BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

UCI CONSTRUCTION, INC.
P.O. Box 533
Bakersfield, CA 93302

                                       Employer

Docket Nos. 96-R4D3-615

 

                DECISION AFTER
               RECONSIDERATION

 

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 proceeding by UCI Construction, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

From August 14, 1995, to February 9, 1996, a representative of the Division of Occupational Safety and Health (Division) conducted an accident investigation at a place of employment maintained by Employer at 25121 North Sierra Highway, Newhall, California (the site). On February 9, 1996, the Division cited Employer for an alleged serious violation of section 6535(a) [failure to reduce pipeline pressure] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations, with a proposed civil penalty of $1500.

Employer filed a timely appeal contesting the existence of the alleged violation, its classification, and the reasonableness of the proposed civil penalty.

An administrative law judge (ALJ) of the Board heard the appeal on July 23, 1997, and issued a decision on August 20, 1997, granting Employer’s appeal to the extent that the classification was reduced from serious to general, and the proposed civil penalty reduced from $1,500 to $350. In all other respects, Employer’s appeal was denied.

On September 16, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. On October 17, 1997, the Division filed an answer to Employer’s petition. The Board granted Employer’s petition on October 20, 1997, and stayed the ALJ’s decision pending a decision on the petition for reconsideration.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record in making this decision. Employer contends in its petition that the ALJ’s findings of fact do not support finding any violation, either serious or general.

Employer was hired as a subcontractor to recondition a rotary selector valve at an oil well facility at the Arco Placerita Canyon Facility under the direct supervision of Arco. Pressurized hot crude oil running through the valve must be removed or reduced to atmospheric pressure in order to disassemble the valve.

Division Compliance Officer Oseas testified that Employer’s onsite foreman Roger Beneditto confirmed, by observation and discussions with Arco employees, that the input and output lines to the valve had been shut off and tagged to indicate that they had been bled. Prior to beginning the work on the valve, Beneditto "cracked the valve"—by opening a "bleeder port" on the rotary valve—to ensure that there was no trapped air pressure. A little oil came out, strongly suggesting that there was still some oil under pressure in the valve. Beneditto had a vacuum pumping truck attach a hose to the port and suction it for four to five minutes. Vacuuming is used routinely to suction lines. In Compliance Officer Oseas’ opinion, four to five minutes should have been "more than sufficient" for the size of that particular valve.

Once the vacuuming was completed, an Arco employee assured Beneditto that it was safe to proceed with dismantling the valve. After the bolts attaching the top and bottom halves of the valve were removed, the valve should have come apart, however, it was "stuck." A worker tried, unsuccessfully, to pry the valve apart with a pry-bar when suddenly it burst, spraying hot oil on five workers. Oseas testified that three UCI Construction employees were burned, and "some of their injuries came close to being serious." An Arco employee was seriously injured and hospitalized at a burn center for seven or eight days.

Since the amount of oil that came out of the valve was only about two gallons, and Oseas did not observe any further leakage, it was his opinion that the input and output lines had been properly shut-off. Since oil did not come into the lines after they were shut off, he opined that Employer failed to remove all the oil and air trapped after the lines were shut off. Without pressure, oil will not spray out of the valve, as it did here—"about 30 feet"—as depicted in photographic evidence. Although Oseas admitted that he did not ask anyone specifically whether they checked the valve after it was vacuumed, he concluded that had Employer opened the bleeder port on the valve after the vacuum truck ‘pulled’ on it, Employer would have known if oil under pressure was still trapped in it. If there is no seepage or gas flow when the port is opened, the pressure has been equalized to atmospheric or near atmospheric. Normally the pressure is more than atmospheric. If the system was operating, it would spray out several gallons of oil per minute if the bleeder port was open. If it was not operating, the amount of fluid would be "at most" the amount of fluid that the body of the valve could hold.

ISSUE

Was a violation of section 6535(a) established?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

A Violation of Section 6535(a) Was Established.

Section 6535—Opening Pipe Lines and Equipment—of the Petroleum Safety Orders – Drilling and Production, provides:

(a) Before opening lines or other equipment, the pressure shall be reduced to atmospheric or as near atmospheric as is practicable. Employees shall be informed of the hazards from the contents of lines or equipment, and shall be instructed on precautions necessary.

Employer argued that the ALJ upheld the citation addressing Employer’s failure to reduce the pressure in the rotary valve to atmospheric without questioning whether Employer’s evidence proved that it had been reduced to as "near atmospheric as is practicable." In deciding that the evidence supported a finding of a violation of section 6535(a), the ALJ stated:

Although Employer made efforts to reduce the pressure inside the valve to atmospheric or near atmospheric, the evidence is undisputed that oil sprayed the workers while they were in the process of taking the valve apart. It was not disputed that the oil would not have sprayed out unless the pressure within the valve was greater than atmospheric.

Thus, the ALJ indirectly found that the pressure in the rotary valve was not reduced to either atmospheric or as near atmospheric as is practicable because oil would not have sprayed out unless the pressure was substantially above atmospheric pressure, not "near atmospheric." Thus, there was ample, uncontroverted testimony from which the ALJ could logically conclude that the pressure was greater than atmospheric and also greater than near atmospheric.

It can reasonably be inferred that the Occupational Safety and Health Standards Board (Standards Board), when it promulgated the regulation, meant to afford workers the same level of protection from the hazard of opening lines or equipment at pressures above both "atmospheric" and "near atmospheric" conditions, because pressures above atmospheric or near atmospheric present the same kind of hazard, oil spraying out and injuring employees. Therefore, the ALJ’s findings are consistent with the Board’s interpretation of the safety order, to wit, that the Standards Board intended that the hazard presented by opening pressurized pipe lines or equipment be eliminated by either reducing the pressure to atmospheric or to as near atmospheric as is practicable. By proving that the pressure was not reduced to "near atmospheric," the Division met its burden to show that Employer did neither. If the pressure had not been reduced to "near atmospheric," it also had not been reduced to "atmospheric," which required a further reduction of pressure.

In its petition, Employer further contended that the ALJ ignored several of its own findingsfindings that the ALJ made in the context of ruling on the classification issuethat would equally support the conclusion that Employer reduced the pressure to as near atmospheric as was reasonably possible under the circumstances. The Board disagrees. Employer’s reliance on the findings it cites ignores other, more critical, evidence establishing the violation’s existence.

In reviewing the sequence of events as they unfolded, it is significant that Employer overlooked the problem encountered when the two halves of the valve were unbolted and the valve did not come apart, as it normally should have done. One reasonable inference from the evidence is that this was due to pressure build-up in the valve. At the very least, it was practicable to take further steps to investigate and reduce the risk, such as further pumping. Instead, Employer relied on normal "industry practice"—suctioning the valve with the vacuum pump for four or five minutes—to satisfy itself that pressure in the valve had been reduced to atmospheric or to as near atmospheric as is practicable. It is well settled that industry standard practice cannot supplant the mandates of safety orders.

Had Employer checked the valve by opening the bleeder port after the vacuum hose was removedthere is no direct evidence that it didor when the valve failed to come apart, it could have detected the presence of pressure in the valve since it could be expected that some amount of trapped oil or gas would have seeped or flowed out of the port if the valve was still pressurized. It was incumbent upon Employer to take all necessary and logical steps to protect its employees, which on this record, it failed to do.

Furthermore, it is no defense that Employer may have relied on Arco’s assurance, through its onsite supervisor, that it was safe to proceed to disassemble the valve after the vacuuming procedure. Whether Arco, the general contractor, was civilly or otherwise liable for the accident does not relieve Employer of its responsibilities under the Occupational Safety and Health Act, since employers are accountable for all hazards to which their employees are exposed regardless of whether, under other regulations or by contractual agreement, another entity is additionally obligated to ensure no one is exposed.

The evidence is therefore sufficient to establish a prima facie violation. Since Employer offered no evidence at the hearing that it checked the valve or took other measures to determine if pressure remained in the valve after the vacuuming procedure, it must be concluded that the Division established the violation. The Board therefore affirms the ALJ’s decision that a violation of section 6535(a) was established.

DECISION AFTER RECONSIDERATION

The ALJ’s decision issued in this matter on August 20, 1997, is affirmed. Accordingly, a general violation of section 6535(a) is found; and a civil penalty of $350 is assessed.

JAMES P. GAZDECKI, Chairman BILL DUPLISSEA, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - December 28, 1999