Albemarle Corp. v. Herman

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________

No. 99-60425
__________________

ALBEMARLE CORPORATION,

Petitioner,

versus

ALEXIS M. HERMAN, SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR; OIL, CHEMICAL
& ATOMIC WORKERS INTERNATIONAL UNION;
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.
_________________________________________________________________

Petition for Review of an Order of the Occupational
Safety and Health Review Commission
_________________________________________________________________

August 7, 2000

Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Concerning three OSHA citations for violations at Albemarle

Corporation’s chemical plant of then new process safety management

standards, 29 C.F.R. § 1910.119, at issue are: the level of detail

required by subpart (f)(1) for written operating procedures;

whether Albemarle violated subpart (f)(4), which requires safe work

practices; and whether an operator’s failure to perform operating

procedures without assistance demonstrates a need for refresher

training and, concomitantly, violates subpart (g)(2)’s requirement
to conduct refresher training as needed. The petition for review

is DENIED.

I.

The standards at issue were enacted in 1992. See Process

Safety Management of Highly Hazardous Chemicals; Explosives and

Blasting Agents, 57 Fed. Reg. 6356 (1992). The citations arose out

of two inspections of Albemarle’s chemical facility at Pasadena,

Texas. Following the first, in November 1992, nine “serious”

citations were issued. After a hearing before an ALJ, eight were

vacated. The remaining citation concerned Albemarle’s work

practices in “line clearing” and “slipblinding” in the Multi-

Product Unit (MP-1), with a $5,000 penalty being imposed.

The second inspection, in January 1993, followed an incident

in the SWAG reactor. Four “serious” citations were issued. The

ALJ affirmed all four, with a $5,000 penalty for each.

After Albemarle petitioned the Occupational Safety and Health

Review Commission (OSHRC) for review, the Secretary of Labor

voluntarily dismissed two of the five citations. In OSHRC’s first

review of claimed violations of the process safety management

standards for highly hazardous chemicals, the remaining three

citations (one for slipblinding, two for SWAG reactor) were

affirmed in April 1999, approximately three and one-half years

after the ALJ’s decision.

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 II.

OSHRC’s decisions are reviewed to determine whether they are

supported by substantial evidence and in accordance with law.

E.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1276

(5th Cir. 1981).

In pertinent part, 29 C.F.R. § 1910.119 provides:

(f) Operating procedures

(1) The employer shall develop and implement
written operating procedures that provide
clear instructions for safely conducting
activities involved in each covered process
consistent with the process safety information
and shall address at least the following
elements.

(i) Steps for operating each phase:

(A) Initial startup;

(B) Normal operations;

....

(E) Emergency Operations;

(F) Normal shutdown;

....

(4) The employer shall develop and implement
safe work practices to provide for the control
of hazards during operations such as ...
opening process equipment or piping....

....

(g) Training.
....

(2) Refresher training. Refresher training
shall be provided at least every three years,

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 and more often if necessary, to each employee
involved in operating a process to assure that
the employee understands and adheres to the
current operating procedures of the process.
The employer, in consultation with the
employees involved in operating the process,
shall determine the appropriate frequency of
refresher training.

(Emphasis added.) Subparts (g) and (f) became effective on 26 May

and 26 August 1992, respectively.

A.

The November 1992 citation, for violation of subpart (f)(4),

stated Albemarle did not “develop and implement safe work

practices” for “the MP-1 Unit where written procedures for opening

lines and installing slipblinds are not available”. (Emphasis

added.) “Line clearing” concerns removal of chemicals from a line

prior to opening it; “slipblinding”, opening the line and inserting

a flat metal plate crosswise to prevent chemicals from flowing.

Slipblinds are used when MP-1 changes the chemical being produced.

The ALJ affirmed: “This item was based on the [compliance

officer’s] determination there were no written procedures

addressing preparing lines before opening them to install slip

blinds”. (Emphasis added.) Likewise, the ALJ found “there were no

written procedures addressing line evacuation before opening them”.

(Emphasis added.)

OSHRC affirmed, but on different grounds. Looking to the

regulation, it concluded that safe work practices did not have to

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be written. It held, nevertheless, that insufficient safe work

practices had been shown, because “only one person in the MP-1 Unit

could describe a particular practice for ensuring that the

pipelines were clear”.

1.

Concerning this shift in bases for upholding the citation, the

Secretary maintains: the regulation requires written safe work

practices; and, because she is charged with enforcing the

regulation, her interpretation is entitled to deference. See

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (court

owes deference to agency’s interpretation of its own regulations).

But, as is the case here, the Secretary’s interpretation is not

entitled to deference if it is unreasonable or contrary to the

regulation’s plain language. See Martin v. OSHRC, 499 U.S. 144,

156-57 (1991).

Requiring the safe work practice to be “written” is not found

in subpart (f)(4). On the other hand, subpart (f)(1) does require

“written operating procedures”. Obviously, if work practices

covered by subpart (f)(4) were also to be written, the regulation

could — and would — have so stated. Cf. Russello v. United States,

464 U.S. 16, 23 (1983) (If Congress includes particular language in

one section, but omits it in another section of the same Act, it is

presumed that Congress acted intentionally and purposefully and we

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will refrain from concluding the different language means the

same.).

To support her interpretation, the Secretary points to the

regulation’s preamble, which refers to the requirement that the

employer provide employees written safety and operating procedures,

emphasizing hazards and safe practices. See Process Safety

Management of Highly Hazardous Chemicals; Explosives and Blasting

Agents, 57 Fed. Reg. 6356, 6380 (1992). The preamble need be

consulted, however, only when, unlike here, the regulation’s plain

language is ambiguous. Cf. Russello, 464 U.S. at 20.

2.

In the alternative, the Secretary claims: Albemarle has not

shown prejudice, because it was always charged with violating

subpart (f)(4); and the evidence supports finding it did not have

sufficient practices.

Maintaining that OSHRC improperly amended the citation from

lack of written, to insufficient, practices, Albemarle contends it

challenged the citation on the basis that a writing was not

required. According to the Secretary, however, this was merely a

change in legal theory, not an amendment, by OSHRC.

So changing the basis of the citation is not simply a change

in legal theory. It is a change in its factual basis, an

amendment. Albemarle’s no-writing-requirement was a defense to

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failing to have written, not a defense to failing to have

sufficient, safe work practices.

But, Albemarle must demonstrate prejudice. The citation can

be amended, even after judgment, if “evidence relevant to an

unpleaded issue has been introduced at trial, without objection,

from which consent to the consideration of the issue can be

implied”. Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d

1289, 1293 (5th Cir. 1981). It goes without saying that amendment

“should not be permitted where it would operate to deny a party a

fair opportunity to present evidence to newly-added issues”. Id.

At the administrative hearing, employee/operator Redd

testified he had: received “no really formal training” for

slipblinding; and had not received written instructions for it.

Employee/operator Dixon testified he: could not recollect ever

receiving written instructions for slipblinding; was instructed,

when opening lines, to “proceed with caution”; and learned how to

slipblind by watching others. MP-1 unit operations superintendent

Runk, called by Albemarle, testified there was no standardized

method for line clearing.

In sum, evidence concerning whether there were safe work

practices was presented, without objection, at the administrative

hearing. Accordingly, Albemarle had a fair opportunity to present

evidence of its work practices and was not prejudiced by the

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amendment. And, its employees’ testimony provides substantial

evidence supporting finding insufficient safe work practices.

3.

For subpart (f)(4)’s requirement to “develop and implement

safe work practices to provide for the control of hazards during

operations”, Albemarle claims it lacked fair notice because “safe”

and “control” are not defined. Therefore, it asserts the Secretary

had to show Albemarle either knew the practices were unsafe or

violated industry standards.

OSHRC did not find Albemarle had developed improper or

substandard work practices, or that different ones were preferred.

Instead, it concluded that Albemarle failed to develop safe work

practices. Employees were left on their own to decide how to

perform line clearing and slipblinding. That constitutes the

absence of safe work practices. Whether the definitions of “safe”

and “clear” are vague is irrelevant, in the light of the finding

that safe work practices were not developed at all.

4.

Concerning the penalty, Albemarle maintains that the violation

was not “serious”. For a violation to be “serious”, there must

exist a

substantial probability that death or serious
physical harm could result from a condition
which exists, or from one or more practices,
means, methods, operations, or processes which
have been adopted or are in use, in such place
of employment unless the employer did not, and

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 could not with the exercise of reasonable
diligence, know of the presence of the
violation.

29 U.S.C. § 666(k).

Several operators testified they had been splashed by

chemicals when opening lines. Those chemicals included xylene,

maelic anhydride, and DETDA, all of which can cause severe chemical

burns. Recognizing that risk, Albemarle requires operators: to

wear protective equipment when opening lines; and to know, prior to

doing so, the location of the nearest shower (to remove splashed

chemicals). In addition, when lines are opened, a dedicated safety

individual must be present. Substantial evidence supports finding

the violation “serious”.

B.

Albemarle’s SWAG reactor is part of the plant’s Olefin

production area and is where the chemicals are manufactured. In

January 1993, Albemarle scheduled the reactor for shutdown in order

to replace valves.

Employee/operator Hewitt conducted the shutdown according to

written instructions provided by supervisor Myer. Hewitt then

worked a second shift and noticed that several pumps had been

depressurized, indicating a system problem. He corrected the

problem by “blocking and bleeding” the SWAG reactor, but only with

the assistance of the foreman and supervisors. Two citations

concerning this incident are at issue.

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 1.

Albemarle was cited for violating subpart (f)(1) — failing to

have sufficiently detailed written operating procedures:

[I]n the Olefins Units ... the specific
shutdown procedures for [6 January 1993,
prepared by supervisor Myer,] omitted the
water supply block and bleed for the alkyl
exchanger; and, the [Albemarle] ISO document
40-8.1 on SWAG shutdown did not contain
sufficient detail on the procedure.

Albemarle’s ten page ISO 9000 document on “Olefin Plant

Shutdown for Maintenance” included eight steps for shutting down

the SWAG reactor, with step eight stating: “Activate the SWAG

block and bleed system”. This is the only reference to activating

that system. Hewitt testified that the system consists of “a

series of switches that shut actuated valves that block water to

and from exchangers, as well as open[ing] actuated valves that

drain any water trapped on the exchanger to the sewer. On a couple

of exchangers it is necessary to use hand operated chain valves”.

In affirming, the ALJ found: the operator followed the

supervisor’s handwritten instructions; they did not mention

activating the block and bleed system; and activating that system

is vital to safely shutting down the reactor. OSHRC held that the

single line in Albemarle’s ISO document did not provide clear

instructions for activating the block and bleed system and did not

address the steps necessary for operating it.

a.

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 Subpart (f)(1) requires that written instructions address

“[s]teps for operating each phase”, including “shutdown”. 29

C.F.R. § 1910.119(f)(1)(i). The daily instructions given Hewitt

did not include activating the block and bleed system. The ISO

document contains only a single sentence on the matter. Obviously,

that sentence is insufficient when several switches must be

activated. Furthermore, that sentence did not instruct on how to

safely operate the system.

This notwithstanding, Albemarle contends: the single line in

the ISO document was sufficiently detailed, based upon the training

given its operator; it is impossible to incorporate each and every

step in the document; and the regulation left to Albemarle’s

discretion how much detail to include.

Hewitt testified: during shutdown, he did not perform the

block and bleed procedure, because it was not listed on the daily

written instructions; and he could not remember if he had performed

it the previous occasion he shut down the reactor. Substantial

evidence supports finding the written instructions were not

sufficient, given Hewitt’s level of training.

b.

Concerning subpart (f)(1)’s requirement to “provide clear

instructions for safely conducting activities”, Albemarle contends,

as it did for subpart (f)(4): it was denied fair notice because

“clear” and “safely” are not defined and do not inform what level

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of detail is required in the instructions; and, therefore, the

appropriate standard is the common industry practice. Furthermore,

according to Albermarle, OSHRC did not show that Albemarle deviated

from such common industry practice.

Albemarle’s daily instruction does not mention blocking and

bleeding the reactor, and the ISO document gives no instruction on

how to do so. Thus, how much detail “clear” and “safely” require

is irrelevant, because Albemarle did not have written instructions

on how to block and bleed.

2.

Albemarle was also cited for violating subpart (g)(2) —

failure to conduct refresher training as needed:

In the Olefins units ... the specific shutdown
procedures for [6 January 1993, prepared by
supervisor Myer], omitted the water supply
block and bleed for the alkyl exchanger; and,
the ISO document 40-8.1 on SWAG shutdown did
not contain sufficient detail on the
procedure, and training was not done to assure
that each employee was aware of the
requirements of the ISO procedure’s direction,
“Activate the SWAG block and bleed system.”
Refresher training should be sufficient to
alert the employee to significant details
which may be omitted or overlooked.

(Emphasis added.)

Albemarle contends: the citation should be vacated, because

OSHRC affirmed a violation that was never charged (refresher

training needed in handling process upsets); subpart (g)(2)

requires refresher training in operating procedures, but handling

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process “upsets” is not an operating procedure; Albemarle lacked

fair notice that refresher training was necessary; and the

Secretary did not show Albemarle knew such training was necessary.

a.

Despite its claim that OSHRC amended the citation from

requiring refresher training in operating the block and bleed

system to handling process upsets, Albemarle was, at all times,

charged with violating subpart (g)(2), based upon Hewitt not

blocking and bleeding the SWAG reactor during shutdown and later

requiring assistance to do so. Moreover, refresher training was

needed to ensure Hewitt knew when, and how, to operate the block

and bleed system.

The citation was not amended. The evidence supports the

finding that Hewitt needed refresher training on SWAG shutdown,

specifically that it included blocking and bleeding the reactor.

b.

For its claim that the regulation requires refresher training

on operating procedures, not “handling upset conditions”, Albemarle

is focusing on the use of the term “upset conditions” in OSHRC’s

opinion. Albemarle is taking the phrase out of context.

Subpart (f)(1), which requires written instructions for

operating procedures, lists “normal shutdown” as such a procedure.

Blocking and bleeding the SWAG reactor is part of “normal

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shutdown”. As noted, in Albemarle’s ISO document, it is listed as

a step for that procedure.

OSHRC held that “an operator conducting a reactor shutdown

must be able to handle a potentially explosive situation without,

at the last minute, having to seek the assistance of supervisors or

consult the ISO procedures”. Accordingly, OSHRC determined:

“upset conditions” occur during reactor shutdown; and Hewitt needed

refresher training in handling them.

c.

Concerning the claimed lack of fair notice, as well as failure

to show, that refresher training was necessary, subpart (g)(2)

requires Albemarle to consult with employees to determine when such

training is necessary. It failed to do so, as evidenced by the

OSHA compliance officer testifying that Albemarle was not so

consulting. Substantial evidence supports finding that, had

Albemarle complied with this aspect of the subpart, it would have

known such training was necessary.

3.

Albemarle maintains there is no evidence to support finding,

and in fact there was no finding, that the reactor incident was

“serious”. Again, a “serious” violation exists if there is a

substantial probability of death or physical harm from the existing

condition.

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 According to the compliance officer, the failure to block and

bleed set up conditions where there was a tremendous release of

heat and threatened the integrity of the system. The ALJ found

that the failure to block and bleed caused a pressure increase,

which could have resulted in an explosion. Likewise, OSHRC found:

the “potential for death or serious physical harm from a SWAG

reactor explosion is not disputed”; and the reactor could have

exploded had the block and bleed system not been activated.

Substantial evidence supports finding the violations were

“serious”.

III.

For the foregoing reasons, the petition for review is

DENIED.

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