Baker Tank Co./Altech, a Div. of Justiss Oil

Plain-English summary

Baker Tank employees entered an emptied crude-oil storage tank to cut apart an internal aluminum roof using electric saws. Residual sludge contained volatile solvent, and an explosion after the crew reentered the tank killed three employees. The Commission found that Baker had not adequately instructed its employees about confined-space vapor hazards, atmospheric testing, or necessary precautions, and could not shift its safety responsibility to the tank owner through a contract. It also found that the tank was a Class I hazardous location because flammable vapors could accumulate, while the electric saws were not approved for such use. Both violations were affirmed as serious, with penalties of $810 each, totaling $1,620. The Commission did not need to determine the actual ignition source to decide whether the cited training and equipment requirements were violated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(6)(i) and 1926.407(b).
• Outcome: Affirmed. Two serious violations were affirmed with $1,620 in total penalties.
• Key point: An employer remains responsible for training its own confined-space entrants and selecting approved equipment, even when another company performs atmospheric testing under the contract.

Full text (OSHRC public release)

                                      b




                                          UNITED STATES OF AMERICA
         OCCUPATIONAL           SAFETY AND HEALTH REVIEW                      COMMISSION
                                      One Lafayette Centre
                                1120 20th Street, N.W. - 9th Floor
                                   Washington, DC 20036-3419




                                                 .
                                                 0

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 90-1786-S
.
BAKER TANK COMPANY/ALTECH, :
A DIVISION OF JUSTISS OIL ..
COMPANY, INC., ..
..
Respondent. ..

                                              DECISION

Before: WEISBERG, Chairman, FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
Employees of Baker Tank Co. (“Baker”) had just reentered an empty crude oil
storage tank owned by Kerr-McGee Refining Corp. (“Kerr McGee”) when there was an
explosion that killed three Baker employees. The Occupational Safety and Health
Administration (“OSHA”) of the Department of Labor investigated that fatal accident. As
a result of OSHA’s investigation, the Secretary of Labor issued a citation alleging that Baker
had committed two serious violations of OSHA training and electrical standards. After
Baker contested the citation, Administrative Law Judge E. Carter Botkin held a hearing in
accordance with the Commission’s rules governing simplified proceedings, at which Baker
appeared pro se. The judge affirmed both items. Baker petitioned for review of the judge’s
decision, and review was directed. The issues before us are whether the judge erred in
finding that Baker had violated those standards. For the reasons below, we affirm the
judge’s disposition.

                                                                                  1995 OSHRC No. 20
                                              2

                                        FACTS
   Baker’s contract with Kerr-McGee called for Baker to remove a damaged aluminum

internal floating roof or vapor barrier fkom inside a 30-foot-high, 114-foot-diameter crude
oil storage tank at a small Kerr-McGee petrochemical plant in Louisiana. To do this,
Baker’s employees used electric saws to cut the vapor barrier into pieces small enough to
be taken out the openings in the tank so that they could be disposed of. Before Baker
began work, Kerr-McGee emptied the tank, washed it with high-pressure hoses, pumped out
the residue from the washing, and then steam-cleaned it, as required by the contract, but
there was still about 8-10 inches of sludge, containing “tarballs” and solvent, in the bottom
of the tank. Kerr-McGee offered to remove all the sludge, but Baker declined that offer.
The solvent in the sludge had a flashpoint of lOOr110’ Fahrenheit. The compliance officer
testified that its lower explosive limit (XIX”) was 1.1 per cent.’
According to the contract, the atmosphere was to be tested by Kerr-McGee every day
before Baker’s employees entered the tank, and Kerr-McGee was to issue Baker a “hot
work” permit to use spark-producing equipment in the tank if less than 10 per cent of the
LEL was present. On March $1990, the day before Baker began work, Kerr-McGee tested
the atmosphere in the tank and got a reading of 0 per cent LET. The next morning, Kerr-
McGee again tested the atmosphere in the tank. When it got a reading of 22 per cent,
Kerr-McGee installed an exhaust fan in an opening in the side near the bottom of the tank
to remove the chemical fumes. After about two hours, the atmosphere was retested and a
reading of 0 per cent obtained. When the 0 per cent reading was obtained, Kerr-McGee
issued Baker a permit, and Baker’s employees then began work inside the tank. That day,
Kerr-McGee tested the atmosphere every two hours and each time obtained a reading of
0 per cent.

?he LEL is the minimum concentration of vapor in air or Oxygen below which propagation
of flame does not occur on contact with a source of ignition. A mixture below the LEL is
too lean to burn or explode. See NFPA No. 325M-1969, Fire-HazardPropertiesof Flammable
Liquids, Gases and Volatile Solids (1969), published by the National Fire Protection
Association.
3

    When Kerr-McGee            tested the air on March 8, after almost two days of no work in

the tank, the reading was 10 per cent, a permissible level for work according to the contract.
Nevertheless, the fan was turned on to move the stale air in the tank. It was turned around,
however, to blow into the tank instead of exhaust air from the tank. Baker’ crew worked
10 hours that day without incident. The next morning, Kerr-McGee got a reading of 4 per
cent and permitted Baker’s employees to enter the tank. Again, the fan was positioned to
blow air into the tank.
The day of the explosion, Kerr-McGee’s reading indicated that 8 per cent of the LEL
was present, and it issued Baker a permit. The fan again was turned to blow into the tank.
It operated until approximately 1:40 p.m., when it was turned off so the compressor driving
it could be refueled. Baker’s employees took a break while this was being done and
reentered the tank at approximately 2:10 p.m. The explosion occurred within seconds. The
bodies of Baker’s three employees were found at the base of the ladder to the manhole
where they entered the tank, some distance from their tools.
I. The 29 C.F.R. 8 1926.21(b)(6)(i) item.
The citation alleged that Baker committed a serious violation of 29 C.F.R.
8 1926.21(b)(6)(i)’ b ecause its employees who were required to enter a confined space had
not been instructed about the nature of the hazards they might confront, the precautions
they should take, or the protective equipment they should use against these hazards. The
judge found a violation, reasoning that Baker’s operations fell below that of industry
practice.

%at standard provides:

    51926.21        Ssfety training      and education.

    &j Employer responsibility,
    .   0   l   0




    (6)(i) All employees required to enter into confined or enclosed spaces shall
    be instructed as to the nature of the hazards involved, the necessary
    precautions to be taken, and in the use of protective and emergency
    equipment required. The employer shall comply with any specific regulations
    that apply to work in dangerous or potentially dangerous areas.
                                               4

     Evidence   of an industry’s practice     may be relevant       in determining      whether    an

employer had adequate notice of what it must do to comply with a broadly-worded
regulation such as section 1926.21(b)(6)(i), which does not specify the particular hazards,
precautions, or equipment that the required instructions are to address. See.U. Jones Constz
Co., 15 BNA OSHC 2201,2205-6,1991-93 CCH OSHD II 29,964, pp. 41,02425 (No 87-2059,
1993). In dete rmining the scope of an employer’s duty under another broadly-worded
standard, 29 C.F.R. 0 1926.20(b)(l), the Commission held that an employer may reasonably
be expected to conform its safety program to any known duties and that a safety program
must include those measures for detecting and correcting hazards that a reasonably prudent
employer similarly situated would adopt. Northwood Stone & AsphaS Inc., 16 BNA OSHC
2097, 2099, 1994 CCH OSHD lI 30,583, p. 42,348 (No. 91-3409, 1994); Pressure Concrete
conm Co., 15 BNA OSHC 2011, 2015, 1991-93 CCH OSHD ll29,902 p. 40,810 (No. 90-
2668, 1992). We conclude that it is appropriate to apply the same criteria in determining
whether there has been a violation of 29 C.F.R. 5 1926.21(b)(6)(i); the Secretary may
establish a violation of that standard by showing that the employer did not instruct its
employees about the hazards, precautions, and protective measures as a reasonably prudent
employer in its industry would have done. In determining what a reasonably prudent
employer in the industry would do, evidence as to current industry practice is relevant, but
it is not dispositive if industry practice is shown to be inadequate. Farens Tree Surgeons, Inc.,
15 BNA OSHC 1793, 1794, 1991-93 CCH OSHD li 29,770, p. 40,489 (No. 90998, 1992).
The evidence of industry practice that was introduced into evidence here makes clear
that the industry considers frequent retesting of the atmosphere in the tank to be the
primary precaution to be taken against the hazards involved, particularly when conditions
such as heat from the sun may increase the vapor content of the tank. Baker did not dispute
that the solvent in the sludge was volatile and could evaporate into the atmosphere of the
tank. For example, Baker introduced photocopies of pages from the 16th edition of the Fire
Protection Handbook, published by the National Fire Protection Association, discussing
cleaning of storage tanks. Page 11-39 of that publication contains the following passage:
Tests for the presence of flammable vapors constitute the most
important phase of the cleaning or safeguarding procedure and must be made
5

   before commencing any alterations or repairs, immediately after starting any
   welding, cutting, or heating operations, and frequently during the course of
   such work.

Baker introduced copies of pages from another publication, Cleaning Petroleum Storage
Tanks, by the American Petroleum Institute. Page 2 of that publication contains the
following statement:
Vapors that issue from openings in a tank are usually heavier than air. . . .
During the tank vapor-freeing operation, all sources of ignition in the tank or
in the vicinity of the tank should be eliminated.
Even after a tank has been freed of vapor, flammable mixtures may still be
formed later from remaining residual liquids and sludges or from the entry of
a liquid or vapor from an outside source. Petroleum vapors or liquids may
enter a tank through unblinded lines or leaks in the bottom of the tank.
Vapors may evolve within a supposedly empty and clean tank from
flammables in overlooked places. . . . Heat from the sun, steam tracing, or
hot work may result in increasing the tank vapor content. Tank vapors should
be checked frequently even if initial measurements indicate airborne quantities
are within acceptable limits.
We find that the evidence establishes that Baker did not instruct its employees
regarding the precautions necessary to protect against the hazards likely to be encountered
in the tank. The only Baker employee on the site who survived the explosion was its
foreman, who was in charge of safety at the worksite. He told the OSHA compliance officer
that he did not accompany the Kerr-McGee employees when they conducted the
atmospheric testing and that he did not know what they were testing for. Although he had
twice signed work permits -- before the first day’s work and on the morning of the explosion
-- he admitted to the compliance officer that he did not know what he had signed. Based
on this evidence, we find that the foreman’s knowledge about what safety precautions Baker
and its employees should take was so insufficient that we infer that he had not been
adequately instructed as to the necessary precautions. He therefore could not reasonably
have been expected to instruct the other employees in Baker’s crew about the hazards they
might encounter in the tank and the precautions to be taken against these hazards.
Although we find the Secretary’s prima facie showing to be limited, it is unrebutted.
Baker was in a position to know what instructions had been given the employees. Yet it did
not offer, nor have we found, evidence that even suggests that Baker’s crew had been given
any instructions about the hazards and precautions involved in this job, much less that the
1
instructions satisfied industry practice. We therefore find that Baker was in violation of the
standard because the company had not informed its employees about those hazards and
precautions about which a reasonably prudent employer would have instructed its employees.
Baker’s reliance on its contract with Kerr-McGee does not affect its own liability for
the violation. Under the Occupational Safety and Health Act of 1970,29 U.S.C. 60 651-678
(“the Act”), Baker had legal responsibility for the safety of its own employees and was
required to instruct them about the hazards that might be encountered, including what
protective measures to use and how this related to atmospheric testing. Baker’s contract
with Kerr-McGee may have required Kerr-McGee to assure that the tank was vapor-free,
but it said nothing about instructing Baker’s employees regarding the hazards involved in
entering confined spaces such as the storage tank or in the precautions to be taken against
these hazards. Even if the contract had provided for the instruction of Baker’s employees,
Baker could not contract away its legal duties to its employees or its ultimate responsibility
under the Act by requiring another party to perform them. Tri-State Steel Comtz, Inc., 15
BNA OSHC 1903, 1916 n.23, 1991-93 CCH OSHD lI 29,852, p. 40,740 n.23 (No. 89-2611,
1992) (consolidated), affd on othergrounds, 26 F.3d 173 (D.C. Cir. 1994), cert, denied, Mar.
20, 1995 (94921); Brock v. City Oil Well Serv., 795 F.2d 507, 512 (5th Cir. 1986) quoting
Central of Ga. RR v. OSHRC, 576 F.2d 620, 624 (5th Cir. 1978)). Nor can Baker rely on
industry practice to shift the responsibility for its employees’ safety and health to a third
party. Id. at 711. We find a violation here because Baker failed to give its employees the
necessary instructions, not because Kerr-McGee’s testing practices were deficient.3

3Baker has argued that the cause of the explosion was a propane leak, and that its
employees had not reached their tools, so that sparks from those tools could not have caused
the explosion. In this proceeding, however, we are not charged with determining the cause
of the explosion or with dete r-mining responsrbility for its occurrence. Baker’s arguments are
not relevant to the question here, whether Baker’s employees were properly instructed as
required by 29 C.F.R. 5 1926.21(b)(6)(i).
Commissioner Montoya notes that, regarding both this item and the next, Baker’s
evidence and arguments have focused on the cause of the explosion rather than on the
elements of the items with which it is charged. This failure to properly address the issues
(continued...)
7

    A violation is serious under section 17(k) of the Act, 29 U.S.C. 9 666(k), if it creates

a substantial probability that death or serious physical harm is the likely result should an
accident occur. Super Ekcavators, Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD
ll 29,498, p. 39,804 (No. 89-2253, 1991); Natkin & Co., 1 BNA OSHC 1204, 1205, 1971-73
CCH OSHD li 15,679, pp. 24967-68 (No. 401, 1973). We find on the evidence before us
that, if an accident did occur as a result of Baker’s failure to instruct its employees, the
consequences could well be death or serious physical harm. Accordingly, we find that the
violation was serious.
II. The 29 C.F.R. 5 1926.407(b) item.
The citation alleged that Baker committed a serious violation of 29 C.F.R.
5 1926.407QQ4 because its employees were using equipment that was not approved for
hazardous locations (electric saws) in a location that, according to the Secretary, was a Class
I (hazardous) location. “Class I locations are those in which flammable gases or vapors are
or may be present in the air in quantities sufficient to produce explosive or ignitible
mixtures.” 29 C.F.R. 5 1926.449.
The fact that the air sampling performed by Kerr-McGee obtained a reading at 22%
of the LEL the morning after it had obtained a reading of 0% dramatically illustrates the
potential for the accumulation of vapors in the tank. Another morning, Kerr-McGee

3(...continued)
raised by the citation increases her concern that the Commission’s judges exercise more
control to restrict the parties to the issues in dispute, especially when the parties have
elected to proceed under the Commission’s Simplified Proceedings rules. Although
Commissioner Montoya generally supports the Simplified Proceedings option, she notes that
such proceedings lack the structure imposed by pleadings, discovery, and other pretrial
procedures that narrow and define the issues in conventional proceedings.

‘?hat standard provides in pertinent part:

    8 1926.407 Hazardous (classified) locations.

    @i Erectical installations. Equipment, wiring methods, and installations of
    equipment in hazardous (classified) locations shall be approved as intrinsically
    safe or approved for the hazardous (classified) location or safe for the
    hazardous (classified) location.
                                                 8

obtained a reading of 10%. The morning of the explosion, the reading was 8% before the
fan was turned on, which may have accelerated the vaporization of the sludge. As the sun
rose and the temperature inside the tank increased, the LEL may well have exceeded the
10% which Baker argues is a permissrble level to perform hot work in, but no measurements
were taken to determine this. Again, Baker has suggested that the real cause of the
exnlosion was an accidental propane leak. That speculation is not relevant to the question
A

here of whether the tank was a location is which flammable gases or vapors may have
accumulated in dangerous quantities.
On the facts before us, we find that the tank was a Class I location because it was a
location in which flammable vapors could have been present in sufficient quantities to
produce an explosive mixture. Because the record clearly and indisputably establishes that
the electric saws used by Baker’s crew were not approved for use in hazardous locations, a
violation is established. We also find that the likely consequences of any accident that could
have resulted from the use of spark-producing equipment in this location would include
death or serious physical harm. Consequently, the violation is serious.
The Secretary has filed a motion to strike certain attachments to Baker’s brief and
sections of the brief which rely on information from these attachments. The attachments
to which the Secretary objects were not introduced into evidence at the hearing, and Baker’s
inclusion of them is in the nature of an attempt to reopen the record. We have recently
stated that, in deciding whether to reopen the record, we take into account the character of
the evidence proffered, the effect of opening the record, and the time the motion was made,
and make a decision in the interest of fairness and substantial justice. Article ZZGun Shop,
Inc., 16 BNA OSHC 2035,2036,1994 CCH OSHD ll30,563, p. 42,299 (No. 91.2146,1994)
(consolidated cases). Here, Baker has never made a formal motion to reopen the record
or otherwise sought permission to submit materials not in evidence. It appears that this
material was available to Baker at the time of the hearing, and there is no explanation why
the attachments to which the Secretary objects were not presented at the hearing.
Accordingly, we grant the Secretary’s motion.
9
Conclusion.
The Secretary of Labor proposed penalties of $810 for each violation. The
administrative law judge assessed penalties in the amount proposed. On review, neither
party has challenged the appropriateness of the penalties assessed by the judge. Our review
of the evidence in the record relating to the factors to be considered in determining an
appropriate penalty under section 17(j) of the Act, 29 U.S.C. 5 666(j), (the gravity of the
violation and the employer’s size, good faith, and history of prior violations) establishes that
the penalty assessed by the judge is appropriate. Accordingly, we affirm his assessment of
penalties in the amount of $810 for each violation.
For the reasons above, we find that Baker committed serious violations of 29 C.F.R.
0 1926.21(b)(6)(i) and 29 C.F.R. 0 1926.407(b). We assess penalties of $810 for each
violation.

                                                             JglmJii L WsJdmg
                                                            Stuart E. Weisberg
                                                            Chairman

                                                                    N
                                                             %LAc
                                                            Edwin G. f;oulke, Jr.
                                                            Commissioner


                                                          f&-1:
                                                             Velma Montoya

Dated: April 10, 1995 Commissioner
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
COM (202) 6m-5100
fTS(202)606-6100

                                            .
                                            .

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 90-1786-S
..
BAKER TANK COMPANY/ ..
ALTECH, A DIVISION OF .
JUSTISS OIL COMPANY, INC, I
..
Respondent. ..
.a

                               NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
April 10,1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF TECH DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                                          FOR THE COMMISSION

April 10, 1995
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 90-1786-S

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional TriaI Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

Ray G. Thompson, Manager-Employee
Relations
Justiss Oil Co., Inc.
P. 0. Box 1385
1810 East Oak Street
Jena, LA 71342-1385

Administrative Law Judge
Occupational Safety and Health
Review Commission
FederaI Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242-0791
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                            EE (202)6o64050
                                                                            Frs (202) 6o6-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-1786
BAKER TANK COMPANY/ALTECH
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on June 2?, 1993. The decision of the Judge
will become a final order of the Commission on July 21, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
July l?, 1B93 in order to ermit sufficient time for its review. Y ee
Comnnssion Rule 91, 29 6 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 21, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 90-1786
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210



James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S. DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 62

. Ray Thompson
Justiss Oil Co., Inc.
P.O. Box 1385
Jena, LA 71342 1385

E. Carter Botkin
Administrative Law Jud e
Occupational Safety an B Health
  Review Commissron
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791




 00110340379 : 06
                                              UNITED STATES OF AMERICA
                  OCCUPATIONAL           SAFETY AND HEALTH REVIEW COMM!SSlON
                                           ROOM 7811, FEDERAL BU!LDlNG
                                                 1100 COMMERCE
                                             DALLAS, TEXAS 75242-0791

PHONE: FAX:
COM (214)767-5271 COM (214)767-0350
FTS 7294271 Frs 729-0350

                                                             ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC DOCKET NO. 90-1786-S
.
BAKER TANK COMPANY/ALTECH, :
A DIVISION OF JUSTISS OIL ..
COMPANY, INC., ..
..
Respondent. ..
.

APPEARANCES: l

         Mary E. Witherow, Esquire                  Ray G. Thompson
         Dallas, Texas                              Jena, Louisiana
         For the Complainant.                       For the Respondentgo    se.

Before: Administrative Law Judge E. Carter Botkin

                                         DECISION AND ORDER

         This is a proceeding          brought before the Occupational      Safety and Health Review

Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 0 651 et seq. (“the Act”).
The Occupational Safety and Health Administration (“OSHA”) conducted an
inspection at a Kerr-McGee petrochemical refinery in Cotton Valley, Louisiana, on March
12 and 13, 1990, pursuant to an explosion on March 11 which caused the death of three
employees of Respondent (“Baker”); as a result, Baker was issued a serious citation alleging
violations of 29 C.F.R. $5 1926.21(b)(6)(i) and 1926.407(b). Baker contested the citation,
and a hearing was held.
2

                                        Background

      Baker contracted with Kerr-McGee to remove an aluminum vapor barrier from the

interior of a 30-foot-high crude oil tank. Prior to Baker’s arrival at the facility, Kerr-McGee
drained the tank, washed it down and steam cleaned it, leaving 8 to 10 inches of water and
oil residue at the bottom of the tank. On March 5, 1990, a Kerr-McGee employee tested
the tank’s atmosphere with a Mine Safety Appliances Model 260 combustible gas indicator,
which showed a lower explosive level (“LEL”) of zero percent. At 7:00 a.m. on March 6,
Kerr-McGee retested the atmosphere, and, after obtaining a reading of 22 percent LEL,
mounted a Coppus ventilator on the manhole at the bottom of the tank. The ventilator,
powered by a compressor located away f?om the tank, extracted air for about two hours; the
atmosphere was then retested and showed a zero percent LEL. Kerr-McGee completed a
work permit which was signed by Tommy McKelvey, Baker’s foreman, and the Baker crew
began its job.
The Baker crew consisted of McKelvey and four employees. The employees entered
the tank through a manhole at the top, descended to the bottom, and used Skil electric
circular saws powered by the generator to cut the vapor barrier into pieces small enough to
be removed from the tank. They worked March 6 through March 8 with the ventilator
extracting air from the tank. On March 9, when the temperature was in the 80’s, the
ventilator was turned around so that it was blowing air into the tank, and the crew worked
in this manner the rest of March 9 and on March 10. The ventilator was running whenever
the employees were in the tank, and there were seven vents in the top of the tank which
were open throughout the work operation. No work permits were completed March 7
through March 10, but atmosphere readings taken by Kerr-McGee on those days ranged
from 4 to 10 percent LEL.
At 7:00 a.m. on March 11, a Kerr-McGee employee named Mark Adkins tested the
atmosphere in the tank and obtained a reading of 8 percent LEL. Adkins completed
another work permit which he and McKelvey signed, and three of the original four
employees resumed work with the ventilator blowing air into the tank.’ Around 1:30 p.m.,

‘The fourth employee had quit the preceding day.
3

when the temperature was again in the 80’s, the employees left the tank and the ventilator
was turned off for about fifteen minutes while the compressor was refueled. The ventilator
was then turned back on and the employees reentered the tank, after which an explosion
occurred and all three were killed.

                                 29 C.F.R. d 1926.21(b)(6)(i)

    1926.21(b)(6)(i) provides as follows:
    All employees required to enter into confined or enclosed spaces shall be
    instructed as to the nature of the hazards involved, the necessary precautions
    to be taken, and in the use of protective and emergency equipment required.
    The employer shall comply with any specific regulations that apply to work in
    dangerous or potentially dangerous areas.
    Richard McEachern,        the OSHA compliance           officer (“CO”) who conducted            the

inspection, testified he concluded the standard was violated based on his discussions with
McKelvey and Kerr-McGee employees. McEachem said it IS known in the industry that
vaporization occurs as the walls of a tank heat up, and that industry practice is to test
frequently for flammable vapors. He noted that although Kerr-McGee tested the tank each
morning and several times on some days, Adkins tested the tank only once on March 11.
He also noted that while Kerr-McGee was responsible for maintaining the tank in a safe
condition, McKelvey was responsrble for the safety of the employees and did not ensure that
Kerr-McGee tested on a regular and frequent basis. McEachem said McKelvey did not
accompany the Kerr-McGee employees who were testing, and that he indicated he was
unaware of what Kerr-McGee was testing for and unfarniliar with the contents of the permits
he signed? (Tr. 19-21; 32-41; 47-48; 52-53; 58-59; 70-71; 76-77).
McEachem further testified that the industry practice is to complete a permit for
each shift, to extract air rather than blow it in, which increases vaporization, and to use
pneumatic equipment rather than the spark-producing saws Baker used. He identified C-5
as the March 11 work permit, C-6 and C-7 as the confined space entry and hot work permit
procedures of Mobil Oil Corporation, and C-9 as the operating guide for the Skil saws.

2Although McEachem initially suggested the Model 260 indicator was inadequate, he later testified it is used
throughout the industry and was adequate for testing the tank. (Tr. 41-46; 67-70; 84-88; C-8).
4

McEachem noted C-5 was valid for the duration of the work shift, that C-7 prohibits hot
work in tanks with LEL’s over zero percent, and that C-9 prohibits the use of the saws in
the presence of flammable gases or liquids. McEachem believed the LEL was much higher
than 8 percent when the explosion occurred. He said McKelvey indicated the saws were not
being operated at that time, but that a static spark or a spark from a cigarette lighter could
also have caused the explosion. (Tr. 31-32; 46-63; 71-72; 82-84).
Ray Thompson is a manager of employee relations with Baker. He testified Baker
has been in the tank business for over fifty years, is familiar with industry standards, and uses
the required equipment. He further testified the job was performed consistent with industry
practice, and that the contract with Kerr-McGee did not require a spark-free environment
because the tank was cleaned and tested. Thompson said that while Baker did no testing
of its own, McKelvey was familiar with the Model 260 indicator and observed the testing to
make sure Kerr-McGee checked both Oxygen and explosive vapor levels.3 Thompson also
said the employees worked safely for five days, and that Baker had not had a problem in this
regard before. He believed the accident was caused by a static spark and a release of
propane at the facility that was introduced into the tank by the ventilator. (Tr. 96-98;
110912).
Thompson said it is safe to work with an LEL of up to 10 percent. He identified R-l
as the 1986 edition of the Fire Protection Handbook of the National Fire Protection
Association (“NFPA”), and R-3 as the 1985 edition of Publication 2015 of the American
Petroleum Institute (“API”); R-3 states that hot work can be performed safely in a tank with
an LEL not exceeding 10 percent, while R-l provides for a maximum LEL of under 20
percent for such work. Thompson identified R-2 as OSHA’s proposed confined space
standard. He noted R-2 defines a hazardous atmosphere as the presence of a flammable
gas, vapor, or mist in excess of 10 percent LET. He also noted that R-2 does not require
constant monitoring, and that when the LEL is below 10 percent, a hot work permit is good

%he undersigned has noted that Thompson’s testimony about McKelvey’s knowledge and observing the testing
conflicts with that of the CO. This conflict is resolved in favor of the CO, who was credible and had no reason
to misrepresent what McKelvey told him; further, Thompson could have called McKelvey to testify but did
not do so.
5

for eight hours without additional monitoring. Thompson said there was no requirement
ventilators extract air, and that R-3 provides for placing a blower at a bottom manway to

force air into the tank and vapors out through the top! (Tr. 98-110).
Based on the foregoing, the issue to be resolved is whether Baker’s operation at the
refinery was consistent with industry practice. The resolution of this issue requires a
determination of what industry practice dictates in regard to atmospheric testing, work
permits, ventilator positioning and spark-producing equipment.
In regard to testing, R-l and R-3, NFPA’s Fire Prevention Handbook and API’s
Publication 2015, both state that frequent testing should be conducted when hot work is
performed in a tank. See R-l, page 11-39, and R-3, page 14. Moreover, R-3 notes the
importance of retesting, even if initial measurements indicate an acceptable atmosphere,
since heat from the sun can increase vaporization and vapors can enter a tank from an
outside source. See R-3, pages 2, 13, 14. Finally, C-6, Mobil Oil’s confined space entry
procedure, requires continuous monitoring of the atmosphere during confined space entries.
See C-6, page 5.
Baker asserts that R-2, OSHA’s proposed confined space standard, requires no
further monitoring after an initial test showing an LEL of 10 percent or less. This assertion
is evidently based on Baker’s interpretation of language contained in the sample work permit
located in the standard’s appendix. See R-2, page 86. I disagree with Baker’s interpretation
of the permit, especially since there is nothing in the standard itself providing for only an
initial testing? Regardless, based on R-l, R-3 and C-6, it is clear that industry practice
required Baker to assure frequent testing was conducted every day of the job. It is equally
clear that such testing was not conducted, and that Baker was on notice that the tank was
hazardous and that there was a potential for explosion; testing of the tank revealed LEL’s

4Respondent submitted other documentation as attachments to its post-hearing brief. This documentation
is hereby excluded, based on the Secretary’s objection to its not having been presented during the hearing; in
any case, I note that the documentation adds little, if anything, to the matters requiring resolution.

% fact, I note that the sample entry permit in the appendix of the final standard, which became effective on
April lS,l!B3, indicates that corztin~ousmonitoring of LEL’s in confined spaces is required. See 58 Fed. Reg.
4562 (January 14, 1993).
6

ranging from 4 to 22 percent, the LJEL the morning of the accident was 8 percent,
temperatures were reaching the 80’s in the afternoons and outside vapors could have
entered the tank, as Thompson himself testified. Notwithstanding these factors, the tank was
tested only once on March 11, in the early morning, and Baker allowed its employees to
reenter the tank in the afternoon, after the ventilator had been turned off for a period of
time, without retesting the atmosphere. On the basis of the record, it can only be concluded
that Baker’s failure to assure frequent testing was conducted was inconsistent with industry
practice. .

   In regard to work permits, C-5, the March 11 permit, states that a permit is required-.

for confined space entry work and that “[ilnterruption of 8 hours or more or any change in
working conditions requires a new permit.” R-3 indicates at page 14 that hot work permits
are required, but does not specify for how long they should be valid; however, C-6 and C-7,
Mobil Oil’s confined space entry and hot work permit procedures, indicate a permit is
required before either operation and that it is valid only for the duration of the shift on
which it is issued. See C-6-7, pages 2-3. Based on the record, Baker was required to assure
a work permit was completed at the beginning of each day’s ~hift.~ Since it did not, its
operation was not consistent with industry practice.
As regards the positioning of the ventilator, C-6 states at page 5 that “air movers ...
must be ... situated so as to exhaust air from the vessel. Air hoses blowing into vessels shall
not be used for ventilation.” R-3, however, indicates at page 9 that extracting air or blowing
air into a tank are both acceptable, and specifically states at page 10 that “[alnother
mechanical method is to place the blower in the bottom manway and force air into the tank,
allowing the vapor-air mixture to escape through the roof manway.” Based on C-6 and R-3,
the Secretary has not shown that industry practice prohibits blowing air into a tank;
accordingly, Baker’s doing so at the subject site was not inconsistent with industry practice.
In regard to the use of the Skil saws, C-7 prohibits hot work in areas with LEL’s over
zero percent. See C-7, page 2. C-5 and R-3, however, permit hot work when LEL’s do not

%his conclusion is consistent with the sample permit in the appendix of the final standard, which states that
a permit is valid for only eight hours. See 58 Fed. Reg. 4562 (Januaq 14, 1993).
exceed 10 percent, and R-2 defines a hazardous atmosphere as a flammable gas, vapor or
mist with an LEL in excess of 10 percent. ’ See R-2, page 80, and R-3, page 2. Based on
the record, industry practice permits hot work when the LEL does not exceed 10 percent,
and Thompson himself so testified. Regardless, the tank in this case was tested only once
on March 11, and it is axiomatic that without further testing, Baker could not have known
whether the tank’s atmosphere remained at an LEL acceptable for hot work! Accordingly,
Baker’s use of the saws without frequent testing was contrary to industry practice, and a
serious violation of the standard is established.
The Secretary proposed a penalty of $810.00 for this citation item. After giving due
consideration to the employer’s size, history and good faith, as well as to the gravity of the
violation, it is concluded the assessment of a penalty of $810.00 for this item is appropriate.

                                     29 C.F.R. 8 1926.407(b\

    The citation alleges the saws Baker’s employees used in the tank were not approved

for use in a Class I location, exposing them to the hazard of a fire or an explosion.
1926.407(b) provides, in pertinent part, as follows:
Equipment, wiring methods, and installations of equipment in hazardous
(classified) locations shall be approved as intrinsically safe or approved for the
hazardous (classified) location or safe for the hazardous (classified) location.
It is undisputed the saws were not approved for a Class I location, which is defined
as a location “in which flammable gases or vapors are or may be present in the air in
quantities sufficient to produce explosive or ignitible mixtures.” See 1926.449(c). The
Secretary’s position, based on the CO’s testimony, is that the tank was a Class I location
because it contained a residue of water and oil that was producing a vapor with an LEL in
excess of zero percent. Baker’s position is that the tank was not a Class I location and that
use of the saws was not prohibited because the tank was cleaned and ventilated and the
testing of its atmosphere showed the LEL was not in excess of 10 percent.

‘This definition has been retained in the final standard. See 58 Fed. Reg. 4550 (January 14, 1993).

‘Baker’s assertion that the saws did not cause the accident and were used safely for five days is irrelevant. The
issue is whether Baker’s operation was consistent with industry practice. The evidence establishes it was not.
The preceding discussion demonstrates that industry practice allows hot work in tanks
with LEL’s not in excess of 10 percent, but that frequent atmospheric testing of such tanks
is required to assure that LET’s remain within acceptable levels. It also demonstrates that
since Baker failed to assure frequent testing of the tank’s atmosphere, it could not have
known whether the LEL remained within an acceptable level. Had frequent testing been
conducted, Baker’s argument might be persuasive; however, as it was not, it is found the
tank was, in fact, a Class I location and that use of the saws was prohibited. A serious
violation of the standard is established, and the Secretary’s proposed penalty of $810.00,
based on the factors set out supra, is assessed.

                                  Conclusions of Law

   1. Respondent,    Baker Tank Company/Altech, a Division of Justiss Oil Company, Inc.,

is engaged in a business affecting commerce and has employees within the meaning of
section 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject
matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 06 1926.21(b)(6)(i) and
1926.407(b).

                                         Order

   On the basis of the foregoing       Findings of Fact and Conclusions     of Law, it is

ORDERED that:
1. Items 1 and 2 of serious citation number 1 are AFFIRMED, and a penalty of
$810.00 is assessed for each item.

                                                 E. Carter Botkin
                                                 Administrative Law Judge