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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