Fire Resistant Clothing: Anne McLaughlin, Secretary of Labor v. Union Oil Company of California, Chicago Refinery, 869 F2.d 1039

Date: Sep 01, 1995

Union Oil Company suffered a fire and explosion at its Chicago refinery in 1984 that killed seventeen employees when a process unit cracked open and leaked petroleum gas into the atmosphere. Some of the employees responding to the emergency were "operating employees," who were not members of the plant's fire brigade. The Occupational Safety and Health Administration (OSHA) issued citations to Union in connection with the event. In issuing the citations, OSHA took the position that Union should have provided all the employees with fire-resistant clothing for use during fire-fighting activities, as, according to OSHA, was required by the personal protective equipment standard, 29 C.F.R.  1910.132(a), to wit:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. [Emphasis added.]

The Administrative Law Judge (ALJ) decided the general PPE provision cited above did not apply because of the existence of a provision, ' 1910.156(a)(2), which states that the PPE provisions of  1910.156 "apply only to members of fire brigades performing interior structural fire fighting." In other words, because the operating employees were not members of the fire brigade, Union was not required to provide fire-fighting PPE to the operating employees. In addition, te ALJ held that Union was not required to provide fire-fighting PPE to the fire brigade because the accident involved an outdoor fire, rather than an interior structural fire.

The U.S. Court of Appeals for the Seventh Circuit reversed the ALJ's decision.The Court said that despite the provision in  1910.156(a)(2), ;1910.132(a) still applied, and Union had a duty to provide employees with PPE suitable to protect against the hazards to which they were exposed.

The case began when the amine absorber, a cylinder 53 feet tall and 8.5 feet in diameter containing butane and propane gas at high temperatures and pressures, leaked through a "hydrogen stress corrosion crack" near an old weld in the shell. Late in the afternoon in July, 1984, several employees noticed a vapor cloud fifteen to twenty feet long, about twelve feet off the ground. As employees scrambled to open valves and shut down the unit -- unsuccessfully, as it turned out -- the shift fire crew arrived in normal work clothes, even though the crew was instructed that, when called to an emergency, they were to muster in full fire fighting regalia. As the supervisor turned to begin the process of shutting down the unit, it ruptured and an explosion resulted, killing ten members of the fire brigade, five operating personnel, and two security guards.

The Appeals Court disagreed with the ALJ's decision to vacate OSHA's citation for failure to provide fireproof clothing to operating employees, finding that the employees were, indeed, members of the fire brigade. The operating employees, the court said, "who have express firefighting duties are part of the organized group that consists of them plus the members of the two fire crews."

With respect to the members of the fire brigade, the Appeals Court again rejected the ALJ's analysis that, because the requirements applied only when the employees were assigned to fight interior -- but not outdoor -- structural fires, OSHA could not cite Union under  1910.156:

The administrative law judge's interpretation produced a bizarre pattern: Union Oil is not required to furnish the members of its shift fire crew with equipment necessary to protect them from the hazards of fire, because they are members of the company's fire brigade, but is required to furnish operating employees with such equipment because they are not members of the company's fire brigade.

But, the Court said, it is important that the protective clothing to be worn during the types of fire fighting operations reflect the hazards which are expected to be encountered by fire brigade members, citing Appendix A of  1910.156, paragraph 7(A):

"No inference can be drawn, therefore, that in prescribing personal protective equipment suitable for fighting interior structural fires [that] OSHA intended to preclude the application of the general regulation on personal protective equipment to members of fire brigades engaged in fighting other types of fire."

The Appeals Court upheld OSHA's appeal with respect to its assertion that both groups of employees, operating personnel and members of the fire brigade, should have been provided fireproof PPE under the general requirement to provide PPE when the hazards encountered by employees warrant it.

The Court also rejected OSHA's assertion that the violation was willful. It is not enough for OSHA to show that the company violated the general prescription to provide PPE. The violation was not apparent at the time of the event, in part because it was not clear that employers had to provide such PPE even to fire brigade members in oil refineries. According to the court, "[a] violation is not willful when it is based on a nonfrivolous interpretation of OSHA's regulations." Based on this case, it is questionable whether an employer in the oil or chemical industry who failed to provide such clothing today would be able to avoid a willful citation under similar circumstances.

This article appeared in Compliance Magazine (September 1995) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.