Tampa Electric Company

Plain-English summary

An anhydrous ammonia release occurred at Tampa Electric Company's Big Bend power plant. OSHA cited the company's emergency response plan and the respiratory protection used by employees who investigated the release. The judge found that the Secretary improperly treated the emergency-response planning provision as a detailed specification standard and did not prove that Tampa Electric's plan was inadequate under the applicable performance standard. The respiratory protection item was also vacated because the Secretary did not establish that employees were exposed above the permissible exposure limit for ammonia. Both citation items were vacated with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.120(q)(2); 29 C.F.R. § 1910.120(q)(3)(iv)
• Outcome: Both ammonia emergency-response items vacated; no penalty assessed.
• Key point: A performance-based emergency plan cannot be converted into detailed requirements without proof that reasonable industry practice required those measures.

Full text (OSHRC public release)


Tampa Electric Company Docket No. 17-2144

Some personal identifiers have been redacted for privacy purposes

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
17- 2144

TAMPA ELECTRIC COMPANY ,

Respondent.

DECISION AND ORDER

COUNSEL :

Melanie Stratton, Jonathan Hoffmeister, Attorneys, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant.

Phillip B. Russell, Melissa A. Bailey, Aaron Morris
Wilensky, Dee Anna D. Hays,
Attorneys,
Ogletree, Deakins, Nash, Smoak & Stewart, PC
,
Tampa, FL, for Respondent.

JUDGE : John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

This case ar ose
from an anhydrous ammonia release that occurred on May 23, 2017 ,
at the Big Bend Power Plant (“Big Bend”) in Tampa, Florida (“the worksite”), operated by Tampa Electric Company
( “TECO”). T he
Department of Labor’s Occupational Safety and Health Administration ( “ OSHA ” )
conducted a n
investigation
and
subsequently
issued a
two - item citation to
TECO
for alleged
violati ons of
the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 651–678, with proposed penalties of $ 18 ,108.00 . 1

After
TECO
timely contested the
citation, the Secretary
of Labor ( “ Secretary ” )
filed a formal complaint 2
with the Commission charging
TECO
with violating the Act and seeking an order affirming the citation and proposed penalties .
A
bench trial was held in
Tampa , Florida.

There is no dispute that jurisdiction of this action is conferred upon the Commission by section 10(c) of the Act, 29 U.S.C. § 659(c), that
TECO
is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) , or that TECO’s
principal
place of business is
in
Tampa, Florida
(Compl. ¶¶ I-I I I; Answer ¶¶ I-I I I ;
see also
Jt. Prehearing Stat e.
¶¶
V(A)
and
V(E) ).

A fter hearing and carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the proceedings. 3

For the reasons indicated
infra , the Court
VACATES
both I tem s
1
and
2
of the citation .

II.
BACKGROUND 4

TECO operates a coal-fired power plant located
in
Apollo
Beach, F lo rida.
TECO uses anhydrous ammonia in its Selective Catalytic Reduction ( “ SCR ” ) system to lower
the amount of NOx emitted from its boilers. Instead of storing large quantities of anhydrous
ammonia onsite, they receive it on an as-needed basis via a pipeline from the Tampa Bay
Pipeline Company. The ammonia skid is the portion of the site where the pipeline comes
above ground and the anhydrous ammonia is reduced in pressure and then heated to form a
vapor to be used in the SCR. The skid consists of two identical 'trains' (A train and B train).
Typically, only one train is in use at a time. All of the pressure relief devices associated with
the ammonia skid have their discharge sides hard-piped into a water-filled sump. The
ammonia system is continuously monitored and remotely controlled by the distributed
control system ( “ DCS ” ). Its displays/interfaces are seen by the operators in the control room.
The entire skid rests on expanded metal decking and is several feet above ground. There are
atmospheric ammonia detectors installed in several locations on the skid. There are
emergency breathers located at the top of each of the three sets of stairs leading up to the
skid. There is also a windsock at the northwest comer of the skid. The water-filled sump is
located below ground level and beside the southwest stairs. There is a remotely-operated
emergency shutoff valve located just after the piping emerges from underground to the north
of the raised skid. There is another emergency stop station across the street from the south
side of the skid.

The anhydrous ammonia supplied by the pipeline is in liquid form and at a pressure
too high for the TECO SCR system to use. The purpose of the ammonia skid is to
first reduce the pressure of the liquid ammonia and then heat up the liquid to form an
ammonia vapor suitable for the SCR system. Each train on the skid has two pressure
relief valves ( “ PRV ” ). The purpose of a PRV is to provide a controlled outflow of
process material during a high-pressure surge event. Instead of rupturing the pipe
resulting in an uncontrolled release, the seat of the PRV will lift until the system
pressure falls below its setpoint and then it will reseat. In this case, the outlet of each
vent is hard-piped to a water-filled sump. Since ammonia is soluble in water, this
system design will capture ammonia co m ing from the PRVs.

On the morning of May 23, 2017, the ammonia pipeline supply pressure was fluctuating.
The
B train was in service but was having problems maintaining appropriate supply pressure for
the SCR's. The A train was also brought on-line at approximately 5 a.m., to help control the
system pressure. According to TECO process data, at
approximately 11:18 a.m. the supply pressure jumped from 250 psig to 375 psig and then
settled out at about 350 psig. During this spike, a pressure relief valve in B train lifted and
ammonia was discharged through the piping into the sump.

At approximately 12:06 p.m. the overhead alarm came in on the common alarm screen in the
control room from point OAAHG 108A, indicating the atmospheric ammonia detector on the
southwest comer of the skid, beside the sump vent had detected ammonia. The common DCS
system had just been upgraded and the audible alarm was not yet in service, therefore, the
control room operators did not immediately recognize the alarm had triggered. When this
alarm tripped at the skid, a local, audible horn sounds, as well.
[redacted] , a
Critical Intervention Services ( “ CIS ” ) employee assigned to Gate 50, heard the alarm at
approximately 12:30 p.m .

Instead of
retu rn ing to Gate 50 to notify TECO,
[redacted]
drove his vehicle to the south
side of the ammonia skid and parked it.
[redacted]
incorrectly assumed the audible alarm
was for a door to the small building on the skid.
[redacted]
left his vehicle to investigate and
walked up the southwest stairs right beside the sump vent.
[redacted]
inhaled the ammonia
vapors present in
the sump vent gases and immediately returned to his truck.
[redacted]
then
notified his supervisor.
[redacted] , his supervisor and another CIS employee made several
trips to and from the skid, Gate 50 and Gate 32. A CIS employee called the local fire
department.

TECO ’s
control room was notified of the alarm. The control room operator ,
William Bruegger ,
determined the
pressure control valve on B train had lifted and vented ammonia into the sump.
( Id. ) H e radioed
to
Curtis Garland, plant operator
( a
rover )
to go to the skid, assess the situation, and stop the leak.
( Id. ) Ronnie Howard ,
George Cantrell , and
Garland helped close a relief valve located at Train B at the ammonia skid
even though none of them had any
ammonia detection equipment on
them and were not wearing
positive pressure respirator s .

I I I. ANALYSIS

Section
1910.120(q)
of the
Hazardous Waste Operations
a nd Emergency Respons e
( “ HAZWOPER ” )
standard
“ covers employers whose employees are engaged in emergency response no matter where it occurs ”
and

requires employers
to develop and implement an emergency response plan “to handle anticipated emergencies prior to the commencement of emergency response operations . ”
29 C.F.R.
§ 1910.120(q) (1) .
TECO
admits
the
HAZWOPER
standard applie s
to its facility
since
its rovers are designated to engage in emergency responses (Resp’t’s Br.
at
34) .
TECO was cited with two separate violations of
§ 1910.120(q) .

Item 1 alleges a
serious
violation of §
1910.120(q)(2) , which
establishes the minimum required elements of an
emergency response plan , which TECO calls an “ Integrated Contingency Plan ”
(“ICP”) . 5

Item 2 alleges a
serious
violation of
§
1910.120
(q)(3)(iv) , which requires the use of
positive pressure self-contained breathing apparatus while engaged in
an
emergency response
involving an
inhalation hazard .

In the Eleventh Circuit, the jurisdiction in which this case arose, 6
“[t]o make a prima
facie showing that an employer violated an OSHA standard, the Secretary must show: “(1) that
the
regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard
that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act’s
requirements.”
Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor , 567 F. App'x 801, 803 (11 th
Cir. 2014) (citation omitted).

“If the Secretary establishes a prima facie case with respect to all
four elements, the employer may then come forward and assert the affirmative defense of
unpreventable or unforeseeable employee misconduct.”
Id. , 567 F. App'x at 803 (citation
omitted).

However, “[a]s has often been said, OSHA does not impose strict liability on an
employer but rather focuses liability where the harm can in fact be prevented.”
Central of Ga. R.R. Co. v.
Occupational Safety and Health Review Comm'n , 576 F.2d 620, 623 (5th Cir.1978). 7 The Court addresses
infra , each citation item separately.

A . Item 1

Section
1910.120 (q)(2)
requires the
employer
to
develop a n
emergency response plan
for emergencies
that
address, as a minimum, the following
elements
to the extent that they are not addressed elsewhere:

(i) Pre-emergency planning and coordination with outside parties.

(ii) Personnel roles, lines of authority, training, and communication.

(iii) Emergency recognition and prevention.

(iv) Safe distances and places of refuge.

(v) Site security and control.

(vi) Evacuation routes and procedures.

(vii) Decontamination.

(viii) Emergency medical treatment and first aid.

(ix) Emergency alerting and response procedures.

(x) Critique of response and follow-up.

(xi) PPE and emergency equipment.

(xii) Emergency response organizations may use the local emergency response plan or the state emergency response plan or both, as part of their emergency response plan to avoid duplication. Those items of the emergency response plan that are being properly addressed
by the SARA Title III plans may be substituted into their emergency plan or otherwise kept together for the employer and employee's use.

29 C.F.R. §
1910.120(q)(2) .
A s amended,
the Secretary
allege s
i n Item 1
TECO ’s
ICP
did not have all of the following minimum requirements:

iv.

Safety distances and places of refuge;

vi.

Evacuation routes and procedures;

vii. Decontamination;

xi.

PPE and emergency equipment .

Whether
Cited Standard Applied

TECO admits the
requirements of
§
1910.120 (q)(2) applied to
its
operations and
its ICP was required to meet
§ 1910.120 (q)(2) .
( See
Jt. Prehearing State. ¶
V( D ) .) Therefore,
§
1910.120 (q)(2)
applie d
to the cited conditions.

Whether Requirements of Standard Met

To determine the meaning of a standard, the Commission and the courts consider the language of the standard, the legislative history, and, if the drafter's intent remains unclear, the reasonableness of the agency's interpretation.
Arcadian Corporation , 17 BNA OSHC 1345, 1346
(No. 93-3270, 1995),
aff'd , 110 F.3d 1192 (5th Cir. 1997).

“Congress intended to delegate to the Commission the type of nonpolicymaking
adjudicatory powers typically exercised by a court in the agency-review context.

Under this
conception of adjudication, the Commission is authorized to review the Secretary's
interpretations only for consistency with the regulatory language and for reasonableness.”
Martin v.
Occupational Safety and Health Review Comm'n , 499 U.S. 144, 152-55 (1991).

C it ing
to OSHA Instruction CPL-02-02-073
(“Directive”) , 8
t he Secretary asserts “TECO did not comply with four of the twelve subparts listed by § 1910.120(q)(2).” (Compl’t’s Br. at 9) ( citing
Ex. R-5). Assuming ,
arguendo , this Directive is OSHA’s
construction of its own regulations , 9
the Secretary must first show
the meaning of
the
standard
is ambiguous, that is,
the meaning of
the standard “ is not free from doubt .” ( Id. )
He has made no such showing
and his brief
makes no mention of any ambiguity in the cited portions of the
HAZWOPER
standard . Further, even if
the
standard is ambiguous, the
Secretary's interpretation
must
“ sensibly conform []
to the purpose and wording of the regulations , ”
Martin , 499 U.S.
at
1 50 –51 , which, as indicated
infra , it does not .

T here is no question that
§
1910.120 ( q )( 2 )
is a “performance” standard.
It identifies an objective—
the
develop ment of
a n
emergency response plan for emergencies
that
address es the
minimum requirements
related to the
four cited elements —but does not specify the means for accomplishing it.
Cent. Fla. Equip. Rentals, Inc. , 25 BNA OSHC 2147, 215 0
(No. 08-1656, 2016).

“ Such broad standards may be given meaning in particular situations by reference to objective criteria,
including the knowledge of reasonable persons familiar with
the industry.”
Siemens Energy & Automation, Inc. , 20 BNA OSHC 2196 (No. 00-1052, 2005).
“ B ecause performance standards ... do not identify specific obligations, they are interpreted in light of what is reasonable . ”
Thomas Indus. Coatings, Inc. , 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007) ;
see also McGraw Constr. Co. , 15 BNA OSHC 2144, 2148
(No. 89-2220, 1993) (applying reasonable person test) ;
Siemens , 20 BNA OSHC
at n. 8 ( employer's exercise of discretion is judged by reasonable person or
“ reasonably prudent employer ”
standard ) .

In
promulgating
this
performance standard ,
the Secretary
clearly
recognized that a
“ one size fits all ”
approach would not work. He cannot come back now and say he put in the
Directive
what he affirmatively chose not to put in
this performance standard, which by its nature provides TECO
“ with a certain degree of discretion in determining what ... is appropriate to ensure that its program meets the standard's stated objective.”
Cent. Fla. Equip. , 25 BNA
OSHC at 2150 (quoting
Siemens , 20 BNA OSHC
at
2198 ) .
To the extent the Secretary now seeks to
identify specific obligations
vis-
à -vis the
Directive, he is
attempting to
improperly convert this performance standard to a
specification standard .

Therefore, the Court concludes
since the
Directive
impos es
specific obligations , it
is an un reasonable
interpretation
of
§
1910.120 (q)(2)
since it does not
“ sensibly conform ”
to the purpose
of that provision, which is to be a performance standard .

Under Commission precedent, the Secretary can prove a violation of a broadly-worded standard by showing that a reasonable person familiar with the situation, including any facts unique to the particular industry, would recognize a hazardous condition requiring the use of protective measures.
Farrens Tree Surgeons, Inc. , 15 BNA OSHC 1793, 1794 (No. 90-998, 1992). The Commission has held that evidence as to current industry practice is relevant but is not dispositive.
Brooks Well Servicing, Inc. , 20 BNA
OSHC
1286,
1291
( No. 99-0849 , 2003)
( citing
Baker Tank Co. , 17 BNA OSHC 1177, 1179 (No. 90-1786-S, 1995) ) . However, binding
Fifth Circuit
precedent
differs from that of the Commission's reasonable person test. While Commission precedent holds that industry custom and practice are useful points of reference but are not controlling, the Fifth Circuit has stated that, when a reasonable person test is used to determine what is required under a general standard, there should be a close identification between the projected behavior of the reasonable person and the customary practice of employers in the industry.
B & B Insulation v.
Occupational Safety and Health Review Comm'n , 583 F.2d 1364, 1370 (5th Cir. 1978) . 10
S ee also S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm'n , 659 F.2d 1273 (5th Cir.
Unit B
1981)
( in the absence of a clear articulation by Commission of circumstances
when
industry practice is not controlling, due process requires showing that employer failed to provide
what is
customarily required in its industry ) .

With respect to
§§
1910.120 (q)(2)( iv ),
1910.120 (q)(2)( vi ), and
1910.120 (q)(2)( xi ),
the Secretary proffered
no evidence that employers in
TECO’s
industry would customarily
include in their
emergency response plan s
the
specific obligations
imposed
by
OSHA
in the
Directive . Likewise, the Secretary proffered
no evidence
TECO ’s
emergency response plan
was not “ reasonable ”
under the circumstances . Instead, t he only evidence
the Secretary
offered was
that
TECO
did not
implement
the
specific obligations
imposed in
OSHA’s Directive . 11

Th us , the
Court concludes the
Secretary has failed to establish TECO violated
§§
1910.120 (q)(2)( iv ),
1910.120
(q)(2)( vi ), and
1910.120 (q)(2)( xi ) .

A s to
§
1910.120(q)(2) (vii),
“ d econtamination ”
is defined
in
the
HAZWOPER standard
as “the removal of hazardous substances from employees and their equipment to the extent necessary to preclude the occurrence of foreseeable adverse health
[e] ffects.” 29 C.F.R. § 1910.120(a)(4).

Appendix C, the Compliance Guidelines to
§
1910.120 , indicates:

D econtamination procedures should be tailored to the specific hazards of the site, and may vary in complexity and number of steps, depending on the level of hazard and the employee's exposure to the hazard .
Decontamination procedures and PPE decontamination methods will vary depending upon the specific substance, since one procedure or method may not work for all substances. Evaluation of decontamination methods and procedures should be performed, as necessary, to assure that employees are not exposed to hazards by re-using PPE.

29 C.F.R. § 1910.120, App. C .

The
Secretary
argues
TECO’s
emergency response plan
“has no provisions for decontaminating emergency responders”
and
“discusses decontamination of equipment in only the broadest of terms—that equipment should be refitted for its intended use and contaminated consumables will be ‘disposed of as hazardous wastes.’ There is no explanation of how equipment should be cleaned or what equipment should be decontaminated rather than disposed of.”
(Compl’t’s Br. at 11) ( citing
Tr. 327:10-15 ,
22-328:6 ;
see also
Ex. R-5, p.
24-25 ).
TECO’s
asserts its
emergency response plan addresses decontamination of people and equipment , since it provides
8-hour HAZWOPER Refresher Training,
its
ICP
contains
first aid measures, and
it has
a
safety data sheet for anhydrous ammonia , all of which
TECO asserts,
cover decontamination.
(Resp’t’s Br. at 38) ( citing
Tr. 546 ;
Ex. R-11 at TECO_000025; Ex. R-4 at SEC000791; Ex. R-9 at TECO 000561 ) .

TECO’s ICP provides:

In the affected area(s) of the facility, the cleanup response team must ensure that no material
and/or waste that may be incompatible with the released material are brought onsite until
cleanup procedures are completed. Confirmatory testing may be required to determine the
area is safe for direct human contact. The fire protection system, secondary containment, and
emergency equipment must be cleaned or otherwise fit for its intended use before operations
are resumed to no rm al.
The determination that the facility can be safely reoccupied will be made by the Incident
Commander. All equipment will be decontaminated after its use.

( Ex. R-4
§
2.2 . ) Further
it provides ,

T he environmental coordinator will
e n s ure that all
T EC-owned equipment listed in the contingency plan is cleaned and fit f o r its intended use before b eing
placed back
into inventory. Consumables will be re s toc k ed. Co n taminated consumables will be ha n dled and disposed as solid or hazardous wastes, depending on the nature and extent of contamination. The con tr actor is responsib l e for ens u ring that the equipment used in recovery a n d cleanup is decontaminated before being moved to unaffected locations.

( Ex. R-4
Annex 3
§
A.3-4.6.)

TECO’s Checklist CP-18 Chemical Specific Response: A nhydrous
Ammonia
in
its
ICP
also has a first aid provision indicating :

Substance

PPE

Response

Anhydrous

Ammonia

Refer to MSDS sheet(s) for appropriate respiratory protection and personal protective equipment (PPE) requirements or contact #E for technical assistance

FIRST AID

Eye Contact : Flush eyes with water for at least 15 minutes and seek medical attention.

Skin Contact : Flush with large quantities of water and seek medical aid.

Inhalation : Remove from exposure. If breathing has stopped or is difficult, administer artificial respiration and oxygen as needed . Seek medical attention.

Ingestion : DO NOT INDUCE VOMITING . Drink large amounts of water and seek

medical attention.

( Ex. R-4
p. 65)
Without any supporting authority, the Secretary argues, “ first aid procedures are not the same as decontamination procedures. An emergency responder who wears appropriate personal protective equipment may never need first aid but could still need decontamination. Conversely, a responder receiving first aid could unintentionally harm those trying to assist him if he is not properly decontaminated. ”
(Compl’t’s Br. at 11
n. 8. )

TECO’s
also
maintains a Safety Data Sheet on ammonia
(referenced in the ICP) , which
states :

Section 4.

First-aid
measures

Eye
contact:

Immediately
flush
eyes
with
excess,
low-pressure
potable
water
for
at
least
15
minutes;
lift
eyelids
in process.

Remove contacts
ASAP
.
Seek
immediate
medical
aid.
Symptoms:

Redness,
severe
burning
&
watering
of
the
eyes.

Liquid ammonia
may
cause
frost
bite.

Effects:

Possible
permanent
damage
or
even
blindness.

I nhalation:
Remove
from
exposure.
If
breathing
is
difficult
or
has stopped,
provide
oxygen
or
artificial
respiration
as
appropriate.
Seek
immediate
medical
aid.
Symptoms:
Severe
burning
of
nose
&
other
parts
of
respiratory
system.

Effects:

Possible
permanent
damage
to
respiratory
system
(including
lungs)
or
even
death.

Skin
contact:

Immediately
flush
body
with
excess,
low-pressure
potable
water
for
at
least
15
minutes
while
removing
all
contaminated
clothing
and
shoes.

Seek
i mmediate
medical
aid.

Symptoms:

Burning
sensation
or
even
blistering.

Liquid exposure
may
cause frostbite.
Wash
clothing
&
shoes
before
reuse.
Effects:

Potential
severe blistering.

I ngestion:

Do
not
induce
vomiting.

Have
victim
drink
large
amount
of
potable
water
if
conscious.

Seek
immediate
medical
aid .
Symptoms/Effects:
May
burn
mouth,
throat
&
stomach.

Summary:

Potable
water
is
preferred
in
all
cases;
but,
any
water
is
likely
to
be
much
better
than
no
water.

( Ex. R-9 at TECO 000561 ) .
TECO’s
HAZWOPER Refresher Training
also
contains two slides
providing a definition for decontamination and indicating it shall have a decontamination plan.
( See
Ex. R-11 at TECO_000025 .)

The Court concludes the Secretary has not established TECO’s d econtamination procedures
were not reasonable
under the circumstances , especially since the Secretary acknowledged in the Compliance Guidelines that
decontamination procedures and PPE decontamination methods will vary depending upon the specific substance. Further, t o the extent TECO’s ICP incorporates by reference information from other documents, such as its safety data sheet for anhydrous ammonia, the Secretary has failed to establish the
incorporation
was not reasonable
under the circumstances. Again, the Secretary proffered
no evidence that employers in
TECO’s
industry would customarily
include in their
emergency response plan s
anything more than what TECO has included in its plan .

Therefore,

the Secretary
has not established
TECO ’s
emergency response plan
was not “ reasonable ”
under the circumstances
and thus, has
failed to
establish TECO violated § 1910.120(q)(2)(vii).
Accordi ngly, Item 1 must be vacated.

B . Item
2

Item 2 alleges a violation of
§ 1910.120 (q)(3)(iv)
related to p rocedures for handling emergency response ,
which requires
“[e] mployees engaged in emergency response and exposed to hazardous substances presenting an inhalation
hazard or potential inhalation hazard shall wear positive pressure self-contained breathing apparatus while engaged
in emergency response, until such time that the individual in charge of the
[ Incident Command System ]
determines through the use of air
monitoring that a decreased level of respiratory protection will not result in hazardous exposures to employees. ”
29 C.F.R.
§ 1910.120(q )(3)(iv) .
T he Secretary alleges
in
Item
2:

[E] mployees responded to an emergency, caused by the release of an unknown quantity
of anhydrous ammonia, to the atmosphere. Employees were exposed to levels at or above 50.0 parts per
million, on or about 05/23/2017. No positive pressure respirator and monitoring was available and/or
provided during response.

Whether
Cited Standard
A pplied

Under the HAZWOPER standard, an “e mergency response ”
is
“ a response
effort by employees
…
to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. ”

29 C.F.R. § 1910.120( a ) (3). TECO argues on the day of the release, the rovers did not engage in an “emergency response” within the scope of the HAZWOPER standard as “the incident did not result and was not likely to result in an uncontrolled release of anhydrous
ammonia.” (Resp’t’s Br. at 14.) Instead , TECO argues the release was an “ incidental release, ”
which was
“ absorbed, neutralized, and otherwise controlled at the time of release with no actual or potential inhalation hazards. ” (Resp’t’s Br. at 15.) The Court finds no merit in TECO’s argument.

When an
incidental release of
a
hazardous substance
i s
involved, t he HAZWOPER standard provides
such
r esponses
are not considered to be emergency responses within the scope of this standard
“ where the substance can be
absorbed, neutralized, or otherwise controlled
at the time of release by employees in the immediate release area
… . ”
29 C.F.R. § 1910.120( a ) (3) (emphasis added).
A ssuming ,
arguendo ,
the release was a n “ incidental release ,”
TECO
nonetheless
admit s
“[s] ome of the ammonia discharged through the pressure relief valve did not get absorbed into the water in the sump and was released into the atmosphere. (P arties State. Admitted Facts
¶
(IV)(P) ). Therefore,
the
release
was
within the scope of this standard
since it
was
not
completely
“ absorbed, neutralized, or otherwise controlled at the time of release . ”
Therefore,
§ 1910.120 (q)(3)(iv)
applied to the cited condition.

Whether Employees had Access to Hazardous Condition

R esponses to releases of hazardous substances
are
not
considered to be emergency responses
“ where there is no potential safety or health hazard
(i.e., fire, explosion, or chemical exposure) [.]”
29 C.F.R. § 1910.120( a ) (3)
(emphasis added) . T ECO
argues
“[t] he Secretary presented no evidence that TECO’s
rovers
were exposed to any safety or health hazard [.] ”
( Resp’t’s Br.
at 15 . )

The
“ p ermissible exposure limit ” or “PEL”
means
“ the exposure, inhalation or dermal permissible exposure limit specified in 29 CFR part 1910, subparts G and Z. ”
29 C.F.R. § 1910.120( a ) (3). As indicated
supra ,
th e
parties stipulated
OSHA ’s
PEL for ammonia is 50 ppm averaged over an 8-hour workday . ( See
Jt. Prehearing State. ¶ IV( S ) ).

TECO’s expert
opined
the exposure level was 18.2 ppm over a time-weighted average of eight hours, which is significantly less than the PEL for anhydrous ammonia.
( Tr. 617-18. )

She also opined t he exposure level at the other ammonia sensors were close to zero given the small amount of anhydrous ammonia released.
( Tr. 618. )
The Secretary presented no evidence to rebut this
expert testimony.

As the Secretary acknowledged in his preamble
to the interim final rule adopting
the first version of
§ 1910.120,
t he established
PEL term “ is defined to give direction as to the appropriate degree of protection needed to be achieved by personal protective equipment and other similar
purposes. ”
Hazardous Waste Operations and Emergency Response, 51 FR 45654-01 . The Court concludes the Secretary has failed to establish
TECO e mployees had
a ccess to
a h azardous
c ondition
since he failed to establish
TECO’s
employees
were exposed to any safety or health hazard , i.e., exposure above the
established
PEL
for ammonia . Accordingly, Item 2 must be vacated.

I V.
ORDER

IT IS HEREBY ORDERED THAT
Item s
1
and 2
of the
C itation
1
are
VACATED
and no penalty is assessed .

SO ORDERED .

/s/
John B. Gatto

First Judge John B. Gatto

Dated: March 15, 2019

Atlanta, GA

"

1
The Secretary of Labor has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA, and has delegated exclusively to the Solicitor of Labor the responsibility for bringing legal proceedings under the Act and the determination of whether such proceedings are appropriate in a given case.
See
Order No. 1–2012 (77 FR 3912). The terms “Secretary” and “OSHA” are used interchangeably herein. The Assistant Secretary has authorized OSHA’s Area Directors to issue citations and proposed penalties.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a).

2
The citation at issue was attached to the complaint as an exhibit. Commission Rule 30(d) provides that “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).

3
If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

4
The facts are based on the expert report of
Jennifer T. Morningstar
and the parties’ stipulations.
( See
Ex. R-34 ;
Jt. Prehearing State. ¶¶ IV(A)

• IV(X)) .

5
Facilities that must comply with both EPA's Risk Management Plan rule and OSHA's emergency response requirements under
the
HAZWOPER
standard
may prepare an ICP according to guidance published by the National Response Team in order to comply with both regulations.
( See
Ex. R-5.) The National Response Team's
ICP
Guidance was published in the Federal Register on June 5, 1996.
( See
61 FR 28641. ) TECO ha s
a 326-page document titled, “Tampa Electric Company Big Bend Station Integrated Contingency Plan (ICP)” ( see
Ex. R-4 ). “ The ICP consolidates, into a single functional plan, several plans that Big Bend needs to comply
with Federal and State of Florida contingency planning requirements regarding chemical spills ,” and “p reparation of the ICP was accomplished using the National Response Team's
( NRT's)
[ICP]
Guidance .” ( Ex. R -4,
§
1.1.)

6
Under the Act,
both parties
may seek review in the court of appeals in the circuit in which the violation occurred
and
the circuit in which the employer’s principal office is located,
and in addition, the employer may seek review in
the District of Columbia Circuit. 29 U.S.C. §§ 660(a) ,
(b). The citation was issued in Tampa, Florida, where TECO’s principal place of business is also located, both in the Eleventh Circuit. “[I]n general, ‘[w]here it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has ... applied the precedent of that circuit in deciding the case—even though it may differ from the Commission's precedent.’”
Dana Container, Inc ., 25 BNA OSHC 1776, 1792 n.10 (No. 09-1184, 2015),
aff’d,
847 F.3d 495 (7th Cir. 2017) (citation omitted).

Therefore, the Court applies the precedent of the Eleventh Circuit in deciding the case, where it is highly probable that a Commission decision would be appealed to.

7
The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. Immediately after the split, the
Eleventh Circuit stated in
Bonner v. City of Prichard, Alabama , 661 F. 2d 1206 (11th Cir. 1981), that any opinion
issued by the Fifth Circuit before the close of business on September 30, 1981 is binding precedent on the Eleventh
Circuit.
Further, the decisions of the continuing Fifth Circuit's Administrative Unit B are
also binding on the Eleventh Circuit, while Unit A decisions are merely persuasive.
Dresdner Bank AG v. M/V Olympia Voyager , 446 F.3d 1377 (11th Cir. 2006).

8
CPL-02-02-073,
Inspection Procedures for 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases
(Aug. 27, 2007).
( S ee
Ex. R-5).

9
N ot all agency publications are of binding force .
Lyng v. Payne , 476 U.S. 926, 937 (1986) . The cited
D irective is not one of OSHA’s Standard Interpretation letters,
and it is OSHA’s
Standard Interpretation letters
that
constitute OSHA's interpretation of the requirements discussed in the
associated
standard s .
See
https://www.osha.gov/laws-regs/standardinterpretations/standardnumber/1910/1910.120%20-%20Index/result .

10
In
B&B , the Fifth Circuit noted that although the “reasonable person” standard is borrowed from tort law and industry custom is not dispositive on the issue of the standard of care in negligence actions, rigid application of the tort law concept would be inconsistent with the preventive goals of OSHA and Congress's expressed preference for specific rather than general standards. 583 F.2d at 1370 , 71 .

11
For example, pursuant to
the
Directive , t o satisfy
§ 1910.120(q)(2)(iv ) , the Secretary asserts TECO’s
ICP
must “ include a map with identified places of refuge. ”
If shelter-in-place is an available emergency response, the
ICP “ should discuss the method of alerting employees that a shelter-in-place is underway and explain how the shelter-in-place alarm can be distinguished from an alarm to evacuate. ” TECO’s ICP “shou ld also identify the person responsible for initiating a shelter-in-place, state what situations will require employees to shelter-in-place and explain what actions employees should take to ensure shelter-in-place locations are safe (e.g. turn off the HVAC air exchange). ”
(Compl’t’s Br. at 9-10) ( citing
Ex. R-5, p.22-23).

Under
§
1910.120(q)(2)(vi) , the Secretary asserts TECO
was required to comply with 29 CFR § 1910.38, which
“ sets forth several minimum requirements ”
that
TECO’s ICP “ must cover, including: emergency procedures that explain emergency evacuation (i.e. evacuation and exit route assignments), and an explanation of how the employer will account for employees after the evacuation . ”
A ccording to the Secretary,
TECO’s ICP
“does not contain these elements.” ( Id. ) ( citing
Tr. 325-326; Ex. R-3, R-4).
Under
§
1910.120 (q)(2)(xi) , the
Secretary asserts “[a]ccording to the OSHA Directive, an
[ICP]
that complies with subpart xi will list a company’s inventory of personal protective equipment (PPE) and emergency response equipment that responders will need in an emergency.” (Compl’t’s Br. at 12) ( citing
Ex. R-5, pp.27-28).