SECRETARY OF LABOR,
Complainant,

v.

PELRON CORPORATION,
Respondent.

OSHRC Docket No. 82-0388

 

_DECISION_


BEFORE: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C.§§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See
section 10(c) of the Act, 29 U.S.C. § 659(c).

This litigation was precipitated by an explosion that killed one
employee of Pelron Corporation and seriously injured another. The
Secretary of Labor's Occupational Safety and Health Administration
investigated the explosion and issued a Citation alleging, among other
things, that Pelron had violated section 5(a)(1) of the Act, 29 U.S.C. §
654(a)(1),[[1]] by inadequately training its employees in the prevention
of ethylene oxide ("EtO") explosions. At the hearing before
Administrative Law Judge Richard J. Murphy, the parties litigated
whether Pelron had violated its duty under section 5(a)(1) to provide a
workplace "free" from "recognized" hazards.[[2]] The judge held that
Pelron had failed to eliminate or significantly reduce the recognized
hazard of ethylene oxide explosion through adequate training. On review,
Pelron maintains that this finding is incorrect. Having carefully
examined the record, we conclude that the Secretary failed to establish
that the risk could have been materially reduced by changes in Pelron's
training program and therefore we vacate the citation.

Pelron is a small manufacturer of liquid specialty chemicals located in
Lyons, Illinois. All Pelron's products are manufactured by mixing either
EtO or propylene oxide with other chemicals in vessels called chemical
reactors. Pelron had four fully automated production reactors with
capacities of 1000 to 4000 gallons. The explosion occurred, however, in
a 200-gallon pilot reactor in which Pelron was producing "Product 9506,"
a phosphorous chlorine fire retardant made from diethylene glycol,
phosphorous oxychloride, and EtO, using titanium tetrachloride as a
catalyst. Pelron had had Product 9506 in normal production in its
largest reactor but had not obtained the yield expected and was
experimenting with different procedures to improve the yield.

EtO is a liquid flammable chemical compound. Pure liquid EtO is not
explosive. If EtO vapors accumulate, they may undergo an exothermic
reaction, i.e., a reaction that generates heat and pressure. One way EtO
vapors may accumulate in a chemical reactor vessel is if there is
insufficient catalyst to cause the liquid EtO to react with other
chemicals and sufficient heat is present to cause the unreacted liquid
EtO to vaporize. Mere accumulation of EtO vapors, however, does not
necessarily result in exothermic reaction. At normal atmospheric
pressure EtO vapor must reach a temperature of about 1040 ºF before it
will autoignite and explode. In air, EtO vapors in certain
concentrations are flammable and may explode at 804ºF. Unreacted EtO can
also ignite upon contact with certain oxidizing metals and materials or
from a spark.

Pelron was operating on three shifts, with two reactor operators on each
shift. Each operator was given step-by-step instructions, called a
"batch sheet," telling him exactly what operation to perform and when
and how to perform it. Operators were required to initial the batch
sheet beside each step as it was performed and beside the designated
weight of each chemical as it was added. As the reaction proceeded, the
operator was also required to fill in other forms with the temperature
and pressure in the reactor and to record the amounts of chemicals
added. He was also required to record the amount of time each step in
the operation required. Because the batch that exploded was an
experimental batch, several changes had been handwritten on Pelron's
standard batch sheet for this product. The sheets being used for that
batch survived the explosion and were introduced into evidence, so it is
possible to reconstruct what occurred.

The operation was begun a little before 5:00 a.m. by the operator who
was killed in the explosion on his next shift almost 20 hours later. He
added 1043 lbs. of phosphorous oxychloride before his shift ended.
During the next shift, the operator began adding 356, lbs. of diethylene
glycol. That shift had to replace, one gasket twice because it was
leaking, had to repair a leaking seal from which smoke was escaping, and
had to shut down a leak of hydrogen chloride gas. On the next shift, the
lead operator finished adding the diethylene glycol but by mistake did
not add the titanium tetrachloride catalyst that should have been added.
The lead operator also mistakenly added nitrogen to the reactor instead
of EtO. After that, the reactor again emitted smoke, and it took two
hours to raise the temperature 10ºF., an amount that should have been
achieved in five minutes. Shortly afterward, the temperature jumped from
146º to 237º, an increase of 91º, in a very short time. Because he did
not want to be blamed for this unexpected result, the lead operator
testified, he falsified the records by recording a rise to 200º. By the
end of his shift at 11:00 p.m. the lead operator had succeeded in
bringing temperature and pressure within normal limits. The explosion
occurred about an hour and a half later. There is no preponderance of
evidence that the lead operator's errors actually caused the explosion.
Indeed, the judge found that neither party had proven, by a
preponderance of the evidence, what caused the explosion.

The Secretary's citation alleged in part that Pelron had not
"adequately" trained its employees in "safe work procedure;" necessary
to prevent EtO explosions. Judge Murphy found that "the possibility of
accumulations of unreacted ethylene oxide in pressure vessels" existed
in Pelron's plant and was a hazard because accumulations increased the
likelihood and seriousness of an explosion. He found that this hazard
was recognized, stating as the reason for the finding that Pelron's
director of research and development testified and some literature in
the field indicated that EtO can decompose and explode either in the
presence or in the absence of air. The judge also found that Pelron
"failed to communicate and enforce a safety program appropriate to the
recognized hazard involved." He therefore affirmed this part of the
citation.[[3]]

Pelron argues, among other things, that the judge erred in finding a
recognized hazard based on "the possibility of accumulations of
unreacted ethylene oxide. in pressure vessels" because a mere
"possibility" cannot constitute a "recognized hazard" within the meaning
of section 5(a)(1). Pelron also argues that the Secretary failed to
prove that its safety training was inadequate by some recognized
standard of which it should have been aware. The Secretary argues that
Pelron and its industry recognized the hazard of a runaway reaction and
an explosion, either in the presence or in the absence of air, if large
enough quantities of unreacted EtO accumulated in reactor vessels.

We reverse the Judge's decision because we believe the Secretary did not
prove the inadequacy of Pelron's safety program. In addition, we agree
with Pelron that the judge erred by not defining the hazard in terms of
preventable practices or conditions. Davey Tree Expert Co., 84 OSAHRC
11/D11, 11 BNA OSHC 1898, 1983-84 CCH OSHD ¶ 26,852 (No. 77-2350, 1984);
See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266
(D.C. Cir. 1973). However, we would have reached the same conclusion
using the judge's description of the hazard, because of the Secretary's
failure to prove additional measures that would have materially reduced
the risk of harm that conscientious safety experts familiar with the
industry would take into account in prescribing a safety program. Cerro
Metal Products Division, Marmon Group, Inc., 12 BNA OSHC 1821, 1986 CCH
OSHD ¶ 27,579 (No. 78-5159, 1986), citing National Realty, 489 F.2d at
1267-68 and n. 40.

To prove that an employer violated section 5(a)(1), the Act's general
duty clause, the Secretary must prove that the cited employer failed to
free the workplace of a hazard that was recognized by the cited employer
or its industry, that was causing or likely to cause death or serious
physical harm, and that could have been materially reduced or eliminated
by a feasible and useful means of abatement. See e.g., Continental Oil
Co. v. OSHRC, 630 F.2d 446 (6th Cir. 1980), cert. denied, 450 U.S. 965
(1981). The judge's decision was based on a very broadly defined
hazard--"the possibility of accumulations of unreacted ethylene oxide in
pressure vessels." We find that, in defining the hazard this broadly,
the judge erred. To define the alleged hazard as the "possibility" of
accumulations of unreacted EtO is to define it in a way that it can
never be prevented, since the "possibility" would always exist unless
there were absolutely no chance at all that unreacted vapors could
accumulate. Defining the hazard as the "possibility" that a condition
will occur defines not a hazard but a potential hazard.

To define a hazard as broadly as the judge did would therefore undermine
the congressional purpose behind the "recognition" element to limit the
general duty imposed by section 5(a)(1) to preventable hazards. See
National Realty, 489 F.2d at 1266. Obviously, some industrial activities
are by their very nature dangerous. To permit the normal activities in
such an industry to be defined as a "recognized hazard" within the
meaning of section 5(a)(1) is to eliminate an element of the Secretary's
burden of proof and, in fact, almost to prove the Secretary's case by
definition, since under such a formula the employer can never free the
workplace of inherent risks incident to the business. To respect
Congress' intent, hazards must be defined in a way that apprises the
employer of its obligations, and identifies conditions or practices over
which the employer can reasonably be expected to exercise control. Davey
Tree, 11 BNA OSHC at 1899, 1983-84 CCH OSHD at p. 34,399.

To define the hazard as the "accumulation" of EtO, as the Secretary
would, is to define it without specifying the Conditions or practices
over which Pelron can exercise control, which is the basis for Pelron's
duty under section 5(a)(1). All that Pelron could do is issue "batch"
instructions which properly control production, train its employees to
understand and follow the "batch" instructions, train them in the
procedures necessary to prevent heat and temperature rises which might
trigger excess accumulations, and take other feasible safety measures to
minimize the risk of accumulations occurring.[[4]]

We define the hazard in this case as practices, procedures or conditions
which increase the likelihood of an explosion of EtO. We find the hazard
of explosion resulting from improper handling of EtO was recognized by
both Pelron and its industry. The record contains ample evidence that
EtO presents a serious risk of explosion if improperly handled by
employees, such as through the introduction of an oxide to the batch.

The principal issue in this case is whether, in light of this employer's
safety program designed to eliminate the recognized hazard, the
Secretary specified the additional steps a cited employer should have
taken to abate the hazard and demonstrated the feasibility and likely
utility of those measures. See Cerro, 12 BNA OSHC at 1822, 1986 CCH OSHD
at p. 35,829. The Secretary alleges, and the judge agreed, that Pelron's
training program for its employees was inadequate. The Secretary must
show specific additional measures Pelron should have taken in training
its employees that would have materially reduced the risk of harm and
that would have been prescribed by persons familiar with the industry.
We find that the Secretary failed to do this.

Pelron's employee training was extensive. Prospective reactor operators
were selected by the plant manager, and Pelron sought operators with two
years of college chemistry or equivalent industrial experience whenever
possible. Once hired, trainees were initially assigned to the
laboratory, where Jack Thole, a chemist with a master's degree in
organic chemistry, taught quality control and the handling of laboratory
chemicals. Dr. Pelletier testified that a trainee would remain there
until Thole determined that the trainee "was proficient in running the
analytical procedures that [Pelron] required from the production
people." This could be two weeks or much longer.

After lab training, if there were operations in the pilot plant, Pelron
would "teach [the trainees] how to operate the laboratory reactors and
allow them to run them . . . under Mr. Thole's supervision primarily."
Pelron had experimental pilot reactors with capacities of one gallon,
five gallons and 20 gallons, respectively. When Mr. Thole considered the
trainees proficient in working with the pilot reactors, they were turned
over for production training.

In the production plant, trainees were familiarized with the functions
of the control room, which contained the automatic controls for the
reactors. Pelron's required records were shown to them, as well as the
warnings associated with EtO. The trainee's safety equipment was checked
out and the trainee was shown the devices on the reactors. Trainees then
began making entries in Pelron's time, temperature, pressure and other
records, and when a trainee demonstrated that he could fill them out
accurately he was turned over to the supervision of a lead operator to
learn how to operate the reactor controls.

Pelron had a four-step procedure to avoid runaway reactions in its
pressure vessels leading to an explosion. The steps were: (1) stopping
the feed stream of reactive chemicals such as EtO to the reactor vessel;
(2) transferring heat from the reactor vessel by applying the full
cooling capacity to it; (3) blanketing the reaction with nitrogen to
prevent air contamination; and (4) venting hazardous vapors to transfer
excessive heat from the vessel. The evidence indicates that Pelron
instructed its trainee/operators in these procedures when they first
came to the production plant. Lead operator Lapinski, who helped train
the trainee/operators who testified, and who helped train lead operator
Antos, testified that they were instructed about shutdown procedures
"[b]asically, as soon as we got them out there [for production training]."

Pelron instructed its operators in many precautions to prevent excessive
temperature increases. Prospective operators were trained carefully in
the handling of chemicals and reactor vessel operations. They were
instructed to comply at all times with Pelron's batch sheets, which told
them how to proceed at each step in every chemical reaction and what
temperatures to maintain at all times. Each batch sheet also contained
warnings about explosion hazards of EtO (although not specifically
auto-ignition). Pelron's plant manager testified that he warned
operators to vent a reactor's vapors if there was a temperature rise of
15º in five minutes, or a rise in pressure of 10 to 15 pounds per square
inch in the same period of time. Pelron instructed its operators to
contact supervisors if problems developed and instructed each operator
in its shutdown procedure. Pelron also had at least one rupture disc
mounted in series with a safety valve to vent excessive pressure from
its reactors before an explosion could occur.[[5]] Finally, Pelron
instructed employees on the more likely explosion hazards of EtO due to
contact with a spark, or with various oxidizing agents. There was no
evidence that persons familiar with Pelron's industry would recognize
the need for more training than this. Indeed, Dr. Kritchevsky, a
consultant to manufacturers of industrial chemicals and
pharmaceuticals,[[6]] testified that Pelron's, training program was
"much more than usual" among companies of comparable size with which he
had worked.

The Secretary mainly argues that Pelron's safety training was inadequate
in two respects. He first contends that Pelron's shutdown procedure,
described above, was inadequate. However, the only indication given by
the Secretary of what any other chemical companies do was a selection
from the National Fire Protection Association (NFPA), Fire Protection
Handbook, pp. 4-50, 4-51 (14th ed. 1974). There, the NFPA described
guidelines of Dow Chemical Company stating that, one is "in good shape"
if one has two or more of the following methods for preventing runaway
reactions: adequate heat transfer from the reactor vessel; quenching the
reaction inside the vessel; stopping the feed streams of reactive
chemicals being added to the vessel; and dilution of the vessel's
contents. As noted above, Pelron had procedures for heat transfer,
quenching the reaction with nitrogen, stopping the feed stream of
reactive chemicals such as EtO to the reactor vessel, and venting
hazardous vapors to transfer excessive heat from the vessel. The
Secretary claims that not all operators were instructed in all of
Pelron's steps. However, Favel and Rosentrator were the only two
employees who testified that they only knew two of the shutdown steps,
and both were still considered by Pelron to be trainees. It should also
be noted that the testimony of Favel and Rosentrator conflicts with that
of lead operator Lapinski, who testified that he had definitely
instructed Favel in all shutdown procedures and that he was "almost
sure" that he had also instructed Rosentrator in them. Thus, we cannot
say from this record that Pelron inadequately instructed its employees
in shutdown procedures.

Second, the Secretary argues that reactor operators were not routinely
informed about the potential for EtO to auto-ignite in a reactor vessel
in the absence of air and other contaminants. The Secretary did not,
however, present sufficient evidence that such information would have
materially reduced the risk of explosion in this employer's operations.
The most persuasive expert to testify in the case, Dr. Kritchevsky,
testified that auto-ignition would be highly unlikely in the kind of
operation Pelron was performing because the temperatures used in the
process were far below the hazardous level. Dr. Kritchevsky did not
believe auto-ignition occurred here. He testified that the explosion
which occurred was most likely caused by a small leak in the reactor
with escaping EtO being ignited by a spark created by static
electricity. He also testified that if all of the EtO added during the
entire reaction were to have exploded it would not have caused an
explosion of such force as to shear a vessel secured by 36 bolts, each
1-1/8 inches in diameter. Dr. Kritchevsky and Dr. McKee (another expert
testifying for Pelron) further testified that to shear the vessel all
the material in the vessel would have had to explode and such combustion
could have come only from spark ignition rather than from auto-ignition
of the ethylene oxide in the reactor.

The suggestion that reactor operators should be informed about the
potential for auto-ignition came when the Secretary's counsel asked Dr.
Kritchevsky only what steps (including the giving of safety information)
he personally felt should be taken. In response, Dr. Kritchevsky
expressed his personal opinion that operators should be informed that
EtO Can auto-ignite at a temperature of about 1040ºF in the absence of
air, and be educated about the function of the catalyst in determining
the rate of EtO reactions. Dr. Kritchevsky did not, however, explain
whether such information necessarily had to be conveyed and the tenor of
his testimony suggests that it did not. After stating his personal view
that operators should be told of the auto-ignition characteristic of
EtO, Dr. Kritchevsky qualified the importance of this information by
pointing out that auto-ignition would be highly unlikely because "[t]he
temperatures [in Pelron's operation] do not even come close to the
critical temperature . . . . " Moreover, Pelron's employees were well
instructed and trained to maintain the temperature in the reactor vessel
at the level stated in the batch sheets. They knew this was important
and knew that EtO posed explosion risks. They were properly instructed
in the other essentials of safety as well, including handling chemicals,
control room functions, reactor operation, time, temperature, pressure
and other required records, and shutdown steps. So far as this record
shows, Pelron's procedures for controlling temperatures were calculated
to succeed because there was no showing that employees would have acted
differently if they had known more about the cause or result of a
temperature rise. The evidence therefore does not establish that this
additional item of training would materially reduce the likelihood of
conduct leading to an explosion.[[7]]

The Secretary's other contentions go to the lack of formality in
Pelron's Safety program, the lack of a checklist or equivalent to assure
complete training of each trainee-operator, the lack of safety meetings
before the explosion, and Pelron's hiring of at least one operator with
less than two years of college chemistry courses or equivalent
industrial background. However, there was no evidence that any of
through would have significantly minimized any risk of an explosion.
This part of the Secretary's argument overemphasizes the formal aspects
of Pelron's safety program and fails to give proper significance to its
substance. E.g., Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA
OSHC 1778, 1782, 1982 CCH OSHD ¶ 26,128, p. 32,887 (No. 76-2636, 1982).

In summary, the Secretary failed to prove, through the testimony of
experts familiar with Pelron's industry, any measure to improve Pelron's
safety program that would have materially reduced the hazard here.
Because the Secretary failed to carry his burden as to the feasibility
and likely utility of his recommended means of abatement, the citation
and proposed penalty must be vacated.

 

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: June 2, 1986



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FOOTNOTES:

[[1]] Section 5(a)(1) states:
Each employer--
(1) shall furnish to each of its 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]] The Parties introduced much evidence on the cause of the
explosion. Judge Murphy correctly observed in his decision that the
Secretary did not need to prove what had caused the explosion.

[[3]] In other rulings, the judge held that the Secretary had failed to
prove that this violation was willful or that the pressure relief
devices on the reactor vessel that exploded were designed defectively.
The Secretary originally petitioned for review of those rulings, but
subsequently filed with the Commission a document captioned
"Complainant's Withdrawal of its Petition for Review." Because the
issues raised in the Secretary's petition were directed for review by a
Commissioner, they remain on review until the Commission acts on them.
Under the circumstances here, we will treat the issues raised in the
Secretary's petition as abandoned and affirm without review the judge's
holding on these
issues.

[[4]] There is no question that the lead operator on the previous shift
made some errors that resulted in an excessive temperature buildup in
the reactor vessel about 2-1/2 hours before the explosion. However,
Pelron was completely unaware of that fact. The operator failed to
report the excessive temperature rise when the plant manager routinely
telephoned in to see if there were any problems. The operator also
falsified the time and temperature sheet he was required to fill out.
Thus, Pelron had no indication that the employee's training was
inadequate or that its batch sheet instructions were not being followed.
On the other hand, the fact that the operator was able to bring the
temperature and pressure back to normal within a short time indicates
that he was trained well enough to handle a potentially serious problem.

[[5]] The Judge found no proof that the rupture disc on the reactor that
exploded was designed defectively and the Secretary has abandoned his
contentions to the contrary. See n.3, supra.

[[6]] Dr. Kritchevsky holds a Ph.D. in chemistry. He had worked with EtO
reactions in the development of new products and refinement of existing
products as technical director of Stepan Chemical Corporation, one of
the largest companies engaged in ethylene oxide reaction operations in
the United States.
Dr. Kritchevsky also has conducted employee training programs in the
chemical manufacturing industry and is familiar with training programs
for reactor operators dealing with EtO in facilities similar to Pelron's.

[[7]] The only other evidence on this point came when the Secretary's
counsel asked plant superintendent Leonard Pittner whether he felt it
important that employees know the auto- ignition temperature of EtO. Mr.
Pittner said "yes." However, Mr. Pittner was also asked the more
important question as to whether operation without employees being so
trained was hazardous. He responded, "If he followed the steps on that
batch sheet, there is no problem. If he doesn't follow them, even if he
knows that[,] he is in trouble."