Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR, :

Complainant, :

v. :

HERCULES, INC. : OSHRC Docket No. 93-2790

And :

ALLIANT TECHSYSTEMS, INC. , :

Respondents. :

UNITED STEELWORKERS OF AMERICA, :

Authorized Employee Representative. :

____________________________________________ :

DECISION

Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY THE COMMISSION:

Hercules manufactures explosives at a facility in Kenvil, New Jersey. Before the

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Commission for review is a failure to abate notification alleging that Hercules failed to

Subsequent to the commencement of the hearing in October 1994, Alliant Techsystems, Inc.

purchased part of Hercules’ business, taking over operations at the Hercules facility in

question. Upon motion by the Secretary, Alliant was added as a party to this case.

This case originally included several notifications for failure to abate various recordkeeping

2004 OSHRC No. 4

abate previously-cited violations of 29 U.S.C. § 654(a)(1) , section 5(a)(1) of the

Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (“the Act”), for failure to protect

employees from the effects of explosions. The earlier citations were issued following an

inspection of an accident involving explosive material at the Kenvil facility that occurred in

June of 1989. That accident destroyed several buildings and caused non-fatal injuries to a

number of employees. The citations alleged, among other things, that Hercules violated

section 5(a)(1) by exposing its employees to hazards associated with four explosive

manufacturing operations.

Hercules and the Secretary settled these two citation items on October 21, 1991. As

violations. The judge severed one of those notifications and issued a separate decision, which

is currently before us on review in Docket No. 95-1483. The judge retained the remaining

recordkeeping failure to abate allegation in this docket number. The judge’s disposition of

that item is also before us on review. Because the two recordkeeping notifications involve

similar facts and issues, and because the notification for failure to abate the Section 5(a)(1)

violations, the Act’s general duty clause, involves totally unrelated facts, we sever the

recordkeeping portion of this docket number and consolidate it with the recordkeeping

notification in Docket No. 95-1483. A copy of the judge’s decision as it relates to the failure

to abate the Section 5(a)(1) violations is attached.

Section 17(d) of the Act, 29 U.S.C. § 666(d) states that:

Any employer who fails to correct a violation for which a citation has been

issued under section 9(a) within the period permitted for its correction (which

period shall not begin to run until the date of the final order of the Commission

in the case of any review proceeding under section 10 initiated by the

employer in good faith and not solely for delay or avoidance of penalties), may

be assessed a civil penalty of not more than $7,000 for each day during which

such failure or violation continues.

Section 5(a)(1) states that each employer:

shall furnish to each of his employees employment and a place of employment

which are free from recognized hazards that are causing or are likely to cause

death or serious physical harm to his employees.

The settlement agreement became a final order of the Commission on December 23, 1991.

part of the settlement, Hercules withdrew its notice of contest to the two general duty clause

charges and was assessed a reduced penalty. It agreed to abate the cited hazards by

December 5, 1991. On February 20, 1992, in accordance with the terms of the settlement

agreement, Hercules notified the Secretary that the cited hazards had been abated. On March

9, 1993, the Secretary inspected the facility regarding an unrelated matter and thereafter

issued the notification of failure to abate (NFTA) now before us. The notification alleged that

these violations remained unabated from December 23, 1991 to March 9, 1993, or 440 days.

The Secretary proposed the maximum penalty of $7000 per day for a total proposed penalty

of $3,080,000. The notification alleged that neither of the general duty clause violations

cited in 1989 had been abated with regard to the Blender Packer operation, one of the four

operations originally cited. The gravamen of the charge in the original citation as it relates to

the NFTA was that, in the event of a detonation in the Blender Packer Operations building,

employees would be exposed to death or serious physical harm from the effects of the blast

in two areas. The first area involved employee access to a loop road near the building where,

in the event of a blast, employees would be exposed to overpressures of 2.3 pounds per

square inch (p.s.i.). The second area concerned employees in the Blender Packer Control

building, from which the functions of the operations building were remotely controlled. The

failure to abate notice alleged that employees remained exposed in both areas to

overpressures in excess of 2.3 p.s.i. and, in the Blender Packer Control building, to flying

debris that might be caused by another explosion.

After a lengthy hearing, Judge DeBenedetto issued a decision vacating the failure to

abate notification. He carefully analyzed the testimony and computer software programs of

expert witnesses produced by each party. He determined that the program developed by the

expert for Hercules more accurately predicted the blast effects that would be expected in the

event of an explosion. He found that Hercules’ expert’s program was more sophisticated and

credible in light of the situation to be expected in the event of an explosion. Specifically, the

judge agreed with the analysis presented by Hercules’ expert, that an explosion originating

inside the Blender Packer Operations building would be measurably suppressed by its

surrounding structure and its three to five foot thick earth covering. Hercules hardened the

front wall of the control building after the 1989 accident. The judge agreed that the earth

covering would suppress the explosion sufficiently to drive the blast wave out of the

uncovered portals at each end of the operations building in a direction away from where the

control building and the loop road were located. The judge agreed with Hercules’ expert

that rather than punching holes through the control building as the Secretary’s expert had

contended, the blast wave would envelope it like a glove, creating an overall crushing effect

upon its earth covering. However, the control building’s location, its hardened door, and the

earth covering would succeed in keeping overpressure levels inside the control building at no

more than .01 p.s.i., just slightly above ambient pressure and materially reduce any hazard of

flying objects.

The judge also agreed with the conclusion of Hercules’ expert that overpressure levels

at the loop road associated with the detonation of 2,000 pounds of explosive material, a limit

which was strictly enforced after the 1989 event, would remain well below 2.3 p.s.i.

We have considered the record, the arguments of the parties and the applicable case

law. We discern no material error in Judge DeBenedetto’s evaluation of the computer

software and the testimony of the expert witnesses and find that his decision vacating the

notification is otherwise supported by the evidence and applicable legal precedent. Fabi

Construction Company, Inc., OSHRC Docket No. 96-0097 (May 30, 2003). That part of his

decision is affirmed and is attached to our decision.

The amount of explosive material processed at the time of the 1989 explosion was of the

order of 4000 pounds. Hercules took steps after the explosion to ensure that the amount

processed did not exceed the 2000-pound level. It took additional steps to lower the

possibility of an explosion, and it took steps to prevent employee access to the loop road

while materials were being processed in the Blender Packer Operations building.

Accordingly, it is ORDERED that the Notification for failure to abate the violations of

the general duty clause is vacated.

_/s/________________________

W. Scott Railton

Chairman

_/s/_______________________

James M. Stephens

Commissioner

_/s/________________________

Thomasina V. Rogers

Commissioner

Dated: February 27, 2004

ATTACHMENT