This decision covers several interesting items and sets a HUGE precedent for RESPONSIBILITY of PHA and Audit items from the PREVIOUS owners PHAs and Audits. The decision CONFIRMED that “utilities” within the process, in this case a “positive pressure unit” on a control room ventilation system, is a piece of COVERED EQUIPMENT. It also establishes minimums for when an employer uses “alternatives” to labeling each container of hazardous chemicals, being that the said containers were process vessels. The commission vacated two citations, which the machine guarding item involving an unguarded horizontal merely because OSHA could not show “exposure to the hazard” and an MOC citation since the use of steam lances was a “common occurrence at the refinery”. The item regarding the PHA and Audit items from a previous employer/owner could be a HUGE precedent for future sales of facilities that have covered processes. Here is the case…
OSHA inspected an oil refinery. Respondent purchased the refinery on April 29, 2005. OSHA initiated the inspection of the refinery under its national emphasis program focusing on process safety management (“PSM”) in refineries. The purpose of the inspection was to audit the refinery’s PSM program, review its documentation, and inspect the various units in the facility. The inspection began February 19, 2008 and continued at the refinery for about four months. Ronald Watkins, the Assistant Area Director (“AAD”) of the Dallas OSHA office, was the team leader. He oversaw the inspection and the four other OSHA compliance officers (“CO’s”) assisting in the inspection.
As a result of the inspection, OSHA cited the refinery for various alleged violations of the PSM standard. Two items were issued for not promptly addressing and correcting deficiencies found during PSM process hazard analyses and compliance audits. A further condition cited under the PSM standard was the failure to inspect and test the positive pressure unit in the FCC Unit’s control room. (Tr. 290-325). Another item issued under the PSM standard was for not having a management of change (“MOC”) procedure for using a “steam lance” to cool a hot spot on the outside of a vessel in the FCC Unit called the “regenerator.”
Two other citation items were issued under standards other than the PSM standard.
- One item alleged that unguarded horizontal rotating shafts in the Boiler Unit were hazardous.
- Another cited condition was the refinery’s failure to label certain of its vessels that held hazardous chemicals to show what the vessels contained.
At issue on review are six (6) serious citation items issued as a result of the inspection, all of which were affirmed by Administrative Law Judge Dennis L. Phillips, and for which he assessed a total penalty of $30,600. Four of these items allege violations of various provisions of OSHA’s process safety management (“PSM”) standard, 29 C.F.R. § 1910.119, one item alleges a violation of the machine guarding standard at 29 C.F.R. § 1910.219(c)(2)(i), and one item alleges a violation of the hazard communication standard at 29 C.F.R. § 1910.1200(f)(5)(i). For the reasons set forth below, we vacate two (2) citation items—the machine guarding item and one of the PSM items, and affirm four citation items—the three remaining PSM items and the hazard communication item, for which we assess a total penalty of $21,150.
I. Serious Citation 1, Item 4:
29 C.F.R. § 1910.119(e)(5)—Process Hazard Analyses of Highly Hazardous Chemicals, and Item 12: 29 C.F.R. § 1910.119(o)(4)—Compliance Audits
The PSM standard, which applies to certain enumerated processes, is aimed at “preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.” 29 C.F.R. § 1910.119 (“Purpose”). To that end, paragraph (e) of the standard requires an employer to have “a team with expertise in engineering and process operations” conduct “an initial process hazard analysis … on processes covered by this standard,” and then, “[a]t least every five (5) years after the completion of the initial process hazard analysis,” update and revalidate the analysis. 29 C.F.R. § 1910.119(e)(1), (4), (6). In response to the process hazard analysis (“PHA”), the employer must:
establish a system to promptly address the team’s findings and recommendations; assure that the recommendations are resolved in a timely manner and that the resolution is documented; document what actions are to be taken; complete actions as soon as possible; develop a written schedule of when these actions are to be completed; communicate the actions to operating, maintenance and other employees whose work assignments are in the process and who may be affected by the recommendations or actions.
29 C.F.R. § 1910.119(e)(5).
Under Item 4, the Secretary alleges that the refinery violated § 1910.119(e)(5) by failing to address the findings and recommendations from several PHAs conducted by the refinery’s PRIOR OWNER.
Item 12 relates to paragraph (o) of the PSM standard, entitled “Compliance Audits,” which requires employers to “certify that they have evaluated compliance with the provisions of [the PSM standard] at least every three years,” and to “promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.” 29 C.F.R. § 1910.119(o)(1), (4). Under this Item, the Secretary alleges that the refinery violated § 1910.119(o)(4) by failing to properly respond to findings from a PSM compliance audit conducted by the PRIOR OWNER.
The judge affirmed both citation items, finding a total of sixteen (16) unaddressed items from six PHAs, and ten (10) unresolved items from the compliance audit. On review, the refinery makes two arguments challenging the judge’s decision.
First, the company claims that the judge erred in rejecting its pre-hearing argument that both citation items are time-barred by the Occupational Safety and Health Act’s statute of limitations. OSH Act § 9(c), 29 U.S.C. § 658(c).
Second, the company claims that the judge erred in concluding that it was obligated to address the findings and recommendations of the refinery’s prior owner, and the Secretary therefore failed to establish noncompliance with either of the cited provisions. Like the judge, we reject both of the refinery’s arguments and affirm Items 4 and 12.
A. Statute of Limitations
Section 9(c) of the OSH Act provides that “[n]o citation may be issued under this section after the expiration of six (6) months following the occurrence of any violation.” 29 U.S.C. § 658(c). The refinery contends that Items 4 and 12 relate to PHAs and compliance audits conducted before the company’s acquisition of the refinery, and center on inadequate recordkeeping that preceded the citation’s issuance by several years. The judge rejected this argument, but the refinery contends that AKM, LLC v. OSHRC, 675 F.3d 752 (D.C. Cir. 2012), issued after the judge’s decision on this issue, supports vacating both items. We disagree.
In AKM, the D.C. Circuit ruled that employers cannot be cited for failing to record work-related injuries more than six months after the initial obligation to record the injuries attached. The AKM court was addressing two of OSHA’s recordkeeping provisions: 29 C.F.R. § 1904.29(b)(2), which requires completion of “an OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered on the OSHA 300 Log,” and 29 C.F.R. § 1904.29(b)(3), which requires injuries and illnesses to be recorded “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred.” The citation at issue in AKM alleged violations of both provisions and was issued “at least six months after the last unrecorded injury occurred.” AKM, 675 F.3d at 753. In explaining how § 9(c) applies to OSHA’s recordkeeping regulations, the court noted that the statutory provision’s use of the term “ ‘occurrence’ … clearly refers to a discrete antecedent event,” and analyzed its effect as follows:
[E]mployers must make records of workplace injuries in whatever form the Secretary requires within the time period established by the Secretary—here, seven days after the injury. If they fail to do so, that is a violation. Pursuant to Section 658(c), OSHA may cite employers for violations within six months of the violation’s occurrence. If an injury is reported on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and a citation issued within the following six months, and only the following six months, would be valid.
Simply put, under AKM, the statute of limitations period begins to run when the violation — the failure to record a recordable injury—inures. The court rejected the Secretary’s contention that there was a “continuing violation”—that is, that the employer’s continued failure to make the required record constituted a daily renewal of the violation that effectively tolled the statute of limitations period.
The refinery contends that this holding applies to the violations alleged in Items 4 and 12, but the company overlooks the distinction the AKM court drew between “discrete record-making violation[s],” id. at 759, which qualify as “occurrence[s]” that trigger the statute of limitations, and instances where “a company continues to subject its employees to unsafe . . . situations,” which “toll the statute of limitations on a continuing violations theory since the dangers created by the violations persist.” Here, neither Item 4 nor Item 12 alleges a “discrete record-making violation” that is a breach of a duty that occurred only once, at a specific time. Thus, we conclude that both of the alleged violations fall into the second category identified by the court — that is, they can be considered under a continuing violations theory.
The PSM provisions cited here do contain some documentation requirements.
See 29 C.F.R. § 1910.119(e)(5) (“The employer shall … assure … that the resolution is documented[;] … document what actions are to be taken; [and] … develop a written schedule of when these actions are to be completed … .”);
29 C.F.R. § 1910.119(o)(4) (“The employer shall promptly . . . document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.”).
But these provisions require action beyond mere recordkeeping—the employer must take corrective actions as well.
See 29 C.F.R. § 1910.119(e)(5) (“The employer shall establish a system to promptly address the team’s findings and recommendations,” and “assure that the recommendations are resolved in a timely manner.”); 29 C.F.R. § 1910.119(o)(4) (“The employer shall promptly determine … an appropriate response to each of the findings of the compliance audit.”).
Accordingly, the violations alleged here were not one-time failures to perform a task at a specified time. Rather, because the corrective actions required by the cited provisions directly address “preventing or minimizing the consequences of catastrophic [chemical] releases,” 29 C.F.R. § 1910.119 (“Purpose”), and because the failure to take those actions means the dangers described in the PHAs and compliance audits at issue persisted, each day that passed without the recommendations being addressed meant the violative conditions continued, and could be cited by OSHA.
We, therefore, reject the refinery’s argument that Items 4 and 12 are time-barred under § 9(c) of the OSH Act.
B. Noncompliance
As it did before the judge, the refinery contends that the Secretary failed to establish the company’s noncompliance with the cited provisions because the refinery’s prior owner performed the PHAs and compliance audits at issue, so only the prior owner was responsible for addressing the resulting findings and recommendations. According to the refinery, an employer purchasing a facility is not “required to investigate and satisfy obligations created by a prior employer, especially where, as here, the new employer was led to believe that no obligations remained outstanding.” The judge rejected this argument, concluding that Items 4 and 12 were based on the refinery’s own conduct (or lack thereof), and the fact that responsibility for these items originated under previous ownership did not absolve the refinery of its own OSH Act obligations. We agree.
The PSM standard expressly applies to “[a] process which involves a chemical at or above [certain] specified threshold quantities” and “[a] process which involves [certain] flammable gas[es] … or … flammable liquid[s].” 29 C.F.R. § 1910.119(a)(1)(i)-(ii) (emphasis added). The process at the refinery before the refinery purchased it was the refining of crude oil into usable fuels, and that same process continued after the acquisition, as did the hazards and PSM compliance items identified in the subject PHAs and compliance audits. Of course, the cited provisions of the PSM standard require action by “[t]he employer,” but the standard’s focus remains the “process” — there is no language in the standard limiting its obligations to a particular employer, let alone the one that conducted the required PHAs and compliance audits.
Compare, e.g., 29 C.F.R. § 1910.146(c)(8) (“host employer” requirements); 29 C.F.R. § 1910.147(f)(2) (“on-site employer” and “outside employer” requirements); 29 C.F.R. § 1926.1402(c) (“controlling entity” requirements); 29 C.F.R. § 1926.1407(e) (“utility owner/operator” requirement); 29 C.F.R. § 1926.752(a) (“controlling contractor” requirements). In other words, under the PSM standard, any shortcomings involved in the “process” at the refinery that continued after the transfer of ownership were the refinery’s responsibility to investigate and remedy.
The PSM standard also sets a schedule for auditing and abating potential process hazards and PSM compliance issues, and there is nothing in the standard to suggest that this schedule is reset or altered by the sale of the facility in which the process takes place. The PSM standard requires PHAs and compliance audits to be completed on prescribed schedules—five and three years, respectively — and requires certain follow-up actions after completion. 29 C.F.R. § 1910.119(e)(5)-(6), (o)(1), (o)(4). The last of the PHAs and compliance audits at issue here were completed in the year of the refinery’s acquisition of the refinery, so the next ones were due to be completed five years and three years, respectively, after the acquisition. But nothing in the standard indicates that this schedule was intended to terminate the obligation to follow up on already-completed PHA and compliance audit findings in the interim (or, as the judge found, the still-open items from the earlier PHAs and compliance audits). See 29 C.F.R. § 1910.119(e)(5), (o)(4).
Indeed, reaching a contrary conclusion here would lead to the absurd result of permitting deficiencies identified by a previous owner to go unaddressed for more than the entire PHA/compliance audit schedule’s time period—that is, in excess of five and three years, respectively. Such a result makes little sense in light of the PSM standard’s goal of “preventing … the … catastrophic releases of … chemicals;” neither the transfer of ownership nor the cycling of the PHA/audit schedule diminishes the need to correct a deficiency. 29 C.F.R. § 1910.119 (“Purpose”). In short, nothing in the PSM standard indicates that an employer’s purchase of a facility nullifies obligations stemming from prior findings and recommendations. Because the PSM standard applies to the process itself and sets a specific schedule for compliance, the standard’s obligations, including the compliance schedule, survive a transfer of the process’s ownership. Accordingly, we reject the refinery’s challenge to the noncompliance element of the Secretary’s prima facie case and affirm both citation items.
In so ruling, we disagree with our dissenting colleague that these violations are grounded on successor liability. Our colleague views successor liability as the determinative issue with respect to Items 4 and 12 because she misapprehends the PSM standard. As discussed above, the standard does not limit the obligation to address PHA and compliance audit items to the employer that conducts the PHAs and compliance audits. Indeed, as the Secretary alleges, the refinery itself violated the PSM standard by failing to address outstanding PHA and compliance audit items. Thus, the judge did not—as the dissent puts it—“simply presume[] that the refinery is a successor,” nor is our decision a “summary affirmance of the judge’s presumption.” Rather, successor liability is patently irrelevant here and has absolutely no bearing on our holding.
II. Serious Citation 1, Item 8: 29 C.F.R. § 1910.119(j)(4)(i)—Inspection and Testing of Process Equipment
Paragraph (j) of the PSM standard—addressing “[m]echanical integrity”—provides that “[i]nspections and tests shall be performed on process equipment.” 29 C.F.R. § 1910.119(j)(4)(i). Under Item 8, the Secretary alleges that the refinery violated this provision by failing to inspect and test its positive pressurization unit (“PPU”) in the control room for the refinery’s fluid catalytic cracking unit. The judge affirmed this item, concluding that: (1) the PPU is subject to the PSM standard; (2) the refinery failed to inspect and test the PPU: (3) the company had knowledge of this failure; and (4) employee exposure was established. On review, the refinery argues only that the judge erred in finding that § 1910.119(j)(4)(i) applies to the PPU.
We disagree and therefore affirm Item 8.
Fluid catalytic cracking (“FCC”) involves converting crude oil into usable fuels, such as gasoline, by a process that could release hazardous vapors. The FCC unit’s control room, from which the refinery employees manage this refining process, is pressurized by the PPU to keep any such vapors from entering. As the judge noted, the vapors can be toxic to the employees and could pose an explosion hazard, given that the wiring in the control room is a potential ignition source. The PPU consists of an intake stack that draws in outside air, a fan that pulls the air into the control room, and heating and cooling elements that regulate the temperature inside the room. The PPU also has two sensors—one connected to an alarm that indicates whether the control room is indeed pressurized, and another that detects the presence of combustible gas and shuts down the intake stack to keep the gas from entering the room if vapor levels reach 50 percent.
The refinery contends that § 1910.119(j)(4)(i) does not apply here because the PPU is not “process equipment.” The PSM standard defines “process” as:
any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities. For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process.
29 C.F.R. § 1910.119(b). Not all equipment involved in any such activity, however, is subject to the inspection and testing requirements of the cited standard. Section 1910.119(j)(4)(i) only applies to certain types of equipment, such as “[c]ontrols (including monitoring devices and sensors, alarms, and interlocks)” and “[p]umps.” 29 C.F.R. § 1910.119(j)(1). Thus, to be subject to § 1910.119(j)(4)(i), a piece of equipment must first be “process equipment,” and then must qualify as one of the types of such equipment enumerated in § 1910.119(j)(1).
The refinery contends that the PPU is not “process equipment” because it is not directly involved in converting crude oil to usable fuels. The standard’s focus, however, is not that narrow. The refinery’s refining process includes operating the FCC unit as a whole, and this is done from the FCC unit’s control room, which is kept in safe working order by the PPU. Without the PPU providing positive pressure, hydrocarbon vapors could leak into the control room and—because of the wiring there—cause the type of catastrophic explosion that the PSM standard was intended to prevent. And short of such an explosion, the toxic vapors could harm the employees inside the control room, compromising the management of the refining process. We find, therefore, that the PPU is an integral part of the overall FCC unit “process.” After all, the PSM standard does not require that every part of a “process” come into contact with hazardous chemicals. 29 C.F.R. § 1910.119(b) (defining “process” as “any activity involving a highly hazardous chemical”) (emphasis added). Here, viewing the “activity” involving the FCC unit in its entirety, the PPU is part of a “process” covered by the PSM standard because it is an integral part of the “manufacturing, handling [and] on-site movement of [highly hazardous chemicals].”
The refinery next argues that, even if the PPU is part of the refining process, it is not one of the types of “process equipment” subject to § 1910.119(j)(4)(i), such as a control or a pump. We find, however, that the PPU is a “control” for two reasons. First, the PPU has sensors to monitor air pressurization and combustible gas levels, thus satisfying examples of a “control” in the standard’s text. See 29 C.F.R. § 1910.119(j)(1) (specifying that “[c]ontrols . . . includ[e] monitoring devices and sensors, alarms, and interlocks”) (emphasis added). Second, the PPU is an integral part of the FCC unit control room, which itself is a “mechanism used to regulate or guide the operation of a machine or an apparatus or system,” Webster’s Third New Int’l Dictionary 496-97 (1986), as the control room regulates the internal workings of the vessels that handle the chemicals involved in the refining process. The PPU’s regulation of the control room’s positive-pressure atmosphere makes the PPU integral to that “control”—and thus a “control” itself—because, as discussed above, entry of hazardous hydrocarbon vapors into the room could prevent the control room from managing the refining process.
Finally, the refinery argues that deeming the PPU “process equipment” is inconsistent with prior statements from OSHA, placing particular reliance on an OSHA Interpretation Letter from Director of Enforcement Programs Richard E. Fairfax to Howard J. Feldman (Jan. 31, 2008). The refinery points to language in the letter stating that “[t]he boundaries of the covered process are based on the equipment which contain [highly hazardous chemicals].” The refinery maintains that this language supports a narrower view of the FCC “process” here. We disagree. The part of the letter in which this language appears is entitled “PSM Coverage of Utility Systems,” and it clearly indicates that machinery not containing chemicals, such as the PPU, can nonetheless be part of a “process”:
OSHA does not agree that utility systems are categorically outside the scope and application of the PSM standard. It is OSHA’s long-standing position that utility systems are part of the PSM-covered process when employers use them to control/prevent and mitigate catastrophic releases … .
* * *
[T]he proper safe functioning of all aspects of a process, whether they contain [highly hazardous chemicals] or not, are important for the prevention and mitigation of catastrophic releases of [highly hazardous chemicals], due to their direct involvement in the overall functioning of the process.
As a result, it is OSHA’s position that if an employer determines that a utility system or any aspect or part of a process which does not contain a [highly hazardous chemical] but can affect or cause a release . . . then, relevant elements of PSM could apply to these aspects. OSHA’s position is that any engineering control, including utility systems, which meets the above criteria must be . . . inspected/tested/maintained per OSHA PSM requirements.
The refinery makes much of the letter’s “if an employer determines” language, and argues, in effect, that equipment is not part of a process unless an employer deems it as such. But there is no indication in the language of the PSM standard or its regulatory history that OSHA meant to give employers, at their sole discretion, the option of excluding equipment from the standard’s coverage. In this context, it is evident that the letter was just written in the vernacular. Therefore, we conclude that the PPU qualifies as a “control” under § 1910.119(j)(1)(v), and that it was subject to the inspection and testing requirement of § 1910.119(j)(4)(i). Accordingly, we affirm Item 8.
III. Serious Citation 1, Item 9(b): 29 C.F.R. § 1910.119(l)(4)—Management of Change (MOC)
Paragraph (l) of the PSM standard addresses the management of changes to process chemicals, technology, equipment, and procedures. Subsection (l)(4) provides that, “[i]f a change covered by this paragraph results in a change in the process safety information required by paragraph (d) of this section, such information shall be updated accordingly.” Under Item 9(b), the Secretary alleges that the refinery violated this provision by failing to “ensure that a[n] MOC [was] documented and on file when steam lances [were] applied to identified ‘hot spots’ on the exterior of processing equipment in the FCC Unit.” The judge affirmed this item, finding that the refinery was required to have an MOC procedure on file regarding the company’s use of the steam lance, but failed to do so. On review, the refinery argues that the judge erred in concluding that § 1910.119(l)(4) applies here, because use of the steam lance was not a “change” under the standard. We agree and therefore vacate Item 9(b).
A vessel in the FCC unit — the regenerator — stands about 50 feet high and 20 feet wide, and is covered by a carbon steel shell. Just inside the shell is a 4-inch-thick liner called the refractory, which is designed to keep the shell’s exterior at a safe temperature and protect it from the erosive effect of the refining process occurring inside, where temperatures are routinely in excess of 1,200°F. Over time, though, the refractory can deteriorate, leaving the shell vulnerable to damage. For this reason, the refinery conducts routine infrared inspections of the shell.
Shortly before the OSHA inspection at issue here, the refinery detected a “hot spot” on the outside of the regenerator, an indication that the refractory was thinning in that area. As it routinely does whenever hot spots occur, the company used a “steam lance” to cool this part of the shell. The steam lance is a 6- to 8-foot pipe connected to a steam hose that is in turn connected to the refinery’s boiler system. The pipe, which has holes in the end of it, is situated so that the steam from the boiler, which is no hotter than 250°F, is directed at the hot spot, cooling the outside of the shell to within a safe operating temperature. The steam lance is used continuously on the hot spot, and maintained by the FCC unit operators, until the refractory can be repaired during the next “turnaround,” the period when the refinery shuts down the reactor/regenerator for maintenance.
The refinery contends that its use of the steam lance was not a covered change because it was part of a regular and recurring maintenance cycle. We agree. While the PSM standard does not define “change,” OSHA has explained that the term “includes all modifications to equipment, procedures, raw materials, and processing conditions . . . .” OSHA Publication No. 3133, Process Safety Management Guidelines for Compliance, at 16 (1994). Other provisions of the standard also shed light on what is meant by “change.” Subsection (2) of the MOC provision states that the “written procedures to manage changes . . . shall assure that [several] considerations are addressed prior to any change,” including “[t]he technical basis for the proposed change,” “[m]odifications to operating procedures,” and the “[n]ecessary time period for the change.” 29 C.F.R. § 1910.119(l)(1)-(2). Subsection (l)(3) provides that “[e]mployees involved in operating a process and maintenance and contract employees whose job tasks will be affected by a change in the process shall be informed of, and trained in, the change prior to start-up of the process or affected part of the process.” 29 C.F.R. § 1910.119(l)(3). Taken together, we view this language as contemplating that a “change” covered by the standard is something new, different, and unfamiliar, as opposed to a regular and recurring event.
Here, there was nothing new and different about the refinery’s use of the steam lance. Indeed, the record shows that its use was part of the refinery’s standard operating procedure. One FCC unit employee testified that in his thirty years at the refinery, hot spots had occurred many times, and “steam [was] applied to all of them.” Another employee in the FCC unit similarly stated that in his thirty years on the job, “putting steam on a hot spot . . . we’ve done it since I’ve been out there,” and “it’s a very common practice.” Moreover, a refinery supervisor testified that “apply[ing] the steam at the location” of the hot spot was “a common theme at the refinery,” and the refinery manager stated that the practice was so common that “a steam hose … was … continually out there [near the regenerator] … [and] attached to the steam header.” Finally, one of the Secretary’s expert witnesses, a licensed engineer and certified fire and explosion investigator, testified that it “is a very common practice in the refining industry … to use steam as a cooling agent.” Based on this evidence, there is nothing in the record to show that the refinery’s use of the steam lance was a deviation from the baseline workings of the refinery. On the contrary, the record supports the refinery’s position that its use of the steam lance was part of the company’s regular operation of the regenerator.
Nor do we consider the refinery’s use of the steam lance to be a temporary change, which would be “subject to the [MOC] provisions.” OSHA Publication No. 3133, Process Safety Management Guidelines for Compliance, at 16. OSHA has stated that “[i]t is important that a time limit for temporary changes be established and monitored since otherwise, without control, these changes may tend to become permanent.” In addition, OSHA has made clear that the MOC “procedures are used to ensure that the equipment and procedures are returned to their original or designed conditions at the end of the temporary change.” As these statements show, the standard contemplates that an employer will roll back new and discrete modifications after a defined period of time. the refinery’s use of the steam lance, in contrast, was a regular and recurring phenomenon, such that it was a routine part of the company’s operations. Additionally, the steam lance was routinely used until the next turnaround, at which point the refractory would be repaired and the steam lance would be rendered unnecessary until another hot spot developed.
In light of the foregoing, we conclude that the refinery’s use of the steam lance was not a change contemplated by the cited standard, and we, therefore, vacate Item 9(b).
IV. Serious Citation 1, Item 13: 29 C.F.R. § 1910.219(c)(2)(i)—Guarding Horizontal Shafting
Under this item, the Secretary alleges that the refinery violated 29 C.F.R. § 1910.219(c)(2)(i), which provides that “[a]ll exposed parts of horizontal shafting seven (7) feet or less from floor or working platform . . . shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires.” According to the Secretary, the refinery failed to ensure that exposed rotating shafts were guarded on two pieces of machinery in the refinery—an air fan and a cooling tower pump motor. In affirming this item, the judge concluded that the Secretary established the exposure element of his prima facie case by showing that it was reasonably predictable employees would be in the zone of danger created by the fan and motor. See Astra Pharm. Prods., 9 BNA OSHC at 2129, 1981 CCH OSHD at pp. 31,899-900 (“[T]he Secretary must show … that … employees had access to the violative condition.”). On review, the refinery challenges the judge’s ruling on exposure.
We agree that the judge erred in this regard, and we, therefore, vacate Item 13.
To establish exposure, “the Secretary . . . must show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.” “[T]o meet this burden, the Secretary must do more than show that it may be physically possible for an employee to come into contact with the unguarded machinery in question.” Rather, “the Secretary must establish that employees are exposed to a hazard as a result of the manner in which the machine functions and the way it is operated.”
As the refinery contends on review, the record here fails to establish its employees were exposed to the unguarded rotating shafts. There is no evidence that any employees were stationed at or near either piece of machinery. In fact, one the refinery employee testified that no one worked at the fan or pump motor and no one had any duties near these machines. Additionally, the only other testimony regarding employee exposure to the zone of danger created by the unguarded fan and pump motor was mere speculation. One FCC unit employee testified that “you could stand” next to the fan and “walk up that close and actually just touch it,” and “you could get as close to [the pump motor] where I could touch on the back there.” Although this testimony shows how close an employee could get to these machines, it does not establish how close any employee actually came to the zone of danger, either as their work required or through inadvertence. Moreover, the record shows that the back of the pump motor was fully encased and does not move. Another witness testified that employees stay between 5 and 10 feet from the fan and pump motor, which is not close enough for reasonably predictable inadvertent contact. Finally, although OSHA’s Assistant Area Director testified that, while walking through the refinery during the inspection he “could have come within five feet of the equipment” at issue, and that “someone … passing by … could accidentally trip and fall onto the rotating shaft,” his testimony does not show how close employees actually came to the equipment, and no evidence was adduced regarding conditions on the floor that would make a trip-and-fall reasonably predictable. In short, none of this testimony establishes that it was reasonably predictable for employees to be in the zone of danger created by the unguarded rotating shafts of the fan and pump motor.
In light of the foregoing, we find the Secretary has shown only that it was “physically possible for an employee to come into contact with” the cited machinery, which is insufficient to establish employee exposure. Accordingly, we vacate Item 13.
V. Serious Citation 1, Item 15: 29 C.F.R. § 1910.1200(f)(5)(i)—Labeling of Hazardous Chemical Containers
Under this item, the Secretary alleges that the refinery violated a provision of the hazard communication standard providing that, with limited exceptions, “the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the . . . [i]dentity of the hazardous chemical(s) contained therein.” 29 C.F.R. § 1910.1200(f)(5)(i). According to the Secretary, the refinery failed to comply with respect to three vessels in the FCC Unit — a flare knockout drum, the regenerator, and an exchanger — and one vessel in the refinery’s alkylation unit. In affirming this item, the judge found that none of these vessels was labeled, tagged, or marked as required by the standard. The refinery, however, argued that it had complied by alternative means — that several of the company’s documents gave employees the requisite information. The judge rejected this argument, concluding that these written materials were insufficient, particularly because an employee would have to access a number of documents to obtain the necessary information. The refinery challenges this ruling. Although we disagree with the judge’s rationale, we affirm the violation for the following reasons.
The cited standard states that containers of hazardous chemicals must be labeled, tagged, or marked, “[e]xcept as provided in paragraphs (f)(6) and (f)(7) of this section.” 29 C.F.R. § 1910.1200(f)(5). Paragraph (f)(6) provides that employees may be informed of chemical hazards by way of written materials other than labels, but only if the materials convey the requisite information and are “readily accessible” to the employees:
The employer may use signs, placards, process sheets, batch tickets, operating procedures, or other such written materials in lieu of affixing labels to individual stationary process containers, as long as the alternative method identifies the containers to which it is applicable and conveys the information required by paragraph (f)(5) of this section to be on a label. The written materials shall be readily accessible to the employees in their work area throughout each work shift.
29 C.F.R. § 1910.1200(f)(6). Because this alternative means of compliance is phrased in terms of an exception, the refinery has the burden of establishing that its documentation:
(1) identifies the chemicals contained in each of the four vessels listed in the citation; and
(2) provides information about the potential hazards of those chemicals.
29 C.F.R. § 1910.1200(f)(5)(i)-(ii) (stating that vessels must be marked with the “[i]dentity of the hazardous chemical(s) contained therein,” and “[a]ppropriate hazard warnings … which provide at least general information regarding the hazards of the chemicals, and which … will provide employees with the specific information regarding the physical and health hazards of the hazardous chemical”). We find that the refinery has failed to make this showing.
The refinery maintains that its employees can identify the chemicals with which they work by using the company’s piping and instrument diagrams (“P&IDs”), along with several other documents. Employees can then, according to the refinery, consult the material safety data sheets (“MSDSs”) for those chemicals, which contain information on their hazards. However, the record shows that this documentation is insufficient to convey the requisite information. To begin, the P&ID for the alkylation unit, which contains one of the four cited vessels, does not show the chemicals this vessel contained, nor does any other document of record. And while it is true that the P&IDs show the hazardous chemicals in the other three cited vessels—the flare knockout drum contained vapor, hydrocarbon vapors, and purge gas; the regenerator contained flue gas; and the exchanger contained slurry and cold/raw oil — the record shows that there were no MSDSs for these named substances, despite the refinery manager’s general statement that “there [was] a full set of” MSDSs at the refinery.
Specifically, an FCC unit operator gave undisputed testimony regarding the availability of MSDSs for these particular substances. He testified that employees could not “find an MSDS on something called, in and of itself, vapor,” and that “there is [no] MSDS for something called purge gas.” He also stated that “there [is no] MSDS that would refer to, quote/unquote, flue gas” — rather, to learn about the hazards of flue gas, employees would “need to know that [carbon monoxide] was in it,” and then find the carbon monoxide MSDS. As for slurry, he stated that an employee would need to know that “carbon black might be another name for it,” and look for the MSDS for that named chemical. In other words, there were no MSDSs—which purportedly identify the chemical hazard warnings — for the hazardous chemicals contained in the cited vessels. The same is true for the refinery’s operating procedures and training materials — two other sets of documents the refinery claims contain the requisite information. The section of the operating procedures entitled “Properties and Hazards of Chemicals Used in the Process” contains information about the hazards of hydrocarbon vapors, but it contains nothing about purge gas, flue gas, or slurry. And the training materials contain no information regarding the hazards of any chemical. Due to this mismatch, the refinery’s written materials failed to “provide employees with the specific information regarding the physical and health hazards of the hazardous chemical[s]” inside the flare knockout drum, regenerator, and exchanger. 29 C.F.R. § 1910.1200(f)(5)(ii).
In reaching this conclusion, our analysis departs from that of the judge, whose primary concern appears to have been that to determine a cited vessel’s contents, an employee would have had to access a number of documents. We do not consider a hazard communication program that requires employees to consult more than one document necessarily noncompliant with § 1910.1200(f)(5). Under the standard, an employer is required to communicate with employees regarding chemical hazards by means that are effective, and any hazard communication program must meet that test. See 29 C.F.R. § 1910.1200(f)(5)(ii) (requiring “[a]ppropriate hazard warnings, or alternatively, words, pictures, symbols, or combination thereof, which provide at least general information regarding the hazards . . . , and which, in conjunction with the other information immediately available . . . will provide . . . specific information regarding the . . . hazards . . . .”); see also Hazard Communication, 59 Fed. Reg. 6126, 6159 (Feb. 9, 1994) (final rule) (“[E]mployers may, as an alternative to specific hazard warnings, provide more general hazard information on the labels as long as the specific physical and health hazards of the chemicals are effectively conveyed through implementation of the other aspects of the hazard communication program . . . .”).
Accordingly, because the documents on which the refinery relies, taken together, fail to convey the requisite information for all four of the cited vessels, we affirm Item 15.
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