UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–2316
BASF WYANDOTTE CORPORATION, RESPONDENT, AND INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 846, AUTHORIZED EMPLOYEE REPRESENTATIVE
Respondent.

December 24, 1981

DECISION

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In his decision, Judge Fier found that BASF Wyandotte Corporation (‘BASF’) had violated section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1),[1] by failing to: (1) maintain in its chemical reactor room either a check list or set of instructions which summarized operating, emergency, and safety procedures, and (2) provide check valves or other means of preventing the flammable material pentane from backing up through the nitrogen lines leading into BASF’s chemical reactor vessels and escaping to parts of the BASF plant not specifically protected against fire or explosion. The judge assessed a total penalty of $420. We reverse the judge and find the Secretary failed to prove BASF violated section 5(a)(1).

BASF is engaged in the polymerization[2] of styrene[3] in kettle-like reactor vessels located in a room called the reactor room. Feeding into the reactors are pipes through which nitrogen and pentane may be released into the reactors on the activation of valves. Pentane is a highly flammable liquid hydrocarbon.

On March 24, 1978, a BASF employee failed to close a manual valve on the nitrogen ‘header’[4] to BASF reactor #12 after nitrogen had been injected into the reactor. Six hours later, when it was time to inject pentane into the reactor, the valve was still open. With the nitrogen line open, the pentane to be injected into the reactor pushed back into the nitrogen header and traveled away from the reactor to BASF’s ‘dryer line’ area where plastic beads were processed. There the pentane leaked into the room through a flange reducing valve. Plant operations were stopped and the pentane was cleared from the area.

Although, apparently, no employee injuries resulted from the pentane leak, an employee did lodge a complaint with the U.S. Occupational Safety and Health Administration (‘OSHA’). The complaint was that BASF was operating a reactor into which nitrogen and pentane were fed through manual valves without a ‘check value’[5] to prevent any hazard resulting from manual valves being left open accidentally.

Between April 11 and 17, 1978, OSHA compliance officer (‘CO’) Alfred Busiccha investigated BASF’s manufacturing plant in Jamesburg, New Jersey in response to the complaint. Busiccha was told about the March 24 incident by BASF’s plant manager, who also told him that the employee who had apparently left the value open on that day had been dismissed. The CO conducted a walkaround in the ‘J–4’ area where the reactors were located and in the ‘J–45’ area where the control room for those reactors was located. He observed reactors #9 through #20, but primarily concentrated on reactor #12, which had been identified in the complaint. With respect to reactors #9 through #16, the CO observed that pentane and nitrogen were introduced into those reactors by a single pipe and that those substances were kept separate from each other by a series of manually-operated valves. Conversely, the nitrogen and pentane in reactors #17 through #20 were introduced through separate pipes, and check valves were provided for the nitrogen lines.

The CO testified that there were no written procedures posted in the control room to prevent employees from causing any abnormal conditions to exist or allowing such conditions to continue. The CO also testified that written procedures in the form of a check list were needed to allow employees ‘to catch a step out of sequence or a failure to carry out certain steps, especially where they have a multitude of valves to open and close, through which various materials come into the reactor at different times . . . the check list would help the operator to observe and become aware of conditions which are not normal and detrimental to the safety of the plant.’

Finally, the CO testified that he later returned to the BASF plant and was told by BASF that a second incident had occurred in which a value had been left open and pentane had again been introduced into the nitrogen line at reactor #12. On that occasion, the pentane had leaked through a check valve that had been installed by BASF after the CO’s initial inspection.

BASF presented evidence concerning the steps it had taken to explosion-proof the reactor room and dryer line areas of its plant where pentane might escape. Its reactor room was a ‘Class I, Division 1’ area under the National Electrical Code (‘NEC’) and its dryer room a ‘Class I, Division 2’ area.[6] BASF installed in those areas the types of explosion-proof electrical equipment and wiring required by the NEC’s Articles 500 and 501. BASF also implemented the other steps required by the chemical industry for explosion-proofing the two rooms and removing sources of ignition from them, including prohibiting employee smoking, and using static electricity grounding, mechanical ventilation, and approved industrial trucks.

On May 10, 1978, a serious citation, with a $420 proposed penalty, was issued to BASF alleging that BASF had violated section 5(a)(1) of the Act in that:

[1a] At control room J–45, where a chemical reaction was planned, the employer had not prepared and posted or otherwise provided adequate written instructions or checklist to inform employees of the safe operating limits of temperature and pressures to be maintained within the reactor and procedures to be followed to safely control the chemical reaction or to safely shut down the reactor in the event that any process exceeded said safe operating conditions or in the event of electrical power failure, failure of heat in coolant lines, and possible utility failure or incorrect raw material addition in order to prevent explosion or minimize the hazard to employees in the area.

[1b] Nitrogen gas lines leading into reactor vessels #9 to 16, are not equipped with one-way check valves that would prevent pentane (flammable liquid) from backing up into nitrogen line in the event nitrogen line valve was inadvertently left open during pentane injection into reactor vessel, which would cause pentane to flow to other parts of plant thru nitrogen lines, where ignition and subsequent explosion could occur.

BASF contested the citation and penalty, and the case was assigned to Judge Fier.

Judge Fier affirmed both items 1a and 1b of the citation. With respect to item 1a, the judge determined that highly flammable pentane used in BASF’s manufacturing processes had twice backed up into a nitrogen line connected to reactor vessel #12 and thereby exposed the BASF plant to the possibility of a fire, explosion, or other hazard. The pentane back-up had occurred because the nitrogen line’s valve had been left open when it should have been closed.

With respect to item 1b of the citation, the judge found that BASF did not provide check valves or other means of preventing pentane from backing up through the nitrogen line and getting to parts of the BASF plant that were not specifically protected against fire or explosion. He found that this was a hazard recognized in the chemical industry.

BASF petitioned for review contending it had not violated section 5(a)(1). Former Commissioner Barnako granted BASF’s petition.

III

The Secretary’s burden of proof in this case is set forth in Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1943–44, 44, 1981 CCH OSHD ¶25,470 at p. 31,764 (No. 76–1174, 1981). There the Commission stated:

In order to establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized, the occurrence of an incident was reasonably foreseeable, and the likely consequence in the event of an incident was death or serious physical harm to its employees. Bomac Drilling, Div. of TRG Drilling Corp., 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1691, 1981 CCH OSHD ¶25,363 at p. 31,547 (No. 76–450, 1981). The Secretary must also demonstrate that there were feasible means available to abate the hazard. (citations omitted).

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. (citations omitted)

Initially, therefore, the Commission must look to whether the Secretary has established the existence of a recognized hazard.

The Secretary contends the recognized hazard was ‘the possibility of an explosion resulting from the unwanted back flow of the pentane into the nitrogen line leaking into unprotected areas.[7] BASF does not dispute the Secretary’s characterization of the recognized hazard, but does argue that the Secretary failed to prove the existence of a recognized hazard.

We find, for the following reasons, that the Secretary did prove BASF recognized the hazard. First, Hardtmann, BASF’s plant production manager, knew that pentane was a flammable liquid and, indeed, that fact is not contested. Second, Spelyng, BASF’s corporate level production manager and Jamesburg plant production manager at the time of the CO’s investigation, testified that there had been pentane spills at Jamesburg prior to March 24, 1978, that a spark could cause a pentane explosion, and that the electrical fixtures in BASF’s Class I, Division 1 and 2 reactor and dryer rooms were of the explosion-proof type required in the NEC to control the consequences of a spill of pentane or other flammable liquid. Third, BASF shift superintendent Palumbo, in his report on the March 24, 1978 pentane-spillage incident, stated that ‘because of the mishap a very hazardous and unsafe condition existed . . . from escaping pentane fumes.’

Accordingly, the Secretary proved BASF recognized the hazard by establishing that BASF knew of the dangerous potential of spilled pentane.

The Secretary must next establish that BASF failed to render its workplace free from the recognized hazard. BASF argues that it made its workplace free from the hazard by protecting against explosion the two areas where pentane might have leaked. We agree that the Secretary failed to carry his burden of proof on this issue.

The two disputed areas of ‘BASF’s plant through which nitrogen pipes ran were the reactor room and the dryer room. BASF contends it explosion-proofed the areas by (1) using electrical equipment designed to limit and confine explosion hazards, (2) prohibiting smoking, (3) providing static electricity grounding, (4) using mechanical ventilation, and (5) using approved industrial trucks.

As mentioned above, BASF’s reactor room was rated as a Class I, Division 1, Group D[8] area, while its dryer room was rated as a Class I, Division 2 area. Class I, Division 1 and Class I, Division 2 are designations used in Article 501 of the NEC to refer to hazardous locations for which particular kinds of electrical fixtures and wiring are prescribed. Class I, Division 1 areas are areas that normally contain flammable gases and vapors. Class I, Division 2 areas contain atmospheres in which flammable gases and vapors are not normally present but where such gases and vapors may be present in the atmosphere through the failure of control mechanisms. The NEC requires that both types of area be equipped with explosion-proof electrical wiring and fixtures. See NEC, Articles 500 and 501. BASF’s evidence indicates that the electrical wiring and fixtures in the reactor and dryer rooms complied with the NEC.[9] In addition, BASF expert witness Stanton testified that there were no sources of ignition in either the reactor room or the dryer room.

The Secretary does not contest the adequacy of BASF’s electrical fixture. He does, however, argue that the Class I, Division 1 and 2 designations accorded BASF’s reactor and dryer rooms do not pertain to whether explosions might be caused by the use of sparking tools in those areas. The Secretary refers us to the testimony of BASF witness Spelyng, who stated, ‘Generally the tools in the reactor room are nonsparking.’ This ‘equivocal’ testimony, the Secretary argues, coupled with Spelyng’s subsequent concession that a spark could cause a pentane explosion, proves that the areas into which pentane could leak were not explosion-proof.

We do not agree. Spelying also testified that explosive testing generally was performed as a safety precaution before maintenance work was done in hazardous locations. Thus, Spelyng’s ‘equivocal’ testimony about the use of nonsparking tools is not inconsistent with the testimony that the reactor and dryer rooms were explosion-proof. The record as a whole establishes that BASF took extensive explosion-proofing measures regarding the reactor room and dryer room, including the use of approved electrical equipment, static electricity grounding, mechanical ventilation, approved industrial trucks, and the prohibition of smoking. The Secretary failed to show that these procedures were inadequate to free the workplace of the hazards of a pentane explosion. Having failed to do so, the Secretary cannot establish the alleged section 5(a)(1) violation. It is unnecessary, therefore, for us to determine whether the Secretary established the feasibility of check lists, check valves, or separate nitrogen and pentane pipes.

The judge’s decision is reversed and the section 5(a)(1) citation is vacated. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: DEC 24, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78–2316
BASF WYANDOTTE CORPORATION, RESPONDENT, AND INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 846, AUTHORIZED EMPLOYEE REPRESENTATIVE
Respondent.

December 26, 1978

Appearances:

Francis V. LaRuffa, Regional Solicitor United States Department of Labor

1515 Broadway, Room 3555 New York, New York 10036

Attorney for Complainant by Harry W. Scott, Esq., of Counsel

McCarter & English

550 Broad Street Newark, New Jersey 07102

Attorneys for Respondent by Richard C. Cooper, Esq., of Counsel

International Chemical Workers Union

131 K Northgate Apts. Cranbury, New Jersey 08512 Salvatore Caccavale, President Local 846 Representing International Chemical Workers Union

DECISION AND ORDER

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), hereinafter called the Act, wherein the Respondent contests the citation and penalty for two serious violations. The citation dated May 10, 1978, was based on an inspection conducted April 11, 1978 through April 17, 1978. The citation and proposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act (29 U.S.C. § 659(c)) Respondent, through a letter dated May 22, 1978 noted its timely contest of the violations and proposed penalties.

ISSUES

1. Whether the Respondent violated the Occupational Safety and Health Act as alleged.

2. Whether the Respondent failed to comply with section 5(a)(1) listed as serious violations; if so, did it violate 29 U.S.C. § 654(a) of the Act.

3. If the Respondent is shown to have violated the Act as alleged, what if any penalties, are appropriate.

SUMMARY OF EVIDENCE

Alfred Busiccha, Compliance Officer with the Department of Labor, (hereafter referred to as C.O), testified that he has been a compliance officer for three years. Prior to that he served in the Department of defense where he was in charge of construction in the New Jersey area (T. 6).[†††] He also served in the U. S. Army for 30 years as a guided missile systems expert and area commander for the New York, New Jersey, Philadelphia area. He is a college graduate. The C.O. stated that on April 11, 1978, he inspected BASF facilities in South Brunswick, New Jersey, pursuant to a complaint that Respondent was operating chemical reactor systems without check valves (T. 7). At the opening conference with Mr. Peters the Plant Manager, and the Union Representative, the C.O. said he would inspect only those areas pertaining to the complaint with reservations (T. 8). Mr. Peters said a meeting was held concerning the incident of March 24, 1978, where an employee left a line open and caused pentane to back up into other lines. The employee has since been separated (T. 8).

The C.O. stated that the N.F.P.A. manual states that pentane has a low flash point. The reactors used at the plant are used in the polymerization of styrene. The C.O. inspected reactors 9 through 16 and 17 through 20, but concentrated on No. 12. He stated that reactors 17 through 20 were equipped with check valves. However, the other reactors 9 through 16 were not. The thrust of the inspection was directed to reactor No. 12 which was the focal point of the incident (T. 9). The C.O. stated that if pentane (a highly flammable liquid) backed up, it could flow throughout the entire system posing a hazard since it has a low flash point and could explode on ignition (T. 11). The C.O. stated that the reactors 9 through 16 did not contain any one-way check valves and as such the violation was issued (T. 10).

The C.O. also observed that there were no posted instructions to prevent the back up (T. 11–12). Mr. Spelying said that there were instructions available in the office for this situation (T. 12). The C.O. spoke to Mr. Mantilla who was an operator on duty and asked if he saw an abnormal condition what would he do? He stated that he would notify the supervisor and await instructions (T. 13). The hazard of pentane is a hydrocarbon with a flash point of -40°. It would have an explosive ignition (T. 15). The C.O. recommended the utilization of a check list. This is to relieve employees from depending on human behavior when there are numerous valves (T. 15). The matter was discussed with Mr. Peters and he felt that work could be carried out without hazard or the use of a check list.

As a result of the inspection the C.O. recommended that a citation containing two violations be issued with a proposed penalty of $600.00 (T. 16). Because of the good faith and the past history this was adjusted downward to a proposed penalty of $420.00 (T. 16).

The C.O. testified on cross-examination that there are no standards covering the violations cited (T. 19).

The valves in question are described as several screw-type valves five (5) in total with a rod-type handle 4 to 5 inches (T. 21). The nitrogen line has a 1-inch diameter.

The Respondent stated that several of the exhibits to be introduced constitute trade secrets and requested that they not be divulged, transmitted or publicized. This was agreed to and are to be accorded confidential status with regard to this proceeding (T. 26).

Respondent’s exhibit R–1 consisted of a batch sheet which describes the process for the mixing of the chemicals. The C.O. stated that pentane is introduced into the system after the nitrogen. Time has no relation to the pentane entering the line (T. 27–29). In conferring with Mr. Mantilla he said he has no difficulty in ascertaining if the valve was open or closed (T. 30). The area where the nitrogen lines were located had electrical fixtures which were described as Class 1, Division 2, as opposed to Class 1, Division 1. The Division 2 classification indicates that it is less serious if a leak was to enter into the area (T. 30–31). The C.O. stated that he did not check the electrical fixtures for compliance (T. 33). He also stated that there is no relation to be pentane and the electrical fixtures in the room (T. 33). This was disputed by the Respondent who stated that it indicates the ignition point was not as dangerous as alleged. The C.O. did not verify the operation of the check valves but assumed that they work (T. 37). The C.O. indicated that the use of a check list would prevent any accidental opening of a valve. The possibility of a mixture hazard would therefore be reduced. The check list would require an employee to use a specific procedure and assist in quickly identifying any failure or hazard. The reaction time in an emergency was discussed with Mr. Peters regarding identifying a problem with pentane.

An abatement plan has not been submitted and therefore the C.O. stated that he cannot tell if any plan now in use by the Respondent is acceptable (T. 40–41). On a scale of 10, the C.O. identified the penalty and hazard as 4 and recommended a penalty of $600.00 (T. 45). The Respondent asserted that the valves are opened and closed numerous times each week without incident. However, the C.O. stated that it only takes one occurrence for an accident to occur (T. 46). He has no knowledge of the failure rate of check valves. The C.O. observed there was no labeling on the valves and could not identify one valve from another (T. 51, 52). He also stated that there was a second incident where pentane passed into the system after this initial inspection (T. 52–53). The Respondent indicated that although the violation and the penalty are being contested, the violations have been abated by use of a check valve and a check list (T. 54).

Louis Everett, a safety engineer with a background in safety engineering, stated that he has had extensive experience with plastics covering approximately 18 years as an employee of Union Carbide and in other areas of contact in the field of safety engineering (T. 56). He inspected the plant at the J–45 reactor area on September 6, 1978 (T. 61). He concentrated on reactor 12 but noted that there were duplicate reactors and newer reactors, No. 17 through 20. Reactor No. 12 was described by stating that there were gauges, valves, and two emergency valves. There was also an emergency discharge system (T. 62). He described the operation, saying that there was a line for the charging pentane into another line with nitrogen which was joined in a ‘T’ common line. The system had a mechanical valve on each line. There was a check valve on the nitrogen line. His opinion was that the function of a one-way check valve would prevent back pressure of unwanted material into the line. When asked if there were alternatives to the use of check valves, he said separate lines could be used. He indicated that reactors 17 through 20 were piped into the head of the vessel without any interconnection.

Regarding citation item 1(b), Mr. Everett recommended that an effective check valve would be satisfactory to prevent a back flow into the nitrogen line. However, the use of separate lines is preferable. When questioned as to why this was not mentioned in the citation he stated that in a 5(a)(1) type of violation other safety steps can be produced without being mentioned in the citation.

Mr. Everett indicated that a S.O.P. (Standard Operation Procedure) would be useful in resolving the other violation. Employees would have a guide available to keep them abreast of operations which can then be carried out safely. In addition, the procedure could highlight specific steps to be taken in case of emergencies. He further pointed out that check lists serve as a necessary part of a production process. Check lists provide quality control and help prevent any alterations which would call for emergency action. Check lists would also warn an employee as to the need for proper personal protective equipment at any stage along the process where an emergency developed (T. 72). He testified that pentane’s lower explosive limit is 1.4 percent by volume in air (T. 73). The lowest concentration necessary to support combustion is thus evident. It is considered a flammable chemical between 1.4 and 8 percent. Mr. Everett said he is familiar with the use of check valves and found them to be satisfactory for situations such as this (T. 77). In his research he found that two valves can be applied to a 2-phase service where there is a liquid and gas in use. Exhibit R–2 describes a circle seal precision valve. This valve is said to be acceptable for 2-phase service in an industry where the use of pentane is utilized with a possibility of a back up (T. 81). The witness reiterated that although the valve is satisfactory, the ideal situation would be to use a separate line system (T. 84). At the time of inspection, the witness said that emergency procedures were written but not immediately available to the operator.

Mr. Hardtmann told Mr. Everett, there was no audio alarm system to warn of excess pressure in the system, but only a visual alarm (Exh. C–1, p. 2; T. 105). Mr. Everett stated that if the pentane was induced as a vapor it could conceivably leak into the nitrogen line. The batch sheet could not be the ‘S.O.P.’ in his opinion.

The Secretary rested and the Respondent moved to dismiss the 5(a)(1) citations. Respondent alleges that the citation 1(a), the check list S.O.P., was deficient because the expert who believes that they are desirable from an operational point of view, did not show what the hazard was. He stated that the expert and the C.O. failed to establish that a hazard existed.

As to item 1(b) the Respondent stated that no hazard was shown, that the check valve failed to show any place where an explosion could take place and that the probability is that pentane will not be in an atmosphere where an explosion can take place. The Respondent contends that electrical fixtures in the area where flammables are present should not be considered hazardous because of the classification assigned to it.

Paul Hardtmann, production manager for the Respondent, stated that he has been a chemical engineer since 1974. He is the production manager. Prior thereto he was a process engineer in the reactor room. Mr. Hardtmann provides training to reactor room operations employees (T. 109). He stated that the use of strip charts were valuable to monitor batches with a ‘fingerprint’ effect to note any irregularities (T. 112). If a batch is going to go bad it can be determined by comparison with strip charts. Mr. Hardtmann stated that there are S.O.P.’s in connection with the reactor room (Exh. R–3). He said that it was shown to the C.O. at the time of inspection although it was currently being revised (Exh. R–3). The emergency procedures and the S.O.P. on how the operation of the equipment in the plant is accomplished were introduced in evidence (Exh. R–4). Exhibit R–1 indicates which mix is in the reactor and defined the various amounts (T. 119). Reactor room operators have usually been at the plant for two to three years (T. 123). Mr. Hardtmann stated that the safety procedures and equipment are reviewed with employees (T. 123). Exhibit R–6 contains a training report of Mr. Tindel starting with the entry level. Each employee signs off on the sheet concerning the safety program. Emergencies covered are; firefighting, sprinkler, plant evacuation, and power outage. The batching process concerning something going bad is concerned with equipment protection for a bad batch (T. 127). Mr. Hardtmann stated that the control room is separated from the rest of the area. It is closed off and smoking is permitted in this room. It has two separate panelboards and there are audio and visual alarms for high temperatures, but no audio alarm for pressure (T. 130). He does not know of any time when the pressure valve failed to go off when it was supposed to (T. 131). He also testified that the copy of procedures are located in the supervisor’s office at all times. When anything abnormal is noticed, the employee is supposed to call the supervisor. If he is not available, the supervisor is to be paged over the loudspeaker while the employee awaits the response from the supervisor (T. 131–132, 161). Exhibit R–5 was a drawing of the J–4 reactor room also known as the ‘Christmas’ room (T. 134). Exhibit R–5 is a chart also showing various valves which were left open on March 24, 1978, at the time of the incident (T. 137–138). The ‘B’ marking on the chart indicates the valve which injects pentane into the common valve with nitrogen. Mr. Hardtmann stated that the pentane line had been painted yellow sometime in 1977 and was so marked at the time of the inspection (T. 150). The nitrogen line was assigned white (T. 152). He also testified that although the lines are pained different colors there are no markings or charts posted indicating the legend for the different colors (T. 152). There is a noted difference between the procedures for the mixing process and the S.O.P. for safety cautions. In the event of a broken valve or pipe there is no indication of what an employee should do if pentane is detected as escaping. The witness, Mr. Hardtmann, was asked to look through Exhibits R–1 through R–7 and indicate whether the color coding system that he alluded to is explained in any of the exhibits. After doing so, he stated that color coding was not in writing and was not told to the employees (T. 152–153).

Exhibit C–2 is a report by Mr. Palumbo which was submitted by the Respondent at the disciplinary proceeding and contains a report of the incident of March 24, 1978, the date of the leakage age (T. 157). The copies of the training reports are kept in the supervisor’s office and are not always given to employees (T. 158). Mr. Hardtmann stated that when employees are trained they are also taught theory (T. 161). The check valves in reactors 17 through 20 were on-site since before 1974 (T. 166). The ‘fingerprint’ effect alluded to by Mr. Hardtmann actually consists of different variations (T. 167). He stated that the employees were given an overview in training of what a normal print should be. In the event of an emergency, the employee calls the supervisor on the phone, if there is no answer then he is paged. Supervision would set up the necessary emergency procedures and then direct what action to take (T. 162). The witness testified that the Respondent belongs to the manufacturing chemical association which is composed of companies and people in the chemical manufacturing industry (T. 171).

Exhibit C–3, a safety guide put out by the association, was introduced into evidence (T. 173). It outlines emergency procedures for protection of employees and is differentiated from the procedures outlined as safety precautions on the batch sheet. The C.O. testified that the valves in the No. 12 area were not marked and there were no instructions posted. There are no instructions on any pipes or equipment indicating what to do in the event of a leak or other emergency (T. 182).

Walter Spelying has been with the Respondent for five years. He is currently a production manager and possesses a Bachelor’s Degree in Chemical Engineering. He also has a Master’s Degree. He stated that he is concerned with safety training and the safety training program at the plant (T. 195). He indicated that his overall approach is a ‘how and why type’. The training program is an ongoing-type approach (T. 196). Exhibit C–3 and the Respondent’s program are both similar in purpose and content and designed to meet the safety program goals. He also noted that there are two safety audits by the safety coordinator per year (T. 199).

Exhibit R–10, is a safety policy check list used in the reactor room and is designed to bring to the attention of management any items needing correction. There is nothing in the check list pertaining to check valves. Nor is there anything in the list pertaining to what to do in the event of a malfunction or how to treat an emergency (T. 201). The witness stated that there is an incentive program for safety where employees are rewarded for their conscientiousness (T. 203). The company was given a President’s award for safety and also a National Safety Council award. The witness met with the C.O. on April 17, 1978 at the closing conference. When the C.O. stated there was no S.O.P., a copy was produced from the foreman’s office (T. 205).

The witness stated that the reactor room has arrows marked on some of the pipes. There are labels with the ingredients in the pipe in some of the areas. Mr. Spelying then proceeded to describe some of the different colorings on the pipes, e.g., orange pertained to recirculated water, yellow pertained to pentane, white to nitrogen and blue to compressed air. He indicated that the markings were put on approximately 1–1/2 years ago (T. 206, 207). The witness also noted that the reactor room was given a classification of Class 1, Division 1, as noted in the drawing pertaining to the electrical fixtures in the plant (Exh. R–7). Mr. Spelying recalled the March 24, 1978, incident when an employee failed to close a valve. The incident resulted in pentane being ‘pushed’ into the line which is called an ‘upset’ condition. The time required for injection of nitrogen and pentane into the reactor in six hours. Investigation showed that the nitrogen valve was open for the six hour period. The operator during that time would have gone to the reactor room at least three times (T. 210). The witness said that there is extensive training up to the chief’s position, but there is no protection against carelessness. When asked what is available to an employee as to S.O.P. in case of an emergency, the reply was that there are emergency procedures if asked for by the employee (T. 213). Concerning the use of check lists, Mr. Speling said they do recognize the need for check lists (T. 213). There was no check list posted at the time of the incident (T. 214). There is nothing on the batch sheet that tells what to do if something varies from what is on the batch sheet (T. 215). He conceded that there are situations where deviations do occur from those listed on the batch sheet. Color coding, he conceded is important regarding the process and reactor piping (T. 216). He says that the coding was reduced to writing and it should have been in the plant safety manual, but that he could not locate it (T. 179, 232). With regard to Exhibit C–4, which is an excerpt of color coding, he indicated that he can’t say that he ever saw it before. It is dated May 17, 1978 and covers a period of time that he was still at the plant (T. 218). It is noted on the exhibit that pentane is identified as being red (T. 219). Previously it was stated that pentane was identified by yellow markings (T. 220). The document relates to reactors 9 through 16. It is alleged that this document is now attached to each reactor 9 through 16 (T. 220–222).

The terminology of Class 1, Division 1 or 2 refers to chemical explosion possibilities in hazardous areas by degree (T. 222). Examples of explosion catalysts were given. Thus it was urged that when the pentane leak was discovered there remained the possibility that if a tool was dropped there could be an explosion (T. 223–224). The witness stated that an employee was presumed to have left a valve open on the date of the incident (T. 226). Although it was conceded that there had been pentane and other spillings at the plant, this was the first time that pentane went into the nitrogen system (T. 228). The witness noted that at the time of inspection, the C.O. observed that there were no S.O.P. instructions in the reactor room (T. 229). Shortly thereafter a copy was requested and brought from the foreman’s office (T. 230). The safety policy check list does not contain instructions for action in an emergency (T. 230). The witness was asked by the Court to look through Exhibits R–1 to R–8, to see if there is any reference to color coding. He stated that there was none (T. 231, 232). The document in Exhibit C–4 shows the use of colors conflicted with the testimony (T. 233). The witness says that it refers to the valves only. However, No. 4 on the sheet shows yellow valve and No. 2 on the sheet appears to be in conflict or at least confusing (T. 234). The sheet referred to was issued on May 17, 1978, which is after the inspection and goes to the question of abatement (T. 235). The Respondent raised the feasibility of compliance as a defense, even though it is after the inspection, therefore, the Secretary asserts it goes to compliance also (T. 233).

Mr. Hardtmann recalled with regard to Exhibit C–4 that the instructions came about after the inspection, and that the valves were painted after the inspection (T. 137). Only the lines were painted prior to the inspection (T. 238),

John Mihalasky is a professor of industrial engineering at the New Jersey Institute of Technology and possesses numerous degrees including a Bachelor’s, Master’s and a Doctorate. He has been teaching for 23 years and is knowledgeable in areas including safety engineering. The witness stated that he has written articles on human factors and safety. He is also familiar with check valves (T. 243–244). He said that he made his physical inspection at the Jamesburgh plant and asked questions concerning the process and the S.O.P. (T. 244). He questioned the implementation. He is familiar with the OSHA Citation 1(a). He does not possess a degree in Chemical engineering but has done consulting with chemical companies (T. 245–246). Counsel conceded that at the time of the inspection there was no check list (T. 247). He further noted the issue is whether it is needed. The witness stated that based on his experience and on other factors it was his opinion that the check list will not contribute to the safety in the J–45 reactor room (T. 250). The step process in this location is standard. He believes that an employee learns the steps and procedures until it becomes second nature to him. He then goes through it automatically. If there is a deviation, the employee calls the supervisor (T. 250). In an emergency the employee has to rely on his training and cannot rely on a check list. He feels that the safety program is sufficient. As to the valve, he stated that it will not be any better than other 1-phase systems. He stated that this is a 2-phase system and the valve will not prevent the leaks. The check valve, he believes, will probably do more harm than good because the employee will relax his cautions which would otherwise normally be exercised (T. 251). The witness submitted an exhibit containing his resume and background marked as Exhibit R–11 (T. 252). The witness stated that he believed it is better to rely on memory and training of the operator instead of the use of check lists. The witness first learned of Exhibit R–2 the day before testifying but is familiar with similar types of check valves other than the circle valve. He did not talk to the manufacturer and he questions the manufacturer’s warranty as to the valve being leak proof. He does believe that check lists are good in some circumstances where the work is not repetitive but he believes that this job is routine assuming the employee remembers. He believes in retraining because it is a protective device and refreshes the employee (T. 257). The batch sheet is not necessary, but is helpful in this type of operation (T. 260). When asked how does doing an operation relate to what an employee should do in an emergency, he stated he does not feel that a check list would contribute to safety. He was asked if there was anything on the batch sheet that relates to what an employee should do in an emergency and he replied that there was nothing (T. 260).

George B. Stanton, Jr., a consultant engineer and an expert, stated that he made two visits to the plant (T. 267). He believes that check valves are not necessary and are unsafe (T. 268). In his opinion, it is known that check valves are unreliable. Usually there is no indication if a valve is open or closed (T. 269). When polymer is formed in the valve it will usually be stuck in an open or closed position. He also indicated that there are no ignition hazards in the reactor room. He stated that the control room was under pressure and therefore there was no prohibition against smoking since it was considered a safe location (T. 270–271).

Mr. Stanton stated that a check valve is good upon proper application (Exh. R–14, T. 271). If a check valve gets stuck it does not function (T. 272). Certain check valves allow for some leakage (T. 273). An alloyco check valve was installed on reactor No. 12. The witness does not agree with the representation of Exhibit R–2 regarding the check valve but said he did not confer with the manufacturer (T. 275). The witness testified that when the alloyco valve was tested, the Respondent advised him that the valve worked (T. 275). The witness stated that regarding sources of ignition including sparking tools or other equipment he did not check (T. 286). With regard to the belt-driven mixer in the area, he indicated that the belt does produce heat. There is also a dryer which operates below ignition temperatures. The valves on J–45 did not have indicators to show they were opened or closed although it is recommended (T. 282). It was noted that the flash point of pentane is lower than that of the dryer (T. 284). The classification of Class 1, has nothing to do with the flow of pentane (T. 286–287).

Mr. Everett was recalled and stated that he did not observe any overall system of color coding on his inspection of September 6, 1978 (T. 295). He stated that the valves at that time were unpainted (T. 296). The pipes essentially were unpainted but there was a label on the nitrogen system (T. 296). At the time, he stated, he was not looking for color coding, but he did see some yellow paint on a few of the pipes. He saw white paint on some of the pipes in the reactor room also but not enough to define it as a color coding system (T. 298). On September 6, 1978, Exhibit C–4, has noted, was attached to the ‘Christmas tree’. As to the alloyco valve 370, the witness spoke to the manufacturer and called Valley Forge, Pennsylvania, where the company has a quality control group. He spoke to a Mr. Hunt about installing the valve on a nitrogen line and as to pentane. He said that this was a swing check valve and would not normally be recommended. At 300 pounds pressure it has a leakage of 80 cc’s and meets the American Society of Testing. However, at a lower pressure such as Respondent’s the valve used in the nitrogen line would lack sufficient pressure and therefore permit more leakage which would be unsatisfactory (T. 300–302). He was told therefore it was not recommended.

The Circle Seal Corporation valve could withstand the recognized presence of styrene in the line and it was considered as satisfactory (T. 304). The styrene may be more corrosive to seals than pentane but the overall condition still determined that the valve would be acceptable (T. 305). Mr. Everett concluded by saying that the safest installation would be to have separate pentane and nitrogen lines into the vessel (T. 303).

OPINION

The Respondent was cited for two violations of Section 5(a)(1) of the Occupational Safety and Health Act. Section 5(a)(1), of the Act is commonly known as the ‘General Duty Clause’ (29 U.S.C. Section 654(a)(1)). The Act provides:

Each employer—

(1) 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 first alleged violation states:

At Control Room J–45, where a chemical reaction was planned, the employer had not prepared and posted or otherwise provided adequate written instructions or check lists to inform employees of the safe operating limits of temperature and pressures to be maintained within the reactor and procedures to be followed to safely control the chemical reaction or to safely shut down the reactor in the event that any process exceeded said safe operating conditions or in the event of an electrical power failure, failure of heat in coolant lines, and possible utility failure or incorrect raw material addition in order to prevent explosion or minimize the hazard to employees in the area.

The evidence reveals and it has been conceded that at the time of the inspection there was no check list at the inspection site. However, the issue to be resolved is whether the check list is needed (T. 247).

To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program’s feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously. At the same time, however, actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury. The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.

National Realty and Construction Company, Inc., v. OSAHRC; (December 13, 1973) 489 F.2d 1257.

The Secretary in its testimony has demonstrated that the use of pentane which is a highly inflammable chemical, is used in the process of Respondent’s business. The pentane on two occasions was found due to an accident to have backed up into the nitrogen line and exposed the Respondent’s facility to the possibility of a fire, explosion or other hazard. The Respondent does not deny the incidents however it asserts that there are adequate safeguards in the process of manufacture to prevent any danger to its employees. In reviewing the evidence it is noted that the possibilities of a serious accident were present in the plant at the time of occurrence. However, as asserted by the Respondent, it had relied on the expertise of the employees who had several years of prior experience for the prevention of any serious accidents. The Secretary has produced Exhibits C–3 which contains the recommendation for the use of a written ‘standard operating procedure’ to prevent any employee injury. The Exhibit states that the purpose of the standard operating procedure is to help eliminate accidents. The use of a standard operating procedure by the Manufacturing Chemists is wide spread and is generally recognized as an appropriate safety factor. The Respondent, in its presentation, acknowledges that it has a standard operating procedure but it is primarily concerned with the manufacturing process without making any recommendations to the employee in coping with emergency situations. The testimony shows that if a deviation or emergency should occur, the employee is directed to seek out and obtain guidance from the supervisor. However, if the supervisor is not in the immediate area, the employee should page the supervisor on the public address system and await further instructions while the emergency continues. It is evident that the Respondent has failed to demonstrate that there are adequate safety provisions for guidance to an employee in the event of an emergency which might endanger his health or safety or to give warning to others. The Respondent introduced evidence by which its expert asserts that the necessity for having a standard operational procedure guide is insufficient to cope with an actual emergency. Instead it is alleged a well trained employee would always know what to do and be able to recognize an emergency. It is evident that this philosophy or approach is insufficient to meet the needs of an employee who is involved in a step by step procedure. The employee requires immediate knowledge on how to recognize any deviation or emergency and to react quickly if that emergency or deviation should occur. While the Respondent indicated that it has a safety training program for its employees it is also recognized that employees occasionally may forget or overlook certain routine steps. Employees should not be required to wait for the first instance of emergency before knowing what to do. The courts have previously stated; ‘One purpose of the Act is to prevent the first accident.’ Lee Way Motor Freight, Inc., v. Secretary of Labor (February 19, 1975) 511 F.2d 864.

The use of a properly integrated standard operational procedure in the work process would provide guidance at all times to an employee as the manufacturing process progressed. Some time was spent during the trial on the need and use of a color coding system for guidance to employees in helping them recognize potential emergencies. The evidence showed that while the Respondent professed to have an adequate system which included color coding nevertheless the testimony showed that at the very least there were conflicting color codes and confusion in understanding its so called S.O.P. system.

The Secretary has carried its burden of proof. The hazard of not having a standard operational procedure is recognized and is found to be a necessary part of the safety provisions for its employees. The so-called check list would be an aid as pointed out by the Secretary in preventing not only manufacturing accidents to the finished product but also to the employees themselves. Consequently, the Respondent is found to have violated Section 5(a)(1) of the Act with regard to item 1(a) of the Citation dealing with the failure to provide adequate written instructions or check lists to inform employees of the safe operating limits.

The Respondent was also cited for failing to provide a safe means of preventing pentane from backing up into the nitrogen lines used in its manufacturing process. The evidence shows that on two occasions the nitrogen line valve was inadvertently left open providing pentane with a means to back up into the line flowing to other parts of the plant and possibly exposing employees to an explosion, fire, or other hazard. A review of the evidence shows that there are valves in the lines. However, they were not one-way check valves and as such the pentane could back up into the other parts of the plant because of the absence of this type of valve. The Secretary has presented evidence to show that there is a valve manufactured that would meet the need of this situation. The Secretary’s expert indicates that the best way to abate this type of hazard would be to provide separate lines rather than a point of mixture where the chemical could back up into other lines. While the Secretary’s expert has produced testimony to show that Circle Seal does manufacture a valve capable of meeting the hazard, nevertheless there is no evidence that the seal has in fact ever been used for pentane and that it would actually work. This does not mean that there is not a means of abating a hazard such as occurred in the two incidents. The use of pentane is considered a highly inflammable chemical and is hazardous to use. This exposes the Respondent’s employees to a danger which is recognized in the chemical industry. Whether the manufacturing process provides adequate safeguards to the employees is the basis of this complaint.

The fact that pentane was permitted to back up into other lines and to possibly reach other parts of the plant presents evidence of a recognized hazard with very serious possible consequences. The expert testimony reveals that if the check valves are not utilized, there are other means of accomplishing an abatement of the hazard to which the employees are exposed. The Respondent did not present any evidence or raise any issue as to the economic feasibility of accomplishing abatement. As such, this is not an issue to be decided herein. The fact to be resolved is whether there was a recognized hazard and whether the hazard can be abated. The Secretary has carried its burden of proof in demonstrating that there was a hazard and that it could be abated. The presence of the pentane in other parts of the plant is a real hazard and cannot be cavalierly discounted. The abatement of the hazard can be accomplished by recognized means and this has been presented in the evidence put forth by the Secretary. The Respondent testified that the issues of this case have since been abated by use of a check valve and a check list as noted in the transcript (T. 54).

The weight of evidence demonstrates that the Respondent has violated Section 5(a)(1) as noted in Citation No. 1, items 1(a) and 1(b). The Respondent’s statement that the violations have been abated was considered along with the other factors of Section 17 of the Act. The proposed penalty of $420.00 is appropriate under the circumstances of this case and should be affirmed.

The Respondent’s brief and proposed findings of fact and conclusions of law have been considered in the light of the evidence and the testimony of this proceeding and a disposition of the proposed findings of fact and conclusions of law are adopted only to the extent as set forth in the decision herein. All motions not previously disposed of are denied.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent BASF Wyandotte Corporation is a company in the chemical manufacturing business. It maintains a manufacturing facility engaged in the production of polystyrene products at Jamesburg, New Jersey.

2. The Compliance Officer ascertained that the Respondent does not maintain in the reactor room, a written check list or other instruction sheets setting forth in summary fashion operating, emergency and safety procedures.

3. The evidence shows that the nitrogen line used to purge certain reactors with nitrogen did not have inserted in it at the time of inspection a check valve or other means for the purpose of preventing a back flow of pentane into the nitrogen line.

4. The evidence shows that there are feasible means by which to prevent the back flow of pentane and that the preferred method would be the use of separate lines for nitrogen and pentane.

5. The evidence shows that the use of check lists or standard operating procedures are a recommended practice of the Manufacturing Chemists Association and is used industry wide.

6. The evidence of record shows that color coding utilized at the Respondent’s facility was neither uniform nor consistent and was found to be confusing by reason of its variance.

7. The evidence of record shows that pentane is a highly inflammable and explosive chemical used in the manufacturing process of the Respondent.

8. The evidence of record shows that there were two incidents whereby pentane was permitted to back flow into other lines of the plant.

9. The evidence of record shows that through an inadvertence, the valves controlling the flow of pentane were accidentally left open on more than one occasion.

10. The evidence of record shows that the use of a check valve or separate lines demonstrates that the hazard resulting from a back flow or opened valve can be feasibly abated.

11. The evidence of record shows that pentane at the time of inspection, could flow through the nitrogen line to other areas of the plant not specifically protected against the possibility of fire or explosion.

12. The procedures set forth in the exhibits are deemed trade secrets (T. 26).

CONCLUSIONS OF LAW

1. The Respondent is and was at all times herein engaged in a business affecting commerce within the meaning of Section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent violated 29 U.S.C. 654(a)(1) by failing to provide a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to employees in that adequate written instructions or check lists to inform employees of the safe operating limits at the Respondent’s chemical plant; and by failing to provide adequate safeguards in the use of pentane from backing up into a nitrogen line subjecting the plant and employees to fire and explosion.

4. The exhibits of this proceeding are subject to the confidentiality accorded pursuant to Section 15 of the Act.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record it is hereby ORDERED that:

1. Citation No. 1 is affirmed and the penalty of $420.00 is assessed.

SEYMOUR FIER

JUDGE, OSHRC

Dated: December 26, 1978

New York, New York

[1] Section 5(a)(1) of the Act provides that ‘[e]ach 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.’

[2] Polymerization is a chemical process by which two or more molecules (monomers) are united to form a polymer.

[3] Styrene is a colorless, oily liquid and the monomer for polystyrene. Polystyrene is a clear, rigid thermoplastic that is easily colored and molded for a variety of applications as a structural material.

[4] A header is a pipe that serves as a central connection for two or more smaller pipes.

[5] A check value is a control mechanism put into a pipe to permit the material in the pipe to flow in one direction only and to prevent any other material from flowing back through the pipe.

[6] A Class I, Division 1 rating is assigned by the NEC to hazardous locations where flammable gases and vapors are present as part of normal operations; a Class I, Division 2 rating is given to locations where flammable gases and vapors are not normally present but where they might appear accidentally.

[7] The Secretary states on review that the fact the citation was divided into two separate items was of ‘no consequence.’ Our subsequent discussion, therefore, applies equally to items 1a and 1b.

[8] Group D refers to chemicals, including pentanes. See NEC, NFPA 70–1971, § 500–2, Table 500–2(c).

[9] At the time of the alleged violation in this case, the OSHA electrical requirements for general industry workplaces were found in the NEC. Since this case arose, the Secretary has promulgated new electrical standards for general industry. 46 Fed. Reg. 4056 (Jan. 16, 1981), codified in 29 C.F.R. Part 1910, Subpart S. These new standards retain the classifications of hazardous locations found in the NEC, 29 C.F.R. § 1910.399(a)(24), and basically contain the same requirements for electrical equipment and wiring in such locations that the NEC contains. See 29 C.F.R. § 1910.307.