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Halliburton Energy Services v. State (4/7/00) sp-5256

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA


HALLIBURTON ENERGY SERVICES,  )               
                              )    Supreme Court Nos. S-8453/8473
              Appellant and   )    
              Cross-Appellee, )    Superior Court No.
          v.                  )    3AN-96-4820 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF LABOR, DIVISION OF LABOR   )
STANDARDS AND SAFETY,         )    [No. 5256 - April 7, 2000]
OCCUPATIONAL SAFETY AND       )
HEALTH SECTION,               )
                              )
              Appellee and    )
              Cross-Appellant.)
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Donald D. Hopwood, Judge.


          Appearances: Michael C. Geraghty and Sarah
Diemer Moyer, DeLisio, Moran, Geraghty & Zobel, Anchorage, for
Appellant/Cross-Appellee.  Toby N. Steinberger, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee/Cross-Appellant.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices. 


          BRYNER, Justice.

I.   INTRODUCTION
          A worker assembling a perforation gun at the Halliburton
Energy Services plant in Kenai, Alaska, accidentally triggered a
fatal explosion.  The Alaska Department of Labor fined Halliburton
for violating process safety management standards, finding these
standards applicable because assembling perforation guns qualifies
as manufacturing explosives.  But the superior court reversed,
ruling that the department could only enforce the safety standards
prospectively, since their application to perforation gun assembly
had previously been uncertain.  
          On appeal, Halliburton claims that the standards do not
apply at all, even prospectively, because assembling perforation
guns is not the manufacture of explosives, but falls instead within
a regulatory exemption for "oil well servicing activities." 
Alternatively, it argues that the safety regulations are
unenforceable because they are unconstitutionally vague.  On cross-
appeal, the state urges us to affirm the originally imposed fine,
arguing that the safety standards unambiguously cover perforation
gun assembly and that Halliburton had ample notice of their
application.  We agree that the standards apply and are
sufficiently clear to withstand constitutional challenge.  We thus
affirm the department's order.
II.  FACTS AND PROCEEDINGS
          On April 2, 1994, a large explosion at Halliburton's
Kenai facility killed Craig Bowen, a part-time Halliburton
employee, and injured five others.  At the time of the explosion
the six employees were assembling perforation guns -- devices used
to crack oil well casings and thus enhance oil flow.  A perforation
gun consists of two cylinders with a pattern of holes in each.  To
assemble the devices, Halliburton employees would fit explosive
charges into the holes in the inner cylinder, or charge holder, and
align the charge with the holder of the larger outer gun carrier.
Each charge rests against an inner detonator cord that runs through
a tube centered in the charge holder and protrudes from an end
plate.  Halliburton would custom manufacture these guns for oil
companies in its Kenai facility and then transport them to the
customer's well site, where Halliburton employees would supervise
the process of sending the guns downhole and exploding them.
          The April 2 accident occurred while employee Bowen was
trying to align the holes of a charge holder with those of a gun
carrier.  The accident investigation established that Bowen was
probably using the common, although non-standard, Halliburton
method of maneuvering the charge holder by pushing on it with the
butt end of a pipe wrench.  Bowen may have caused the explosion by
accidentally striking the detonator cord on the top of the charge
holder with the wrench.
          The Alaska Department of Labor investigated the accident
and ultimately cited and fined Halliburton $1,650 for violating
occupational health and safety codes.  Among other infractions, the
department found that Halliburton had violated state process safety
management standards.  The department determined that assembling
perforation guns amounted to the manufacture of explosives and that
the Alaska Explosives Code required Halliburton to comply with the
process safety management standards. 
          After Halliburton contested the citation, the department
filed a formal complaint against the company with the state
Occupational Safety and Health Review Board ("the board").
Halliburton moved to dismiss, arguing that its operations in Kenai
were exempt from the state's process safety management standards,
that the Alaska process safety management regulation only applies
to operations using certain hazardous chemicals, that assembling
perforation guns is not "the manufacture of explosives," and that,
in any event, the process of assembling perforation guns falls
within the process safety management regulation's exemption for
"oil well servicing."  The board denied Halliburton's motion.
          At a subsequent hearing, Halliburton renewed these
arguments and also maintained that the process safety management
regulation was vague and failed to give Halliburton adequate notice
that the process safety management standards applied to its Kenai
operations.  The board concluded that the regulation did apply to
Halliburton's Kenai operations, affirming the citation and penalty. 
          Halliburton appealed this ruling to the superior court.
The court upheld the board's conclusion that the process safety
management standards apply to Halliburton's Kenai facility but
concluded that the process safety management regulation was too
vague to enforce retroactively.  The court thus reversed the
board's decision as to the challenged penalty.  At the same time,
the court ruled that the board's decision gave Halliburton adequate
notice that the process safety management standards will apply
prospectively to its Kenai operations. 
          Halliburton appeals the court's finding that the process
safety management standards can be prospectively applied to its
manufacture of perforation guns.  The state cross-appeals the
court's conclusion that the process safety management standard was
too vague to apply retroactively.
          III. DISCUSSION [Fn. 1]
          A.   The Legal Context: Occupational Safety and Health 
          Regulation 

          The federal Occupational Safety and Health Act [Fn. 2]
(OSHA) provides that a state may implement its own occupational
safety and health program upon approval by the United States
Department of Labor. [Fn. 3]  State standards must be "at least as
effective" as federal standards. [Fn. 4]  Alaska has an approved
OSHA program. [Fn. 5]   
          Under the federal OSHA regulation, 29 C.F.R. sec.
1910.119
(1999) ("PSM regulation"), certain employers must implement a
process safety management program. [Fn. 6]  Among other things, the
process safety management regulation requires covered employers to
thoroughly evaluate the safety of their processes and to train
employees in safe procedures.  Before the Kenai explosion occurred,
Alaska had adopted the federal process safety management standards
by reference. [Fn. 7]
          The federal standards apply to processes involving
certain chemicals at specified threshold levels. [Fn. 8] A separate
federal regulation, 29 C.F.R. sec. 1910.109(k)(2) (the "explosives
regulation"), provides that the manufacture of certain explosives
is also subject to process safety management standards. [Fn. 9] 
This regulation defines explosives as "any chemical compound,
mixture or device, the primary and common purpose of which is to
function by explosion." [Fn. 10]  Like the federal law, the Alaska
Explosive Code required manufacturers of certain explosives to meet
the process safety management standards [Fn. 11] and defined
"explosives" to include "explosive devices . . . the primary or
common purpose of which is to function by explosion." [Fn. 12] [Ae.
Br. 7-8; Exc. 352] 
     B.   The Process Safety Management Regulation, 29 C.F.R.
          sec. 1910.119, Applies to Halliburton's Assembly of
Perforation Guns.

          1.   The process safety management regulation applies to
all manufacturers of explosives. 

          Halliburton argues that the process safety management
regulation, 29 C.F.R. sec. 1910.119, does not apply to its assembly
of
perforation guns because the language of the regulation expressly
limits its application to operations using certain toxic chemicals
or large quantities of flammable liquid or gas.  But while the
process safety management regulation itself does not apply directly
to Halliburton's operations, the federal explosives regulation
incorporates it by reference. [Fn. 13]
          The Federal Register discussion accompanying the final
version of the process safety management regulation reveals OSHA's
clear intention to require that the manufacture of explosives
comply with process safety management standards:
          OSHA remains convinced that the hazards
associated with the manufacture of explosives and pyrotechnics have
the potential of resulting in a catastrophic incident, and pose a
significant risk to employees and that the manufacture of
explosives and pyrotechnics should be covered by the provisions of
the final process safety management rule.

               However, the Agency has been persuaded by
those participants who suggested that OSHA delete the manufacture
of explosives and pyrotechnics from proposed sec. 1910.119, and
incorporate the provisions of the process safety management
standard into 29 CFR 1910.109, "Explosives and Blasting Agents."
This will have the effect of referencing in one place, the specific
and significant OSHA requirements pertaining to explosives and
blasting agents.[ [Fn. 14]]

          The official summary to the final process safety
management regulation also indicates that "[t]his rule is being
referenced in OSHA's Explosives and Blasting Agents standard,
29 CFR [sec.] 1910.109." [Fn. 15]  Thus, by incorporating the
process
safety management regulation, the explosives regulation would apply
the process safety management requirement to Halliburton if
Halliburton "manufacture[d] explosives." [Fn. 16]
          2.   Halliburton "manufactures" perforation guns.
          
          Halliburton argues that it does not "manufacture" the
perforation guns within the meaning of the explosives regulation,
but instead merely "'assembl[es]' the guns' component parts."
Halliburton attempts to distinguish a perforation gun from other
"manufactured" products because the gun's components are "fitted"
together by hand: workers place charges into a gun's scalloped
holes and slide the charge holder into a gun carrier.  Halliburton
notes that the process does not involve welding, shaping, or
fastening nuts and bolts -- procedures involved in "manufacturing"
a car, for example.  It analogizes the process to a photographer
loading a camera with film, referring to the process as "gun-
loading."
          The board rejected Halliburton's definition of
"manufacture," relying on the Standard Industrial Classification
Manual's [Fn. 17] statement that "[e]stablishments engaged in
assembling component parts of manufactured products are also
considered manufacturing if the new product is neither a structure
nor other fixed improvement."  The board also noted that federal
OSHA officials interpret "manufacturing" of explosives to include
"assembly" of a perforation gun's component parts.  
          We agree with the board.  Halliburton's definition of
"manufacture" is strained and impractically narrow.  We agree with
OSHA's position that "manufacture" includes "assembly." [Fn. 18]  
          3.   Perforation guns are "explosives."
          Having determined that Halliburton "manufactures"
perforation guns, we must next decide whether perforation guns are
explosives.  The explosives regulation defines an "explosive" as
"[a] device, the primary or common purpose of which is to function
by explosion." [Fn. 19]  Halliburton argues that the relevant
"explosive" for purposes of the regulation is not the perforation
gun itself, but the explosive charges that are manufactured by a
third party. But Halliburton's argument ignores the possibility
that the regulatory definition of explosives includes both the
charge and the gun itself, as the gun is also a "device [intended
primarily to] function by explosion." [Fn. 20]  As Halliburton's
process safety management consultant conceded at trial, the
perforation guns are "intended to explode." 
          The fact that the definition of "explosive" in the
explosives regulation explicitly includes "cartridges" for guns but
not guns themselves is not dispositive. [Fn. 21]  The regulation's
list is not exclusive. [Fn. 22]  It lists only items that are
explosive materials themselves -- dynamite, powder, charges, fuses,
cords, and ammunition -- omitting the devices that contain such
materials but do not themselves explode.  But the loading of
explosives is an integral part of the process of creating a
perforation gun.  Unlike a rifle, for example, which is a completed
product before it is loaded with ammunition, a perforation gun is
not a completed product until the charges are loaded into the
carrier.  A perforation gun is thus more like a missile, which is
not completed until the explosive components are loaded into the
carrier. [Fn. 23] 
          The purpose behind the OSHA regulations also supports the
conclusion that perforation guns fall within the category of
"explosives." [Fn. 24]  OSHA relies on groupings of "unique
hazards" when developing safety and health rules for the workplace.
[Fn. 25]  The process of assembling perforation guns entails
maneuvering explosives and components of explosives, thus creating
friction.  When one works with components that explode in the
presence of friction, there is a likelihood that the device will be
triggered accidentally, through human error -- precisely what
appears to have happened in the present case.  Since these very
hazards convinced the federal Department of Labor that the
manufacture of explosives ought to be covered by the process safety
management regulation, the underlying purpose of OSHA supports
interpreting the explosives regulation to define the assembly of
perforation guns as the "manufacture of explosives." [Fn. 26]  We
thus conclude that the manufacture of perforation guns is the
manufacture of "explosives."
     C.   Halliburton's Assembly of Perforation Guns Does Not         Fall
Within the Process Safety Management Regulation's Exemption for Oil
Well Servicing Operations.

          Halliburton argues that even if the assembly of
perforation guns is the "manufacture" of "explosives," the
standards do not apply because the process falls within the process
safety management regulation's exemption for "oil or gas well
drilling or servicing operations." [Fn. 27]
          Preliminarily, we note that it is not entirely clear that
the "oil well servicing" exemption contained in the primary process
safety management regulation applies to activities regulated under
the Alaska Explosives Code.  The explosives regulation commanded
that "[t]he manufacture of explosives as defined [in the code] must
also meet the requirements contained in Subchapter 18, Process
safety management of highly hazardous chemicals, explosives, and
blasting agents." [Fn. 28]  This reference to the process safety
management regulation's "requirements" is potentially
distinguishable from an incorporation by reference of the process
safety management regulation in toto; for it arguably incorporates
only the regulation's affirmative commands, excluding its
exemptions.
          But assuming that the exemption for oil well servicing
activities extends to manufacturers of explosives, we conclude that
manufacturing perforation guns does not fall within this exemption
because it is not an "oil well servicing" activity.  In arguing for
the exemption, Halliburton relies on language in the Federal
Register describing the scope of proposed 29 C.F.R. sec. 1910.270
--
the proposed rule establishing safety requirements for oil well
servicing activities.  The Federal Register described the proposed
rule as containing "requirements for drilling, servicing and
related operations performed on, or in support of, potential and
actual oil and gas wells." [Fn. 29]  Halliburton emphasizes that it
custom-assembles each perforation gun to the client's
specifications and then transports the gun to the site and carries
out the perforating service itself.  Halliburton thus reasons that
the assembly of a perforation gun is a "mandatory step" in
providing "service" to its host oil companies.
          The state responds that manufacturing perforation guns
and perforating wells are separate activities for occupational
health and safety purposes.  We agree with the state.  
          The Standard Industrial Classification Manual labels the
"perforating of well casings on a contract basis" an "oil and gas
field service." [Fn. 30]  But the assembly of an item and the use
of an item often fall in different industrial categories. [Fn. 31] 
In this case, perforation gun assembly fits better within the
manual's descriptions of either "explosive manufacturing" or the
manufacture of "oil and gas field machinery and equipment." [Fn.
32]  Halliburton does not become exempt when performing as a
manufacturer merely because it also performs oil and gas field
services.           
          For example, conceivably, Halliburton could contract out
the manufacturing phase of its operation to a company that only
performs this function.  That company would have difficulty
maintaining, as Halliburton does here, that it falls within the oil
well servicing exemption.  Halliburton's argument has surface
appeal only because the company both manufactures the guns and
performs the perforating service.  But because each activity
entails unique occupational health and safety hazards, the argument
for extending the "oil field service" exemption to both activities
is fundamentally misguided. 
          This point is aptly demonstrated in the proposed
regulation covering oil and gas well drilling and servicing
activities that OSHA issued in 1983, [Fn. 33] which suggests that
the actual perforating service falls within the exemption but that
the manufacture of the perforation gun does not: "Perforating has
unique problems associated with the handling of explosives. 
Requirements proposed address these problems in accord with good
practices in the industry. (see References 1, 5, 6, and 7)." [Fn.
34]
          The references cited in this proposed regulation all
describe problems uniquely associated with on-site servicing. 
Reference 1 discusses medical and first aid procedures "at well
sites" which attempt to account for "the high mobility of a rig
involved in servicing and special services operations." [Fn. 35] 
Reference 5 discusses "housekeeping," or "tripping and slipping
hazards . . . in work areas, the doghouse, change rooms, and on
stairs and ramps" and specifies that "the entire drill floor [must]
be washed and hosed down." [Fn. 36]  Reference 6 discusses
illumination ". . . on the rig," and reference 7 discusses
"[r]aising or lowering derrick or mast and rig-up operations." [Fn.
37]  The proposed regulation thus makes it clear that in discussing
the activity of perforation, OSHA dealt with on-site issues
associated with the actual sending of the perforation gun down the
well.  In keeping with the proposed regulation's language, Thomas
Seymour, OSHA's acting director for compliance programs, testified
at Halliburton's hearing that in the proposed regulation, OSHA
intended to exempt the Standard Industrial Classification Manual's
categories for "drilling" (category 1381) and "perforating"
(category 1389). [Fn. 38]  But Seymour did not testify that OSHA
intended to exempt any of the "manufacturing" categories in the
proposed oil well servicing regulation (category 2892 or 3533).
[Fn. 39]  To the contrary, he testified that "[w]e were intending
to cover the actual action of perforating the wells . . . but we're
trying to make it clear that the [process safety management]
standard and what is in [the explosive regulation] triggers
[process safety management] coverage for explosive manufacturing."
          Moreover, in the process safety management regulation
itself, OSHA specified that it created the oil well servicing
exemption because it had already undertaken separate rulemaking  --
the proposed rule just described above -- for oil well servicing. 
OSHA believed that a separate regulation covering all oil well
servicing activities would enable it to address the "unique
hazards" associated with the oil and gas well servicing industry.
[Fn. 40] The language of the proposed regulation specifically
indicates that these "unique hazards" are site related:  
          The drilling and servicing industry is
involved in locating and extracting underground deposits of oil and
gas and in maintaining the equipment used to bring the oil and gas
to the surface. . . . Unique hazards include those related to the
cathead, rotary table, and well pressures.  Hazards which are
common to many industries including the oil and gas well drilling
and servicing industry are falls from elevated platforms,
slipping/tripping hazards and machine guarding hazards.[ [Fn. 41]]

The proposed regulation is thus replete with examples of the type
of conditions that inspired the separate rule. [Fn. 42]  All of the
examples, definitions, and elaborations in that regulation relate
to on-site hazards, such as "[f]alls from the derrick."  None
remotely addresses the gun manufacturing stage.
          The regulatory impact assessment accompanying the
proposed regulations also suggests that sometimes companies that
qualify as "oil well servicing" companies or that support such
companies will not be covered by the exemption: 
          The following discussion attempts to
characterize the oil and gas well servicing industry, particularly
that portion of the industry subject to the OSHA proposal. . . .
The industry includes those firms that provide common "downhole"
services such as well servicing, workover, completion, and
abandonment. . . .  Also covered in [the Oil and Gas Field Services
classification] are all other oil field service firms that do not
undertake "downhole" operations.  These firms may provide water and
waste handling services . . . or other support activities.  Some of
the firms that are part of [the Oil and Gas Field Services
classification] such as those not involved in "downhole" operations
are not affected by the proposed standard but instead are covered
by Part 1910 or 1926 of the OSHA standards.[ [Fn. 43]]

          Accordingly, the key to the applicability analysis is not
the company's ultimate or primary goal or even whether the activity
is on-site or off-site, but whether the activity poses any of the
"unique hazards" associated with oil and gas well servicing and
drilling operations.  We have noted that OSHA considers the
manufacturing stage to be conceptually and practically separate
from the operation stage.  And we have concluded that manufacturing
perforation guns presents hazards similar to those associated with
other explosives, not those associated with well servicing.  We
thus conclude that OSHA did not intend to include the manufacture
of perforation guns in the oil well servicing exemption.  It is far
more logical, and more consistent with OSHA's purposes, to conclude
that the manufacture of the perforation gun must comply with the
explosives code and thus the process safety management regulation.
     D.   The Process Safety Management Regulation, 29 C.F.R
1910.119, Is Not Unconstitutionally Vague as Applied to
Halliburton's Manufacture of Perforation Guns. 

          The superior court held that Halliburton did not have
constitutionally sufficient notice that manufacturing perforation
guns was governed by the process safety management regulation's
requirements. [Fn. 44]  Halliburton agrees with this portion of the
superior court's ruling, arguing that the oil well servicing
regulation is unconstitutionally vague because it failed to give
Halliburton adequate warning that its activities did not fall
within the oil well servicing exemption. [Fn. 45] 
          We recognize that a law may be unconstitutionally vague
if the scope of exceptions and the scope of defenses are unclear.
[Fn. 46]  In cases not affecting first amendment rights, this court
considers two elements in evaluating whether a law is void for
vagueness. [Fn. 47]  First, we consider whether there is a history
or a strong likelihood of arbitrary enforcement and uneven
application. [Fn. 48]  Second, we determine whether the regulation
provides adequate notice of prohibited conduct. [Fn. 49]   When
evaluating whether an OSHA regulation is void for vagueness, we
must determine whether the regulation is vague as applied to the
particular conduct for which a citation was issued. [Fn. 50]
          Addressing the first element of the vagueness analysis,
the superior court noted that Halliburton had not shown any
"history of arbitrary or selective enforcement" of the process
safety management regulation.  Halliburton concedes that there is
no history of arbitrary or selective enforcement.  Halliburton also
fails to present any convincing reason to believe that the
regulation poses a strong likelihood of future arbitrary
enforcement.  We thus turn to the second element -- whether the
process safety management regulation afforded Halliburton adequate
notice.             
          We have recognized, in accord with the United States
Supreme Court, that a law "which either forbids or requires the
doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law."
[Fn. 51]  On the other hand, we recognize that "[s]o long as the
mandate affords a reasonable warning of the prescribed conduct in
light of common understanding and practice, it will pass muster."
[Fn. 52] 
          The framework established by federal courts in analyzing
vagueness challenges to OSHA regulations guides our inquiry here. 
A majority of these courts evaluate whether an employer familiar
with the industry could reasonably be expected to have adequate
warning of the conduct required by the regulation. [Fn. 53]  Most
of these courts consider industry custom and standards probative,
but not determinative, on the issue of reasonableness. [Fn. 54] 
Many of these courts are also more likely to conclude that a
regulation is void for vagueness in the presence of conflicting
administrative interpretations. [Fn. 55]  
          Here, as we have already observed, OSHA's proposed rule
establishing safety standards for oil well servicing activities
refers consistently and exclusively to the "unique hazards"
associated with operations performed at the well site. [Fn. 56]  
And the "unique hazards" associated with oil well servicing differ
significantly from the "unique hazards" of manufacturing
explosives; these latter hazards are almost entirely ignored in
OSHA's proposed well-servicing safety regulation. [Fn. 57] 
Moreover, the Standard Industrial Classification Manual indicates
that OSHA consistently differentiates between the manufacture of a
product and its use in a servicing operation. [Fn. 58]  Thus a
company in Halliburton's position reasonably should have been aware
of OSHA's reliance on the "unique hazards" standard and reasonably
could have foreseen that this standard strongly supported resolving
uncertainty in favor of construing the manufacture of perforation
guns to fall outside the exemption.    
          Halliburton argues that the common industry understanding
is that process safety management standards do not apply to the
assembly of perforation guns.  But Halliburton has offered little
persuasive evidence that an actual industry standard existed before
the disputed accident or that Halliburton relied on that standard. 
At the board hearing, Halliburton's regional safety administrator
Steven Sellers testified that, since the accident, he had surveyed
other oil and gas well servicing companies and found that they do
not comply with process safety management.  But the board properly
rejected this evidence as irrelevant.
          Michael Clark, executive vice president of the
Association of Oil Well Servicing Contractors, similarly testified
that "[t]o the best of my knowledge," none of the association
members who assemble perforation guns comply with the process
safety management standards.  But when challenged on cross-
examination whether he "kn[e]w for a fact" that these companies
were not complying with process safety management, he admitted "No
. . . I do not have that knowledge."  Clark further testified that
he had not been advised of any citations by state or federal
occupational safety and health agencies for violating these
standards.  But he also testified that even Halliburton did not
contact him when it was cited in the present case until a month
before the board hearing.
          The testimony offered by these two witnesses suffers from
another, more basic, problem.  Both witnesses stated that oil well
servicing companies generally fail to comply with process safety
management requirements.  But widespread lack of compliance does
not in itself establish the existence of an actual industry
standard; it may merely reflect a widespread resistance to
regulation. [Fn. 59]  Here, neither witness offered evidence of an
actual standard.
          Halliburton further complains, however, that OSHA has
issued conflicting interpretations of the process safety management
regulation.  According to Halliburton, "[n]either the various
regional offices throughout the United States nor the experts have
been able to settle on a single definition of 'servicing
operations.'"  Halliburton relies on two OSHA opinion letters,
written in the aftermath of Halliburton's Kenai facility explosion,
that discuss whether process safety management standards applied to
the surrounding circumstances of this case.
          One of these letters, written by an OSHA Region X
official, concluded that the process safety management standards
applied to Halliburton.  Halliburton contends that this letter
conflicted with an earlier OSHA letter.  That earlier letter was
prompted by an inquiry to OSHA from a Kenai attorney, Jeffrey
Jefferson, who represented the estate of the worker killed in the
Halliburton blast. 
          In writing to OSHA, Jefferson's intent was to ascertain
whether Phillips Petroleum -- the oil company that hired
Halliburton to build the perforation guns -- bore any legal
responsibility in connection with the explosion at Halliburton's
Kenai facility.  Jefferson's inquiry was based on subsection (h) of
the process safety management regulation, which sets forth
contractor training requirements for processes subject to process
safety management standards. [Fn. 60]  For example, subsection
(h)(2)(i) mandates that "[t]he employer, when selecting a
contractor, shall obtain and evaluate information regarding the
contract employer's safety performance and programs." [Fn. 61] 
Jefferson thus needed to know whether Phillips Petroleum had a duty
to comply with the requirements of section (h) when it hired
Halliburton.
          In his letter, Jefferson described the precise
circumstances of the Kenai explosion.  He specifically stated that
Phillips Petroleum retained Halliburton to manufacture perforation
guns off site.  He also noted that the guns were later transported
by another subcontractor's employees to the oil platform, and then
detonated by Halliburton employees.  Jefferson inquired whether, 
          when [Phillips Petroleum] undertook to retain
[Halliburton] to assemble the perforation guns specific for the
well job it was undertaking, does the [process safety management
regulation] view [Phillips Petroleum] as an employer who is
selecting a subcontractor performing specialty work on a [process
subject to process safety management standards], and who therefore
has an obligation to obtain and evaluate information regarding
[Halliburton's] safety performance and programs?

In response to Jefferson's letter, OSHA Director John Miles wrote:

          [I]n the factual setting that you describe,
[Phillips Petroleum] is not considered by OSHA to be responsible
for [process safety management] obligations to the extent
[Halliburton] is retained exclusively to do work for an oil or gas
well drilling or servicing operation.  The basis for that 
obligation, to assure that employers do not introduce additional
hazards to covered processes, would not apply if [Halliburton] has
contact only with [Phillips Petroleum] employees working in
processes excepted from coverage under the [process safety
management] standard.

          Halliburton claims that this letter states that
perforation gun manufacturing is a "process[] excepted from
coverage under the [process safety management] standard."  We
disagree. 
          Although Miles's response to Jefferson's letter is not
artfully worded, Miles offers no opinion on whether the process
safety management regulation applies to the manufacture of
perforation guns.  The key to understanding the import of Miles's
advice is the following sentence:
          The basis for [the employer's training
obligation], to assure that employers do not introduce additional
hazards to [processes subject to process safety management
standards], would not apply if [Halliburton] has contact only with
[Phillips Petroleum] employees working in processes excepted from
coverage under the [process safety management] standard.

          In reading this sentence, it is important to bear in mind
that the OSHA regulation requires "host-employer" review of
contractor safety standards because of the danger that, by hiring
a contractor like Halliburton, a host employer like Phillips might
"introduce additional hazards" to its own "covered processes" --
that is, to activities of its own that are already subject to the
process safety management regulation. [Fn. 62]  But under
Jefferson's hypothetical facts, Halliburton employees would never
interact with Phillips employees at Halliburton's Kenai facility;
employees of the two companies had contact only when Halliburton
actually perforated wells at Phillips's well sites.  The ordinary
drilling activities engaged in by Phillips are not subject to the
process safety management standards; likewise, it is undisputed
that perforation is itself exempt from the standards as a core "oil
well servicing activity." 
          As Miles pointed out in his letter, in the situation
posited by Jefferson, employees of the subcontractor -- Halliburton
-- could introduce no "additional hazards" to any "covered process"
of the host employer -- Phillips -- for the simple reason that all
of Phillips's well-site activities were exempt from the process
safety management regulation.  Miles's letter says only that, given
the limited sphere of Phillips's and Halliburton's interaction,
which centered around on-site perforation, Phillips had no
obligation to inquire into and ensure Halliburton's compliance with
process safety management standards.  Miles neither says nor
implies anything about Halliburton's own duty to comply with these
standards outside the undisputedly exempt sphere of actual
perforation service.   
          Indeed, had Miles intended to assert that the
manufacturing process was exempt from the safety standards, he
would have had no need to explain that the "basis of the
[oversight] obligation" was to ensure that, by contracting with
Halliburton, Phillips did not introduce additional hazards into its
own covered processes.  Miles could simply have stated that
Phillips had no oversight obligation because all of Halliburton's
activities, from manufacturing through perforation, were exempt
from process safety management coverage.  Miles's letter thus
provides no evidentiary support for Halliburton's suggestion that
OSHA considered the manufacture of perforation guns an exempt
process.  Instead, it reinforces our conclusion that OSHA
consistently deemed the manufacturing aspect and the servicing
aspect of the perforation gun industry to be separate activities
governed by separate safety standards.       
          As further evidence of agency conflict, however,
Halliburton points to the testimony of OSHA official Seymour, who
stated that OSHA had vacillated in the past: 
          We know that there's been mixed signals sent
by the agency as to what is meant by manufacturing explosives.  And
as we try to further clarify that for those that have very specific
questions, we've gotten ourselves into a little bit of difficulty
where we've tried to give exemptions saying it's a retail facility
when in fact, it was not.  But you're correct in saying that we've
kind of given different signals at different times.  But . . .
we've come together as we get more clarification about the issues
and so on, to make it clear as to what is required.

But Seymour made this statement in the context of a discussion
about the definition of "retail facilities," not about whether
perforation guns are explosives or whether manufacturing these guns
is an activity in support of oil well servicing.  Moreover, Seymour
never explained what he meant by his reference "mixed signals." 
And Halliburton fails to provide any other insight into its
meaning.  The statement stands as an unexplained assertion
concerning a matter that has no direct bearing on Halliburton's
specific vagueness claim.
          In opposition to Halliburton's claim of conflicting
agency interpretations, the state argues persuasively that the
federal Department of Labor has consistently maintained that the
process safety management regulation applies to Halliburton's
perforation gun operation.  OSHA appears committed to the position
that process safety management standards apply to the manufacture
of perforation guns because this process is "explosives"
manufacturing and not an "oil well servicing" operation.  In
November 1995 Director Miles signed a memo that affirmed the
Region X analysis of Halliburton's Kenai operations.   OSHA adopted
a similar interpretation in a 1997 administrative decision,
Secretary of Labor v. MEI Holdings, Inc. [Fn. 63]
          Courts holding that conflicting agency interpretations
are a sign of vagueness reason that if administrative officials
cannot agree on the meaning of a regulation, then a regulated
entity cannot be expected to understand the meaning either. [Fn.
64]  But Halliburton presented no clear evidence that OSHA has ever
taken inconsistent positions on the issue of whether the
manufacture of perforation guns is a process covered by the process
safety management regulation.  At most Halliburton presented one
letter, written after the fact, arguably suggesting -- indirectly
-- that process safety management standards might not apply.  There
is no substantial evidence that OSHA took this position prior to
the issuance of the citation in this case. [Fn. 65]  And
Halliburton offers no evidence at all that it actually relied on
any specific statement or position by OSHA before the fatal
explosion.
          Halliburton nonetheless points out that the United States
Supreme Court has recognized that "the decision to use a citation
as the initial means for announcing a particular interpretation may
bear on the adequacy of notice to regulated parties." [Fn. 66]  But
in the case on which that statement is founded, N.L.R.B. v. Bell
Aerospace Co., the Supreme Court also recognized that an agency "is
not precluded from announcing new principles in an adjudicative
proceeding and that the choice between rulemaking and adjudication
lies in the first instance within the [agency's] discretion." [Fn.
67]  In that case, the Supreme Court noted that the agency should
not be precluded from reconsidering an issue in an adjudicative
proceeding unless there are substantial adverse consequences
resulting from reliance on past interpretations. [Fn. 68]  
          Here, the state's decision to issue a citation is hardly
surprising in light of the seriousness of the incident that
prompted this action.  And the citation signaled no change in any
previously established rule or policy.  Rather, it announced an
interpretation of the process safety management regulation that can
fairly be implied from its purpose, content, and legislative
history, as well as from related regulations and statutes.
          The superior court felt that retroactive application of
the process safety management regulation would create a problem of
vagueness because "Halliburton cannot be expected to define [the
oil well servicing] exemption by resorting to negative definitions
based on what other proposed regulations purport to include in
their purview."  We disagree.
          A large and sophisticated company involved in hazardous
activities within a heavily regulated industry bears a substantial 
burden of inquiry concerning applicable safety standards. [Fn. 69] 
The company must make itself aware of a governing law's wording,
become acquainted with its legislative history, and consult other
relevant sources to ascertain its meaning.  And when such study
reveals two possible interpretations, one of which would promote
safer and healthier working conditions, [Fn. 70] the company's
choice of the more perilous course is little more than a calculated
risk.  For "the fact that people can, in good faith, litigate the
meaning of a statute does not necessarily (or even usually) mean
that the law is so indefinite as to be unconstitutional." [Fn. 71] 
Here, we conclude that the language of the process safety
management regulation is not so vague that it corrupted
Halliburton's analysis of its obligations or otherwise directed the
choice that Halliburton ultimately made. 
IV.  CONCLUSION
          We AFFIRM the superior court's determination that the
process safety management standards applied to Halliburton's
manufacture of perforation guns because this procedure involves the
manufacture of explosives.  But we REVERSE the court's ruling that
the process safety management regulation was unconstitutionally
vague as applied to the facts that resulted in Halliburton's
citation and penalty.  Accordingly, we AFFIRM the board's order
imposing a penalty against Halliburton. 


                            FOOTNOTES


Footnote 1:

     The superior court acted as an intermediate court of appeal
when it reviewed the board's decision.  Therefore, this court does
not defer to the superior court but instead reviews the
administrative decision de novo.  See University of Alaska v.
University of Alaska Classified Employees Ass'n, 952 P.2d 1182,
1184 n.6 (Alaska 1998) (citation omitted).   This court applies the
substitution of judgment standard.  See Konecky v. Camco Wireline,
Inc., 920 P.2d 277, 280 & n.8 (Alaska 1996) (citation omitted).


Footnote 2:

     29 U.S.C. sec.sec. 651 et seq. (1976).


Footnote 3:

     Id. sec. 667.


Footnote 4:

     Id. sec. 667(c)(2).


Footnote 5:

     29 C.F.R. sec. 1952.240 (1999).


Footnote 6:

     29 C.F.R. sec. 1910.119 provides in relevant part:

          This section contains requirements for
preventing or minimizing the consequences of catastrophic releases
of toxic, reactive, flammable, or explosive chemicals.  These
releases may result in toxic, fire or explosion hazards.
          . . . .
          This section does not apply to:
          (i)  Retail facilities;
          (ii) Oil or gas well drilling or servicing
operations; or
          (iii) Normally unoccupied remote facilities.
          . . . .
          (c)  Employee participation. (1) Employers
shall develop a written plan of action regarding the implementation
of the employee participation required by this paragraph. . . .
          . . . .
          (d)  Process safety information. In accordance
with the schedule set forth in paragraph (e)(1) of this section,
the employer shall complete a compilation of written process safety
information before conducting any process hazard analysis required
by the standard. . . .
          . . . .
          (e)  Process hazard analysis. (1) The employer
shall perform an initial process hazard analysis (hazard
evaluation) on processes covered by this standard. . . .
          . . . . 
          (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 . . . .
          . . . . 
          (g)  Training. (1) Initial training. (i) Each
employee presently involved in operating a process, and each
employee before being involved in operating a newly assigned
process, shall be trained in an overview of the process and in the
operating procedures as specified in paragraph (f) of this section. 
The training shall include emphasis on the specific safety and
health hazards, emergency operations including shutdown, and safe
work practices applicable to the employee's job tasks.


Footnote 7:

     See 8 Alaska Administrative Code (AAC) 61.010, subch. 18
(1994).  Subchapter 18 was repealed on December 6, 1995, when 8 AAC
61.010 was repealed. 


Footnote 8:

     See 29 C.F.R. sec. 1910.119.


Footnote 9:

     See 29 C.F.R. sec. 1910.109(k)(2) (1999); see also 57 Fed.
Reg.
6356, 6368 (Feb. 24, 1992) (noting that the manufacture of
explosives poses significant dangers to employees). 

          29 C.F.R. sec. 1910.109(k) provides in relevant part:
          
          (1)  This section applies to the manufacture,
keeping, having, storage, sale, transportation, and use of
explosives, blasting agents, and pyrotechnics.  The section does
not apply to the sale and use (public display) of pyrotechnics,
commonly known as fireworks, nor the use of explosives in the form
prescribed by the official U.S. Pharmacopeia. 
          (2)  The manufacture of explosives as defined
in paragraph (a)(3) of this section shall also meet the
requirements contained in sec. 1910.119.


Footnote 10:

     29 C.F.R. sec. 1910.109(a)(3) defines "explosive" as follows:

          Explosive - any chemical compound, mixture, or
device, the primary or common purpose of which is to function by
explosion, i.e., with substantially instantaneous release of gas
and heat, unless such compound, mixture, or device is otherwise
specifically classified by the U.S. Department of Transportation;
. . . The term "explosives" shall include all material which is
classified as Class A, Class B, and Class C explosives by the U.S.
Department of Transportation, and includes, but is not limited to
dynamite, black powder, pellet powders, initiating explosives,
blasting caps, electric blasting caps, safety fuse, fuse lighters,
fuse igniters, squibs, cordeau detonant fuse, instantaneous fuse,
igniter cord, igniters, small arms ammunition, small arms
ammunition primers, smokeless propellant, cartridges for
propellant-actuated power devices, and cartridges for industrial
guns.  Commercial explosives are those explosives which are
intended to be used in commercial or industrial operations.  


Footnote 11:

     See 8 AAC 61.010, subch. 9, sec. 09.110(a)(2) (1994). 
Subchapter 9 was repealed on December 6, 1995, when 8 AAC 61.010
was repealed.  The current regulation adopts federal OSHA standards
by reference, except where state standards are stricter.  See 8 AAC
61.1010-61.1190.


Footnote 12:

     8 AAC 61.010, subch. 9, sec. 09.120(a)(23) (1994).


Footnote 13:

     See 29 C.F.R. sec. 1910.109(k)(2).


Footnote 14:

     57 Fed. Reg. at 6368-69.


Footnote 15:

     Id. at 6358.


Footnote 16:

     Id. at 6368.


Footnote 17:

     The United States Department of Labor relies on the United
States Office of Management and Budget, Standard Industrial
Classification Manual when it develops OSHA regulations.  See,
e.g., 57 Fed. Reg. 6356, 6400-01 (Feb. 24, 1992); see also 8 AAC
61.225. 


Footnote 18:

     See, e.g., Webster's Third New International Dictionary 1378
(1967) ("manufacture" includes not only the creation of a product
from raw materials but also the creation of a product "according to
an organized plan and with a division of labor").  


Footnote 19:

     29 C.F.R. sec. 1910.109(a)(3). 


Footnote 20:

     Id.


Footnote 21:

     Id.


Footnote 22:

     See id. ("[t]he term 'explosives' . . . includes but is not
limited to [the specific items described in the rule]").


Footnote 23:

     Indeed, an interpretive letter issued to a defense company
prior to the April 1994 explosion states:  

          The [process safety management] standard
covers manufacturing processes when the resulting finished products
are intended to explode.  For example, an employer obtains an
explosive device manufactured by another employer.  This explosive
device is a subassembly for a weapon which is manufactured by the
employer.  Both employers must comply with the [process safety
management] standard . . . .


Footnote 24:

     See, e.g., Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333-34
(6th Cir. 1978) (providing that interpretation of OSHA regulations
should be guided by their purpose).


Footnote 25:

     See 48 Fed. Reg. 57,202 (Dec. 28, 1983); 57 Fed. Reg. 6369.


Footnote 26:

     See 57 Fed. Reg. 6367-69.


Footnote 27:

     29 C.F.R. sec. 1910.119(a)(2)(ii).


Footnote 28:

     8 AAC 61.010, subch. 9, Explosives Code, sec. 09.110(a)(2)
(1994)
(emphasis added).  


Footnote 29:

     48 Fed. Reg. 57,217 (to have been codified at 29 C.F.R.
sec. 1910.270) (proposed Dec. 28, 1983) (emphasis added).


Footnote 30:

     Standard Industrial Classification Manual at 46-47 (1987).


Footnote 31:

     See generally id. at 67-263 (manufacturing division); id. at
353-419 (service division).   


Footnote 32:

     See id. at 148-49 (industry group number 2892 includes "well
shooting torpedoes"); id. at 203 (industry group number 3533
includes oil well drilling and field tools, generally).  


Footnote 33:

     See 48 Fed. Reg. 57,202 (to have been codified at 29 C.F.R.
sec. 1910.270) (proposed Dec. 28, 1983).  While this regulation was
never finalized, it provides valuable insight into OSHA's intent
regarding the scope of the rule.  Cf. Elisovsky v. State, 592 P.2d
1221, 1229 (Alaska 1979) (relying on content of proposed state
evidence rule to decide case).


Footnote 34:

     48 Fed. Reg. 57,213.


Footnote 35:

     Id. at 57,229.


Footnote 36:

     Id. at 57,231.


Footnote 37:

     Id.


Footnote 38:

     See Standard Industrial Classification Manual at 46-47.


Footnote 39:

     See id. at 148, 203.


Footnote 40:

     57 Fed. Reg. at 6369 ("OSHA also proposed to exclude oil and
gas well drilling and servicing operations because OSHA had already
undertaken rulemaking with regard to these activities (48 [Fed.
Reg.] 57,202).  OSHA continues to believe that oil and gas well
drilling and servicing operations should be covered in a standard
designed to address the uniqueness of that industry.  This
exclusion is retained in the final standard since OSHA continues to
believe that a separate standard dealing with such operations is
necessary."); see also 48 Fed. Reg. 57,202 (proposed oil and gas
well drilling and servicing regulation).


Footnote 41:

     48 Fed. Reg. at 57,202. 


Footnote 42:

     See id. at 57,205 (citation omitted) ("A combination of
factors, including tremendous variation in working conditions, high
mobility of operations, extremely high employee turnover rate, and
limited accessibility of many worksites, convinced OSHA that
employees would be better served by developing a standard more
specifically tailored to the needs of this industry."); id. at
57,203 ("Many hazards found on oil and gas well drilling and
servicing rigs are common to virtually all workplaces and these
hazards are addressed by the OSHA General Industry Standards [29
CFR Part 1910] which will continue to apply.  However, this
industry has many unique hazards or special work circumstances
which require special standards.  Therefore, these industry-
specific problems -- the unique hazards -- are addressed in the
proposed rule.  

          The selection of the proposed requirements to be added to
Part 1910 are based upon (1) the situations where the general duty
clause (Section 5(a)(1) of the Act) has been invoked: for example,
using the rotary table to breakout drill pipe (Reference 6); (2)
the special situations dictated by the location of operations, for
example, medical and first aid requirements and emergency planning;
(3) the unusual or specialized equipment, for example, catheads,
drawworks, and rotary tables; and, (4) the specialized procedures
in this industry, for example, cementing, drill stem testing, and
wireline operations.").  (Emphasis added.)


Footnote 43:

     Occupational Safety and Health Admin., U.S. Dep't of Labor,
Preliminary Regulatory Impact Assessment and Regulatory Flexibility
Certification Assessment of the Proposed Standard for Oil and Gas
Well Drilling and Services II-10 (1983).


Footnote 44:

     The board declined to rule on this issue, stating that it was
including the claim only to preserve it for judicial review.


Footnote 45:

     See 48 Fed. Reg. 57,217.

          (a) Scope and application. (1) Scope.  This
section contains requirements for drilling, servicing and related
operations performed on, or in support of, potential and actual oil
and gas wells, including injection wells and water supply wells. 
The standard addresses hazards associated with assembling and
disassembling rigs, rotary drilling, well servicing, cementing,
drill stem testing, well completion, wireline services, and
acidizing. . . . (emphasis added).


Footnote 46:

     See State v. Rice, 626 P.2d 104, 109-10 (Alaska 1981).  We
exercise our independent judgment on constitutional issues.  See 
Chiropractors for Justice v. State, 895 P.2d 962, 966 (Alaska
1995). 


Footnote 47:

     See Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd.
of Adjustment & Appeals, 904 P.2d 373, 383 (Alaska 1995). 


Footnote 48:

     See id.


Footnote 49:

     See id.; Summers v. Anchorage, 589 P.2d 863, 867 (Alaska
1979).


Footnote 50:

     See, e.g., Martin v. OSHRC, 941 F.2d 1051, 1058 (10th Cir.
1991); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336 (5th Cir.
1978) (citing United States v. National Dairy Products Corp., 372
U.S. 29, 36 (1963)).  


Footnote 51:

     Lazy Mountain, 904 P.2d at 382 (quoting Conally v. General
Constr. Co., 269 U.S. 385, 391 (1926)); see also Allis-Chalmers
Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976); United States v.
Pitt-Des Moines, 970 F. Supp. 1346, 1350 (N.D. Ill. 1997). 


Footnote 52:

     See, e.g., Vanco Constr., Inc. v. Donovan, 723 F.2d 410, 412
(5th Cir. 1984).   


Footnote 53:

     See Martin v. American Cyanamid Co., 5 F.3d 140, 146 (6th Cir.
1993); Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir.
1981); Allis-Chalmers Corp., 542 F.2d at 30; Cape & Vineyard Div.
v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975); see also, e.g.,
Georgia Pacific Corp. v. OSHRC, 25 F.3d 999, 1005 (11th Cir. 1994)
("When considering remedial legislation such as the OSH Act and its
implementing regulation, the purported vagueness of a standard is
judged in light of its application to the facts of the case.").  


Footnote 54:

     See, e.g., Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 732
(6th Cir. 1980) ("Industry standards and customs are not entirely
determinative of reasonableness because there may be instances
where a whole industry has been negligent in [following safety
procedures]."); General Dynamics Corp. v. OSHRC, 599 F.2d 453, 464
(1st Cir. 1979).  


Footnote 55:

     See Georgia Pacific Corp., 25 F.3d at 1005-06; Kent Nowlin
Constr. Co. v. Occupational Safety and Health Admin., 593 F.2d 368,
370-71 (10th Cir. 1979); see also Martin v. OSHRC, 499 U.S. 144,
157 (1991) ("Whether the Secretary has consistently applied the
interpretation embodied in the citation [is] a factor bearing on
the reasonableness of the Secretary's position."). 


Footnote 56:

     See 48 Fed. Reg. 57,202-35 (Dec. 28, 1983).  Federal OSHA
cases evaluating the applicability of other safety regulations to
certain processes also focus on the particular hazards associated
with those processes.  See, e.g., S&H Riggers & Erectors v. OSHRC,
659 F.2d 1273, 1283 (5th Cir. 1981) (evaluating the hazards
peculiar to the roofing industry). 


Footnote 57:

     See 48 Fed. Reg. 57,220-22 (discussing medical, first aid, and
emergency planning).


Footnote 58:

          Compare Standard Industrial Classification Manual at 67-
263 (manufacturing division) with id. at 353-419 (service
division). 


Footnote 59:

     See Ray Evers Welding, 625 F.2d at 732.


Footnote 60:

     See 29 C.F.R. sec. 1910.119(h).


Footnote 61:

     Section 1910.119(h)(2) covers various "employer
responsibilities" with respect to employers who hire contractors. 
Compare section (h)(2) with section (h)(3), which covers "contract
employer responsibilities."  


Footnote 62:

     See 57 Fed. Reg. 6384 (Feb. 24, 1992) (explaining that
"employees of an independent contractor are still employees . . .
and they and their employers must not only follow the process
safety management rule, but they must also take care that they do
nothing to endanger the safety of those working nearby who work for
another employer."); id. at 6385 ("[E]mployer [must] inform 
contractors performing work on or near a process, of the known
potential fire, explosion or toxic release hazards related to the
contractor's work and the process."); id. at 6386 ("OSHA intended
to cover those contractors whose work brings them into direct
contact with, or whose work could affect the hazards of processes
covered by the [process safety management] standard."). 


Footnote 63:

     1997 OSHD (CCH)  31,448 (Oct. 27, 1997) available in 1997 WL
672049 (O.S.H.R.C.).


Footnote 64:

     See Georgia Pacific Corp. v. OSHRC, 25 F.3d 999, 1005-06 (11th
Cir. 1994) (holding that "where the Secretary is unable to settle
upon a single definition of a critical term or phrase of its own
regulation, . . . the regulation is unconstitutionally vague as
applied for failing to give sufficient guidance to those who . . .
are subject to civil penalties"); Kent Nowlin Const. Co. v. OSHRC,
593 F.2d 368, 371 (10th Cir. 1979).


Footnote 65:

     The record contains at least some suggestion that if
Halliburton had asked OSHA for an opinion, OSHA would have
concluded that the process safety management standards applied to
the manufacture of perforation guns.  An interpretive letter issued
to a defense company prior to the April 1994 explosion states: 

          [The process safety management] standard
covers manufacturing processes when the resulting finished products
are intended to explode.  For example, an employer obtains an
explosive device manufactured by another employer.  This explosive
device is a subassembly for a [product] which is manufactured by
the employer.  Both employers must comply with the [process safety
management] standard . . . .


Footnote 66:

     Martin v. OSHRC, 499 U.S. 144, 146 (1991).


Footnote 67:

     416 U.S. 267, 294 (1974). 


Footnote 68:

     See id. at 295. 


Footnote 69:

     See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1337 (6th Cir.
1978) (noting that "a duty of inquiry may properly be imposed on
those engaged in business enterprises").


Footnote 70:

     See 29 U.S.C. sec. 651(b).  See generally Atlas Roofing Co. v.
OSHRC, 430 U.S. 442, 444-45 (1977) (discussing purpose of OSHA).


Footnote 71:

     DeNardo v. State, 819 P.2d 903, 908 (Alaska App. 1991).