“SECRETARY OF LABOR,Complainant,v.PELRON CORPORATION,Respondent.OSHRC Docket No. 82-0388 _DECISION_BEFORE: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C.?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).This litigation was precipitated by an explosion that killed oneemployee of Pelron Corporation and seriously injured another. TheSecretary of Labor’s Occupational Safety and Health Administrationinvestigated the explosion and issued a Citation alleging, among otherthings, that Pelron had violated section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1),[[1]] by inadequately training its employees in the preventionof ethylene oxide (\”EtO\”) explosions. At the hearing beforeAdministrative Law Judge Richard J. Murphy, the parties litigatedwhether Pelron had violated its duty under section 5(a)(1) to provide aworkplace \”free\” from \”recognized\” hazards.[[2]] The judge held thatPelron had failed to eliminate or significantly reduce the recognizedhazard of ethylene oxide explosion through adequate training. On review,Pelron maintains that this finding is incorrect. Having carefullyexamined the record, we conclude that the Secretary failed to establishthat the risk could have been materially reduced by changes in Pelron’straining program and therefore we vacate the citation.Pelron is a small manufacturer of liquid specialty chemicals located inLyons, Illinois. All Pelron’s products are manufactured by mixing eitherEtO or propylene oxide with other chemicals in vessels called chemicalreactors. Pelron had four fully automated production reactors withcapacities of 1000 to 4000 gallons. The explosion occurred, however, ina 200-gallon pilot reactor in which Pelron was producing \”Product 9506,\”a phosphorous chlorine fire retardant made from diethylene glycol,phosphorous oxychloride, and EtO, using titanium tetrachloride as acatalyst. Pelron had had Product 9506 in normal production in itslargest reactor but had not obtained the yield expected and wasexperimenting with different procedures to improve the yield.EtO is a liquid flammable chemical compound. Pure liquid EtO is notexplosive. If EtO vapors accumulate, they may undergo an exothermicreaction, i.e., a reaction that generates heat and pressure. One way EtOvapors may accumulate in a chemical reactor vessel is if there isinsufficient catalyst to cause the liquid EtO to react with otherchemicals and sufficient heat is present to cause the unreacted liquidEtO to vaporize. Mere accumulation of EtO vapors, however, does notnecessarily result in exothermic reaction. At normal atmosphericpressure EtO vapor must reach a temperature of about 1040 ?F before itwill autoignite and explode. In air, EtO vapors in certainconcentrations are flammable and may explode at 804?F. Unreacted EtO canalso ignite upon contact with certain oxidizing metals and materials orfrom a spark.Pelron was operating on three shifts, with two reactor operators on eachshift. Each operator was given step-by-step instructions, called a\”batch sheet,\” telling him exactly what operation to perform and whenand how to perform it. Operators were required to initial the batchsheet beside each step as it was performed and beside the designatedweight of each chemical as it was added. As the reaction proceeded, theoperator was also required to fill in other forms with the temperatureand pressure in the reactor and to record the amounts of chemicalsadded. He was also required to record the amount of time each step inthe operation required. Because the batch that exploded was anexperimental batch, several changes had been handwritten on Pelron’sstandard batch sheet for this product. The sheets being used for thatbatch survived the explosion and were introduced into evidence, so it ispossible to reconstruct what occurred.The operation was begun a little before 5:00 a.m. by the operator whowas killed in the explosion on his next shift almost 20 hours later. Headded 1043 lbs. of phosphorous oxychloride before his shift ended.During the next shift, the operator began adding 356, lbs. of diethyleneglycol. That shift had to replace, one gasket twice because it wasleaking, had to repair a leaking seal from which smoke was escaping, andhad to shut down a leak of hydrogen chloride gas. On the next shift, thelead operator finished adding the diethylene glycol but by mistake didnot add the titanium tetrachloride catalyst that should have been added.The lead operator also mistakenly added nitrogen to the reactor insteadof EtO. After that, the reactor again emitted smoke, and it took twohours to raise the temperature 10?F., an amount that should have beenachieved in five minutes. Shortly afterward, the temperature jumped from146? to 237?, an increase of 91?, in a very short time. Because he didnot want to be blamed for this unexpected result, the lead operatortestified, he falsified the records by recording a rise to 200?. By theend of his shift at 11:00 p.m. the lead operator had succeeded inbringing temperature and pressure within normal limits. The explosionoccurred about an hour and a half later. There is no preponderance ofevidence that the lead operator’s errors actually caused the explosion.Indeed, the judge found that neither party had proven, by apreponderance of the evidence, what caused the explosion.The Secretary’s citation alleged in part that Pelron had not\”adequately\” trained its employees in \”safe work procedure;\” necessaryto prevent EtO explosions. Judge Murphy found that \”the possibility ofaccumulations of unreacted ethylene oxide in pressure vessels\” existedin Pelron’s plant and was a hazard because accumulations increased thelikelihood and seriousness of an explosion. He found that this hazardwas recognized, stating as the reason for the finding that Pelron’sdirector of research and development testified and some literature inthe field indicated that EtO can decompose and explode either in thepresence or in the absence of air. The judge also found that Pelron\”failed to communicate and enforce a safety program appropriate to therecognized hazard involved.\” He therefore affirmed this part of thecitation.[[3]]Pelron argues, among other things, that the judge erred in finding arecognized hazard based on \”the possibility of accumulations ofunreacted ethylene oxide. in pressure vessels\” because a mere\”possibility\” cannot constitute a \”recognized hazard\” within the meaningof section 5(a)(1). Pelron also argues that the Secretary failed toprove that its safety training was inadequate by some recognizedstandard of which it should have been aware. The Secretary argues thatPelron and its industry recognized the hazard of a runaway reaction andan explosion, either in the presence or in the absence of air, if largeenough quantities of unreacted EtO accumulated in reactor vessels.We reverse the Judge’s decision because we believe the Secretary did notprove the inadequacy of Pelron’s safety program. In addition, we agreewith Pelron that the judge erred by not defining the hazard in terms ofpreventable practices or conditions. Davey Tree Expert Co., 84 OSAHRC11\/D11, 11 BNA OSHC 1898, 1983-84 CCH OSHD ? 26,852 (No. 77-2350, 1984);See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266(D.C. Cir. 1973). However, we would have reached the same conclusionusing the judge’s description of the hazard, because of the Secretary’sfailure to prove additional measures that would have materially reducedthe risk of harm that conscientious safety experts familiar with theindustry would take into account in prescribing a safety program. CerroMetal Products Division, Marmon Group, Inc., 12 BNA OSHC 1821, 1986 CCHOSHD ? 27,579 (No. 78-5159, 1986), citing National Realty, 489 F.2d at1267-68 and n. 40.To prove that an employer violated section 5(a)(1), the Act’s generalduty clause, the Secretary must prove that the cited employer failed tofree the workplace of a hazard that was recognized by the cited employeror its industry, that was causing or likely to cause death or seriousphysical harm, and that could have been materially reduced or eliminatedby a feasible and useful means of abatement. See e.g., Continental OilCo. v. OSHRC, 630 F.2d 446 (6th Cir. 1980), cert. denied, 450 U.S. 965(1981). The judge’s decision was based on a very broadly definedhazard–\”the possibility of accumulations of unreacted ethylene oxide inpressure vessels.\” We find that, in defining the hazard this broadly,the judge erred. To define the alleged hazard as the \”possibility\” ofaccumulations of unreacted EtO is to define it in a way that it cannever be prevented, since the \”possibility\” would always exist unlessthere were absolutely no chance at all that unreacted vapors couldaccumulate. Defining the hazard as the \”possibility\” that a conditionwill occur defines not a hazard but a potential hazard.To define a hazard as broadly as the judge did would therefore underminethe congressional purpose behind the \”recognition\” element to limit thegeneral duty imposed by section 5(a)(1) to preventable hazards. SeeNational Realty, 489 F.2d at 1266. Obviously, some industrial activitiesare by their very nature dangerous. To permit the normal activities insuch an industry to be defined as a \”recognized hazard\” within themeaning of section 5(a)(1) is to eliminate an element of the Secretary’sburden of proof and, in fact, almost to prove the Secretary’s case bydefinition, since under such a formula the employer can never free theworkplace of inherent risks incident to the business. To respectCongress’ intent, hazards must be defined in a way that apprises theemployer of its obligations, and identifies conditions or practices overwhich the employer can reasonably be expected to exercise control. DaveyTree, 11 BNA OSHC at 1899, 1983-84 CCH OSHD at p. 34,399.To define the hazard as the \”accumulation\” of EtO, as the Secretarywould, is to define it without specifying the Conditions or practicesover which Pelron can exercise control, which is the basis for Pelron’sduty under section 5(a)(1). All that Pelron could do is issue \”batch\”instructions which properly control production, train its employees tounderstand and follow the \”batch\” instructions, train them in theprocedures necessary to prevent heat and temperature rises which mighttrigger excess accumulations, and take other feasible safety measures tominimize the risk of accumulations occurring.[[4]]We define the hazard in this case as practices, procedures or conditionswhich increase the likelihood of an explosion of EtO. We find the hazardof explosion resulting from improper handling of EtO was recognized byboth Pelron and its industry. The record contains ample evidence thatEtO presents a serious risk of explosion if improperly handled byemployees, such as through the introduction of an oxide to the batch.The principal issue in this case is whether, in light of this employer’ssafety program designed to eliminate the recognized hazard, theSecretary specified the additional steps a cited employer should havetaken to abate the hazard and demonstrated the feasibility and likelyutility of those measures. See Cerro, 12 BNA OSHC at 1822, 1986 CCH OSHDat p. 35,829. The Secretary alleges, and the judge agreed, that Pelron’straining program for its employees was inadequate. The Secretary mustshow specific additional measures Pelron should have taken in trainingits employees that would have materially reduced the risk of harm andthat would have been prescribed by persons familiar with the industry.We find that the Secretary failed to do this.Pelron’s employee training was extensive. Prospective reactor operatorswere selected by the plant manager, and Pelron sought operators with twoyears of college chemistry or equivalent industrial experience wheneverpossible. Once hired, trainees were initially assigned to thelaboratory, where Jack Thole, a chemist with a master’s degree inorganic chemistry, taught quality control and the handling of laboratorychemicals. Dr. Pelletier testified that a trainee would remain thereuntil Thole determined that the trainee \”was proficient in running theanalytical procedures that [Pelron] required from the productionpeople.\” This could be two weeks or much longer.After lab training, if there were operations in the pilot plant, Pelronwould \”teach [the trainees] how to operate the laboratory reactors andallow them to run them . . . under Mr. Thole’s supervision primarily.\”Pelron had experimental pilot reactors with capacities of one gallon,five gallons and 20 gallons, respectively. When Mr. Thole considered thetrainees proficient in working with the pilot reactors, they were turnedover for production training.In the production plant, trainees were familiarized with the functionsof the control room, which contained the automatic controls for thereactors. Pelron’s required records were shown to them, as well as thewarnings associated with EtO. The trainee’s safety equipment was checkedout and the trainee was shown the devices on the reactors. Trainees thenbegan making entries in Pelron’s time, temperature, pressure and otherrecords, and when a trainee demonstrated that he could fill them outaccurately he was turned over to the supervision of a lead operator tolearn how to operate the reactor controls.Pelron had a four-step procedure to avoid runaway reactions in itspressure vessels leading to an explosion. The steps were: (1) stoppingthe feed stream of reactive chemicals such as EtO to the reactor vessel;(2) transferring heat from the reactor vessel by applying the fullcooling capacity to it; (3) blanketing the reaction with nitrogen toprevent air contamination; and (4) venting hazardous vapors to transferexcessive heat from the vessel. The evidence indicates that Pelroninstructed its trainee\/operators in these procedures when they firstcame to the production plant. Lead operator Lapinski, who helped trainthe trainee\/operators who testified, and who helped train lead operatorAntos, testified that they were instructed about shutdown procedures\”[b]asically, as soon as we got them out there [for production training].\”Pelron instructed its operators in many precautions to prevent excessivetemperature increases. Prospective operators were trained carefully inthe handling of chemicals and reactor vessel operations. They wereinstructed to comply at all times with Pelron’s batch sheets, which toldthem how to proceed at each step in every chemical reaction and whattemperatures to maintain at all times. Each batch sheet also containedwarnings about explosion hazards of EtO (although not specificallyauto-ignition). Pelron’s plant manager testified that he warnedoperators to vent a reactor’s vapors if there was a temperature rise of15? in five minutes, or a rise in pressure of 10 to 15 pounds per squareinch in the same period of time. Pelron instructed its operators tocontact supervisors if problems developed and instructed each operatorin its shutdown procedure. Pelron also had at least one rupture discmounted in series with a safety valve to vent excessive pressure fromits reactors before an explosion could occur.[[5]] Finally, Pelroninstructed employees on the more likely explosion hazards of EtO due tocontact with a spark, or with various oxidizing agents. There was noevidence that persons familiar with Pelron’s industry would recognizethe need for more training than this. Indeed, Dr. Kritchevsky, aconsultant to manufacturers of industrial chemicals andpharmaceuticals,[[6]] testified that Pelron’s, training program was\”much more than usual\” among companies of comparable size with which hehad worked.The Secretary mainly argues that Pelron’s safety training was inadequatein two respects. He first contends that Pelron’s shutdown procedure,described above, was inadequate. However, the only indication given bythe Secretary of what any other chemical companies do was a selectionfrom the National Fire Protection Association (NFPA), Fire ProtectionHandbook, pp. 4-50, 4-51 (14th ed. 1974). There, the NFPA describedguidelines of Dow Chemical Company stating that, one is \”in good shape\”if one has two or more of the following methods for preventing runawayreactions: adequate heat transfer from the reactor vessel; quenching thereaction inside the vessel; stopping the feed streams of reactivechemicals being added to the vessel; and dilution of the vessel’scontents. As noted above, Pelron had procedures for heat transfer,quenching the reaction with nitrogen, stopping the feed stream ofreactive chemicals such as EtO to the reactor vessel, and ventinghazardous vapors to transfer excessive heat from the vessel. TheSecretary claims that not all operators were instructed in all ofPelron’s steps. However, Favel and Rosentrator were the only twoemployees who testified that they only knew two of the shutdown steps,and both were still considered by Pelron to be trainees. It should alsobe noted that the testimony of Favel and Rosentrator conflicts with thatof lead operator Lapinski, who testified that he had definitelyinstructed Favel in all shutdown procedures and that he was \”almostsure\” that he had also instructed Rosentrator in them. Thus, we cannotsay from this record that Pelron inadequately instructed its employeesin shutdown procedures.Second, the Secretary argues that reactor operators were not routinelyinformed about the potential for EtO to auto-ignite in a reactor vesselin the absence of air and other contaminants. The Secretary did not,however, present sufficient evidence that such information would havematerially reduced the risk of explosion in this employer’s operations.The most persuasive expert to testify in the case, Dr. Kritchevsky,testified that auto-ignition would be highly unlikely in the kind ofoperation Pelron was performing because the temperatures used in theprocess were far below the hazardous level. Dr. Kritchevsky did notbelieve auto-ignition occurred here. He testified that the explosionwhich occurred was most likely caused by a small leak in the reactorwith escaping EtO being ignited by a spark created by staticelectricity. He also testified that if all of the EtO added during theentire reaction were to have exploded it would not have caused anexplosion of such force as to shear a vessel secured by 36 bolts, each1-1\/8 inches in diameter. Dr. Kritchevsky and Dr. McKee (another experttestifying for Pelron) further testified that to shear the vessel allthe material in the vessel would have had to explode and such combustioncould have come only from spark ignition rather than from auto-ignitionof the ethylene oxide in the reactor.The suggestion that reactor operators should be informed about thepotential for auto-ignition came when the Secretary’s counsel asked Dr.Kritchevsky only what steps (including the giving of safety information)he personally felt should be taken. In response, Dr. Kritchevskyexpressed his personal opinion that operators should be informed thatEtO Can auto-ignite at a temperature of about 1040?F in the absence ofair, and be educated about the function of the catalyst in determiningthe rate of EtO reactions. Dr. Kritchevsky did not, however, explainwhether such information necessarily had to be conveyed and the tenor ofhis testimony suggests that it did not. After stating his personal viewthat operators should be told of the auto-ignition characteristic ofEtO, Dr. Kritchevsky qualified the importance of this information bypointing out that auto-ignition would be highly unlikely because \”[t]hetemperatures [in Pelron’s operation] do not even come close to thecritical temperature . . . . \” Moreover, Pelron’s employees were wellinstructed and trained to maintain the temperature in the reactor vesselat the level stated in the batch sheets. They knew this was importantand knew that EtO posed explosion risks. They were properly instructedin the other essentials of safety as well, including handling chemicals,control room functions, reactor operation, time, temperature, pressureand other required records, and shutdown steps. So far as this recordshows, Pelron’s procedures for controlling temperatures were calculatedto succeed because there was no showing that employees would have acteddifferently if they had known more about the cause or result of atemperature rise. The evidence therefore does not establish that thisadditional item of training would materially reduce the likelihood ofconduct leading to an explosion.[[7]]The Secretary’s other contentions go to the lack of formality inPelron’s Safety program, the lack of a checklist or equivalent to assurecomplete training of each trainee-operator, the lack of safety meetingsbefore the explosion, and Pelron’s hiring of at least one operator withless than two years of college chemistry courses or equivalentindustrial background. However, there was no evidence that any ofthrough would have significantly minimized any risk of an explosion.This part of the Secretary’s argument overemphasizes the formal aspectsof Pelron’s safety program and fails to give proper significance to itssubstance. E.g., Jones & Laughlin Steel Corp., 82 OSAHRC 34\/A2, 10 BNAOSHC 1778, 1782, 1982 CCH OSHD ? 26,128, p. 32,887 (No. 76-2636, 1982).In summary, the Secretary failed to prove, through the testimony ofexperts familiar with Pelron’s industry, any measure to improve Pelron’ssafety program that would have materially reduced the hazard here.Because the Secretary failed to carry his burden as to the feasibilityand likely utility of his recommended means of abatement, the citationand proposed penalty must be vacated. FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: June 2, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).————————————————————————FOOTNOTES:[[1]] Section 5(a)(1) states:Each employer–(1) shall furnish to each of its employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees[[2]] The Parties introduced much evidence on the cause of theexplosion. Judge Murphy correctly observed in his decision that theSecretary did not need to prove what had caused the explosion.[[3]] In other rulings, the judge held that the Secretary had failed toprove that this violation was willful or that the pressure reliefdevices on the reactor vessel that exploded were designed defectively.The Secretary originally petitioned for review of those rulings, butsubsequently filed with the Commission a document captioned\”Complainant’s Withdrawal of its Petition for Review.\” Because theissues raised in the Secretary’s petition were directed for review by aCommissioner, they remain on review until the Commission acts on them.Under the circumstances here, we will treat the issues raised in theSecretary’s petition as abandoned and affirm without review the judge’sholding on theseissues.[[4]] There is no question that the lead operator on the previous shiftmade some errors that resulted in an excessive temperature buildup inthe reactor vessel about 2-1\/2 hours before the explosion. However,Pelron was completely unaware of that fact. The operator failed toreport the excessive temperature rise when the plant manager routinelytelephoned in to see if there were any problems. The operator alsofalsified the time and temperature sheet he was required to fill out.Thus, Pelron had no indication that the employee’s training wasinadequate or that its batch sheet instructions were not being followed.On the other hand, the fact that the operator was able to bring thetemperature and pressure back to normal within a short time indicatesthat he was trained well enough to handle a potentially serious problem.[[5]] The Judge found no proof that the rupture disc on the reactor thatexploded was designed defectively and the Secretary has abandoned hiscontentions to the contrary. See n.3, supra.[[6]] Dr. Kritchevsky holds a Ph.D. in chemistry. He had worked with EtOreactions in the development of new products and refinement of existingproducts as technical director of Stepan Chemical Corporation, one ofthe largest companies engaged in ethylene oxide reaction operations inthe United States.Dr. Kritchevsky also has conducted employee training programs in thechemical manufacturing industry and is familiar with training programsfor reactor operators dealing with EtO in facilities similar to Pelron’s.[[7]] The only other evidence on this point came when the Secretary’scounsel asked plant superintendent Leonard Pittner whether he felt itimportant that employees know the auto- ignition temperature of EtO. Mr.Pittner said \”yes.\” However, Mr. Pittner was also asked the moreimportant question as to whether operation without employees being sotrained was hazardous. He responded, \”If he followed the steps on thatbatch sheet, there is no problem. If he doesn’t follow them, even if heknows that[,] he is in trouble.\””