case is the G-Kettles Unit. In May of 2010, the facility implemented a Test and Inspect (T & I) turnaround, during which a unit is shut down for maintenance and for inspection to check the mechanical integrity of the unit. It was the contractor’s job to replace eight emergency shutdown device (ESD) valves in the G-Kettles Unit during the turnaround. On May 25 or 26, 2010, a leak was discovered in one of the valves on the butylene oxide line. (The leaky valve was a gate valve, not one of the eight ESD valves that the contractor was assigned to replace.) The contractor postponed its replacement of the ESD valve on the butylene oxide line until the facility could replace the faulty valve. At the time of the hearing, the operator had worked at the facility for 26 years. He was an operator specialist, whose duties included backing up the production supervisor, maintaining the LOTO database, and trouble-shooting. [redacted] was overseeing the May 2010 turnaround and was acting as the operator liaison for the facility. [redacted] decided to replace the leaking valve himself, and chose to do it on Memorial Day, Monday, May 31, when fewer workers would be in the plant.
Butylene oxide is highly flammable, with a flashpoint of approximately 10 degrees Fahrenheit and a Lower Explosive Limit (LEL) of approximately 1.5 % in the air. It can ignite in liquid or vapor form. Butylene oxide can catch fire or explode when exposed to ignition sources such as running engines or a metal tool falling and creating a spark. [redacted] enlisted the help of a chemical operator and a G-Kettle operator. They worked together to purge and isolate the butylene oxide line. The G-Kettle operator hooked up the nitrogen to blow out the line to the tank. It was the chemical operators job to place the block in the tank once the line blew through with the nitrogen.
The facility did not intend for a contractor to participate in the replacement of the leaky valve. No one from the contractor walked the line with the operators. The chemical operator saw no locks or tags belonging to the contractor on the valves he isolated. The G-Kettle operator did not follow an emergency control procedure (ECP) for the work she was doing. Neither [redacted] nor the chemical operator had an ECP for the valve replacement.
The defective valve weighed approximately 25 pounds. [redacted] needed help lifting the line up to pull out the valve without damaging the valve flanges. All facility and contractor maintenance personnel carried radios. [redacted] requested help over the open channel of the radio. Although the contractor’s employees were not supposed to participate in the valve replacement, a contractor employee radioed back to volunteer his assistance. The contractor employee was hoping to obtain a position at the facility, and [redacted] had given him “a recommendation to get his foot in the door to at least get him an interview”.
Before assisting [redacted], [redacted] checked out a respirator from the safety office, telling the site safety manager for the contractor, that he needed it while helping [redacted] with the valve replacement. [redacted] also brought his tools, including wrenches, a gaseous scraper, and channel locks with him. When [redacted] arrived at the G-Kettles Unit, [redacted] was in the process of depressurizing the line. [redacted] then disconnected the valve from the pipe by removing the bolts on the down stream side. As [redacted] loosened the bolts, butylene oxide released from the line, spraying both [redacted] and [redacted]. [redacted] and [redacted] were momentarily stunned. [redacted] grabbed [redacted] by the arm and pulled him toward the safety showers so they could wash off the chemical. [redacted] also used his radio to alert others in the building of the release. [redacted] and [redacted] both felt a burning sensation where they were sprayed with the butylene oxide. They continued to feel the effects the next day. Emergency care attendants arrived by ambulance, and treated [redacted] and [redacted]. They did not go to the hospital.
At the time of the release, a contractor equipment supervisor [redacted] was running a crane approximately 75 feet from the site of the release. As he was sitting in the crane cab filling out his daily paperwork, he smelled something similar to the smell of high octane paint thinner. When he looked around, he saw people rushing out of the G-Kettle unit, and his rigger yelled at him to shut the crane down, to eliminate it as an ignition source. [redacted] shut down the crane, took a deep breath, and climbed down from the crane’s cab. [redacted] held his breath for 30 to 40 seconds as he walked approximately 200 feet before he could get another breath. [redacted] showered at the facility. He was taken by ambulance to a hospital, where he was diagnosed with “chemical pneumonia”.
At the time of the release, the kettle operator was spotting [redacted]. When she saw the butylene oxide spray, she shouted to people in the area to get out, and she triggered the fire monitor. She then doused the motor of an 80-ton crane, using the fire water deluge.
It was later determined that the chemical operator failed to isolate the line at the tank. The release of the butylene oxide lasted for approximately 12 minutes. Approximately 750 liquid pounds of butylene oxide sprayed out before the release was contained. [redacted] was terminated by the contractor several days after the May 31 release. The facility terminated [redacted] a few days later.
Following an inspection of the plant, OSHA issued the contractor a five-item serious citation, alleging violations of the lockout/tag out (“LOTO”) standard, 29 C.F.R. § 1910.147, and proposed a penalty of $7,000 for each item. Administrative Law Judge Sharon D. Calhoun vacated one of the citation items and affirmed the four remaining items as serious, assessing a total penalty of $13,000. Only the four affirmed items are at issue on review.
For the reasons that follow, we vacate all four (4) items.
Serious Citation 1, Items 1, 3, and 4
To prove that the contractor violated the LOTO provisions at issue under these citation items, the Secretary must show that the LOTO standard applies, the contractor failed to comply with the cited LOTO provisions, the contractor’s employees had access to the violative conditions, and the contractor either knew or should have known of these conditions with the exercise of reasonable diligence. The only issues in dispute on review are whether the LOTO standard applies to the cited conditions and whether the contractor knew or should have known of those conditions.
Applicability
The LOTO standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees.” 29 C.F.R. § 1910.147(a)(1)(i). Here, there is no dispute that the attempted valve replacement was a maintenance activity, and that there was an unexpected release of stored energy resulting in the discharge of a large quantity of butylene oxide. On review, the parties offer differing theories regarding whether this was a “release of stored energy” that “could cause injury to employees.” But these theories unnecessarily complicate an issue that is readily resolved by the record before us.
The evidence shows that when the flange failed during the performance of the maintenance activity and butylene oxide discharged from the line, stored energy was released. This release caused chemical burns and chemical pneumonia to several employees. The butylene oxide produced a burning sensation on the skin of the contractor employee until he was able to wash it off in the plant’s safety shower. Likewise, the operator testified that after his skin was exposed to the butylene oxide, he felt “like [he] was literally on fire burning” and that the burning sensation lasted until approximately the next day. Further, a contractor crane operator, who was working about 65 to 75 feet from the release, breathed in butylene oxide vapors and was taken to the hospital where he was diagnosed with chemical pneumonia.
The contractor’s employees were also exposed to fire and explosion hazards as a result of the release. The OSHA mechanical engineer who conducted the inspection of the worksite testified that given the flashpoint and lower explosive limit of butylene oxide, and the concentrations of the chemical in the plant’s environment, “it was very likely” a catastrophic fire or explosion could have occurred. The mechanical engineer further testified that potential ignition sources for an explosion included a running engine, a dropped wrench, or anything else that could cause a spark. Indeed, both the contractor employee and the operator admitted to being concerned at the time of the accident that the release would result in an explosion. Additionally, immediately following the release, other plant employees “ran around” telling workers to evacuate the area, then turned on a fire monitor and opened a fire water deluge located near the crane’s motor to drown it and eliminate it as an ignition source. Based on these facts, we conclude that the LOTO standard applies to the valve replacement work at issue under these citation items. See 29 C.F.R. § 1910.147(a)(1)(i) (scope provision).
Knowledge
To establish knowledge, the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation. Reasonable diligence is based on several factors, including an employer’s obligation to inspect the work area, anticipate hazards, take measures to prevent violations from occurring, adequately supervise employees, and implement adequate work rules and training programs. The actual or constructive knowledge of a supervisor is imputable to the employer. Here, the judge concluded that the contractor had knowledge of the violative conditions through three of its supervisors working at the plant: the Site Safety Manager, who the judge found had actual knowledge, and the General Foreman and another supervisor, who the judge found had constructive knowledge. For the following reasons, we find that the record does not support the judge’s findings.
The record does not establish that any of the contractor’s supervisors knew or had reason to know the contractor employee would assist the operator with replacing the gate valve. The judge concluded that the Site Safety Manager had actual knowledge, finding that he was present when the contractor employee checked out a respirator from the plant’s safety office and that the employee told the Site Safety Manager at that time that he was going to help the operator replace the valve. On review, the contractor contends that the judge erred in finding that the employee told the Site Safety Manager the specific nature of the tasks he would be performing. We agree with the contractor that the judge mischaracterized the testimony. As the contractor notes, the record shows that the contractor employee told the Site Safety Manager simply that he “was getting a respirator to help” the operator — he never specified what work he was going to help the operator perform. There is nothing in the record to show that the Site Safety Manager knew what task the operator was engaged in at that time or even what the contractor employee’s duties were that day. In addition, there is no evidence to support the Secretary’s assertion that reasonable diligence required that the Site Safety Manager ask the employee what work he would be performing.
With regard to the General Foreman and the other contractor supervisor, the judge found what she characterized as constructive knowledge of the cited conditions because both supervisors had radios in their possession and all contractor maintenance employees used the same radio channel. Therefore, the judge concluded, the supervisors were able to hear a radio conversation in which the operator said he intended to replace the valve and the contractor employee radioed back to offer his assistance. In reaching this conclusion, the judge relied on testimony from the operator, who speculated that “anybody that has a radio” in maintenance, including the two contractor supervisors, “would have heard” the conversation he had with the contractor employee. We disagree with the judge’s conclusion. There is no evidence that either supervisor actually heard the conversation. The General Foreman, whose testimony is unrebutted, stated that although his radio was on, he was “in [his] office doing some paperwork” and did not hear the conversation. The other supervisor did not testify at all. Thus, the record does not establish that these supervisors had actual knowledge of the violative conditions, nor does it show that they should have known of those conditions under the circumstances. We also find no merit to the Secretary’s contention on review that the General Foreman should have made further inquiries when the employee told him that he was going to get some tools for the operator to do some work. We find it was reasonable for the General Foreman to believe, as he testified, that the employee’s assistance would be limited to providing the operator with tools, particularly after the operator told both supervisors that morning that he was going to replace the leaking valve himself. In these circumstances, we conclude the judge erred in finding that the contractor had both actual and constructive knowledge of the violative conditions.
Accordingly, we vacate Items 1, 3, and 4.
Serious Citation 1, Item 5
Under this item, the Secretary alleges a violation of 29 C.F.R. § 1910.147(d)(5)(i), which states:
“Following the application of lockout or tag out devices to energy isolating devices, all potentially hazardous stored or residual energy shall be relieved, disconnected, restrained, and otherwise rendered safe.”
According to the Secretary, stored hazardous energy was NOT properly relieved on four (4) occasions when different energy control procedures were used to allow the contractor employees to “engage in maintenance and servicing activities.” The judge affirmed the violation as to three (3) of these four (4) alleged instances.
To establish a violation of the cited provision, the Secretary must first show that the contractor was performing a servicing or maintenance activity covered by the LOTO standard. See 29 C.F.R. § 1910.147(a)(1)(i) (scope requirement). The Secretary has failed to meet this burden. As the contractor argued before the judge, the Secretary has provided no evidence identifying what work tasks were being performed when these energy control procedures allegedly failed to properly relieve stored hazardous energy.
Regarding Instance 1, while it is undisputed that the identified energy control procedure was used to isolate a particular vessel in the plant, there is insufficient evidence to find a covered activity. A contractor supervisor stated only that the procedure covered the contractors’ entry into the vessel to make repairs inside of it — he did not explain, and the Secretary did not ask, what those repairs entailed.
Regarding Instances 2 and 3, the record shows nothing more than the energy control procedure in question and the job location; there is no other information regarding the tasks performed by the contractor.
Without such information, we cannot determine whether any one of the three energy control procedures at issue pertained to covered servicing or maintenance activities. Accordingly, we find that the Secretary has failed to establish that the LOTO standard applied in any of the alleged instances and therefore, vacate this citation item.
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