STATE OF CALIFORNIA
OCCUPATIONAL SAFETY AND HEALTH
In the Matter of the Appeal of:
MOBIL OIL CORPORATION,
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed in the above entitled matter by the Paper, Allied-Industrial, Chemical & Energy Workers International Union, AFL-CIO [Union], a Third-Party, makes the following decision after reconsideration.
Commencing on July 23, 1999, a representative of the Division of Occupational Safety and Health (the Division) conducted a complaint inspection at a place of employment maintained by Employer at 3700 West 190th Street, Torrance, California (the site). On December 8, 1999, the Division issued a citation to Employer alleging a repeat general violation of section1 5189(g)(1) [emphasis of specific safety and health hazards in training], with a proposed civil penalty of $700.
Employer filed a timely appeal contesting the existence of the violation. The Union sought third-party status in the appeal proceeding which was granted by the Board.
A hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ), in Torrance, California. Alan Price, Senior Safety Representative, represented Employer. Oscar Gardner Jr., Co-Chairperson of the Joint Safety Committee of the Paper, Allied-Industrial, Chemical & Energy Workers International Union, AFL-CIO, represented the Union. James Ryel, District Manager, represented the Division.
On September 22 2000, the ALJ issued a decision granting Employer's appeal and setting aside the proposed civil penalty.
On October 3, 2000, the Union filed a petition for reconsideration. On November 9, 2000, an answer was filed by Employer. No answer was filed by the Division. The Board granted the Unions petition on November 22, 2000.
The Board adopts and incorporates the evidence enunciated in the decision of the Administrative Law Judge that is attached to this decision.
In summary, during the month of April 1999, Employer informed its workforce of plans to provide an operator basic care training program for plant operators to train them in performing limited installation and removal of blinds on pipes in Employers petroleum refinery site.2 When the program was announced, operators were to perform installation and removal of blinds on pipes up to 12 inches in diameter and 300-pound series raised face flanges, subject to further notice. The Basic Care program for operators was designed to improve employee utilization and cost effectiveness by having operators assume responsibility for some basic maintenance tasks including installation and removal of blinds.
Prior to operators being trained in the new task, pipefitters from Employers maintenance department performed all blind installation and removals.
The Union called several witnesses who were experienced pipefitters and operators for Employer. Pipefitters testified regarding their extensive training in pipefitting work which included performing blinding operations. Blinding was in the nature of pipefitting work and required far more than the 1½-3 hours of training the operators received to enable them to perform the operation safely. Operators testified that health hazards associated with blinding work were not addressed in the basic care training. Some pipes carry hazardous substances like benzene and others carry hydrogen sulfide.
Unlike pipefitters, operators remain in radio contact with their console supervisor
who monitored the operation of boilers and other critical plant operations while
the operators were performing blinding work. The work on blinding would also
extend the time required to respond to low water levels in boilers within the
required response time set by safety regulation, and also extend the time to
respond to a console supervisors orders regarding a potentially dangerous
situation elsewhere in the unit.
Operators have always been responsible for preparing lines in their units for all blinding work which includes purging the system. Operators are informed of the gasses and liquids that flow in the pipes on their units, which are hazardous, and what precautions and protections are necessary when harmful gasses are released. This instruction is received as part of other training operators receive annually.
One half of the Basic Care training session on limited installation and removal of blinds was classroom instruction and one-half was field instruction spent installing and removing blinds on out of service equipment. The course emphasized the mechanics of installing and removing blinds. The health hazards associated with exposure to benzene and hydrogen sulfide were not covered.
Employers witnesses testified that the Basic Care program has always stressed safety and no employee would be required to perform a blind operation if they did not feel comfortable in performing the operation safely. From the outset, operators were informed in a written handout that if an operator was in the middle of a binding job when the unit had an upset, they were to immediately call for assistance and determine which problem had the greatest exposure.
Operators are very experienced in their areas and receive extensive training. They know what materials are in the lines and receive instruction on the hazardous materials each year, including the protections and procedures for exposure. As part of Employers Basic Operator training, operators are required to participate and are tested in nine different courses each year which include, environmental awareness (e.g., spills and releases), personal protective equipment, hazardous substance awareness (addressing benzene, hydrogen sulfide, and other hazards), emergency notification, and emergency management. As a result of this on-going training, the Basic Care program for operators focused on the mechanics and procedures of blind installation and removal but did not address the hazards associated with benzene and hydrogen sulfide.
1. Did the Division establish that Employers initial training included the installation and removal of blinds for pipes greater than 6 inches in diameter?
2. Did the Division establish adequate training by Employer given the alleged overlapping job responsibilities?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
The Union seeks reconsideration on the grounds that the evidence presented does not justify the findings of fact. Specifically, The Union maintains that Employer did not present evidence establishing any basic or annual training on installing and removing blinds for pipes above 6 inches in diameter. Secondly, the Union maintains that Employer did not present evidence that any training had occurred annually which addressed the problem that operators may have while performing installation or removal of blinds and also responding to a low boiler water level within the required response time. 3
The Board adopts and incorporates, in full, the Findings and Reasons for Decision rendered by the ALJ in his Decision, pp. 6-11, to wit, the determinations that: 1) the required initial training under section 5189(g)(1) is not limited to a single training course, and 2) the sufficiency of Employers training program for operators newly assigned to install and remove blinds. We provide the following additional analysis regarding the issues raised in the Unions petition.
1. The Evidence Justifies the ALJs Findings of Fact Regarding Employers Compliance with Section 5189(g)(1) for Initial Training on the Installation and Removal of Blinds for Pipes Above 6 Inches in Diameter
Section 5189 is contained in Article 109 of the General Industry Safety Orders that establishes minimum standards for the use, handling, and storage of hazardous substances in all places of employment. (Section 5160) Section 5189 contains requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals. The Standards Board expressed its intent for establishing process safety management regulations to eliminate to a substantial degree, the risks to which employees are exposed in petroleum refineries, chemical plants, and other facilities. (Section 5189(a))
Section 5189(g) provides employee training requirements and, in relevant part, states:
(1) Initial training. Each employee presently involved in operating or maintaining a process, and each employee before working in a newly assigned process, shall be trained in an overview of the process and in the operating procedures as specified in subsection (f). The training shall include emphasis on the specific safety and health hazards, procedures, and safe practices applicable to the employee's job tasks. 4
Fundamental to the ALJs decision is the determination that the section does not require training in a single course. We agree with the ALJs analysis regarding initial training requirements in section 5189(g)(1). The ALJ stated that the clear purpose of section 5189(g)(1) is to ensure that employees working in petroleum refineries, chemical plants and other like facilities have the knowledge and skills needed to perform hazardous substance processing tasks safely before they start doing them. (ALJ Decision, p. 8)
Since the Board cannot impose stricter or more detailed requirements than those set in a safety order promulgated by the Standards Board, (Hylton Drilling Company, Cal/OSHA App. 82-216, Decision After Reconsideration (Jan. 17, 1986)), the section cannot be read as requiring that training be provided in a single course. An employer may provide training through multiple training courses but must still comply with the regulations purpose by providing a coherent integration with the procedures involved in a newly assigned task. 5
In its petition, the Union asserts that no evidence was presented by Employer establishing any basic or annual training on installing and removing blinds for pipes above 6 inches in diameter. At the outset, the Union misstates the burden of proof for establishing a violation of the regulation. The Division has the burden of proving the elements of a violation by a preponderance of the evidence. The Division was required to establish that Employer failed to initially train its operators to safely perform the newly assigned task as required by section 5189(g)(1).
Our review of the record reveals that in April 1999, Employer announced that operators would be trained to perform installation and removal work of blinds on pipelines that transported hazardous materials in Employers petroleum refinery. (Exhibit A, Tab 3) At the time, Employer indicated that installing and removing blinds would, until further notice, be limited to blind size to 12 inches and 300# pound series raised face flanges. (Exhibit A, Tab 4) Mark Goebel, Employers Training Group Leader, testified that he believed that the field training for the blinding process was performed with 6 inch diameter pipes. Employers written procedures entitled Installing Isolation Blinds provides a chart Attachment A - 300# Flange Series providing specifications for various flange sizes up to and including a diameter of 6 inches. (Exhibit A, Tab 9)
The evidence merely establishes that a 12 inch maximum was initially set by Employer, until further notice, prior to implementation of the new blinding task to be performed by operators. The only evidence presented however, was related to installation/removal of blinds no more than 6 inches in diameter. Conspicuously absent is any direct, positive evidence establishing that operators were required to work on pipes more than 6 inches and up to 12 inches in diameter.
Absent evidence establishing that the new task actually required operators
to install or remove blinds for flanges more than 6 inches in diameter, we will
not make an inference of a violation of section 5189(g)(1) on the ground that
no training was provided for installation/removal of blinds for flanges more
than 6 inches in diameter.6 The ALJs
findings regarding Employers training of operators for the blinding task
and its compliance with section 5189(g)(1) are otherwise supported by the evidence
as discussed in detail in the ALJs Decision.
2. The Evidence Justifies the ALJs Findings of Fact Regarding Employers Compliance with Section 5189(g)(1) for Initial Training by Employer that Failed to Address a Problem that Operators may have while Performing Installation/Removal of Blinds
The Union also asserts that the evidence does not support the ALJs findings of Employers compliance with section 5189(g)(1) because Employer did not produce evidence that training covered the situation where an operator performing an installation or removal of blinds would have to respond to a boilers low water level (a duty that an operator would normally have to perform) within a required response time. The Union suggests that section 781 requires a certain response time to boiler low-water levels that could possibly be compromised if the operator was performing an installation or removal of blinds.7
The Unions argument is misplaced with respect to determining a violation of section 5189(g)(1). The regulation establishes a training requirement for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals for newly assigned processes performed by employees. The Union raises an issue which goes beyond the training required under section 5189(g)(1) since it asserts a violation based upon an operator performing multiple assigned tasks including other activities the operator might have to perform unrelated to blinding. Under the terms of the regulation, the training requirement for newly assigned processes does not express nor necessarily incorporate tasks that one could be expected to perform generally at any given time in the discharge of duties.
Additionally, no evidence was presented by any of the parties regarding the existence of conditions affecting an operators response time to a boiler low-water level at Employers facility. Nor was there evidence establishing that the performance of a newly assigned activity created or involved a hazard by requiring an operator to perform blinding and also respond to boiler low-water levels.8 In its petition, the Union cites to a question posed to Mark Goebel, Employers Group Training leader, who responded that he did not know if the particular situation was covered in the training.
While it may be conceivable that an operator may be called upon to perform many duties during the course of the workshift, the fact that there are several tasks which can only be physically performed one at a time does not establish a violation of the training requirement in section 5189(g)(1). Absent the presentation of specific facts beyond speculative reasoning, a potential conflict in the performance of the newly assigned process for which workers were not sufficiently trained does not establish a violation of the regulation. The Union essentially seeks a determination that Employer violated the initial training requirement by not addressing a posed hypothetical situation that has no factual basis in the evidentiary record. We do not find a violation of the initial training requirement under the facts presented in this case, and further, find that there are sufficient facts to justify the ALJs findings that Employer did not violate section 5189(g)(1) as discussed in the attached Decision.
DECISION AFTER RECONSIDERATION
The Board affirms the ALJs Decision granting Employers appeal and setting aside the proposed civil penalty.
MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 29, 2002
1 Unless otherwise specified,
all section references are to Title 8, California Code of Regulations.
2 A blind is a solid metal device which when installed prevents flow of liquid or vapor and is used to isolate individual pieces of equipment. (Employers Exhibit A, Tab 7 Safe Blinding Policy, p. 1 of 10) The ALJ described the blind as a metal disk with a T shaped handle extending from the edge of the perimeter. The diameter of the disk is the diameter of the flanges on the pipe joint it is used to block or blind. Holes corresponding to the pipe flange boltholes are drilled around the perimeter of the disk... (ALJ decision, p. 2, fn. 2)
3 A petition for reconsideration must set forth specifically and in full detail the grounds upon which the petitioner considers the decision to be unjust or unlawful, and every issue to be considered upon reconsideration. Any objection or issue not raised in the petition is deemed waived. (Section 391)
4 Process is specifically defined to mean [a]ny activity conducted by an employer that involves an acutely hazardous material, flammable substance or explosive including any use, storage, manufacturing, handling, or on-site movement of any of the preceding substances 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 acutely hazardous materials could be involved in a potential release shall be considered a single process. (Section 5189(c))
5 The ALJ correctly noted that scattered and disorganized training still might fail to comply with the order by not providing a clear picture of the overall process with an understanding of how the operating procedures apply to the process and/or hazards. He found that no such lack of organization was established in this case. We will not disturb the ALJs factual determination regarding this issue.
6 Even assuming arguendo that the operators were required to perform binding for flanges up to 12 inches in diameter, there still must be a showing that there are unique processes or hazards associated with performing essentially the same tasks on the range of pipe sizes on which operators are required to work in order for a violation of the training requirement to exist. To reach this issue in this case, however, places the proverbial cart before the horse.
7 Section 781 is part of Subchapter 2 Boiler and Fire-Pressure Vessel Safety Order and contains requirements for attendance of boilers. A review of section 781 indicates that the only subsection addressing response time is section 781(b) which provides, subject to certain qualifications, that no fired boiler shall be left unattended for a period of time than it will take the water level to drop from the normal operating level to the lowest permissible water level in the water gage glass...when the feed water is shut off and the boilers are forced to their maximum capacity unless certain conditions are met. Among the conditions which must be met in order to satisfy the alternative means for compliance is section 781(b)(2) which requires an audible alarm loud enough to be heard by the attendant at any point in the area the attendant is required to work. The attendant must be close enough to the boiler room so that he or she can safely respond. The provision further provides for the setting of the alarm to allow a safe response time. (Section 781(b)(2))
8 We recognize that under appropriate circumstances, a violation of the training requirement may exist if sufficient evidence is presented demonstrating an unavoidable interplay between performance of the newly assigned process and what an operator is normally required to do which creates or involves a foreseeable hazard that must be addressed in the initial training.