BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

SANTA FE MECHANICAL COMPANY, INC.
P.O. Box 2978
El Segundo, CA 90245

                                                  Employer

 

Docket No. 94-R3D5-2087

DECISION AFTER RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by the Division of Occupational Safety and Health (the Division), makes the following decision after reconsideration.

JURISDICTION

From April 20 through July 8, 1994, the Division conducted an accident inspection at a place of employment maintained by Santa Fe Mechanical Company, Inc. (Employer) at Berth 120, Long Beach, California (the site). On August 16, 1994, the Division issued to Employer a citation alleging a serious violation of section 6777(a) [failure to issue hot work permit] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, and proposed a civil penalty of $3,000.

Employer filed a timely appeal. At the hearing, Employer clarified its appeal by amending it to contest the existence and classification of the violation and the reasonableness of the proposed penalty.

On July 25, 1995, after a hearing, an administrative law judge (ALJ) of the Board issued a decision finding a violation, but reducing the classification from serious to regulatory and reducing the civil penalty to $100.

On August 24, 1995, the Division filed a petition for reconsideration. Employer did not file an answer.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 7 through 9 of the decision of the ALJ.

Employer was retained to put a collar on a gas vent pipeline at a crude oil overflow vessel that was part of a facility operated by Western Fuel Oil Company (Western Fuel). This assignment required drilling a hole in the pipeline and the collar. The pipeline was in a vault approximately 10’ to 12’ long, 6’ wide, and 10’ deep. The vault sat on top of the vessel into which the crude oil overflow drained. The pipeline contained flammable vapors, and other sources of flammable gases were present in the vicinity. The work required use of an electrical drill or an electrical abrasive grinder, both of which were capable of generating sparks. Drilling, even with a battery-powered drill designed to eliminate sparking, could generate heat capable of igniting petroleum vapors. The work also required welding.

In petroleum refining, handling, and transporting facilities, work necessitating the use of a source of ignition such as drilling and welding by a contractor requires that the contractor obtain a permit from the owner or operator of the facility before any work of this type can begin. This permit is referred to as a "hot work" permit, and the requirements to obtain one are listed in section 6777. Before the owner or operator issues such a permit, the contractor must establish that it met all of the requirements of sections 6777(b), (c), (e), and (f). These steps include testing the atmosphere in the work area to ensure that gases or vapors in the area are less than 20 percent of their lower explosive limit.

On March 29, 1994, Employer’s employees began work, including drilling and welding, on the gas vent pipeline. As the work was in progress, an explosion occurred from gases in a vent in the pipeline below ground, breaking employee Joseph Waite’s pelvis. Waite’s treatment required surgery and more than a week’s stay in a hospital. The Division issued a citation alleging a serious violation of section 6777(a).

No permit had been obtained by the time of the explosion. Employer’s owner testified that the foreman in charge of the job was aware that a "hot work" permit was required and had contacted Western Fuel, who controlled the site, to make arrangements for Western Fuel to issue Employer a hot work permit. The foreman was not called to testify, and no evidence was offered establishing that any of the specific steps required for issuance of a hot work permit, i.e., those set forth in sections 6777(b) through (f), had been taken. Employer’s employees assigned to do the work, other than the foreman, were not aware a permit was required, nor were they told of the procedures required for issuance of a permit.

ISSUES

1. Is the failure to obtain a "hot work" permit a regulatory violation?

2.  Was the violation initially correctly classified as serious

   FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

    1. The Failure to Obtain a "Hot Work" Permit Is Not a Regulatory Violation.

Section 6777(a) provides, in relevant part:

(a) A written and numbered hot work permit issued and signed by the employer or his authorized agent shall be required before a source of ignition is used . . . .

The permit required by section 6777(a) is not issued by or filed with the Division. Instead, hot work permits are issued by businesses that operate petroleum refining, transportation, and handling facilities to construction and maintenance contractors whenever the contractors’ work will require the introduction of a source of ignition into a refinery or petroleum handling facility. Welding, drilling, and grinding activities involved in putting a collar on a gas line are all sources of ignition.

The first issue before the Board is whether Employer’s failure to obtain a permit from Western Fuel is a regulatory violation.

Section 334 of the Director’s regulations define regulatory, general and serious violations as follows:

(a) Regulatory Violation is a violation, other than one defined as Serious or General that pertains to permit, posting, recordkeeping, and reporting requirements as established by regulation or statute. For example, failure to obtain permit; failure to post citation, poster; failure to keep required records; failure to report industrial accidents, etc.

(b) General Violation is a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees.

(c) Serious Violation.

(1) A "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a serious exposure exceeding an established permissible exposure limit or a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

For a violation to be classified as regulatory, it must have two characteristics: first, that it is neither a general nor a serious violation, and second, that the violation involve "permit, posting, recordkeeping, and reporting requirements." Therefore, the mere fact that the cited violation in some way involved a permit is not alone sufficient to make it a regulatory violation. It must also not be a general or serious violation.

Section 334(b) defines a general violation as one specifically determined not to be serious, but which "has a relationship to employee safety." The only distinction Section 334 makes between serious and general violations is that a serious violation is one that, should an accident occur, will more likely than not result in death or serious physical injury, and the employer either knew of the violation or could have known of it with the exercise of reasonable diligence. The common characteristic that distinguishes serious and general violations from regulatory violations is that both general and serious violations have a relationship to employee safety. Therefore, if a violation has an impact on employee safety, it is classified as general or serious and cannot be a regulatory violation.

The ALJ found section 6777(a) to be a permit procedure as contemplated by the definition of regulatory violations in section 334(a). The ALJ further found that the failure to obtain a permit in and of itself had no nexus to employee safety, much less a substantial probability of serious physical injury or death. The ALJ found that a section 6777(a) violation has only a tenuous connection with the possibility of serious harm to employees. The ALJ contrasted the lack of safety impact of a section 6777(a) violation with a failure to notify employees of the hazard by not posting the hot work permit as required by section 6777(b) or by not testing for explosive gases as required by section 6777(e).

The ALJ therefore found that Employer’s failure to obtain the permit failed to establish a serious violation under section 334(c)(1) of the Director’s regulations. Viewing the violation as relating only to the issuance of a permit, the ALJ concluded that a violation of section 6777(a) could only be classified as a regulatory violation. The ALJ accordingly reduced the classification of the violation from serious to regulatory, and also reduced the penalty from $3,000 to $100.

The Division contends in its petition that the permit required by section 6777(a) is not a mere registration such as that provided by sections related to other kinds of permits. As an example of permits requiring no more than registration, the Division cited section 341, which requires that the Division be given notice for excavations, erection of buildings more than three floors high, and demolition of buildings. In contradistinction, the section 6777(a) permit issuance process requires a systematic jobsite safety inspection. In this case, Employer would have been required to: (1) test the atmosphere to determine that it was gas free; (2) test the pipeline being worked on to determine that it was free of pressure; and (3) determine that fire protection equipment was present and a fire watch maintained. The Division contends that had the permit procedures been followed in this case, the explosion and injury to the employee would not have occurred. Because issuance of the hot work permit therefore had a nexus with employee safety, the Division further contends that failure to obtain a hot work permit does not fall within the definition of a regulatory violation but was a serious violation in view of the risks involved and Employer’s knowledge of those risks.

The Board finds that the issuance of a hot work permit as required by section 6777(a) has a nexus to employee safety. The issuance of a hot work permit is not the mere creation of a paper record or notice to the Division of the existence of a project, such as an excavation permit. The purpose of an excavation permit, like several others issued by the Division, is to ensure that the Division receives notification by the employer of the existence of or intent to engage in certain kinds of work, such as excavation or erection of scaffolding. The process leading up to the issuance of such permits does not have a direct relationship to employee safety; thus, the failure to obtain a permit constitutes a regulatory violation. (e.g., MCM Construction, Inc., OSHAB 92-436, Decision After Reconsideration (May 23, 1995) [willful failure to file annual scaffolding and excavation permits is a regulatory violation].)

Here, however, the issuance of a hot work permit, while it does result in the creation of a document, can occur only after a substantive safety procedure has been carried out to ensure that before sources of ignition are introduced into the facility, appropriate safety precautions have already been taken. Thus, the very purpose of such a permit is to ensure specific safety precautions on a specific job are taken. It has a direct relationship to the occupational safety and health of employees and, therefore, is not a regulatory violation.

2. The Violation was Initially Correctly Classified as Serious.

Having determined that the violation is not regulatory in nature, the Board now must decide whether it is properly classified as general or serious.

If the issuance of a hot work permit is pursued in a timely way, testing for explosive gases will have taken place before employees begin using a source of ignition in the work area. Had such testing been conducted before the work began in this case, the accident may not have occurred. If the violation is understood as introducing a source of ignition before the hot work issuance procedures have been completed, the nexus between the issuance of a hot work permit and employee safety is clear. Therefore, the violation would be classified as general unless the additional distinguishing elements of a "serious" violation substantial probability that death or serious physical harm would result if an accident occurs, and the employer’s knowledge of the violation are also established. As discussed below, those elements are present here, and the violation is correctly classified as "serious."

Testing for the presence of any explosive gases or vapors is the most important requirement for the issuance of a "hot work" permit. However, many other safety requirements must also be fulfilled for a hot work permit to be validly issued and maintained. In addition to testing for vapors required in section (e), issuance of a hot work permit is conditioned on specifying exactly the time and the specific location or piece of equipment where the source of ignition will be used, the ways in which sources of ignition will be used (section 6777(c)), and removal of accumulations of oil and other combustible materials in exposed areas (section 6777(f)). If the permit is not issued, then the permit cannot be given to employees or posted as required by section 6777(b), and the monitoring required by section 6777(d) to maintain the permit in effect is not triggered. Explosive gas testing performed at a different date, time, or place than when and where the hot work is done is little better than no testing at all. To be effective, all the steps required by sections 6777(b) through (f) must be coordinated so that they come together at substantially the same time and place.

The permit requirement of section 6777(a) is the means of achieving that coordination. Compliance with section 6777(a) has a direct connection to preventing the high probability of serious injury or death inherent in the use of sources of ignition in petroleum refining, handling, and transporting facilities.

In A.A. Portanova Construction, OSHAB 80-716, Decision After Reconsideration (Jan. 29, 1982) and Mladen Buntich Construction Co., OSHAB 80-1491, Decision After Reconsideration (Aug. 27, 1981), the Board explained the degree of immediacy between the safety order violated and the resulting likelihood of serious injury required for finding a serious violation. In Portanova, supra, the Board classified a violation of a safety order requiring a written, understandable operating and rescue plan for confined space emergencies as general rather than serious. The Board held that the failure to have a written, understandable rescue plan would not result in injury from failure to comply with other safety orders mandating specific actions before and during an employee’s entry into a confined space. Section 6777(a), unlike the rescue plan requirement in A.A. Portanova, supra, requires compliance with safety orders requiring specific actions before and during the introduction of a source of ignition into a petroleum refining, handling, or transporting facility. The specific actions, such as testing in section 6777(e), are not independent requirements, but are stated as conditions for the issuance of a hot work permit. In Mladen Buntich, supra, the Board held that to be classified as serious, the safety order violated had to be addressed to a specific hazard. Section 6777(a) is addressed to the specific hazard of an explosion involved in the use of a source of ignition in a petroleum refining, handling, or transporting facility.

Where the employer, as it did in this case, fails to take any meaningful steps toward the issuance of a hot work permit, it defeats the hot work permit’s requirements. As the ALJ notes, on the day of the hearing the foreman, still in Employer’s employ and the only witness who could have established how far the process had proceeded or why a permit was not secured, was not produced. The only explanation offered was that Employer had assigned him to other duties. From this record, little more can be determined than that Employer claims to have had an intention to apply for a permit that day. It cannot be determined what steps if any the foreman responsible for obtaining the permit had taken to obtain a permit.

Failure to pursue the issuance process in a timely way, i.e., before a source of ignition is introduced, frustrates all the requirements of section 6777 set forth in subsections (b), (c), (d), (e), and (f). The Board finds that in the circumstances of this case, it is reasonable and appropriate for the Division to cite Employer under section 6777(a), rather than under each of the separate subsections Employer failed to comply with by not completing any part of the permit issuance process.

Classifying a violation as serious requires a finding that the injury that would occur in case of an accident be serious, and that the employer knew, or could have known of the violative condition with the exercise of reasonable diligence. It is undisputed that the injuries likely to result from an accident caused by the introduction of a source of ignition in a petroleum refining, handling, or transporting facility are more likely than not to be serious. Employer admitted it was aware of the danger posed by conducting welding, grinding, and drilling in a petroleum handling facility without following the procedures required for issuance of a hot work permit. Employer had initiated an application for a hot work permit in recognition of those dangers, but work involving drilling and welding had begun before any significant steps in the hot work permit issuance process had begun. Employer had the requisite knowledge for a serious violation to be found.

The danger, in the event of an accident, an explosion, or fire, is more likely than not to result in a serious injury as it did in this case. The Board therefore concludes that the violation in this case was serious.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is reversed. The citation is affirmed as serious, and a civil penalty of $3,000 is assessed.

JAMES P. GAZDECKI, Chairman

BILL DUPLISSEA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – June 9, 1999