“Docket No. 83-0488_83-0489 SECRETARY OF LABOR,Complainant,v.FMC CORPORATION,Respondent.OSHRC Docket No. 83-0488 and 83-0489DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners.This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration.\u00a0 It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).I FMC’s plant in South Charleston, West Virginia, produces chlorine by processing brinethrough diaphragm-type electrolytic cells. Nitrogen trichloride (NCl3), an explosivecompound, is a by-product of the electrolytic process and is contained in the wastematerial, which is known as \”gunk\”.\u00a0 These cases concern the procedure bywhich FMC neutralizes the potentially hazardous waste material and then removes it fromthe system.\u00a0 First, the gunk, which accumulates at the bottom of two scrubbers, istransferred through pipes to three gunk tanks, also known as reboilers. During thisprocess, chloroform and carbon tetrachloride are added to dilute the concentration of NCl3Once a gunk tank is filled, it is heated by either steam, hot water, or both so that anychlorine present in the tank will be vaporized.\u00a0 This is called\”gasification.\”\u00a0 When this process is completed, the residue is pumped to areactor, where it is neutralized with hydrochloric acid and then transferred to drums fordisposal.\u00a0 There is a diked pit in the area of the gunk tank that contains a pump.\u00a0 The purpose of that pump is to prevent accumulations of the hot water that is usedin gasifying the tanks.On March 1, 1983, an employee of FMC, Gary Gessel,was killed in an explosion of NCl3.\u00a0 The explosion occurred in the transfer line fromone of the gunk tanks to the reactor, and secondarily in the gunk tank itself, due to anexothermic reaction of NCl3. Apparently, the explosion occurred because Gessel failed tofollow his supervisor’s instructions to turn off the water that was heating the gunk tankduring the gasification process.\u00a0 While the record does not establish conclusivelywhat caused the explosion, there is some evidence that Gessel placed the hot water hose onthe pipe, thereby causing the hot water to contact the pipe and overheat the NCl3,starting the reaction that resulted in the explosion.As a result of his investigation of the explosion,the Secretary issued in Docket No. 83-0488[[1]] a citation alleging two violations ofsection 5(a)(1), 29 U.S.C. ? 654(a)(1) of the Act.[[2]]\u00a0 The items focus on two ofthe steps in the procedure described above:\u00a0 the gasification of the gunk tanks todrive off the chlorine; and the addition of chloroform to dilute the concentration ofNCl3.\u00a0 The citation alleges that deficiencies in those procedures exposed employeesto the hazard of explosion.[[3]]\u00a0 A penalty of $720 was proposed for each item.Administrative Law Judge Paul Brady affirmed thecitation and assessed a single $700 penalty.\u00a0 Judge Brady did not differentiatebetween the two items, but rather treated the citation as an integrated whole. \u00a0Having apparently viewed the problem as stemming from the heating required by FMC’sgasification process, the judge defined the hazard as the danger of explosion when heat isapplied to gunk tanks and transfer lines containing NCl3. The judge found that both FMC and the chlor-alkalineindustry in general were aware of hazards involving concentrations of NCl3 in gunkoperations.\u00a0 More specifically, the judge found that the evidence established thatFMC’s methods of gasifying gunk tanks constituted a hazard.\u00a0 The judge noted that theemployees were not aware of the hazard associated with sudden heat buildup and that therewas no rule forbidding the application of steam or hot water to the transfer line.\u00a0Judge Brady also noted that the transfer lines were placed in proximity to the water hoseused to heat the gunk tank.\u00a0 With such a setup, the Judge concluded, it was incumbenton FMC to institute a safe and effective program governing its work practices.\u00a0 Thejudge found that FMC had failed to do so and therefore found that FMC had violated section5(a)(1).\u00a0 FMC petitioned for review of the judge’s decision.For the reasons that follow, we find that the Judgeerred in affirming the citation.\u00a0 With respect to each step in the process that theSecretary has challenged, we conclude that the Secretary either failed to prove that FMC’ssafety measures were inadequate or failed to prove the likely utility of measures intendedto reduce the hazard of explosion.\u00a0 Accordingly, we vacate the citation.IITo prove that an employer violated section 5(a)(1), the Act’s general duty clause, theSecretary must prove that the cited employer failed to free the workplace of a hazard that(1) was recognized by the cited employer or its industry, (2) that was causing or likelyto cause death or serious physical harm, and (3) that could have been materially reducedor eliminated by feasible and useful means of abatement.\u00a0 Pelron Corporation,12 BNA OSHC 1833, 1986 CCH OSHD ? 27,605 (No. 82-388, 1986).Judge Brady defined the hazard as the danger ofexplosion when heat is applied to gunk tanks and transfer lines containing NCl3. Theevidence in this case clearly establishes that some danger of explosion always exists whenheating NCl3-FMC’s gasification process necessitates the heating of gunk containing NCl3.\u00a0 The Secretary has neither alleged nor adduced any evidence to suggest that the gunkneutralization process can be accomplished without heating the tanks to drive off excesschlorine.\u00a0 Therefore, if the hazard were to be defined as the danger of explosionwhen heat is applied to the gunk tanks, it would be impossible for FMC to rid itsworkplace of the hazard.\u00a0 The intent of section 5(a)(1) is, however, to reducepreventable hazards.\u00a0 Pelron Corporation, 12 BNA OSHC at 1835, 1986 CCH OSHDat p. 35,871.\u00a0 To further that intent, hazards must be defined in a way that apprisesthe employer of its obligations and identifies conditions or practices over which theemployer can reasonably be expected to exercise control.\u00a0 Pelron, 12 BNA OSHCat 1835, 1986 CCH OSHD at p. 35,872.\u00a0 Accordingly, we define the hazards in this caseas those practices, procedures or conditions that increase the likelihood of an explosion.Both FMC and the chlor-alkaline industry recognizedthat the likelihood of an explosion is greatly increased when there are either inadequatemethods of temperature control during gasification, or unknown concentrations of NCl3 dueto improper methods of adding and monitoring the addition of the diluent chloroform.\u00a0This is not in dispute.\u00a0 Rather, the dispute centers on, and we must decide, whetherFMC’s procedures for preventing high temperatures and high concentrations of NCl3 wereinadequate.\u00a0 Also at issue is whether the Secretary established that there wereadditional measures that would have feasibly and materially reduced the risk ofharm.\u00a0 See Cerro Metal Products Div. Marmon Group, Inc., 12 BNA 1821,1823, 1986 CCH OSHD ? 27,579, p. 35,829 (No. 78-5151,1986).IIIThe first item of the citation alleges that FMC’s method of monitoring and controllingtemperatures was insufficient, thus increasing the danger of an explosion due to anexothermic reaction of NCl3 in the gunk tanks and transfer pipe.Before 1980, FMC heated the gunk tanks duringgasification by applying hot water to the top of the tanks with a hose.\u00a0 Because of awater disposal problem, FMC added a steam heating system in which steam was applied with asploger (a pipe with holes) to the bottom of the tank.\u00a0 In colder weather, hot waterwould be applied by hose in addition to the steam to speed gasification.\u00a0 When usedto gasify the gunk, hot water accumulated in a pit.\u00a0 The pipes carrying the gunk fromthe gunk tanks to the reactor ran above this pit.\u00a0 To prevent the hot water fromrising and contacting the pipes, FMC installed in the pit a sump pump that startedautomatically when the water reached a pre-set level.To prevent the gunk from reaching a criticaltemperature, employees were instructed not to allow the temperatures to rise above 10-20? C during the gasification process.\u00a0 The temperatures of the gunk tanks weredetected by a thermocouple on each of the tanks. Digital displays of the temperaturesdetected by the thermocouples were located in a control room several feet away from thetanks. A continuous digital readout of the temperatures in a gunk tank could be obtainedby punching up the assigned number on the buttons in tile control room.The Secretary first argues that FMC failed toadequately train its employees with respect to the hazards of overheating the gunk tanks.\u00a0 In support of this assertion, the Secretary argues that employees were allowed touse hot water to speed gasification and were not instructed to gasify the tanks slowly.\u00a0 The Secretary also notes that FMC had no written procedures for gasifying thetanks, and new control room operators were trained only by other operators. \u00a0Moreover, some employees were not informed of the hazard of explosion caused by allowingtemperatures to rise too high or too rapidly.We find that the Secretary failed to establish thatFMC’s training methods were inadequate.\u00a0 Although FMC did not have a formal trainingprogram, a formal training program is not necessarily required by section 5(a)(1).\u00a0 SeeJones & Laughlin Steel Corp., 82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1782, 1982 CCHOSHD ? 26,128, p. 32,887 (No. 76-2636, 1982); Pelron, 12 BNA OSHC at 1838, 1986CCH OSHD at p. 35,874.\u00a0 The question is one of substance, not form.\u00a0 Thetestimony establishes that all operators were aware that temperatures were not to riseabove 10-20? C.\u00a0 Similarly, while several employees could not recall being advisedof the danger inherent in heating the tanks too rapidly, all were aware that the tanksshould be heated gradually.\u00a0 Indeed there is no evidence that the tanks were heatedtoo rapidly.\u00a0 Although the record establishes that gasifying the tanks in less thanhalf an hour was hazardous, the evidence indicates that the shortest period of time takento gasify the tanks was 45 minutes.\u00a0 We also note that the operators who testifiedhad been in their positions for periods ranging from four to thirteen years and eitherwere experienced or were trained by highly experienced employees.\u00a0 Moreover, FMCoperated its facility for some 25 years without an accident, thereby evidencing that itsprogram of on-the-job training was successful in ensuring proper operating procedures.Although the Secretary would require a formal training program, there is no evidence thatsuch a program would have significantly elevated the level of safety at the facility,especially given the experience of the operators who gave the on-the-job training.The Secretary next argues that FMC’s temperature control technology was inadequate. \u00a0He asserts that monitoring the temperatures on the gunk tanks was difficult because thethermocouples on the tanks displayed temperatures only after a series of buttons werepunched in the control room.\u00a0 According to the Secretary, FMC also should haveinstalled a high-temperature alarm that would immediately warn employees when the gunktank temperatures had reached dangerous levels.At the hearing, W. Duane Colpous, a retired chemicalengineer with 35 years experience in the chlorine industry, was called by the Secretary asan expert witness.\u00a0 It was his opinion that the temperatures at the plant wereinadequately\u00a0 monitored.\u00a0 He criticized FMC’s failure to record temperatures ona con tinuous basis so they could be followed on a chart and opined that FMC should haveused a high temperature alarm to warn employees when temperatures approached the upperlimit of safe operation.\u00a0 Colpous’ testimony was contradicted by FMC’s expertwitness, Dr. Chester Grelecki,[[4]] a Ph.D in chemistry with considerable experience inthe chlor-alkaline industry, and a consultant in the area of chemical processdesign.\u00a0 Grelecki found nothing inadequate about FMC’s temperature detection systemand testified persuasively that FMC’s system was up to industry standards.There is no evidence to support the Secretary’s claimthat punching buttons to obtain a continuous readout of gunk tank temperature interfereswith the operators’ ability to monitor temperature changes.\u00a0 Testimony of the controlroom operators Eleanor Garrett and Robert Jones establishes that they had no difficultymonitoring the temperature of the gunk tanks in the control room. \u00a0 Similarly,despite Colpous’ opinion that FMC’s temperature detection system would have been improvedby installing a high temperature alarm and continuously recording gunk temperatures, theevidence establishes that the employees successfully monitored temperatures with thesystem in use.\u00a0 Accordingly, we find that although the evidence establishes that theuse of high temperature alarms and the continuous recording of gunk tank temperaturesmight have marginally improved the ability of the employees to detect high temperatures,it does not establish that such improvement would have materially reduced the hazard ofundetected high temperatures in the gunk tanks.\u00a0 While a means of abatement need notbe perfectly protective, it must be shown by the evidence to promise a material reductionof the hazard.\u00a0 See Chevron Oil Co., 83 OSAHRC 19\/B2, 11 BNA OSHC 1329,1334, 1963-84 CCH OSHD 26,507, p. 33,724 (No. 10799, 1983). \u00a0 This was not shown onthis record.The Secretary next focuses on alleged deficiencies inFMC’s control of temperatures on the transfer pipe.\u00a0 The Secretary observes that FMCdid not have thermocouples on the transfer lines, thus making it impossible to determinethe temperatures in those lines. Furthermore, the Secretary argues that the transfer linesshould have been relocated out of the pit to an area where they would not have beenexposed to the hot water used to heat the gunk tanks.\u00a0 Finally, the Secretary arguesthat FMC should have adopted a system to \”dump\” large quantities of diluentsinto the pipes to reduce hot spots and to \”dump\” the contents of the gunk tanksinto diluents when the tanks reached critical temperatures.The evidence is undisputed that FMC was unable todetermine the temperature of the gunk as it passed through the transfer pipes. The dangerof hot spots developing without warning due to contact with an external heat source, suchas hot water or steam, and an ensuing exothermic reaction resulting in an explosion wastherefore a danger inherent in FMC’s system.We find, however, that the Secretary failed toestablish either the feasibility or likely utility of an abatement method with respect tothis danger.\u00a0 The first method of abatement suggested by the Secretary was to placethermocouples on the transfer lines that would be able to detect hot spots.\u00a0 Hepoints to the testimony of Mr. Colpous that thermocouples on the line would improve theability to detect hot spots.\u00a0 However both Dr. Grelecki and Mr. Colpous testifiedthat due to the unpredictability of hot spot formation, numerous thermocouples would haveto be placed along the transfer pipes.\u00a0 Mr. Colpous could not state how manythermocouples would be necessary or how far apart they would have to be placed to beeffective but opined that even one would be helpful.\u00a0 Dr. Grelecki, on the otherhand, testified that to thoroughly monitor the pipes, thermocouples would have to beplaced about a foot apart along the entire length of the pipes.\u00a0 Lionel Updyke, achemical engineer for FMC, testified that the thermocouples might have to be placed two tothree inches apart along a hundred feet of piping in order to pick up a localized heatsource.\u00a0 Both Dr. Grelecki and Lionel Updyke testified that the use of thermocouplesto detect hot spots on the transfer pipes was not an accepted practice within thechlor-alkaline industry to reduce the hazard of hot spot formation within the pipes.\u00a0 Moreover, Dr. Grelecki testified that from the viewpoint of engineering principlesand industry standards, such a method of monitoring is not practical.Having considered the testimony of both experts, wefind the Secretary failed to establish the feasibility of placing thermocouples on thepipes.\u00a0 Although Mr. Colpous testified that even one thermocouple would be helpful,his own testimony establishes that to detect a hot spot the thermocouple would have to belocated in the immediate vicinity of the hot spot.\u00a0 A thermocouple might enable FMCto monitor temperatures in the pipe as a whole, but it would be of little if any benefitin detecting hazardous hot spots.The Secretary next argues that the hazard of hot spotformation could have been reduced by relocating the transfer lines out of the pit wherewater, used to heat the gunk tanks, would accumulate.\u00a0 He notes that, after theaccident, the transfer lines were relocated, thus establishing the feasibility of themeasure.[[5]]Although we agree that the Secretary established thefeasibility of relocating the lines, we find that the evidence fails to establish thelikely utility of this abatement measure.\u00a0 We do not believe the record establishesthat the lines were located in an area that endangered employees, a sump pump was used inthe pit to prevent the accumulation of water.\u00a0 It activated automatically when thewater reached one inch in depth.\u00a0 Superintendent Updyke testified that, with the pumpoperating, it was impossible for water to accumulate to the level of the pipes, which weremore than 3-1\/2 inches above the bottom of the pit.\u00a0 He explained that while the flowrate of the hot water hose was four gallons per minute, the pump was able to handle sevengallons per minute.\u00a0 Several operators testified that the pumps had worn out and weresubject to corrosion.\u00a0 However, FMC checked the pump three times a week and requiredan inspection sheet, indicating whether the sump pump was in proper condition, to becompleted after each inspection.\u00a0 These reports establish that during the periodJanuary 5 through February 28, 1983, a problem occurred with the sump pump only once andthat the pump was repaired by the next inspection. Both Robert Jones and James Jones,control room operators, testified that during the month prior to the accident the pump wasworking well.\u00a0 Gunk neutralization operator Cassell stated that normally a PUMP iskept in good working condition.[[6]]Despite the efforts by FMC to keep the sump pump ingood repair, FMC operators testified that water did reach the lines.\u00a0 Theirtestimony, however, is in conclusive regarding the time when this occurred.\u00a0 BothRobert Jones and James Jones testified that they had seen the lines covered with water butthey did not identify when this happened.\u00a0 Gunk neutralization operator Cassell saidhe had observed water over the pipes during the two months before the accident but weeklyinspection logs for the period of January 7 through February 25, 1983, naming Cassell asoperator, all state that there was no water standing in the diked area during that period.\u00a0 In addition control room operator Eleanor Garrett, who recalled occasions whenwater accumulated to pipe level, stated this occurred when FMC was using a differentsystem of water disposal.\u00a0 She did not testify that water had ever accumulated topipe level since the institution of the system used at the time of the citation.In any event, even if water did reach the lines,there is no evidence that this water created or was likely to create a hazard.\u00a0 Aspreviously noted, superintendent Updyke testified that the flow rate of the hot water hosewas four gallons per minute.\u00a0 He also testified that approximately 300 gallons ofwater would be required in the pit before it would back up to the lines.\u00a0 Consideringthese facts together with other characteristics of FMC’s operation, Dr. Grelecki opinedthat by the time the water would reach the pipes its temperature would be too low to heatthe contents of the pipe to any significant temperature.\u00a0 Based on the evidence itwould take at least one hour and fifteen minutes for enough water to accumulate to reachthe lines.\u00a0 The water would, of course, be cooling during this time period.\u00a0 Atsome point in time the water would actually act as a conductor of heat away from the pipesmuch like the cooling system in an automobile engine.\u00a0 There is simply no evidence tosupport the view that the pipes were or could ever be \”submerged in hot water\”as the dissent postulates.\u00a0 Dr. Grelecki also testified that FMC’s facility designwas both appropriate and consistent with industry practice.\u00a0 Given this evidence, weare not convinced that there was a problem with the water disposal system in use at thetime of the inspection.The fact that FMC relocated the lines after theaccident does not alter our conclusion.\u00a0 As we recently noted in another case,\”Employers may decide . . . to take other precautions against injury or illness outof an abundance of caution rather than a belief that the absence of such precautions wouldexpose employees to a significant risk of harm.\”\u00a0 Kastalon, Inc. & Conap,Inc., ___ OSAHRC ___, 12 BNA OSHC 1932, 1986 CCH OSHD ? 27,643 at p. 35,970 (Nos.79-3561 and 79-5543, 1986).\u00a0 The Secretary introduced no evidence to show the reasonfor FMC’s relocation and we decline to speculate as to why the lines were moved.Finally, the Secretary argues that FMC should haveinstalled a dump system that would have utilized large quantities of diluent or coolentsto neutralize the development of an exothermic reaction.\u00a0 Although the Secretarypresented evidence to establish that the introduction of diluents into the gunk wouldreduce the hazard of an explosion, we find that the record fails to establish thefeasibility of such a system.The use of a \”dump system\” was recommended by the Secretary’s expert witnessDuane Colpous.\u00a0 Mr. Colpous testified that either carbon tetrachloride could bequickly added to the pipes as a coolant when a hot spot developed, or the material in thetank could be dumped into a coolant.\u00a0 He stated that the latter type of dump systemis used in TNT plants to reduce the danger of explosion. However, Colpous did not testifythat he had ever seen such a \”dump system\” used in a chlorine plant, or presentany details that would indicate how such a system would work in the FMC facility.\u00a0 Healso did not identify any similarities ties between a TNT plant and FMC’s facility thatwould indicate that a \”dump system\” could be used in a chlorine plant.[[7]]Dr. Grelecki, on the other hand, testified that adump system would not be feasible in reducing the hazard of an explosion. According to Dr.Grelecki, because the pipes would be full, there would be no way to \”dump\”quantities of diluent into the lines in a manner that would effectively neutralize a hotspot.\u00a0 According to Dr. Grelecki, an attempt to \”dump\” diluents into a fullpipe would only displace the gunk already in the line and move the hot, spot to anotherlocation within the pipe.\u00a0 Moreover, Dr. Grelecki testified that because of therapidity of an exothermic reaction of NCl3, once one was detected there would not besufficient time to \”dump\” the material in the tanks into a coolant.We find Dr. Grelecki’s testimony to be morepersuasive than that of Mr. Colpous.\u00a0 While Mr. Colpous discussed a dump system inonly general terms, Dr. Grelecki specifically identified technical problems that wouldhave rendered such a system infeasible in a chlor-alkaline plant.\u00a0 The Secretaryintroduced no evidence to show how FMC might overcome those technical problems.\u00a0 Wetherefore conclude that the Secretary failed to establish the feasibility of a dumpsystem. We find that the evidence is insufficient toestablish either that FMC failed to adequately train its employees in the hazards ofoverheating the tanks or that FMC failed to institute adequate methods of temperaturecontrol, and vacate item 1 of the citation.VIThe second item of the citation alleges that FMC increased the hazard of explosion byusing improper methods of adding and monitoring the addition of chloroform to its system,resulting in unknown quantities of NCl3 in the system.The upper limit for a safe concentration of NCl3 inthe gunk tank is 5%.\u00a0 To maintain a safe concentration FMC adds chloroform to thescrubbers and carbon tetrachloride to the gunk tanks.\u00a0 Besides being a diluent in thescrubbers, the chloroform acts as an antifreeze for the carbon tetrachloride in the gunktanks, which freezes at -23? C.\u00a0 The temperature of the chlorine in the gunk tanksis -33? C.\u00a0 By itself, the carbon tetrachloride would freeze and separate, leaving aconcentration of pure NCl3.\u00a0 The chloroform lowers the freezing point of the carbontetrachloride, allowing it to be an effective diluent.\u00a0 A device called a rotometercontrols the addition of chloroform and can be adjusted to vary the chloroform flow.The evidence establishes that both FMC and thechlor-alkaline industry recognized that the addition of insufficient quantities ofchloroform to the scrubbers would greatly increase the danger of explosion fromexcessively pure concentrations of NCl3.\u00a0 The Secretary does not argue that FMC’sformal procedures and requirements for the addition of chloroform and testing for NCl3concentrations were inadequate.\u00a0 Rather, the issue is whether FMC’s failure to followthose procedures increased the hazard of explosion.\u00a0 The Secretary points to threespecific instances where FMC’s failure to follow its written procedures allegedlyincreased the hazard.\u00a0 First, the Secretary contends that FMC failed to sample thegunk to determine the concentration of NCl3 as often as required by its own ChlorineOperating Bulletin.\u00a0 Second, the Secretary contends that, during a couple ofweeks before the accident, problems with the rotometer resulted in quantities ofchloroform being added to the scrubbers that were below the amounts required by FMC’s ownoperating procedures.\u00a0 Third, the Secretary argues that on the day before theaccident FMC began an experiment that resulted in the flow of chloroform to the scrubbersbeing interrupted for three hours.We find that the Secretary failed to establish thatFMC’s failure to follow the sampling requirements in its own Chlorine Operating Bulletinincreased the possibility of an explosion due to undetected high concentrations ofNCl3.\u00a0 The Bulletin, written in 1973, requires that the gunk be sampled at leastthree times a week to ensure that the concentration of NCl3 does not exceed 5%.\u00a0Duane Colpous testified that, in his opinion, the gunk should be sampled daily, but heagreed that three times a week would be adequate. Terry Fontalbert, FMC’s senior processengineer, testified that the gunk was not sampled for NCl3 concentrations as often asrecommended by the Bulletin.\u00a0 However, he further testified that it was not necessaryto sample the gunk this often.\u00a0 He noted that the Bulletin was prepared early in thehistory of the system, and speculated that the sampling requirement was included becausethe company was still learning the dynamics of the process. \u00a0 Fontalbert’s testimonywas corroborated by Dr. Grelecki.\u00a0 Dr. Grelecki testified that industry practice isto frequently monitor the NCl3 levels when first establishing a gunk neutralizationprocess.\u00a0 After enough control over the process is established and confidence in theprocess grows, monitoring can occur less frequently. \u00a0 At some point, Dr. Greleckitestified, monitoring of NCl3 levels can stop altogether.Our conclusion that FMC’s failure to monitor NCl3concentrations as required by the Bulletin was not hazardous is strengthened byevidence of other FMC work practices.\u00a0 Both employee testimony and work sheetsintroduced at the hearing establish that employees were required to check and recordchloroform levels every two hours.\u00a0 Moreover, Lionel Updyke testified that FMC testedtheir production process five days a week to determine the amount of NCl3 being produced.\u00a0 Therefore, FMC knew the amount of NCl3 entering the neutralization process. GivenFMC’s regular monitoring of the chloroform being added to the scrubbers and the amount ofNCl3 being introduced into the neutralization process, and FMC ‘s long experience with theprocess, we conclude that FMC adequately controlled the concentration of NCl3 in thesystem.\u00a0 Accordingly, its failure to monitor NCl3 concentrations three times a weekdid not exacerbate the hazard of explosion.The Secretary next argues that a pluggage in the linefeeding chloroform into the scrubber that existed for a couple of weeks before theaccident, together with problems with the rotometer which regulates the flow ofchloroform, resulted in inadequate amounts of chloroform being added to the scrubber.\u00a0 We find that, despite the technical problems described by the Secretary, theevidence establishes that the required monitoring of the chloroform by employees ensuredthat adequate quantities of chloroform were being added.[[8]]Operator Robert Jones testified that, during theproblem with the chloroform line and rotometer, his regular monitoring of chloroformlevels disclosed that an inadequate amount had entered the scrubber.\u00a0 Accordingly, hemade adjustments in the rotometer until the proper amount entered the system. \u00a0Operator James Jones also stated that when there was trouble with the chloroform flow hewould adjust the flow and keep checking the level until the proper amount entered thescrubber.\u00a0 He also testified that whenever the rotometer or line was plugged,management would send an instrument man to correct the problem.Duane Colpous opined that, during the days before the accident, chloroform was added atone-third to one-half of the rates called for in FMC’s Operating Bulletin or aboutfive gallons in a 24-hour period. Lionel Updyke, however, noted that even if chloroformwas flowing below normal levels, the amount in the system before the accident was adequatebecause the system was operating at only 65% capacity.\u00a0 He also stated that theminimum- required flow of chloroform was 1\/4 gallon per hour or six gallons in a 24- hourperiod.\u00a0 Updyke’s conclusion was also supported by Dr. Grelecki, who noted that thefact that the explosion took place in the lines and not in the tank indicates that theflow of chloroform was sufficient.Analysis of the gunk made after the accident revealed a chloroform concentration of 24.6%.\u00a0 In comparison, FMC’S Operating Bulletin calls for a 20%concentration, while Lionel Updyke testified that 10% was sufficient.\u00a0 The accuracyof the post-accident analysis was questioned by Duane Colpous, who testified that theinstability of NCl3 and its ability to react with moisture might have resulted in thesamples showing a lower level of NCl3 than actually existed at the time of the accident.\u00a0 Dr. Grelecki agreed that the gunk samples were unreliable, but stated that\”very reliable\” samples from the reactor indicated an NCl3 concentration of3-1\/2 – 4%, well-within the 5% limit for safe operation.\u00a0 Thus, the NCl3 wasadequately diluted.We also find that, while FMC did have occasionalproblems with the rotometer and chloroform lines, it promptly repaired the defects. \u00a0Moreover, its experienced and competent operators readily recognized and compensated forthe technical problems to ensure that the flow of chloroform remained at safelevels.\u00a0 The post-accident analysis of the gunk, which provided the only concreteevidence of diluent levels at the time of the accident, indicated more than sufficientlevels of chloroform.\u00a0 Those results were supported by other tests that showed thatthe NCl3 was adequately diluted.\u00a0 We therefore find that the problems with therotometer and chloroform lines did not create a danger of explosion due to overly pureconcentrations of NCl3, and that employees were not exposed to a hazard of explosion dueto unsafe concentrations of NCl3.\u00a0 We therefore conclude that FMC took adequatemeasures to maintain NCl3 concentrations at a safe level and vacate item 2 of thecitation.Accordingly, the judge’s decision in No. 83-0488 is reversed and items 1 and 2 of thecitation are vacated.\u00a0 The direction for review as to No. 83-0489 is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 AUG 28 1986BUCKLEY, Chairman, dissenting in part:I respectfully dissent from my colleagues’disposition of item 1 of the citation.\u00a0 In my view, the Secretary established thatboth FMC and the chloralkaline industry in general were aware of the hazard of locatingpipes containing NCl3 in an area susceptible to external sources of heat.\u00a0 By placingits transfer pipes in an area where it was in proximity to hot water, FMC failed to freeits workplace of the hazard, and therefore was in violation of section 5(a)(1) of theAct.[[9]]In my view, FMC’s expert, Dr. Chester Grelecki,established that nitrogen trichloride in a pipe is highly susceptible to exothermicheating and explosion if exposed to external heat.\u00a0 This is due to the confinement ofthe NCl3 in the pipe, which allows no space for the gases generated during heating toexpand, and to the very low autoignition temperature for NCl3.\u00a0 His testimony alsoconfirms industry knowledge of such susceptibility.The record generally substantiates that the explosion which occurred at FMC’s chlorinepurification facility was initiated in a pipe carrying NCl3 from a reboiler (where achlorinated organic mixture containing NCl3 was heated to vaporize and remove chlorine) toa reactor for neutralization of the NCl3.\u00a0 In the heating process, water at atemperature of 80?C was applied externally to the reboiler in the vicinity of the pipe,and the pipe was in an area where hot water frequently accumulated.\u00a0 As the majorityopinion points out, the evidence indicates that hot water which was being appliedexternally to the reactor flowed directly onto the transfer pipe, overheating the NCl3,and commencing an exothermal reaction within the pipe.\u00a0 The evidence, however, is notclear as to precisely how the hot water came in contact with the transfer pipe. \u00a0Either of two hypotheses can be made:\u00a0 that the water level in the diked pit rose dueto a faulty sump pump, reaching the transfer pipe which traversed the diked pit, or thatthe hot water from the hose which was being used on the reboiler was directed onto thetransfer pipe.The record establishes the substantial likelihoodthat hot water could accumulate in the pit to a level where it came in actual contact withthe pipe.\u00a0 Testimony of the operators established that the sump pumps frequentlybroke down.\u00a0 Problems with the pumps were especially acute during the winter whenthey would freeze up.\u00a0 Significantly, it was during such cold weather when theoperators were most likely to use hot water to gasify the tanks.\u00a0 While FMC did actpromptly to repair the pumps, there is no evidence that gasification was stopped duringsump pump malfunction.\u00a0 Indeed, according to FMC’s daily inspection report, onJanuary 21, 1983, the day the sump pump was reported to be not in proper condition, twodrums of nitrogen trichloride byproduct were generated.Moreover, unlike my colleagues, I find no inconsistency in the evidence concerningwhether, during the two months before the accident, hot water accumulated to the level ofthe transfer pipes.\u00a0 The majority finds it significant that, despite operator RobertJones’ testimony that he observed the water level reach the pipes during the two monthsbefore the accident, weekly logs kept during that period show that there was no standingwater in the diked area.\u00a0 They fail to consider, however, the possibility that theaccumulation of water observed by Jones was removed by the time of the weekly inspection.I am also not persuaded by Dr. Grelecki’s testimonythat even if the water did reach the level of the pipes, it would have cooled off too muchto constitute a hazard.\u00a0 First, Dr. Grelecki’s opinion was not shared by DuaneColpous who testified that the line could have been heated up by the hot water in the pit.Second, Dr. Grelecki’s opinion is undercut by other aspects of his testimony. \u00a0 Whendiscussing the temperature dynamics in the tank, Dr. Grelecki recited a principle ofphysics that is particularly applicable to the accumulation of water in the pit. Dr.Grelecki stated that \”a hot zone in a liquid . . . tends to rise because it is lessdense than the surrounding cold fluid.\u00a0 So that–if you had a big vessel and a hotspot would develop in that vessel it would tend to rise and sort of stir itself, like ifyou heat a pot on the bottom the hot water gets from the bottom to the top.\” \u00a0Applying this principle to the pit area, it is apparent that while the overall temperaturewould have cooled, hot water continuing to flow into the pit would rise to the top wherethe pipes are located.The evidence also indicates that at the time that theinstruments in the control room showed an increase from -30?C to -5?C in the contents ofthe reboiler, the operator went out to the reactor, removed the hose from the reboiler,and then went to the shut-off valve, some 40-50 feet away, to close the valve. \u00a0 Itis not improbable that he directed the flow of water into the diked pit, and it ispossible that the hose somehow became aimed at the transfer pipe.FMC should have anticipated and avoided the dangerthat external heat sources would come into proximity to the pipe.\u00a0 FMC knew that hotwater was applied externally to assist in heating the contents of the reboiler and thathot water was in proximity to the transfer pipe.\u00a0 It also knew that heat applied tothe transfer pipe could initiate an exothermic reaction of the NCl3.\u00a0 Its failure toprevent such contact increased the risk inherent in the chlorine purification processwhich FMC was using.\u00a0 The Secretary established the feasibility of relocating thepipes.\u00a0 Indeed, after the accident, FMC did relocate the pipe to an area away fromthe hazards presented by the pit.Accordingly, I find that the record establishes thatFMC failed to free its workplace of a recognized hazard that was likely to cause death orserious injury, and that the Secretary established a feasible means of abatement. \u00a0Therefore, I would affirm item 1 of the citation.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ([email protected]),telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).FOOTNOTES: [[1]] Another citation issued to FMC was docketed asNo. 83-0489.\u00a0 Although never officially consolidated, both Nos. 83-0488 and 83-0489were heard and decided together by the judge.\u00a0 Both docket numbers were listed on thedirection for review.\u00a0 However, neither party has taken exception to any part of thejudge’s decision in No. 83-0489.\u00a0 Accordingly, the direction for review as to No.83-0489 will be vacated.[[2]] Section 5(a)(1) states:Each employer– (1) shall furnish to each of his employees employmentand a place of employment which are free from recognized hazards that are causing or arelikely to cause death or serious physical harm to his employees.[[3]] Item 1 alleged a violation of section 5(a)(1)in that:Employees were exposed to the hazard of an explosiondue to critical temperature change which could initiate a decomposition of NCl3 (nitrogentrichloride) during the chlorine vaporization and gunk neutralization process at Cell Room#1, on or about March 1, 1983.Item 2 alleged a violation of section 5(a)(1) on thegrounds that:\u00a0 Employees were exposed to the hazard of an explosion due to theinstability of NCl3 (Nitrogen trichloride) created by unknown amounts of chloroform beingadded to the scrubber; and unknown levels Of NCl3 in the chlorine vaporization and gunkneutralization process, Cell Room #1, on or about March 1, 1983.[[4]] Dr. Grelecki’s name appears misspelled throughout the record.\u00a0 Our spelling ofhis name is derived from 3 American Men & Women of Science (15th ed.1982).[[5]] Under the Fed. R. of Evid. 407, evidence of post-accident measures are admissible toestablish feasibility.\u00a0 The Federal Rules of Evidence are generally applicable toCommission proceedings.\u00a0 See Commission Rule 72, 29 C.F.R. ? 2200.72.[[6]] The Secretary argues that another method ofreducing the danger of hot spots would have been to keep the sump pump in good repair tokeep water from accumulating in the pit.\u00a0 However, the evidence indicates that FMCproperly maintained the pump and that the pump was replaced promptly whenever a problemarose.[[7]] Similarly, the Secretary introduced an exhibitestablishing that a chlorine plant operated by PPG uses a mandatory dump system requiringthat the reactive material be dumped into a coolant at 60? F.\u00a0 As with the TNTplant, however, the Secretary failed to introduce any evidence to indicate that thetechniques and processes used by PPG were sufficiently similar to those at FMC to warranta conclusion that such a dump system would be feasible at the FMC facility.[[8]] The Secretary also argues that an experiment conducted shortly before the explosionwhere the chloroform flow was cut-off establishes that FMC failed to maintain theconcentration of NCl3 at a proper level.\u00a0 We do not agree.\u00a0 The test to whichthe Secretary refers was conducted under the direction of FMC’s engineers.\u00a0 There wasno showing that FMC’s engineers were not skilled to perform this test.\u00a0 Nor is thereany evidence that cutting-off the chloroform flow for several hours in any way increasedthe likelihood of an explosion or endangered the employees.[[9]] FMC contends that the citation did not containany suggestion that relocation of the transfer lines was a proper method of abatement, andtherefore should not be considered by the Commission.\u00a0 I disagree. \u00a0 Thecitation expressly addressed itself to hazards caused by critical temperature changesduring the nitrogen trichloride byproduct neutralization process.\u00a0 Also, the citationstated that, \”among other methods,\” a feasible and useful method of abatementwould be to \”initiate the use of instrumentation to control temperatures on thepiping system.\”\u00a0 In my view, the citation put FMC on notice that if theSecretary failed to establish the feasibility of instrumentation to detect hot spots onthe pipes, he would attempt establish other feasible methods of abating the hazard. \u00a0To the extent the Secretary’s failure to specifically list the \”other\” methodsof abatement may have confused FMC, such confusion could have been remedied by moving fora more particular statement pursuant to Fed. R. Civ. P. 12(e).\u00a0 Similarly, to theextent the Secretary’s raising of the issue of moving the pipes at the hearing may havesurprised FMC, any prejudice could have been remedied by a motion for a continuancepursuant to Fed. R. Civ. P. 15(b).\u00a0 Indeed, through its own expert witness, FMCintroduced testimony concerning the cause of the explosion.\u00a0 Therefore, I concludethat FMC was not prejudiced by having to address the relocation of the pipes.”