“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2316 BASF WYANDOTTE CORPORATION, RESPONDENT, AND INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 846, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 24, 1981DECISIONBefore ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Seymour Fier is before the Commission forreview under section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). In his decision, JudgeFier found that BASF Wyandotte Corporation (?BASF?) had violated section5(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 ofinstructions which summarized operating, emergency, and safety procedures, and(2) provide check valves or other means of preventing the flammable materialpentane from backing up through the nitrogen lines leading into BASF?s chemicalreactor vessels and escaping to parts of the BASF plant not specificallyprotected against fire or explosion. The judge assessed a total penalty of$420. We reverse the judge and find the Secretary failed to prove BASF violatedsection 5(a)(1).I??????????? BASFis engaged in the polymerization[2] of styrene[3] in kettle-like reactorvessels located in a room called the reactor room. Feeding into the reactorsare pipes through which nitrogen and pentane may be released into the reactorson the activation of valves. Pentane is a highly flammable liquid hydrocarbon.??????????? OnMarch 24, 1978, a BASF employee failed to close a manual valve on the nitrogen?header?[4] to BASF reactor #12 afternitrogen had been injected into the reactor. Six hours later, when it was timeto inject pentane into the reactor, the valve was still open. With the nitrogenline open, the pentane to be injected into the reactor pushed back into thenitrogen header and traveled away from the reactor to BASF?s ?dryer line? areawhere plastic beads were processed. There the pentane leaked into the roomthrough a flange reducing valve. Plant operations were stopped and the pentanewas cleared from the area.??????????? Although,apparently, no employee injuries resulted from the pentane leak, an employeedid lodge a complaint with the U.S. Occupational Safety and HealthAdministration (?OSHA?). The complaint was that BASF was operating a reactorinto which nitrogen and pentane were fed through manual valves without a ?checkvalue?[5] to prevent any hazardresulting from manual valves being left open accidentally.??????????? BetweenApril 11 and 17, 1978, OSHA compliance officer (?CO?) Alfred Busicchainvestigated BASF?s manufacturing plant in Jamesburg, New Jersey in response tothe complaint. Busiccha was told about the March 24 incident by BASF?s plantmanager, who also told him that the employee who had apparently left the valueopen 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 controlroom for those reactors was located. He observed reactors #9 through #20, butprimarily concentrated on reactor #12, which had been identified in thecomplaint. With respect to reactors #9 through #16, the CO observed thatpentane and nitrogen were introduced into those reactors by a single pipe andthat those substances were kept separate from each other by a series ofmanually-operated valves. Conversely, the nitrogen and pentane in reactors #17through #20 were introduced through separate pipes, and check valves were providedfor the nitrogen lines.??????????? TheCO testified that there were no written procedures posted in the control roomto prevent employees from causing any abnormal conditions to exist or allowingsuch conditions to continue. The CO also testified that written procedures inthe form of a check list were needed to allow employees ?to catch a step out ofsequence or a failure to carry out certain steps, especially where they have amultitude of valves to open and close, through which various materials comeinto the reactor at different times . . . the check list would help theoperator to observe and become aware of conditions which are not normal anddetrimental to the safety of the plant.???????????? Finally,the CO testified that he later returned to the BASF plant and was told by BASFthat a second incident had occurred in which a value had been left open andpentane had again been introduced into the nitrogen line at reactor #12. Onthat occasion, the pentane had leaked through a check valve that had beeninstalled by BASF after the CO?s initial inspection.??????????? BASFpresented evidence concerning the steps it had taken to explosion-proof thereactor room and dryer line areas of its plant where pentane might escape. Itsreactor room was a ?Class I, Division 1? area under the National ElectricalCode (?NEC?) and its dryer room a ?Class I, Division 2? area.[6] BASF installed in thoseareas the types of explosion-proof electrical equipment and wiring required bythe NEC?s Articles 500 and 501. BASF also implemented the other steps requiredby the chemical industry for explosion-proofing the two rooms and removingsources of ignition from them, including prohibiting employee smoking, andusing static electricity grounding, mechanical ventilation, and approvedindustrial trucks.??????????? OnMay 10, 1978, a serious citation, with a $420 proposed penalty, was issued toBASF alleging that BASF had violated section 5(a)(1) of the Act in that:[1a] At control room J?45, where achemical reaction was planned, the employer had not prepared and posted orotherwise provided adequate written instructions or checklist to informemployees of the safe operating limits of temperature and pressures to be maintainedwithin the reactor and procedures to be followed to safely control the chemicalreaction or to safely shut down the reactor in the event that any processexceeded said safe operating conditions or in the event of electrical powerfailure, failure of heat in coolant lines, and possible utility failure orincorrect raw material addition in order to prevent explosion or minimize thehazard to employees in the area.?[1b] Nitrogen gas lines leading intoreactor vessels #9 to 16, are not equipped with one-way check valves that wouldprevent pentane (flammable liquid) from backing up into nitrogen line in theevent nitrogen line valve was inadvertently left open during pentane injectioninto reactor vessel, which would cause pentane to flow to other parts of plantthru nitrogen lines, where ignition and subsequent explosion could occur.???????????? BASFcontested the citation and penalty, and the case was assigned to Judge Fier.II??????????? JudgeFier 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 manufacturingprocesses 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?svalve had been left open when it should have been closed.??????????? Withrespect to item 1b of the citation, the judge found that BASF did not providecheck valves or other means of preventing pentane from backing up through thenitrogen line and getting to parts of the BASF plant that were not specificallyprotected against fire or explosion. He found that this was a hazard recognizedin the chemical industry.??????????? BASFpetitioned for review contending it had not violated section 5(a)(1). FormerCommissioner Barnako granted BASF?s petition.IIIA.??????????? TheSecretary?s burden of proof in this case is set forth in Western Massachusetts Electric Co., 81 OSAHRC 63\/B13, 9 BNA OSHC1940, 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 itsworkplace free from a hazard that is recognized, the occurrence of an incidentwas reasonably foreseeable, and the likely consequence in the event of anincident 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 feasiblemeans available to abate the hazard. (citations omitted).\u00a0A recognized hazard is a condition orpractice in the workplace that is known to be hazardous either by the industryin general or by the employer in particular. (citations omitted)\u00a0??????????? Initially,therefore, the Commission must look to whether the Secretary has establishedthe existence of a recognized hazard.??????????? TheSecretary contends the recognized hazard was ?the possibility of an explosionresulting from the unwanted back flow of the pentane into the nitrogen line leakinginto unprotected areas.[7] BASF does not dispute theSecretary?s characterization of the recognized hazard, but does argue that theSecretary failed to prove the existence of a recognized hazard.??????????? Wefind, for the following reasons, that the Secretary did prove BASF recognizedthe hazard. First, Hardtmann, BASF?s plant production manager, knew thatpentane was a flammable liquid and, indeed, that fact is not contested. Second,Spelyng, BASF?s corporate level production manager and Jamesburg plantproduction manager at the time of the CO?s investigation, testified that therehad been pentane spills at Jamesburg prior to March 24, 1978, that a sparkcould cause a pentane explosion, and that the electrical fixtures in BASF?sClass I, Division 1 and 2 reactor and dryer rooms were of the explosion-prooftype required in the NEC to control the consequences of a spill of pentane orother flammable liquid. Third, BASF shift superintendent Palumbo, in his reporton the March 24, 1978 pentane-spillage incident, stated that ?because of themishap a very hazardous and unsafe condition existed . . . from escapingpentane fumes.???????????? Accordingly,the Secretary proved BASF recognized the hazard by establishing that BASF knewof the dangerous potential of spilled pentane.B.??????????? TheSecretary must next establish that BASF failed to render its workplace freefrom the recognized hazard. BASF argues that it made its workplace free fromthe hazard by protecting against explosion the two areas where pentane mighthave leaked. We agree that the Secretary failed to carry his burden of proof onthis issue.??????????? Thetwo disputed areas of ?BASF?s plant through which nitrogen pipes ran were thereactor room and the dryer room. BASF contends it explosion-proofed the areasby (1) using electrical equipment designed to limit and confine explosionhazards, (2) prohibiting smoking, (3) providing static electricity grounding,(4) using mechanical ventilation, and (5) using approved industrial trucks.??????????? Asmentioned above, BASF?s reactor room was rated as a Class I, Division 1, GroupD[8] area, while its dryer roomwas 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 tohazardous locations for which particular kinds of electrical fixtures and wiringare prescribed. Class I, Division 1 areas are areas that normally containflammable gases and vapors. Class I, Division 2 areas contain atmospheres inwhich flammable gases and vapors are not normally present but where such gasesand vapors may be present in the atmosphere through the failure of controlmechanisms. The NEC requires that both types of area be equipped withexplosion-proof electrical wiring and fixtures. See NEC, Articles 500 and 501.BASF?s evidence indicates that the electrical wiring and fixtures in thereactor and dryer rooms complied with the NEC.[9] In addition, BASF expertwitness Stanton testified that there were no sources of ignition in either thereactor room or the dryer room.??????????? TheSecretary 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?sreactor and dryer rooms do not pertain to whether explosions might be caused bythe use of sparking tools in those areas. The Secretary refers us to thetestimony of BASF witness Spelyng, who stated, ?Generally the tools in thereactor room are nonsparking.? This ?equivocal? testimony, the Secretaryargues, coupled with Spelyng?s subsequent concession that a spark could cause apentane explosion, proves that the areas into which pentane could leak were notexplosion-proof.??????????? We donot agree. Spelying also testified that explosive testing generally wasperformed as a safety precaution before maintenance work was done in hazardouslocations. Thus, Spelyng?s ?equivocal? testimony about the use of nonsparkingtools is not inconsistent with the testimony that the reactor and dryer roomswere explosion-proof. The record as a whole establishes that BASF tookextensive explosion-proofing measures regarding the reactor room and dryerroom, including the use of approved electrical equipment, static electricitygrounding, mechanical ventilation, approved industrial trucks, and theprohibition of smoking. The Secretary failed to show that these procedures wereinadequate to free the workplace of the hazards of a pentane explosion. Havingfailed to do so, the Secretary cannot establish the alleged section 5(a)(1)violation. It is unnecessary, therefore, for us to determine whether theSecretary established the feasibility of check lists, check valves, or separatenitrogen and pentane pipes.??????????? Thejudge?s decision is reversed and the section 5(a)(1) citation is vacated. SOORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 24, 1981\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?2316 BASF WYANDOTTE CORPORATION, RESPONDENT, AND INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 846, AUTHORIZED EMPLOYEE REPRESENTATIVE \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 26, 1978Appearances:Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555 New York, NewYork 10036Attorney for Complainant by Harry W.Scott, Esq., of Counsel\u00a0McCarter & English550 Broad Street Newark, New Jersey 07102Attorneys for Respondent by Richard C.Cooper, Esq., of Counsel\u00a0International Chemical Workers Union131 K Northgate Apts. Cranbury, New Jersey08512 Salvatore Caccavale, President Local 846 Representing InternationalChemical Workers Union?DECISION AND ORDERFier, Judge:PRELIMINARY STATEMENT??????????? Thisis a proceeding pursuant to section 659 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. ? 651 et seq.), hereinafter called the Act, wherein theRespondent contests the citation and penalty for two serious violations. Thecitation dated May 10, 1978, was based on an inspection conducted April 11,1978 through April 17, 1978. The citation and proposed penalties were issuedpursuant to sections 9(a) and 10(a) of the Act.??????????? Pursuantto section 10(c) of the Act (29 U.S.C. ? 659(c)) Respondent, through a letterdated May 22, 1978 noted its timely contest of the violations and proposedpenalties.ISSUES??????????? 1.Whether the Respondent violated the Occupational Safety and Health Act asalleged.??????????? 2.Whether the Respondent failed to comply with section 5(a)(1) listed as seriousviolations; if so, did it violate 29 U.S.C. ? 654(a) of the Act.??????????? 3. Ifthe Respondent is shown to have violated the Act as alleged, what if anypenalties, are appropriate.SUMMARY OF EVIDENCE??????????? AlfredBusiccha, Compliance Officer with the Department of Labor, (hereafter referredto 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 ofconstruction 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 forthe 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 chemicalreactor 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 wouldinspect 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 otherlines. The employee has since been separated (T. 8).??????????? TheC.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. TheC.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 inspectionwas 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, itcould flow throughout the entire system posing a hazard since it has a lowflash point and could explode on ignition (T. 11). The C.O. stated that thereactors 9 through 16 did not contain any one-way check valves and as such theviolation was issued (T. 10).??????????? TheC.O. also observed that there were no posted instructions to prevent the backup (T. 11?12). Mr. Spelying said that there were instructions available in theoffice for this situation (T. 12). The C.O. spoke to Mr. Mantilla who was anoperator on duty and asked if he saw an abnormal condition what would he do? Hestated that he would notify the supervisor and await instructions (T. 13). Thehazard of pentane is a hydrocarbon with a flash point of -40?. It would have anexplosive ignition (T. 15). The C.O. recommended the utilization of a checklist. This is to relieve employees from depending on human behavior when thereare numerous valves (T. 15). The matter was discussed with Mr. Peters and hefelt that work could be carried out without hazard or the use of a check list.??????????? As aresult of the inspection the C.O. recommended that a citation containing twoviolations be issued with a proposed penalty of $600.00 (T. 16). Because of thegood faith and the past history this was adjusted downward to a proposedpenalty of $420.00 (T. 16).??????????? TheC.O. testified on cross-examination that there are no standards covering theviolations cited (T. 19).??????????? Thevalves in question are described as several screw-type valves five (5) in totalwith a rod-type handle 4 to 5 inches (T. 21). The nitrogen line has a 1-inchdiameter.??????????? TheRespondent stated that several of the exhibits to be introduced constitutetrade secrets and requested that they not be divulged, transmitted orpublicized. This was agreed to and are to be accorded confidential status withregard to this proceeding (T. 26).??????????? Respondent?sexhibit R?1 consisted of a batch sheet which describes the process for themixing of the chemicals. The C.O. stated that pentane is introduced into thesystem after the nitrogen. Time has no relation to the pentane entering theline (T. 27?29). In conferring with Mr. Mantilla he said he has no difficultyin ascertaining if the valve was open or closed (T. 30). The area where thenitrogen lines were located had electrical fixtures which were described asClass 1, Division 2, as opposed to Class 1, Division 1. The Division 2classification indicates that it is less serious if a leak was to enter intothe area (T. 30?31). The C.O. stated that he did not check the electricalfixtures for compliance (T. 33). He also stated that there is no relation to bepentane and the electrical fixtures in the room (T. 33). This was disputed bythe Respondent who stated that it indicates the ignition point was not as dangerousas alleged. The C.O. did not verify the operation of the check valves butassumed that they work (T. 37). The C.O. indicated that the use of a check listwould prevent any accidental opening of a valve. The possibility of a mixturehazard would therefore be reduced. The check list would require an employee touse a specific procedure and assist in quickly identifying any failure orhazard. The reaction time in an emergency was discussed with Mr. Petersregarding identifying a problem with pentane.??????????? Anabatement plan has not been submitted and therefore the C.O. stated that hecannot 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 andrecommended a penalty of $600.00 (T. 45). The Respondent asserted that thevalves are opened and closed numerous times each week without incident.However, the C.O. stated that it only takes one occurrence for an accident tooccur (T. 46). He has no knowledge of the failure rate of check valves. TheC.O. observed there was no labeling on the valves and could not identify onevalve from another (T. 51, 52). He also stated that there was a second incidentwhere pentane passed into the system after this initial inspection (T. 52?53).The Respondent indicated that although the violation and the penalty are beingcontested, the violations have been abated by use of a check valve and a checklist (T. 54).??????????? LouisEverett, a safety engineer with a background in safety engineering, stated thathe has had extensive experience with plastics covering approximately 18 yearsas an employee of Union Carbide and in other areas of contact in the field ofsafety engineering (T. 56). He inspected the plant at the J?45 reactor area onSeptember 6, 1978 (T. 61). He concentrated on reactor 12 but noted that therewere duplicate reactors and newer reactors, No. 17 through 20. Reactor No. 12was described by stating that there were gauges, valves, and two emergencyvalves. There was also an emergency discharge system (T. 62). He described theoperation, saying that there was a line for the charging pentane into anotherline with nitrogen which was joined in a ?T? common line. The system had amechanical 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 backpressure of unwanted material into the line. When asked if there werealternatives 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 vesselwithout any interconnection.??????????? Regardingcitation item 1(b), Mr. Everett recommended that an effective check valve wouldbe satisfactory to prevent a back flow into the nitrogen line. However, the useof separate lines is preferable. When questioned as to why this was notmentioned in the citation he stated that in a 5(a)(1) type of violation othersafety steps can be produced without being mentioned in the citation.??????????? Mr.Everett indicated that a S.O.P. (Standard Operation Procedure) would be usefulin resolving the other violation. Employees would have a guide available tokeep them abreast of operations which can then be carried out safely. Inaddition, the procedure could highlight specific steps to be taken in case ofemergencies. He further pointed out that check lists serve as a necessary partof a production process. Check lists provide quality control and help preventany alterations which would call for emergency action. Check lists would also warnan employee as to the need for proper personal protective equipment at anystage along the process where an emergency developed (T. 72). He testified thatpentane?s lower explosive limit is 1.4 percent by volume in air (T. 73). Thelowest concentration necessary to support combustion is thus evident. It isconsidered a flammable chemical between 1.4 and 8 percent. Mr. Everett said heis familiar with the use of check valves and found them to be satisfactory forsituations such as this (T. 77). In his research he found that two valves canbe applied to a 2-phase service where there is a liquid and gas in use. ExhibitR?2 describes a circle seal precision valve. This valve is said to beacceptable for 2-phase service in an industry where the use of pentane isutilized with a possibility of a back up (T. 81). The witness reiterated thatalthough the valve is satisfactory, the ideal situation would be to use aseparate line system (T. 84). At the time of inspection, the witness said thatemergency procedures were written but not immediately available to theoperator.??????????? Mr.Hardtmann told Mr. Everett, there was no audio alarm system to warn of excesspressure 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 conceivablyleak into the nitrogen line. The batch sheet could not be the ?S.O.P.? in hisopinion.??????????? TheSecretary 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 deficientbecause the expert who believes that they are desirable from an operationalpoint of view, did not show what the hazard was. He stated that the expert andthe C.O. failed to establish that a hazard existed.??????????? As toitem 1(b) the Respondent stated that no hazard was shown, that the check valvefailed to show any place where an explosion could take place and that theprobability is that pentane will not be in an atmosphere where an explosion cantake place. The Respondent contends that electrical fixtures in the area whereflammables are present should not be considered hazardous because of theclassification assigned to it.??????????? PaulHardtmann, production manager for the Respondent, stated that he has been achemical engineer since 1974. He is the production manager. Prior thereto hewas a process engineer in the reactor room. Mr. Hardtmann provides training toreactor room operations employees (T. 109). He stated that the use of stripcharts were valuable to monitor batches with a ?fingerprint? effect to note anyirregularities (T. 112). If a batch is going to go bad it can be determined bycomparison with strip charts. Mr. Hardtmann stated that there are S.O.P.?s inconnection with the reactor room (Exh. R?3). He said that it was shown to theC.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 equipmentin the plant is accomplished were introduced in evidence (Exh. R?4). ExhibitR?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 threeyears (T. 123). Mr. Hardtmann stated that the safety procedures and equipmentare reviewed with employees (T. 123). Exhibit R?6 contains a training report ofMr. Tindel starting with the entry level. Each employee signs off on the sheetconcerning the safety program. Emergencies covered are; firefighting,sprinkler, plant evacuation, and power outage. The batching process concerningsomething 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 ofthe area. It is closed off and smoking is permitted in this room. It has twoseparate panelboards and there are audio and visual alarms for hightemperatures, but no audio alarm for pressure (T. 130). He does not know of anytime 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?soffice at all times. When anything abnormal is noticed, the employee issupposed to call the supervisor. If he is not available, the supervisor is tobe paged over the loudspeaker while the employee awaits the response from thesupervisor (T. 131?132, 161). Exhibit R?5 was a drawing of the J?4 reactor roomalso known as the ?Christmas? room (T. 134). Exhibit R?5 is a chart alsoshowing various valves which were left open on March 24, 1978, at the time ofthe incident (T. 137?138). The ?B? marking on the chart indicates the valvewhich injects pentane into the common valve with nitrogen. Mr. Hardtmann statedthat the pentane line had been painted yellow sometime in 1977 and was somarked at the time of the inspection (T. 150). The nitrogen line was assignedwhite (T. 152). He also testified that although the lines are pained differentcolors there are no markings or charts posted indicating the legend for thedifferent colors (T. 152). There is a noted difference between the proceduresfor the mixing process and the S.O.P. for safety cautions. In the event of abroken valve or pipe there is no indication of what an employee should do ifpentane is detected as escaping. The witness, Mr. Hardtmann, was asked to lookthrough Exhibits R?1 through R?7 and indicate whether the color coding systemthat he alluded to is explained in any of the exhibits. After doing so, hestated that color coding was not in writing and was not told to the employees(T. 152?153).??????????? ExhibitC?2 is a report by Mr. Palumbo which was submitted by the Respondent at thedisciplinary 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 reportsare 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 taughttheory (T. 161). The check valves in reactors 17 through 20 were on-site sincebefore 1974 (T. 166). The ?fingerprint? effect alluded to by Mr. Hardtmannactually consists of different variations (T. 167). He stated that theemployees 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 necessaryemergency procedures and then direct what action to take (T. 162). The witnesstestified that the Respondent belongs to the manufacturing chemical associationwhich is composed of companies and people in the chemical manufacturingindustry (T. 171).??????????? ExhibitC?3, a safety guide put out by the association, was introduced into evidence (T.173). It outlines emergency procedures for protection of employees and isdifferentiated from the procedures outlined as safety precautions on the batchsheet. The C.O. testified that the valves in the No. 12 area were not markedand there were no instructions posted. There are no instructions on any pipesor equipment indicating what to do in the event of a leak or other emergency(T. 182).??????????? WalterSpelying has been with the Respondent for five years. He is currently aproduction manager and possesses a Bachelor?s Degree in Chemical Engineering.He also has a Master?s Degree. He stated that he is concerned with safetytraining and the safety training program at the plant (T. 195). He indicatedthat his overall approach is a ?how and why type?. The training program is anongoing-type approach (T. 196). Exhibit C?3 and the Respondent?s program areboth similar in purpose and content and designed to meet the safety programgoals. He also noted that there are two safety audits by the safety coordinatorper year (T. 199).??????????? ExhibitR?10, is a safety policy check list used in the reactor room and is designed tobring to the attention of management any items needing correction. There isnothing in the check list pertaining to check valves. Nor is there anything in thelist pertaining to what to do in the event of a malfunction or how to treat anemergency (T. 201). The witness stated that there is an incentive program forsafety where employees are rewarded for their conscientiousness (T. 203). Thecompany was given a President?s award for safety and also a National SafetyCouncil award. The witness met with the C.O. on April 17, 1978 at the closingconference. When the C.O. stated there was no S.O.P., a copy was produced fromthe foreman?s office (T. 205).??????????? Thewitness 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 thepipes, e.g., orange pertained to recirculated water, yellow pertained topentane, white to nitrogen and blue to compressed air. He indicated that themarkings were put on approximately 1?1\/2 years ago (T. 206, 207). The witnessalso noted that the reactor room was given a classification of Class 1,Division 1, as noted in the drawing pertaining to the electrical fixtures inthe plant (Exh. R?7). Mr. Spelying recalled the March 24, 1978, incident whenan employee failed to close a valve. The incident resulted in pentane being?pushed? into the line which is called an ?upset? condition. The time requiredfor 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 leastthree times (T. 210). The witness said that there is extensive training up tothe chief?s position, but there is no protection against carelessness. Whenasked 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 recognizethe need for check lists (T. 213). There was no check list posted at the timeof the incident (T. 214). There is nothing on the batch sheet that tells whatto do if something varies from what is on the batch sheet (T. 215). He concededthat there are situations where deviations do occur from those listed on thebatch sheet. Color coding, he conceded is important regarding the process andreactor piping (T. 216). He says that the coding was reduced to writing and itshould 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 isnoted on the exhibit that pentane is identified as being red (T. 219). Previouslyit was stated that pentane was identified by yellow markings (T. 220). Thedocument relates to reactors 9 through 16. It is alleged that this document isnow attached to each reactor 9 through 16 (T. 220?222).??????????? Theterminology of Class 1, Division 1 or 2 refers to chemical explosionpossibilities in hazardous areas by degree (T. 222). Examples of explosioncatalysts were given. Thus it was urged that when the pentane leak wasdiscovered there remained the possibility that if a tool was dropped therecould be an explosion (T. 223?224). The witness stated that an employee waspresumed 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 theplant, 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 thatthere were no S.O.P. instructions in the reactor room (T. 229). Shortlythereafter 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 anemergency (T. 230). The witness was asked by the Court to look through ExhibitsR?1 to R?8, to see if there is any reference to color coding. He stated thatthere was none (T. 231, 232). The document in Exhibit C?4 shows the use ofcolors conflicted with the testimony (T. 233). The witness says that it refersto the valves only. However, No. 4 on the sheet shows yellow valve and No. 2 onthe sheet appears to be in conflict or at least confusing (T. 234). The sheetreferred to was issued on May 17, 1978, which is after the inspection and goesto the question of abatement (T. 235). The Respondent raised the feasibility ofcompliance as a defense, even though it is after the inspection, therefore, theSecretary asserts it goes to compliance also (T. 233).??????????? Mr.Hardtmann recalled with regard to Exhibit C?4 that the instructions came aboutafter the inspection, and that the valves were painted after the inspection (T.137). Only the lines were painted prior to the inspection (T. 238),??????????? JohnMihalasky is a professor of industrial engineering at the New Jersey Instituteof Technology and possesses numerous degrees including a Bachelor?s, Master?sand a Doctorate. He has been teaching for 23 years and is knowledgeable inareas including safety engineering. The witness stated that he has writtenarticles 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 plantand asked questions concerning the process and the S.O.P. (T. 244). Hequestioned the implementation. He is familiar with the OSHA Citation 1(a). Hedoes not possess a degree in Chemical engineering but has done consulting withchemical companies (T. 245?246). Counsel conceded that at the time of theinspection there was no check list (T. 247). He further noted the issue iswhether it is needed. The witness stated that based on his experience and onother factors it was his opinion that the check list will not contribute to thesafety in the J?45 reactor room (T. 250). The step process in this location isstandard. He believes that an employee learns the steps and procedures until itbecomes second nature to him. He then goes through it automatically. If thereis a deviation, the employee calls the supervisor (T. 250). In an emergency theemployee has to rely on his training and cannot rely on a check list. He feelsthat the safety program is sufficient. As to the valve, he stated that it willnot be any better than other 1-phase systems. He stated that this is a 2-phasesystem 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 cautionswhich would otherwise normally be exercised (T. 251). The witness submitted anexhibit 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 trainingof the operator instead of the use of check lists. The witness first learned ofExhibit R?2 the day before testifying but is familiar with similar types ofcheck valves other than the circle valve. He did not talk to the manufacturerand 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 workis not repetitive but he believes that this job is routine assuming theemployee remembers. He believes in retraining because it is a protective deviceand refreshes the employee (T. 257). The batch sheet is not necessary, but ishelpful in this type of operation (T. 260). When asked how does doing anoperation relate to what an employee should do in an emergency, he stated hedoes not feel that a check list would contribute to safety. He was asked ifthere was anything on the batch sheet that relates to what an employee shoulddo in an emergency and he replied that there was nothing (T. 260).??????????? GeorgeB. Stanton, Jr., a consultant engineer and an expert, stated that he made twovisits to the plant (T. 267). He believes that check valves are not necessaryand are unsafe (T. 268). In his opinion, it is known that check valves areunreliable. 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 openor closed position. He also indicated that there are no ignition hazards in thereactor room. He stated that the control room was under pressure and thereforethere was no prohibition against smoking since it was considered a safelocation (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). Certaincheck valves allow for some leakage (T. 273). An alloyco check valve wasinstalled on reactor No. 12. The witness does not agree with the representationof Exhibit R?2 regarding the check valve but said he did not confer with themanufacturer (T. 275). The witness testified that when the alloyco valve wastested, the Respondent advised him that the valve worked (T. 275). The witnessstated that regarding sources of ignition including sparking tools or otherequipment he did not check (T. 286). With regard to the belt-driven mixer inthe area, he indicated that the belt does produce heat. There is also a dryerwhich operates below ignition temperatures. The valves on J?45 did not haveindicators 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 ofpentane (T. 286?287).??????????? Mr.Everett was recalled and stated that he did not observe any overall system ofcolor coding on his inspection of September 6, 1978 (T. 295). He stated thatthe valves at that time were unpainted (T. 296). The pipes essentially wereunpainted 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 yellowpaint on a few of the pipes. He saw white paint on some of the pipes in thereactor 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 themanufacturer and called Valley Forge, Pennsylvania, where the company has aquality control group. He spoke to a Mr. Hunt about installing the valve on anitrogen line and as to pentane. He said that this was a swing check valve andwould not normally be recommended. At 300 pounds pressure it has a leakage of80 cc?s and meets the American Society of Testing. However, at a lower pressuresuch as Respondent?s the valve used in the nitrogen line would lack sufficientpressure and therefore permit more leakage which would be unsatisfactory (T.300?302). He was told therefore it was not recommended.??????????? TheCircle Seal Corporation valve could withstand the recognized presence ofstyrene in the line and it was considered as satisfactory (T. 304). The styrenemay be more corrosive to seals than pentane but the overall condition stilldetermined that the valve would be acceptable (T. 305). Mr. Everett concludedby saying that the safest installation would be to have separate pentane andnitrogen lines into the vessel (T. 303).OPINION??????????? TheRespondent was cited for two violations of Section 5(a)(1) of the OccupationalSafety 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 employeesemployment and a place of employment which are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to hisemployees . . .???????????? Thefirst alleged violation states:At Control Room J?45, where a chemicalreaction was planned, the employer had not prepared and posted or otherwiseprovided adequate written instructions or check lists to inform employees ofthe safe operating limits of temperature and pressures to be maintained withinthe reactor and procedures to be followed to safely control the chemicalreaction or to safely shut down the reactor in the event that any processexceeded said safe operating conditions or in the event of an electrical powerfailure, failure of heat in coolant lines, and possible utility failure orincorrect raw material addition in order to prevent explosion or minimize thehazard to employees in the area.???????????? Theevidence reveals and it has been conceded that at the time of the inspectionthere was no check list at the inspection site. However, the issue to beresolved is whether the check list is needed (T. 247).To establish a violation of the generalduty clause, hazardous conduct need not actually have occurred, for a safetyprogram?s feasibly curable inadequacies may sometimes be demonstrated beforeemployees have acted dangerously. At the same time, however, actual occurrenceof hazardous conduct is not, by itself, sufficient evidence of a violation,even when the conduct has led to injury. The record must additionally indicatethat demonstrably feasible measures would have materially reduced thelikelihood that such misconduct would have occurred.?NationalRealty and Construction Company, Inc., v. OSAHRC;(December 13, 1973) 489 F.2d 1257.??????????? TheSecretary in its testimony has demonstrated that the use of pentane which is ahighly 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 upinto the nitrogen line and exposed the Respondent?s facility to the possibilityof a fire, explosion or other hazard. The Respondent does not deny theincidents however it asserts that there are adequate safeguards in the processof manufacture to prevent any danger to its employees. In reviewing theevidence it is noted that the possibilities of a serious accident were presentin 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 priorexperience for the prevention of any serious accidents. The Secretary hasproduced Exhibits C?3 which contains the recommendation for the use of awritten ?standard operating procedure? to prevent any employee injury. TheExhibit states that the purpose of the standard operating procedure is to helpeliminate accidents. The use of a standard operating procedure by theManufacturing Chemists is wide spread and is generally recognized as anappropriate safety factor. The Respondent, in its presentation, acknowledgesthat it has a standard operating procedure but it is primarily concerned withthe manufacturing process without making any recommendations to the employee incoping with emergency situations. The testimony shows that if a deviation oremergency should occur, the employee is directed to seek out and obtainguidance from the supervisor. However, if the supervisor is not in theimmediate area, the employee should page the supervisor on the public addresssystem and await further instructions while the emergency continues. It isevident that the Respondent has failed to demonstrate that there are adequatesafety provisions for guidance to an employee in the event of an emergencywhich might endanger his health or safety or to give warning to others. TheRespondent introduced evidence by which its expert asserts that the necessityfor having a standard operational procedure guide is insufficient to cope withan actual emergency. Instead it is alleged a well trained employee would alwaysknow what to do and be able to recognize an emergency. It is evident that thisphilosophy or approach is insufficient to meet the needs of an employee who isinvolved in a step by step procedure. The employee requires immediate knowledgeon how to recognize any deviation or emergency and to react quickly if thatemergency or deviation should occur. While the Respondent indicated that it hasa safety training program for its employees it is also recognized thatemployees occasionally may forget or overlook certain routine steps. Employeesshould not be required to wait for the first instance of emergency beforeknowing what to do. The courts have previously stated; ?One purpose of the Actis to prevent the first accident.? LeeWay Motor Freight, Inc., v. Secretary of Labor (February 19, 1975) 511 F.2d864.??????????? Theuse of a properly integrated standard operational procedure in the work processwould provide guidance at all times to an employee as the manufacturing processprogressed. Some time was spent during the trial on the need and use of a colorcoding system for guidance to employees in helping them recognize potentialemergencies. The evidence showed that while the Respondent professed to have anadequate system which included color coding nevertheless the testimony showedthat at the very least there were conflicting color codes and confusion inunderstanding its so called S.O.P. system.??????????? TheSecretary has carried its burden of proof. The hazard of not having a standardoperational procedure is recognized and is found to be a necessary part of thesafety provisions for its employees. The so-called check list would be an aidas pointed out by the Secretary in preventing not only manufacturing accidentsto the finished product but also to the employees themselves. Consequently, theRespondent is found to have violated Section 5(a)(1) of the Act with regard toitem 1(a) of the Citation dealing with the failure to provide adequate writteninstructions or check lists to inform employees of the safe operating limits.??????????? TheRespondent was also cited for failing to provide a safe means of preventingpentane from backing up into the nitrogen lines used in its manufacturingprocess. The evidence shows that on two occasions the nitrogen line valve was inadvertentlyleft open providing pentane with a means to back up into the line flowing toother 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 thelines. However, they were not one-way check valves and as such the pentane couldback up into the other parts of the plant because of the absence of this typeof valve. The Secretary has presented evidence to show that there is a valvemanufactured that would meet the need of this situation. The Secretary?s expertindicates that the best way to abate this type of hazard would be to provideseparate lines rather than a point of mixture where the chemical could back upinto other lines. While the Secretary?s expert has produced testimony to showthat 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 forpentane and that it would actually work. This does not mean that there is not ameans of abating a hazard such as occurred in the two incidents. The use ofpentane is considered a highly inflammable chemical and is hazardous to use.This exposes the Respondent?s employees to a danger which is recognized in thechemical industry. Whether the manufacturing process provides adequatesafeguards to the employees is the basis of this complaint.??????????? Thefact that pentane was permitted to back up into other lines and to possiblyreach other parts of the plant presents evidence of a recognized hazard withvery serious possible consequences. The expert testimony reveals that if thecheck valves are not utilized, there are other means of accomplishing anabatement of the hazard to which the employees are exposed. The Respondent didnot present any evidence or raise any issue as to the economic feasibility ofaccomplishing 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 whetherthe hazard can be abated. The Secretary has carried its burden of proof indemonstrating that there was a hazard and that it could be abated. The presenceof the pentane in other parts of the plant is a real hazard and cannot becavalierly discounted. The abatement of the hazard can be accomplished byrecognized means and this has been presented in the evidence put forth by theSecretary. The Respondent testified that the issues of this case have sincebeen abated by use of a check valve and a check list as noted in the transcript(T. 54).??????????? Theweight of evidence demonstrates that the Respondent has violated Section5(a)(1) as noted in Citation No. 1, items 1(a) and 1(b). The Respondent?sstatement that the violations have been abated was considered along with theother factors of Section 17 of the Act. The proposed penalty of $420.00 isappropriate under the circumstances of this case and should be affirmed.??????????? TheRespondent?s brief and proposed findings of fact and conclusions of law havebeen considered in the light of the evidence and the testimony of thisproceeding and a disposition of the proposed findings of fact and conclusionsof law are adopted only to the extent as set forth in the decision herein. Allmotions not previously disposed of are denied.FINDINGS OF FACT??????????? Thecredible evidence and the record as a whole establishes preponderant proof ofthe following facts:??????????? 1.Respondent BASF Wyandotte Corporation is a company in the chemicalmanufacturing business. It maintains a manufacturing facility engaged in theproduction of polystyrene products at Jamesburg, New Jersey.??????????? 2.The Compliance Officer ascertained that the Respondent does not maintain in thereactor room, a written check list or other instruction sheets setting forth insummary fashion operating, emergency and safety procedures.??????????? 3.The evidence shows that the nitrogen line used to purge certain reactors withnitrogen did not have inserted in it at the time of inspection a check valve orother means for the purpose of preventing a back flow of pentane into thenitrogen line.??????????? 4.The evidence shows that there are feasible means by which to prevent the backflow of pentane and that the preferred method would be the use of separatelines for nitrogen and pentane.??????????? 5.The evidence shows that the use of check lists or standard operating proceduresare a recommended practice of the Manufacturing Chemists Association and isused industry wide.??????????? 6.The evidence of record shows that color coding utilized at the Respondent?sfacility was neither uniform nor consistent and was found to be confusing byreason of its variance.??????????? 7.The evidence of record shows that pentane is a highly inflammable and explosivechemical used in the manufacturing process of the Respondent.??????????? 8.The evidence of record shows that there were two incidents whereby pentane waspermitted to back flow into other lines of the plant.??????????? 9. Theevidence of record shows that through an inadvertence, the valves controllingthe 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 linesdemonstrates that the hazard resulting from a back flow or opened valve can befeasibly abated.??????????? 11.The evidence of record shows that pentane at the time of inspection, could flowthrough the nitrogen line to other areas of the plant not specificallyprotected 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 affectingcommerce within the meaning of Section 3 (5) of the Occupational Safety andHealth Act of 1970.??????????? 2.The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter and parties to this action.??????????? 3.Respondent violated 29 U.S.C. 654(a)(1) by failing to provide a place ofemployment free from recognized hazards causing or likely to cause death orserious physical harm to employees in that adequate written instructions orcheck lists to inform employees of the safe operating limits at theRespondent?s chemical plant; and by failing to provide adequate safeguards inthe use of pentane from backing up into a nitrogen line subjecting the plantand employees to fire and explosion.??????????? 4.The exhibits of this proceeding are subject to the confidentiality accordedpursuant to Section 15 of the Act.ORDER??????????? Uponthe basis of the foregoing findings of fact and conclusions of law and upon theentire record it is hereby ORDERED that:??????????? 1.Citation No. 1 is affirmed and the penalty of $420.00 is assessed.?SEYMOUR FIERJUDGE, OSHRCDated: 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 hisemployees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harmto his employees.?[2] Polymerization isa chemical process by which two or more molecules (monomers) are united to forma polymer.[3] Styrene is acolorless, oily liquid and the monomer for polystyrene. Polystyrene is a clear,rigid thermoplastic that is easily colored and molded for a variety ofapplications as a structural material.[4] A header is apipe that serves as a central connection for two or more smaller pipes.[5] A check value isa control mechanism put into a pipe to permit the material in the pipe to flowin one direction only and to prevent any other material from flowing backthrough the pipe.[6] A Class I,Division 1 rating is assigned by the NEC to hazardous locations where flammablegases and vapors are present as part of normal operations; a Class I, Division2 rating is given to locations where flammable gases and vapors are notnormally present but where they might appear accidentally.[7] The Secretarystates on review that the fact the citation was divided into two separate itemswas of ?no consequence.? Our subsequent discussion, therefore, applies equallyto items 1a and 1b.[8] Group D refers tochemicals, including pentanes. See NEC, NFPA 70?1971, ? 500?2, Table 500?2(c).[9] At the time ofthe alleged violation in this case, the OSHA electrical requirements forgeneral industry workplaces were found in the NEC. Since this case arose, theSecretary has promulgated new electrical standards for general industry. 46Fed. 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 inthe NEC, 29 C.F.R. ? 1910.399(a)(24), and basically contain the samerequirements for electrical equipment and wiring in such locations that the NECcontains. See 29 C.F.R. ? 1910.307.[???]Denotestranscript page.”