This 2019 OSHRC decision is without a doubt the worst excuse for process safety I have seen since I have been involved with process safety (27 years). This case fails to meet the most fundamental basis of how OSHA’s wrote the standard. Employers get to pick their RAGAGEPs, but when they state the “codes and standards employed” those become the basis for their process design, construction, operation, and maintenance of their process. These arguments are not just flawed, they are shameful and any practicing process safety professional/engineer who agrees with these “games” are a problem rather than a solution.
Argument #1 – Company stated in their PSI that their RAGAGEP of choice was ASHRAE 15 and yet they convinced the ALJ that they did not have to follow ASHRAE 15 requirement for ammonia detectors in the engine room, and it was the IMC that they were required to follow and that the IMC did not require detectors in the engine room. And the judge bought both arguments and vacated the citation for not having detectors inside an engine room for a process with 80,000 pounds of NH3. Granted the judge completely misunderstands the IMC and its exceptions, but he had help in his confusion! On the other hand, I hope this case sets a precedent that IMC and IFC are RAGAGEP’s, as this was set forth in their arguments.
Argument #2 – Engine Room does need not be tight fitting as stated in ASHRAE 15 because “doors” do not fall under the PSM standard. This one, the judge did all on his own. OSHA failed to explain that the engine room design is that of a “secondary containment system” to prevent the spread of ammonia and to ensure the ammonia is discharged to a safe location, thus the tight-fitting doors are a critical aspect of controlling a release of NH3.
Argument #3 – P&IDs do not have to be accurate as there is no RAGAGEP stating they have to show each line in the process and where it originates and ends. The company also successfully argued with the help of their “experts” that the block flow/simplified process flow diagrams were all that was required or needed to fully understand the process flows. And an operator at the facility said he never used the P&IDs, instead, he used the block flow diagrams to determine where the lines originate and end.
Argument #4 – the MII said 70,000 pounds and the ventilation documentation stated 80,000 pounds, but that’s OK because this engineering error does not place employees in harm’s way. This one made me think that maybe we would finish strong with a rational argument, as I agreed with the company’s position at first; but then the experts blew up all rationale in their argument about MII and its use in PSM.
If you are a practicing process safety professional/engineer, read the testimony of the employees and company experts and you will be amazed that in 2019 these arguments are put forth and are successful. Sadly, if this case stands, it will become the argument for every NH3 refrigeration citation from this day forth and process safety in an industry that is already struggling will only get worse rather than better!
The one citation that the OSHRC upheld was lack of written maintenance procedures.
Here are the arguments:
(emphasis added by me)
On January 11, 2017, OSHA began a Process Safety Management (PSM) inspection of a chicken processing facility pursuant to OSHA’s National Emphasis Program. As a result of alleged deficiencies discovered during the inspection, OSHA issued a six-item citation on June 16, 2017 alleging violations of OSHA’s Process Safety Management of Highly Hazardous Chemicals (“PSM”) standard, 29 C.F.R. §1910.119, with proposed penalties totaling $70,618.00. The action is now before the Court on the Secretary’s complaint seeking an order affirming the citation and proposed penalty and the company’s answer denying the alleged violations and appropriateness of the penalties and abatement and asserting the affirmative defense of unpreventable employee misconduct.
Item 1 alleged five instances, referenced as (a) through (e) in the citation, of serious violations of subsection (d)(3)(ii) of §1910.119 for failing to document that equipment complied with recognized and generally accepted good engineering practices (RAGAGEP). The Secretary withdrew Instances (b) and (c) prior to trial. Remaining at issue under Item 1 are Instance:
(a), regarding the lack of ammonia detectors in the refrigeration machinery room;
(d), regarding a door to the engine room that was not tight fitting; and
(e), regarding an engine room door that did not open outward.
The Secretary proposed a penalty of $12,675.00 for Item 1.
Item 2 alleges a serious violation of subsection (d)(3)(i)(B) of §1910.119 for failing to ensure its piping and instrument diagrams were accurate and represented equipment that was existing and was part of the process, with a proposed penalty of $12,675.00.
Item 3 alleges a serious violation of subsection (d)(3)(i)(E) of §1910.119 for failing to provide and maintain an accurate and updated compilation of the ventilation system design for the engine room, with a proposed penalty of $12,675.00.
The Secretary withdrew Item 4 prior to trial.
Item 5a and Item 5b are grouped Items with a proposed total penalty of $12,675.00. Item 5a alleges three instances, referenced as (a) through (c) in the citation, of serious violations of subsection (j)(2) of §1910.119 for failing to establish written procedures to maintain the on-going integrity of process equipment, with regard to:
safety cutouts procedures
E-stop testing procedures, and
level control pressure vessel test procedure
Instance 5b alleges five instances, referenced as (a) through (e) in the citation, of serious violations of subsection (j)(4)(i) of §1910.119 for failing to perform inspection and tests on process equipment with regard to
three compressor cutouts,
a Liquid King Valve, and
emergency stop buttons inside and outside the engine room.
The Secretary withdrew Item 6 prior to trial.
The Court held a bench trial in this matter and after hearing and carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the proceedings.
For the reasons indicated infra, the Court VACATES Items 1, 2, and 3.
The Court AFFIRMS Item 5a in its entirety, AFFIRMS Item 5b with regard to Instances (a), (b), (c), and (e), and VACATES Instance (d).
The Court assesses a grouped penalty of $9,054.00 for Items 5a and 5b.
BACKGROUND
The company operates a chicken processing plant that was built in 2006. The plant uses anhydrous ammonia as a refrigerant to freeze the processed chickens. On January 11, 2017, a Compliance Safety and Health Officer CSHO began an inspection of the plant. He held an opening conference with management officials and presented them with a document request for PSM documents and the employer’s OSHA 300 injury log. He conducted a walk-around inspection, interviewed employees, and took photographs. He returned to the plant in February of 2017 with another CSHO, a chemical engineer who had more experience with PSM inspections, presented the facility with a second document request and conducted another walk-around inspection, interviewing more employees and taking more photographs. As a result of the inspection, the two CSHOs recommended the Secretary issue a citation for serious violations of the PSM standard and the citation was subsequently issued on June 16, 2017.
Three expert witnesses testified at trial—
Eduardo Ford for the Secretary and
Henry Bonar and Walter Teeter for the company
Their education, work experience, and professional associations were comparable.
The Court qualified Ford as an expert in “ammonia system construction, safety, design, and installation.”
The Court qualified Bonar and Teeter as experts “in the field of ammonia refrigeration systems and process safety management.”
ANALYSIS
The Court of Appeals for the Fifth Circuit, where the action arose, has held the Secretary “must show by a preponderance of the evidence:
(1) that the cited standard applies;
(2) noncompliance with the cited standard;
(3) access or exposure to the violative conditions; and
(4) that the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence.
Further, the Fifth Circuit has held “hazard is generally presumed in safety standards unless the regulation requires the Secretary to prove it.
The PSM standard took effect in May 1992 as a performance standard. Process Safety Management of Highly Hazardous Chemicals, 57 Fed. Reg. 6356, 6356, 6360 (Feb. 24, 1992). As the Commission has recently noted in BP Products North America, Inc., one significant aspect of the PSM standard is the requirement that employers compile information about their process equipment and use this information to self-assess the equipment for hazards, and then, if necessary, to implement corrective safeguards.
The PSM provision cited in Items 1, 2, and 3 required the facility to “document that equipment complies with recognized and generally accepted good engineering practices” as part of its process safety information under § 1910.119(d). (d)(3)(i)(B) and (d)(3)(i)(E)
The PSM provision cited in Item 5a required the facility to “establish and implement written procedures to maintain the on-going integrity of process equipment.” (j)(2)
The PSM provision cited in Item 5b required the facility to perform “inspections and tests” on “process equipment.”
RAGAGEP is not defined in either the text of the PSM standard, its preamble, or the non-mandatory Appendix C. However, Appendix C provides some examples of what could be used to “establish” RAGAGEP, such as requirements contained in published consensus standards and codes and “technically recognized report[s]” from engineering societies. 29 C.F.R. § 1910.119, App. C.3.8
At issue, in this case, is whether the Secretary has met his burden to establish that the facility was obligated under the PSM standard to comply with the specific engineering practices that he asserts is RAGAGEP.
A. Item 1
The parties stipulated “the facility chose to follow as its RAGAGEP ASHRAE 15-2004.” This stipulation is supported by an August 6, 2015 revised the facility document prepared as part of its PSM program, which stated in relevant part, “[t]he standard used in this PSM program to meet RAGAGEP requirements is ANSI-ASHRAE 15.”
Each disputed instance in Item 1 asserts the facility “did not document compliance with its chosen” RAGAGEP and alleges employees were exposed “to inhalation of ammonia vapors.” Specifically, the Secretary contends the facility failed to comply with its chosen RAGAGEP, and therefore violated § 1910.119(d)(3)(ii) with regard to Instances (a), (d), and (e).
The facility defends itself against this charge, stating,
ASHRAE is not the ultimate authority for the facility which [is] obligated to first comply with the International Mechanical Code (IMC). The IMC is the governing code and therefore qualifies as law, whereas the IIAR-2 1999 and ASHRAE-15 2004 are industry standards that are, in some instances, incorporated into the IMC by reference. In those instances, the Company has chosen to follow ASHRAE-15 instead of IIAR-2. In this case, the IMC dictates whether an ammonia detector is required, and ASHRAE is relied upon by the Company in determining [the] type and construction of doors used for its machinery room. (Resp’t’s Br., pp. 29-30.)
1.Instance (a)
Instance (a) of Item 1 of the citation alleges the facility did not document compliance with its chosen RAGAGEP, “ANSI/ASHRAE-15 2004, Section 8.11.2.1, as the refrigeration machinery room did not contain ammonia detectors.”
(1) The Cited Standard Applies to the Cited Condition
Section 1910.119 is found in Subpart H—Hazardous Materials of OSHA’s general industry standards and addresses process safety management of highly hazardous chemicals. The Purpose statement of § 1910.119 provides,
“This section contains requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals. These releases may result in toxic, fire or explosion hazards.”
The standard applies to a process “which involves a chemical at or above the specified threshold quantities listed in appendix A to this section[.]” Appendix A lists 10,000 pounds as the threshold quantity for anhydrous ammonia. The parties stipulated, “[t]he refrigeration system contains over 10,000 pounds of anhydrous ammonia.” (Jt. Prehearing State., ¶ D.1) Therefore, the cited subsection of the PSM standard applies to the cited condition in Instance (a) of Item 1.
(2) The Secretary Failed to Prove Noncompliance with the Terms of the Standard
Section 8.11.2.1 of ANSI/ASHRAE 15-2004 provides in relevant part that
“[e]ach refrigerating machinery room shall contain a detector, located in an area where refrigerant from a leak will concentrate, that actuates an alarm and mechanical ventilation[.]” (Ex. C-3, p. 12.)
Section 8.11.2.1 further provides
“[t]he alarm shall annunciate visual and audible alarms inside the refrigerating machinery room and outside each entrance to the refrigerating machinery room.” (Id.)
The parties stipulated “the machinery room in the the facility contained no ammonia detectors.” (Jt. Prehearing State., ¶ D(5)). According to the Secretary, his expert, Mr. Ford, opined “that ammonia detectors are required in the machinery room.” (Sec’y’s Br., p. 19) (citing Tr. 243:22-24). The Court does NOT agree with the Secretary or his expert.
Section 8.11.2.1 provides for an exception, which indicates
“[f]or ammonia, refer to 8.12(g).” (Ex. C-3, p. 12.)
Since the refrigerating machinery room at issue used ammonia, the Secretary’s reliance on Section 8.11.2.1 is misplaced. Rather, the Secretary was required to refer to Section 8.12(g) to determine compliance, which provides that
“[w]hen refrigerants of Groups A2, A3, B2, and B3 are used, the machinery room shall conform to Class 1, Division 2, of the National Electrical Code.”
Ammonia falls into Group B2 (see id. at 9), and therefore, unless another exception applies, the facility’ machinery room was required to conform to Class 1, Division 2, of the National Electrical Code.
However, another exception does apply. Section 8.12(g)’s exception indicates
“[w]hen ammonia is used, the requirements of Class 1, Division 2, of the National Electrical Code shall not apply providing the requirements of 8.12(h) are met.” (Id. at 13.)
Therefore, the facility’ machinery room was not required to conform to Class 1, Division 2, of the National Electrical Code if it met the requirements of Section 8.12(h).
Section 8.12(h) mandates
“[w]hen ammonia is used, the machinery room is not required to meet Class 1, Division 2, of the National Electrical Code providing
(1) the mechanical ventilation system in the machinery room is run continuously and failure of the mechanical ventilation system actuates an alarm or
(2) the machinery room is equipped with a detector, conforming to 8.11.2.1, except the detector shall alarm at 1,000 ppm.” (Id.)
It is undisputed that the facility runs the mechanical ventilation system in the machinery room continuously. The parties also stipulated “were the ventilation system in the machinery room to fail, a visual-only alarm would trigger in the control room.” Therefore, the facility contends it has met the series of exceptions to sections 8.11.2.1 and 8.12 and is not required to have ammonia detectors in its machinery room.
The Secretary’s expert, Eduardo Ford, disagrees, opining both visual and audible alarms inside the refrigeration machinery room and outside each entry to the refrigeration machinery room were required. Ford appears to confuse the requirement in section 8.11.2.1 for the alarm tripped by the ammonia detector with the alarm required in section 8.12(h) that is tripped by failure of the mechanical ventilation system. The maintenance manager for the facility testified if the mechanical ventilation system in the machinery room failed, an LED strobe light in the refrigeration office will start flashing. This flashing light meets the requirement set out in section 8.12(h) that failure of the ventilation system “actuates an alarm.” The Court agrees with the maintenance manager and concludes, infra, there is no requirement in section 8.12(h) that the alarm be visual and audible and be located in certain areas.
The Secretary believes he has found a similar flaw in the the facility interpretation of section 8.11.2.1 with regard to the exception for water.
The facility ostensibly relies on the word “exception” in Section 8.11.2.1, asking the Court to interpret this as removing the requirement to equip the machinery room with an ammonia detector, full stop, without context. However, the facility’ argument is undercut by the second exception in 8.11.2.1, which explicitly states, “Detectors not required when only stems using R-718 (water) are located in the refrigerating machinery room.” . . .
The first exception points to and refers to the National Electrical Code. The second exception explicitly removes the requirement to use a detector. If the exception in 8.11.2.1 were meant to remove the requirement to use a detector when using ammonia as a refrigerant, ASHRAE 15-2004 could have explicitly stated so, as it does with water. Any confusion that the term “exception” may cause is mitigated by the explicit language of the provision to which the exception points. (Sec’y’s Br., p. 24.)
The Secretary’s argument is not sound. The purpose of the exception is not “to remove the requirement to use a detector when using ammonia as a refrigerant,” but rather, it is to provide the employer with the option of either running continuous ventilation or using a detector that alarms at 1,000 ppm of ammonia. The facility has met the exceptions set out in sections 8.11 and 8.12 by demonstrating it runs continuous ventilation in its machinery room. The Secretary has failed to establish the facility was not in compliance with the ASHRAE standard.
Furthermore, the Secretary’s reliance on the ASHRAE standard as the only applicable RAGAGEP is misplaced. As indicated supra, the parties stipulated “the facility is obligated by law to follow the International Mechanical Code.” The facility lists the IMC in its PSM document as one of the codes used in designing and constructing the closed ammonia refrigeration system at its Facility. One of the company PSM experts testified the IMC is “the primary mechanical code that serves mechanical systems including ammonia. And it’s the one you would go to for whatever you needed in a mechanical system.” In the event the IMC conflicts with the ASHRAE standard, the IMC takes precedence. The OSHA Expert acknowledged the IMC is RAGAGEP. OSHA’s Chemical Engineer (CSHO) also acknowledged the IMC is RAGAGEP. Looking at Exhibit C-2, he stated, “In here it lists several RAGAGEPs. It’s IIAR/ANSI-2, 1999, International Mechanical Code. National Electrical Code, 2005 edition. It goes on and item number 6 is the ASHRAE 15-2004, Refrigeration Code.”
Section 1106.3 of the IMC provides,
1106.3 Ammonia room ventilation. Ventilation systems in ammonia machinery rooms shall be operated continuously.
Exceptions:
1.Machinery rooms equipped with a vapor detector that will automatically start the ventilation system and actuate an alarm at a detection level not to exceed 1,000 ppm; or
2.Machinery rooms conforming to the Class1, Division 2, hazardous location classification requirements of NFPA 70.
Thus, under the IMC, an acknowledged RAGAGEP, an ammonia detector is not required in machinery rooms where the ventilation system is operated continuously. The Secretary contends the facility must comply with its chosen RAGAGEP, the ASHRAE standard. In his opening statement, the Secretary’s counsel claimed, “OSHA does not require the facility to choose a specific RAGAGEP, we leave that up to the employer as a performance standard. However, OSHA does mandate that once chosen, an employer must adhere to its RAGAGEP.” The facility states in its PSM documentation that is designating the ASHRAE standard as its RAGAGEP because, “[a]s advised by the Washington, DC office of OSHA (Directorate of Enforcement Programs, Office of Chemical Process Safety & Enforcement Initiatives), we need to clearly indicate that we are using ANSI-ASHRAE 15, so inspectors will know the basis of the safety program.”
Section 1910.119(d)(3)(ii) does not, however, require the employer to choose and adhere to one designated RAGAGEP, nor does any other section of the Code of Federal Regulations. The Secretary’s policy is, therefore, not binding.
The Supreme Court has held agency interpretations are not legally enforceable. [T]he critical feature of interpretive rules is that they are “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.”
Section 1910.1119(d)(3)(ii) requires the employer to “document that equipment complies with recognized and generally accepted good engineering practices.” The Commission has held, “[a]s the PSM standard is a performance oriented standard [,] . . . the most relevant source of RAGAGEP is the one on which the employer relied.” BP Prod. N. Am., Inc, 2018 WL 5314836, at *4.
However, “given the very nature of RAGAGEP, multiple RAGAGEPs could exist for a single matter, either through consensus standards that take diverging approaches, or through an internal standard that, although different from a consensus standard’s requirements, still constitutes RAGAGEP.”
The IMC is a RAGAGEP and the facility complied with it by operating its ventilation system in the machinery room continuously. The Court concludes the Secretary has failed to establish the facility was not in compliance with § 1910.119(d)(3)(ii). Therefore, Instance (a) of the citation must be vacated.
Has your head exploded yet? It gets better!!!! (actually more shameful, but you get my point)
1.Instances (d) and (e)
Instances (d) and (e) allege the facility did not document compliance with its chosen RAGAGEP, “ANSI/ASHRAE-15 2004, Section 8.11.2 and ANSI IIAR-2 1999, Section 6.3.1.5 when the engine room was not constructed with tight-sealing doors and when the engine room was not provided with outward opening doors.” The parties stipulated “[CSHO] discovered a door with a malfunctioning hinge that prevented the door from tightly fitting into its frame during his initial inspection[;] . . . the machinery room has three exit doors, two to the outside and one to the interior of the building[;]… the door to the interior of the building opens into the machinery room [; and]… the facility knew of the orientation of the doors exiting from the machinery room.”
Exhibit C-4 comprises photographs showing a door that is not flush with the door frame. The CSHO testified a maintenance crew arrived during the inspection and adjusted the hinge plate on the door frame, so the door would close properly. He stated the maintenance manager told him “the door had been in that condition for a while.” The maintenance manager denied he had noticed the faulty condition of the door prior to the day of the OSHA inspection. The Court credits CSHO’s testimony on this point. He spoke confidently and exhibited no uncertainty regarding the identity of the person who informed him the door had not been self-closing “for a while.”
The Cited Standard Does NOT Apply to the Cited Conditions
The Secretary contends the facility failed to comply with section 8.11.2 of the ASHRAE standard, its chosen RAGAGEP:
Each refrigerating machinery room shall have a tight-fitting door or doors opening outward, self-closing if they open into the building, and adequate to ensure freedom for persons to escape in an emergency.
The Secretary argues that since section 8.11.2 of the ASHRAE standard requires doors to be tight-fitting and outward opening, the facility should be required to comply with it since the ASHRAE standard is its chosen RAGAGEP. “If section 1910.119(d)(3)(ii) requires compliance with RAGAGEP, then the provisions listed in the chosen ASHRAE-15 2004 must be followed. the facility cannot pick and choose the provisions of its chosen RAGAGEP with which the company will comply.” (Sec’y’s Br., pp. 30-31.) The facility argues § 1910.119(d)(3)(ii) does not apply to the doors at issue. Section 1910.119(d)(3) is captioned Information pertaining to the equipment in the process. The Court agrees with the facility.
Acceptance of the Secretary’s position essentially would eliminate the first element of his burden of proving the cited violation, which the Court declines to do. Section 1910.119(d)(3)(ii) requires the employer to document that equipment complies with recognized and generally accepted good engineering practices. The threshold element for proving a violation is that the cited standard applies to the cited condition. Here, the cited conditions are two doors to the engine room. The cited standard addresses the compliance of equipment with RAGAGEP.
Section 1910.119(b) of the PSM standard does not define equipment, but it does define process. “Process” means “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.” 29 CFR § § 1910.119(b). Section 1910.119(b) defines facility as “the buildings, containers or equipment which contain a process.” (Id.) Thus, the cited standard clearly distinguishes between “buildings” (of which doors are a part) and “equipment.” Further, two experts in ammonia refrigeration systems and process safety management, one of whom was called by the Secretary, opined doors are not process equipment. The Chemical Engineer CSHO testified the doors to the engine room were not considered “equipment in the process.” The company expert also stated doors are not process equipment. The Secretary’s expert witness, eventually also conceded they are not.
“An agency’s interpretation of its standards is entitled to deference when it is reasonable and consistent with the language of the standard.” Brand Energy Sols. LLC, 25 BNA OSHC 1386, 1390 (No. 09-1048, 2015). Here, the Secretary’s interpretation of equipment is not reasonable and is at odds with the language of the standard.
The Secretary is asking the Court to strain the common meaning of equipment to cover a door, a part of a building’s structure. “In an adjudicatory proceeding, the Commission should not strain the plain and natural meaning of words….” Bethlehem Steel Corp. v. Occupational Safety & Health Rev. Comm’n, 573 F.2d 157, 161 (3d Cir.1978). Doors are not equipment, either in the plain and natural meaning of the words. Section 1910.119(d)(3)(ii), therefore, does not apply to the cited conditions. Therefore, the Secretary has failed to establish the facility violated § 1910.119(d)(3)(ii) with regard to Instances (d) and (e) of Item 1, which must both be vacated.
B. Item 2
Alleged Violation
In Item 2 of the Citation, the Secretary alleges the facility violated 29 CFR § 1910.119(d)(3)(i)(B), which mandates information pertaining to the equipment in the process shall include piping and instrument diagrams (P&ID’s). The Secretary argues a violation occurred when the facility “failed to ensure that the P&IDs were accurate and reflected the current process in that the P&ID-9 for the HTRL liquid line out and the HPL liquid line out does not show were it comes from and where it goes out to.”
Cited Standard Applies to the Cited Condition
Section 1910.119(d)(3)(i)(B) requires employers to include information pertaining to the equipment in the process for P&IDs. The cited condition is P&ID-9 for the HTRL liquid line out and the HPL liquid line out. The cited subsection of the PSM standard applies to the cited condition in Item 2.
The Secretary Failed to Prove Noncompliance with The Cited Standard
Section 1910.119(d) provides:
Process safety information. In accordance with the schedule set forth in paragraph (e)(1) of this section, the employer shall complete a compilation of written process safety information before conducting any process hazard analysis required by the standard. The compilation of written process safety information is to enable the employer and the employees involved in operating the process to identify and understand the hazards posed by those processes involving highly hazardous chemicals. This process safety information shall include information pertaining to the hazards of the highly hazardous chemicals used or produced by the process, information pertaining to the technology of the process, and information pertaining to the equipment in the process.
The Chemical Engineer CSHO testified he believed the facility P&ID-9 was not accurate. Looking at it, he could not determine where the relief valve or the gas out line went from the main vessel. He could not determine where a line leading into the vessel came from. There were three other lines coming into or going out from the vessel and he could not determine by looking at the diagram where the lines were coming from or where they were going. If a P&ID does not show the origin or the destination of the material, employees may turn the wrong valve when locking out the vessel or diverting the flow of ammonia, leading to an ammonia release. The P&ID does not allow employees to see where different lines carrying ammonia go to in the Waco facility (Tr. 105-110; see also Ex. C-5).
However, he testified he was not aware of any RAGAGEP that required employers to include lines on P&IDs showing where they came from and went to. He conceded the facility’ block and process flow diagrams properly tracked the lines in and out from the vessels. The maintenance manager testified the block and process flow diagrams presented an overview of the system. Those diagrams were what the refrigeration technicians looked at to determine where the lines came from and went to. They would not consult the P&IDs.
OSHA’s Process Safety Management Guidelines for Compliance provides:
Employers are encouraged to use diagrams that will help users understand the process.
A block flow diagram is used to show that the major process equipment and interconnecting process flow lines and flow rates, stream composition, temperatures, and pressures when necessary for clarity. The block flow diagram is a simplified diagram.
(Ex. R-14, p. 3)
Piping and instrument diagrams (P&IDs) may be the more appropriate type diagrams to show some of the above details as well as display the information for the piping designer and engineering staff.
(Ex. R-14, p. 5)
The Process Guide does not require employers to use P&IDs to provide the necessary information—it states it may use them. The CSHO conceded the use of P&IDs to provide information is not mandatory. The OSHA expert testified, “At this point I am unaware of a document that exists right now that would be mandatory that says [P&IDs including lines to and from the vessels are] required. I would have to answer the question to the extent that it is recommended generally accepted good engineering practice, nothing is required by any standard, any normative standard that I am aware of at this point.” He conceded he was unaware if the facility employees used P&IDs to determine the origins or destination of lines. “I don’t know that they—maybe they don’t use it.”
Company Expert witness opined, when asked if there is a RAGAGEP requiring the inclusion of the lines,
“there’s no mandatory document I’m aware of that requires that.”
He further opined if someone needed to find out from where a line originated or where it went to, they
“would look at the refrigeration design drawings” because the “information was more complete.”
It is undisputed there is no documented requirement that P&IDs must include the lines and information the Secretary asserts is necessary to comply with §1910.119(d)(3)(i)(B). The Secretary nonetheless argues, “general industry dictates the requirements [OSHA expert] referenced… . Indeed, in the industry-at-large, P&IDs commonly show to and from where certain lines go…. In the absence of a formal definition, the OSHA expert witness turned to general industry and good engineering practices.” (Sec’y’s Br., p. 41.) He testified, however, that to be considered RAGAGEP, the engineering practices needed to be documented.
OSHA Expert: [RAGAGEP] is what it says it is, recognized generally accepted good engineering practice. It is something that has met the test of a consensus in the industry.
Q.: Does it have to be a published document by an industry organization?
OSHA Expert: Does it have to be a published document?
Q.: Yes.
OSHA Expert: Yes, my opinion would be “yes,” it would have to be a published document.
As noted earlier, OSHA endorsed a definition of RAGAEP provided by the CCPS, which contemplates that, in order to be deemed RAGAGEP, the practices at issue must be detailed in published documents:
Recognized And Generally Accepted Good Engineering Practices . . . are the basis for engineering, operation, or maintenance activities and are themselves based on established codes, standards, published technical reports or recommended practices (RP) or similar documents.
Process Safety Management and Prevention of Major Chemical Accidents, 78 Fed. Reg. at 73,761 (emphasis added). Likewise, Appendix C.3 to § 1910.119 provides examples of RAGAGEP, which states the employer must document the codes and standards [the employer] relied on to establish good engineering practice. These codes and standards are published by such organizations as the American Society of Mechanical Engineers, American Petroleum Institute, American National Standards Institute, National Fire Protection Association, American Society for Testing and Materials, National Board of Boiler and Pressure Vessel Inspectors, National Association of Corrosion Engineers, American Society of Exchange Manufacturers Association, and model building code groups.
No evidence was adduced at trial showing the refrigeration industry had a mandatory written requirement that P&IDS detail the lines going into and out of vessels. No published code or standard with this requirement was shown to exist. The Court concludes the Secretary has failed to establish the facility was not in compliance with § 1910.119(d)(3)(i)(B). Therefore, Item 2 must be vacated.
C. Item 3
Alleged Violation Description
Item 3 of the Citation alleges the facility violated section 1910.119(d)(3)(i)(E) when it “failed to provide and maintain an accurate and updated compilation of the ventilation design and design basis for the ammonia refrigeration engine room.”
Cited Standard
The cited standard mandates information pertaining to the equipment in the process shall include “[v]entilation system design[.]” 29 CFR § 1910.119(d)(3)(i)(E).
The Cited Standard Applies to the Cited Condition
Section 1910.119(d)(3)(i)(E) requires employers to include information pertaining to its ventilation system design. The cited condition is ventilation design and design basis for the ammonia refrigeration engine room. The cited subsection of the PSM standard applies to the cited condition in Item 3.
Noncompliance with The Cited Standard
The cited standard is a subsection of § 1910.119(d), which as indicated supra, is designed to provide the employer and employees with crucial process safety information “to enable the employer and the employees involved in operating the process to identify and understand the hazards posed by those processes involving highly hazardous chemicals.” 29 CFR § 1910.119(d). In its Document Request #1 to the facility, OSHA requested
Document(s) exhibiting the maximum intended chemical (Anhydrous Ammonia) inventories in pounds (lbs.) in the facility, the method used for determining the maximum intended inventory amount, and procedures/methods used to ensure that the maximum intended inventory is not exceeded.
In response, the facility provided a document titled Summary of Ammonia (Pounds), stating the “Total Pounds of Ammonia” to be 71,700.18 pounds (Ex. C-6). the facility produced a different document in response to a request for documents “exhibiting the ammonia refrigeration engine room ventilation system design.” (Ex. C-1, p. 4, RQ1-026). In a document titled Calculations for Machinery Room, the amount of ammonia is listed as 81,000 pounds (Ex. C-7). It is the discrepancy of approximately 9,300 pounds that resulted in OSHA’s citation for this item.
The Secretary contends 81,000 pounds of ammonia is “well over” the facility stated maximum inventory. OSHA could not determine which number represented the amount of ammonia the facility system was designed to tolerate… . So too would employees be unable to identify and understand the hazards posed by those processes. As the facility failed to explain the discrepancy between the two documents, OSHA could not verify the accuracy of the company’s ventilation system design.” (Sec’y’s Br., p. 44.)
The Secretary argues serious hazards could result from an employee relying on one of the documents, depending on which amount on which document is accurate.
Were an employee to rely on the “Calculations for Machinery Room” document for the proposition that the system may hold 82,000 pounds of ammonia, the employee risks overloading the system, as the facility only intended the system to hold 71,700.18. In the reverse, were the system designed to hold a far greater amount of ammonia, then the facility has no calculations that accurately reflect the efficacy of its ventilation system. If the system could hold far more than 82,000, the ventilation system calculations are also inaccurate. the facility was unable to point to any safeguards that would prevent its employees from using the 82,000 number as the system’s maximum inventory. (Sec’y’s Br., p. 45.)
A company expert witness testified the two different figures given by the facility were not accurate, nor were they intended to be.
company expert witness: [T]he term “maximum” is one created by OSHA. This is the expected amount of refrigerant that would be in the system.
Q.: Is this the number above which the facility pledges not to go in its ammonia system?
company expert witness: No. It’s an amount at the time and that amount may vary in the winter and summer, when the refrigerant moves around a little bit.
Q.: So, is this number always accurate then?
company expert witness: Well, exactly at one time. But obviously, it’s going to move up and down. . . . [E]very refrigeration system that uses ammonia, it might lose two percent of discharge every year. So obviously it’s not constant. So to say that it’s constant is not accurate. But we can estimate what it would be normally and that’s what we’ve done here.
…
Q.: How much ammonia could you add to this system before the system might have mechanical integrity issues?
company expert witness: I don’t know that I could tell you that exact but probably 10,000 pounds or something.
Q.: And that’s 10,000 pounds above the 71,000 number?
company expert witness: Could be.
The facility production of two documents listing two widely different total amounts of ammonia in the ventilation system demonstrates the company’s “information pertaining to the equipment in the process” is inaccurate. The company expert witness confirms the inaccuracy in his above-quoted testimony. This inaccuracy does not comport with the requirement of § 1910.119(d) that the “compilation of written process safety information . . shall include… information pertaining to the equipment in the process.” The Court concludes the Secretary has established the facility failed to comply with § 1910.119(d)(3)(i)(E).
The Secretary Did Not Establish Access or Exposure to The Violative Condition
The alleged violation description for Item 3 does not identify the hazard created by noncompliance with the cited standard. The OSHA CSHO testified, “a potential [hazard] is the system cannot handle that… amount and ammonia will release outside. So employees [will be] able to inhale [that] exposure… . That can be fatal, depend[ing] on [the] concentration of ammonia. “ The Secretary argues “using [82,000 pounds as the amount] in its ventilation system calculations… to over-engineer its system could potentially cause confusion… . [T]he employee risks overloading the system… . Should an employee add this extra 10,000 pounds on top of 82,000 pounds, the system may not tolerate this amount.” (Sec’y’s Br., p. 45-46.)
To establish exposure, the Secretary must show that an employee was actually exposed to the cited condition or that access to the cited condition was reasonably predictable. Reasonably predictable exposure is established by proving that “either by operational necessity or otherwise (including inadvertence) … employees have been, are, or will be in the zone of danger.” Employees may come within the zone of danger “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.” (“‘access,’ not exposure to danger is the proper test”). The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible.
The Secretary does not allege employees of the facility were actually exposed to ammonia in this case. The facility argues it was not reasonably predictable that its employees would have access to the zone of danger created by ammonia.
The facility asserts it does not rely on its pre-construction design document when recharging the refrigeration system with ammonia. The maintenance manager testified when the system needs recharging, the engineering department verifies how much ammonia is needed. Engineering employees monitor the flow of ammonia into the system by observing a computer measuring the amount. No one refers to the two documents at issue here listing the amounts of ammonia when recharging the system.
XXXXXXXXX is a refrigeration operator for the facility. He is the employee tasked with checking the pressure vessels of the refrigeration system to see if more ammonia is needed and notifying his supervisor of the need. He explained that each pressure vessel is equipped with a sight glass which shows the level of ammonia. When the level is low, his supervisor orders more ammonia. The ammonia is brought to the facility in a truck. As the ammonia is added to the refrigeration system, he and other employees are looking at the sight glasses of the pressure vessels. When the appropriate level is reached, the charging process is stopped. He stated he never looks at the calculations for the ventilation design when determining how much ammonia to add to the refrigeration system.
The Secretary has not shown that either by operational necessity or otherwise, the failure of the facility to comply with the terms of § 1910.119(d)(3)(i)(E) caused employees to be within the zone of danger of exposure to ammonia. Employees who initiated and monitored the recharging process did not refer to the violative documents. The process for recharging described by Snyder and Ramos (monitoring the addition of ammonia to the refrigeration system by observing a computer and sight glasses of the pressure vessels) did not cause employees to be within the zone of danger to ammonia. Therefore, the Court concludes the Secretary has failed to establish employee access to an ammonia hazard was reasonably predictable. Therefore, Item 3 must be vacated.
D. Items 5a and b
Alleged Violation Descriptions
Item 5a
Item 5a of the Citation alleges the facility violated section 1910.119(j)(2) when it did not establish and implement written procedures to maintain the on-going mechanical integrity of the process including but not limited to:
a. Safety cutouts.
b. E-stop testing procedures.
c. Level control [for] pressure vessel test procedure.
Item 5b
Item 5b of the Citation alleges the facility violated section 1910.119(j)(4)(i) in the ammonia refrigeration engine room when it failed to perform the inspection and tests on process equipment such as, but not limited to:
a) Compressor 8 oil pressure differential cutout (high & low).
b) Compressor 9 high- and low-pressure cutout.
c) Compressor 10 high temperature cutout.
d) Liquid King Valve.
e) Emergency stop buttons inside and outside the engine room.
Cited Standards
Section 1910.119(j)(2) mandates the employer “shall establish and implement written procedures to maintain the on-going integrity of process equipment.” 29 CFR § 1910.119(j)(2). Section 1910.119(j)(4)(i) mandates inspections and tests “shall be performed on process equipment.” 29 CFR § 1910.119(j)(4)(i).
The Cited Standards Apply to the Cited Instances in Items 5a and 5b
Unlike the previous items, §§ 1910.119(j)(2) and (4)(i), do not invoke RAGAGEP. Section 1910.119(j)(1) lists specific pieces of process equipment for which the employer must establish written procedures (under § 1910.119(j)(2)) and perform inspections and tests (under § 1910.119(j)(4)(i)). Section 1910.119(j)(1) provides:
Paragraphs (j)(2) through (j)(6) of this section apply to the following process equipment:
(i) Pressure vessels and storage tanks;
(ii) Piping systems (including piping components such as valves;
(iii) Relief and vent systems and devices;
(iv) Emergency shutdown systems;
(v) Controls (including monitoring devices and sensors, alarms, and interlocks), and
(vi) Pumps.
Instance (a) of Item 5a cites “safety cutouts” as process equipment. The CSHO testified the safety cutouts (which are not listed by that name in § 1910.119(j)(1)) are interlocks, which are included as examples of controls under § 1910.119(J)(1)(v). He clarified the Instance (a) refers to safety cutouts of compressors. A safety cutout is calibrated to low- and high-pressure settings at which the compressor starts and stops. The compressor will stop when it reaches the cutout pressure. Instances (a), (b), and (c) of Item 5b cite cutouts on compressors 8, 9, and 10.
The facility argues compressors are not considered process equipment under the ASHRAE standard, which defines a “compressor” as “a machine used to compress refrigerant vapor.” The ASHRAE standard also defines a “pressure vessel” as “any refrigerant-containing receptacle in a refrigerating system… . This also does not include… compressors[.]”
A Company Expert stated the cutouts protect the mechanical function of the individual compressors, but they do not impact the mechanical integrity of the compressors. “It will lock the compressor up but it’s not going to damage the parts of the compressor.” He conceded, however, the cutout on a compressor is a control “[f]or that piece of equipment”. By its terms, § 1910.119(j)(1) does not consider pressure vessels to be the only form of process equipment. It specifically lists controls as process equipment. § 1910.119(J)(1)(v). The Court concludes compressor cutouts are controls within the meaning of § 1910.119(j)(1).
The other cited instances are process equipment under the standard:
Instance (b) of Item 5a (“E-stop testing procedures”) and
Instance (e) of Item 5b (“Emergency stop buttons inside and outside the engine room”)
are covered by § 1910.119(J)(1)(iv) (“Emergency shutdown systems”).
Instance (c) of Item 5a (“Level control [for] pressure vessel test procedure”) is covered by § 1910.119(J)(1)(v) (“Controls (including monitoring devices and sensors, alarms, and interlocks)”).
Instance (d) of Item 5b (“Liquid King Valve”) is covered by § 1910.119(j)(1)(ii) (“Piping systems (including piping components such as valves”).
The Court concludes the standards cited in Items 5a and 5b apply to the cited Instances.
Noncompliance with The Cited Standards
Item 5a
CSHO requested the facility’ written procedures for testing its safety cutouts, E-stops, and level controls for its pressure vessels. The facility provided a non-responsive document that does nothing to demonstrate it established written procedures to maintain the on-going integrity of process equipment.
The standards used for instrumented controls for compressors are generally determined by the manufacturer. The refrigeration designer can vary functionality of these controls depending on its application to the refrigeration system. The safety controls are inspected monthly for functionality on each compressor. In addition, there are two system High Pressure Cut Outs as well as the safety relief valve. The closed ammonia refrigeration system was tested at startup. The high reliability of these controls and redundancy do not require “testing” per se of the entire refrigeration system, as it could create greater hazards in having a system pressure to go to its max, than having duplication of functions for High Pressure Cut Out (HPCO). Each compressor has an on-board HPCO, and in addition, there are also two independent system HPCOs. In addition to HPCOs, the system also has safety relief valves to relieve pressure. If it becomes necessary to shut down the entire system down, i.e., in case of fire, etc., the system also has equalizing lines between various pressures to relieve high pressure.
(Ex. C-8.)
At trial, the facility proffered documents it claimed fulfill the requirements of § 1910.119(J)(2) by establishing written procedures for maintaining the on-going integrity of safety cutouts, E-stops, and level controls of pressure vessels. Instead, the documents consist of a general Mechanical Integrity Inspection Policy (Ex. R-11A), daily inspection forms (Ex. R-11B), monthly inspection forms (Ex. R-11C), and annual inspection forms (Ex. R-11D(1) through (3)). The daily, monthly, and annual inspection forms are checklists, with no instructions for performing the required procedures. The maintenance manager conceded the inspection forms provide no instruction on how to proceed. The refrigeration operator detailed a series of specific procedures he performed when inspecting various pieces of process equipment. None of the procedures he performed appears in written form in the R-11 exhibits. The Court concludes the facility failed to comply with § 1910.119(J)(2) with regard to Instances (a), (b), and (c).
Item 5b
The facility argues it is required under § 1910.119(J)(4)(ii) (“Inspection and testing procedures shall follow recognized and generally accepted good engineering practices.”) to comply with RAGAGEP when testing its process equipment and contends no such RAGAGEP exists for the cited instances. However, the facility was not cited under that subsection, it was cited under § 1910.119(j)(4)(i) — which does not refer to RAGAGEP — it requires only that process equipment be inspected and tested. The facility employees conceded they did not test compressor cutouts or emergency stop buttons. Instances (a), (b), and (c) allege the facility failed to test compressor 8’s oil pressure differential cutout (high & low); compressor 9’s high- and low-pressure cutout; and compressor 10’s high temperature cutout. The maintenance manager admitted the facility does not test them. The refrigeration operator also testified the facility does not test the emergency stop buttons inside and outside the engine room cited in Instance (e). The company expert witness confirmed the facility does not test the emergency stop buttons. With regard to Instance (d), however, the facility established it tested the liquid king valve. The maintenance manager testified employees test the liquid king valve by turning it off and on. The refrigeration operator testified he tested the valve “[b]y turning it on and off and make sure it’s working correctly”.
The Court concludes the facility failed to comply with § 1910.119(J)(4)(i) with regard to Instances (a), (b), (c), and (e). However, the Secretary failed to establish the facility was in noncompliance with the standard with regard to Instance (d), for the liquid king valve.16
Access or Exposure to The Violative Conditions
Failure to have written procedures and to use those procedures to inspect and test equipment increases the probability the process equipment will fail, potentially leading to a release of ammonia. If a safety cutout were to fail, the pressure in a compressor could rise to a dangerous level. A lack of written procedures for emergency stop buttons could lead to them not working in the event of an emergency. A pressure vessel could overflow if the level control were to fail, potentially releasing ammonia, which can kill if inhaled.
The Secretary has established the facility failure to establish written procedures and to inspect and test the cited process equipment resulted in employee access to the zone of danger of a potential ammonia release.
Employer Knowledge
Exhibit C-8, the facility response to the Secretary’s request for written procedures pursuant to § 1910.119(j)(2), manifests its actual knowledge it did not have the required documentation. The maintenance manager, a supervisory employee, testified the facility did not perform the required tests. His knowledge is imputed to the facility.
The Court concludes the facility had actual knowledge of the violative conditions cited in Items 5a and 5b. The Secretary has established the facility violated §§ 1910.119(J)(2) and (4) with regard to all cited Instances, except for Instance (d) of Item 5b.
CHARACTERIZATION OF THE VIOLATION
The Secretary characterized the violations of § 1910.119(J)(2) and (4)(i) as serious. A serious violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition] . . . unless 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(k). “That provision does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result should an accident occur.” Failure to have written procedures for testing and inspecting, and failure to test and inspect process equipment, could result in an ammonia release. Exposure to ammonia inhalation could result in serious injury or death. The violations were properly characterized as serious.
PENALTY DETERMINATION
Since the facility employs over 1,000 employees, size is not a modifying factor. Likewise, since OSHA had previously cited the facility for safety violations, a reduction for its previous violation history is not appropriate. The Court also does not credit the facility with a good faith reduction since it had knowledge that it did not have any written procedures for inspecting and testing its process equipment.
As to the gravity of the violations, the parties stipulated “that at least three the facility employees worked in the machinery room.” The daily shift is eight hours. The likelihood of injury is decreased due to the precautions the facility took. The company expert witness testified the process equipment is equipped with pressure relief valves that “prevent over pressurization that would lead to catastrophic failure.” The Court concludes although the violations were “high” in severity, the probability was less likely, and therefore, the gravity was moderate. Based on these factors, the Court concludes a civil penalty of $9,054.00 is appropriate. Accordingly,
VI. ORDER
IT IS HEREBY ORDERED THAT:
1.Item 1 of the Citation, alleging a serious violation of § 1910.119(d)(3)(ii) with regard to Instances (a), (d), and (e), is VACATED, and no penalty is assessed;
2.Item 2 of the Citation, alleging a serious violation of § 1910.119(d)(3)(i)(B), is VACATED, and no penalty is assessed;
3.Item 3 of the Citation, alleging a serious violation of § 1910.119(d)(3)(i)(E), is VACATED, and no penalty is assessed;
4.Item 5a of the Citation, alleging serious violations of § 1910.119(j)(2), is AFFIRMED with regard to Instances (a), (b), and(c), and
5.Item 5b of the Citation, alleging serious violations of § 1910.119(j)(4)(i), is AFFIRMED with regard to Instances (a), (b), (c) and (e), and VACATED with regard to Instance (d), and a grouped penalty of $9,054.00 is assessed.
SO ORDERED.
/s/ John B. Gatto
First Judge John B. Gatto
Dated: May 30, 2019
Atlanta, GA
“
1 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order No. 4–2010 (75 FR 55355), as superseded in relevant part by 1–2012 (77 FR 3912). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.
2 Attached to the complaint and adopted by reference was the citation at issue. Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).
3 The terms machinery room and engine room are used interchangeably in the record (See e.g., Tr. 33, 342).
4 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so
5 Eduardo Ford is a registered professional engineer. He holds a Bachelor of Science degree in mechanical engineering from California Polytechnics State University. He is a life member of both the International Institute of Ammonia Refrigeration (IIAR) and of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), as well as a member of the Refrigeration Engineers Technician Association (RETA) (Tr. 230-31). Since 1970, he has gained extensive experience in the refrigeration industry, working for Carrier Machinery, the Campbell Soup Company, and Tyson Foods, among other businesses (Tr. 232-33). In 2005, Ford started Coldworks Engineering, a consulting firm (Tr. 233). Henry Bonar is a registered professional engineer who holds a Bachelor of Science degree in mechanical engineering from the University of Florida (Tr. 363). He is a charter member and former president of IIAR and a life member of ASHRAE (Tr. 364-65). Since 1975, Bonar has worked for Bonar Engineering and Construction, which designs and constructs “refrigeration systems on an industrial scale,” that are “primarily ammonia based.” (Tr. 361.) He designed the refrigeration system for the facility (Tr. 361). Bonar also helped develop the facility’ PSM program for the facility (Tr. 362). Walter Teeter is a registered professional engineer and holds Bachelor of Science degrees in mechanical engineering and in economics from North Carolina State University (Tr. 413). He has served with the IIAR since 1995 and is “currently the ammonia refrigeration foundation chairman and immediate past chairman of IIAR.” (Tr. 414-15.) He is the CEO of Republic Refrigeration, an industrial refrigeration contractor, which he started in 1989. He has worked with the facility since 1991, installing and maintaining refrigeration systems (Tr. 411-12).
6 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal office. 29 U.S.C. § 660(b). “[I]n general, ‘[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has … applied the precedent of that circuit in deciding the case—even though it may differ from the Commission’s precedent.’” Dana Container, Inc., 25 BNA OSHC 1776, 1792 n.10 (No. 09- 1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017) (citation omitted). Therefore, the Court applies the precedent of the Fifth Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed to.
7 An occupational safety and health standard may only be promulgated if “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. § 652(8). Thus, the Fifth Circuit has noted “[s]ince OSHA is required to determine that there is a hazard before issuing a standard, the Secretary is not ordinarily required to prove the existence of a hazard each time a standard is enforced.” the facility, 811 F.3d at 735.
8 In 2013, OSHA also published a request for information that cited to a source definition for RAGAGEP from the Center for Chemical Process Safety, which “is not an official OSHA definition, [but] is consistent with OSHA’s intent when it promulgated the [PSM] standard”:
Recognized And Generally Accepted Good Engineering Practices … are the basis for engineering, operation, or maintenance activities and are themselves based on established codes, standards, published technical reports or recommended practices (RP) or similar documents. RAGAGEPs detail generally approved ways to perform specific engineering, inspection or mechanical integrity activities, such as fabricating a vessel, inspecting a storage tank, or servicing a relief valve.
Process Safety Management and Prevention of Major Chemical Accidents, 78 Fed. Reg. 73,756, 73,761 (Dec. 9, 2013).
9 The parties also agreed “the facility is obligated by law to follow the International Mechanical Code.” (Jt. Prehearing State., ¶ D. 3.)
10 As the party seeking the benefit of the exception(s), the facility has the burden of proving it meets the criteria. “[T]he Commission has long held that the party claiming the benefit of an exception bears the burden of proof. See C.J. Hughes Constr., Inc., 17 BNA OSHC 1753, 1756 (No. 93-3177, 1996) (“A party seeking the benefit of an exception to a legal requirement has the burden of proof to show that it qualifies for that exception.”); see also Stephenson Enters., Inc., 4 BNA OSHC 1702, 1705 (No. 5873, 1976) (“We have consistently held … that it is the burden of the party who is claiming an exemption to prove its applicability.”), aff’d, 578 F.2d 1021 (5th Cir. 1978).” Houston Aquarium, Inc., 27 BNA OSHC 1761, 1765, n. 13 (No. 12-1617, 2019).
11 The numerous references to the National Electrical Code in the cited sections of the ASHRAE standard caused much of the confusion between the parties regarding this item and is something of a red herring. The Secretary argues the exception in section 8.11.2.1(a) “refers to the National Electrical Code, not the requirement to install an ammonia detector.” (Sec’y’s Br., p. 23). If the references to the Class 1, Division 2, locations are omitted (which is appropriate because the facility has established it is not required to meet Class 1, Division 2, of the National Electrical Code as set out in section 8.12(h)(1)), the aim of the exceptions becomes clearer: Section 8.11.2.1(a) requires employers to maintain a refrigerant detector in each machinery room that activates visual and audible alarms except “[f]or ammonia,” and directs the reader to 8.12(g) when ammonia is used. Section 8.12(g) directs the reader to 8.12(h) “[w]hen ammonia is used.” Section 8.12(h) provides in relevant part “[w]hen ammonia is used” the employer does not need to comply with requirements set out in the National Electrical Code if “(1) the mechanical ventilation system in the machinery room is run continuously and failure of the mechanical ventilation system actuates an alarm[.]” If this sequence is read as the Secretary interprets it, then either section 8.11.2.1, requiring a detector (whose absence is the alleged violative condition here), or section 8.12(h)(2), requiring a detector “conforming to 8.11.2.1, except the detector shall alarm at 1,000 ppm,” is superfluous. If section 8.11.2.1 requires the use of a detector without exception, section 8.12(h) could not logically provide for the option of continuous ventilation or a detector. Such an interpretation is not permissible. See Ryder Truck Lines, Inc., 1 BNA OSHC 1326, 1328 (No. 391, 1973) (refusing to construe one part of standard in a way that would “render [another] meaningless or superfluous,” because “[b]y so doing we would act in contravention of well settled principles of statutory construction”).” BP Prod. N. Am., Inc., 2018 WL 5314836, at *8, n. 8.
12 The Secretary states, without citation to any authority, “the IMC does not supersede or contradict the ammonia detector requirement in ASHRAE 15-2004.” (Sec’y’s Br., p. 22.) However, the Secretary’s own expert acknowledges in his testimony and in his Technical Opinion Report that the IMC supersedes the ASHRAE. (Tr. 249; Ex. C-9, p.4.)
13 The Secretary points to “a contradictory IMC provision” he believes undercuts the facility’ reliance on the IMC, that refrigerant detectors in machinery rooms “shall be provided as required by the International Fire Code.” (Sec’y’s Br., p. 22) (Ex. R-1, p. 87). However, the version cited by the Secretary is the 2003 version and the version that applied at the time of the citations at issue was the 2006 version, which mandated refrigerant detectors in machinery rooms “shall be provided as required by Section 606.8 of the International Fire Code.” (Ex. R-1, p. 91). Surprisingly, neither party listed the International Fire Code as an exhibit in the Joint Prehearing Statement and there is no copy of it in the record (Tr. 79-85). As the Court noted at trial, it is “not sure how anybody is supposed to make a determination as to whether or not you complied with the RAGAGEP if it references the International Code — Fire Code and neither one of you have offered it as an exhibit in the record.” (Tr. 84-85.) Nothing in the record indicates what either version of the International Fire Code requires for refrigerant detectors in machinery rooms. However, expert witness Teeter testified the International Fire Code does not require ammonia detectors in machinery rooms (Tr. 439).) The Secretary’s argument on this point is rejected.
14 Vo testified that when he arrived at the facility approximately a month later, his “observation was the door could not close completely.” (Tr. 68.)
15 the facility claims the Secretary appears to argue for a violation under § 1910.119(d)(2)(i)(C), which requires the employer to include information pertaining to maximum intended inventory (Resp’t’s Br., pp. 56-57). The Court disagrees. The alleged violation description of Item 3 and the Secretary’s evidence relating to it are relevant to the cited standard.
16 In its brief, the facility argues testing the process equipment is infeasible and would create greater hazards. These are affirmative defenses that the facility did not assert in its Answer. the facility only asserted unpreventable employee misconduct as a defense, which it did not pursue at the trial. Under Commission precedent, preemption by a more specifically applicable standard is an affirmative defense which the respondent must raise in its answer. 29 C.F.R. § 1910.5(c)(1); see Commission Rules 34(b)(3) and(4), 29 C.F.R. § 2200.34(b)(3) and (4); Safeway, Inc. v. OSHRC, 382 F.3d 1189, 1194 (10th Cir. 2004); Vicon Corp., 10 BNA OSHC 1153, 1157, 1981 CCH OSHD ¶ 25,749, p. 32,159 (No. 78-2923,1981) (describing a claim that a general standard was preempted by a more specific standard as an affirmative defense). See also, Spirit AeroSystems, Inc., 25 BNA OSHC 1093, 1097, n. 7 (No. 10-1697, 2014) (“despite the Secretary’s reference in the citation to a lack of specificity and similar testimony elicited at the hearing, Spirit neither raised this issue as a defense in its answer nor sought to amend its answer to add it. Therefore, we find that the argument was waived.”). The Court finds these arguments were waived.
17 While the record reflects previous violations (Tr. 46-48), the Secretary proffered no specific evidence as to the nature, type, year, or severity of those previous violations. Therefore, a penalty enhancement is also not warranted.