FMC Corporation

Plain-English summary

FMC produced chlorine at a West Virginia plant where nitrogen trichloride was present in a waste stream handled through heated tanks and transfer piping. An employee died when an explosion occurred in a transfer line and tank during the neutralization process. OSHA issued two general-duty citations challenging FMC's temperature controls and its methods for adding and monitoring diluents. The Commission held that OSHA had not shown FMC's training, monitoring, pipe location, or dilution practices were inadequate, and had not established the feasibility and likely utility of the proposed additional controls. It reversed the judge and vacated both citation items, eliminating the judge's $700 penalty, and vacated review of the companion docket because no party challenged it.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Both general-duty citation items in docket 83-0488 vacated; direction for review in docket 83-0489 vacated.
• Key point: A general-duty case requires proof that proposed feasible measures would materially reduce a preventable hazard, not merely that additional precautions were possible.

Full text (OSHRC public release)

Docket No. 83-0488_83-0489

SECRETARY OF LABOR,

Complainant,

v.

FMC CORPORATION,

Respondent.

OSHRC Docket No. 83-0488 and 83-0489

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

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

I

FMC's plant in South Charleston, West Virginia, produces chlorine by processing brine
through diaphragm-type electrolytic cells. Nitrogen trichloride (NCl3), an explosive
compound, is a by-product of the electrolytic process and is contained in the waste
material, which is known as "gunk".  These cases concern the procedure by
which FMC neutralizes the potentially hazardous waste material and then removes it from
the system.  First, the gunk, which accumulates at the bottom of two scrubbers, is
transferred through pipes to three gunk tanks, also known as reboilers. During this
process, chloroform and carbon tetrachloride are added to dilute the concentration of NCl3
Once a gunk tank is filled, it is heated by either steam, hot water, or both so that any
chlorine present in the tank will be vaporized.  This is called
"gasification."  When this process is completed, the residue is pumped to a
reactor, where it is neutralized with hydrochloric acid and then transferred to drums for
disposal.  There is a diked pit in the area of the gunk tank that contains a pump.
  The purpose of that pump is to prevent accumulations of the hot water that is used
in gasifying the tanks.

On March 1, 1983, an employee of FMC, Gary Gessel,
was killed in an explosion of NCl3.  The explosion occurred in the transfer line from
one of the gunk tanks to the reactor, and secondarily in the gunk tank itself, due to an
exothermic reaction of NCl3. Apparently, the explosion occurred because Gessel failed to
follow his supervisor's instructions to turn off the water that was heating the gunk tank
during the gasification process.  While the record does not establish conclusively
what caused the explosion, there is some evidence that Gessel placed the hot water hose on
the 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 of
section 5(a)(1), 29 U.S.C. � 654(a)(1) of the Act.[[2]]  The items focus on two of
the steps in the procedure described above:  the gasification of the gunk tanks to
drive off the chlorine; and the addition of chloroform to dilute the concentration of
NCl3.  The citation alleges that deficiencies in those procedures exposed employees
to the hazard of explosion.[[3]]  A penalty of $720 was proposed for each item.

Administrative Law Judge Paul Brady affirmed the
citation and assessed a single $700 penalty.  Judge Brady did not differentiate
between the two items, but rather treated the citation as an integrated whole.  
Having apparently viewed the problem as stemming from the heating required by FMC's
gasification process, the judge defined the hazard as the danger of explosion when heat is
applied to gunk tanks and transfer lines containing NCl3.

The judge found that both FMC and the chlor-alkaline
industry in general were aware of hazards involving concentrations of NCl3 in gunk
operations.  More specifically, the judge found that the evidence established that
FMC's methods of gasifying gunk tanks constituted a hazard.  The judge noted that the
employees were not aware of the hazard associated with sudden heat buildup and that there
was no rule forbidding the application of steam or hot water to the transfer line. 
Judge Brady also noted that the transfer lines were placed in proximity to the water hose
used to heat the gunk tank.  With such a setup, the Judge concluded, it was incumbent
on FMC to institute a safe and effective program governing its work practices.  The
judge found that FMC had failed to do so and therefore found that FMC had violated section
5(a)(1).  FMC petitioned for review of the judge's decision.

For the reasons that follow, we find that the Judge
erred in affirming the citation.  With respect to each step in the process that the
Secretary has challenged, we conclude that the Secretary either failed to prove that FMC's
safety measures were inadequate or failed to prove the likely utility of measures intended
to reduce the hazard of explosion.  Accordingly, we vacate the citation.

II

To prove that an employer violated section 5(a)(1), the Act's general duty clause, the
Secretary must prove that the cited employer failed to free the workplace of a hazard that
(1) was recognized by the cited employer or its industry, (2) that was causing or likely
to cause death or serious physical harm, and (3) that could have been materially reduced
or eliminated by feasible and useful means of abatement.  Pelron Corporation ,
12 BNA OSHC 1833, 1986 CCH OSHD � 27,605 (No. 82-388, 1986).

Judge Brady defined the hazard as the danger of
explosion when heat is applied to gunk tanks and transfer lines containing NCl3. The
evidence in this case clearly establishes that some danger of explosion always exists when
heating NCl3-FMC's gasification process necessitates the heating of gunk containing NCl3.
  The Secretary has neither alleged nor adduced any evidence to suggest that the gunk
neutralization process can be accomplished without heating the tanks to drive off excess
chlorine.  Therefore, if the hazard were to be defined as the danger of explosion
when heat is applied to the gunk tanks, it would be impossible for FMC to rid its
workplace of the hazard.  The intent of section 5(a)(1) is, however, to reduce
preventable hazards.  Pelron Corporation , 12 BNA OSHC at 1835, 1986 CCH OSHD
at p. 35,871.  To further that intent, hazards must be defined in a way that apprises
the employer of its obligations and identifies conditions or practices over which the
employer can reasonably be expected to exercise control.  Pelron , 12 BNA OSHC
at 1835, 1986 CCH OSHD at p. 35,872.  Accordingly, we define the hazards in this case
as those practices, procedures or conditions that increase the likelihood of an explosion.

Both FMC and the chlor-alkaline industry recognized
that the likelihood of an explosion is greatly increased when there are either inadequate
methods of temperature control during gasification, or unknown concentrations of NCl3 due
to improper methods of adding and monitoring the addition of the diluent chloroform. 
This is not in dispute.  Rather, the dispute centers on, and we must decide, whether
FMC's procedures for preventing high temperatures and high concentrations of NCl3 were
inadequate.  Also at issue is whether the Secretary established that there were
additional measures that would have feasibly and materially reduced the risk of
harm.  See Cerro Metal Products Div. Marmon Group, Inc ., 12 BNA 1821,
1823, 1986 CCH OSHD � 27,579, p. 35,829 (No. 78-5151,1986).

III

The first item of the citation alleges that FMC's method of monitoring and controlling
temperatures was insufficient, thus increasing the danger of an explosion due to an
exothermic reaction of NCl3 in the gunk tanks and transfer pipe.

Before 1980, FMC heated the gunk tanks during
gasification by applying hot water to the top of the tanks with a hose.  Because of a
water disposal problem, FMC added a steam heating system in which steam was applied with a
sploger (a pipe with holes) to the bottom of the tank.  In colder weather, hot water
would be applied by hose in addition to the steam to speed gasification.  When used
to gasify the gunk, hot water accumulated in a pit.  The pipes carrying the gunk from
the gunk tanks to the reactor ran above this pit.  To prevent the hot water from
rising and contacting the pipes, FMC installed in the pit a sump pump that started
automatically when the water reached a pre-set level.

To prevent the gunk from reaching a critical
temperature, employees were instructed not to allow the temperatures to rise above 10-
20� C during the gasification process.  The temperatures of the gunk tanks were
detected by a thermocouple on each of the tanks. Digital displays of the temperatures
detected by the thermocouples were located in a control room several feet away from the
tanks. A continuous digital readout of the temperatures in a gunk tank could be obtained
by punching up the assigned number on the buttons in tile control room.

The Secretary first argues that FMC failed to
adequately train its employees with respect to the hazards of overheating the gunk tanks.
  In support of this assertion, the Secretary argues that employees were allowed to
use hot water to speed gasification and were not instructed to gasify the tanks slowly.
  The Secretary also notes that FMC had no written procedures for gasifying the
tanks, and new control room operators were trained only by other operators.  
Moreover, some employees were not informed of the hazard of explosion caused by allowing
temperatures to rise too high or too rapidly.

We find that the Secretary failed to establish that
FMC's training methods were inadequate.  Although FMC did not have a formal training
program, a formal training program is not necessarily required by section 5(a)(1).  See
Jones & Laughlin Steel Corp ., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH
OSHD � 26,128, p. 32,887 (No. 76-2636, 1982); Pelron , 12 BNA OSHC at 1838, 1986
CCH OSHD at p. 35,874.  The question is one of substance, not form.  The
testimony establishes that all operators were aware that temperatures were not to rise
above 10-20� C.  Similarly, while several employees could not recall being advised
of the danger inherent in heating the tanks too rapidly, all were aware that the tanks
should be heated gradually.  Indeed there is no evidence that the tanks were heated
too rapidly.  Although the record establishes that gasifying the tanks in less than
half an hour was hazardous, the evidence indicates that the shortest period of time taken
to gasify the tanks was 45 minutes.  We also note that the operators who testified
had been in their positions for periods ranging from four to thirteen years and either
were experienced or were trained by highly experienced employees.  Moreover, FMC
operated its facility for some 25 years without an accident, thereby evidencing that its
program 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 that
such 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.  
He asserts that monitoring the temperatures on the gunk tanks was difficult because the
thermocouples on the tanks displayed temperatures only after a series of buttons were
punched in the control room.  According to the Secretary, FMC also should have
installed a high-temperature alarm that would immediately warn employees when the gunk
tank temperatures had reached dangerous levels.

At the hearing, W. Duane Colpous, a retired chemical
engineer with 35 years experience in the chlorine industry, was called by the Secretary as
an expert witness.  It was his opinion that the temperatures at the plant were
inadequately  monitored.  He criticized FMC's failure to record temperatures on
a con tinuous basis so they could be followed on a chart and opined that FMC should have
used a high temperature alarm to warn employees when temperatures approached the upper
limit of safe operation.  Colpous' testimony was contradicted by FMC's expert
witness, Dr. Chester Grelecki,[[4]] a Ph.D in chemistry with considerable experience in
the chlor-alkaline industry, and a consultant in the area of chemical process
design.  Grelecki found nothing inadequate about FMC's temperature detection system
and testified persuasively that FMC's system was up to industry standards.

There is no evidence to support the Secretary's claim
that punching buttons to obtain a continuous readout of gunk tank temperature interferes
with the operators' ability to monitor temperature changes.  Testimony of the control
room operators Eleanor Garrett and Robert Jones establishes that they had no difficulty
monitoring the temperature of the gunk tanks in the control room.   Similarly,
despite Colpous' opinion that FMC's temperature detection system would have been improved
by installing a high temperature alarm and continuously recording gunk temperatures, the
evidence establishes that the employees successfully monitored temperatures with the
system in use.  Accordingly, we find that although the evidence establishes that the
use of high temperature alarms and the continuous recording of gunk tank temperatures
might 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 of
undetected high temperatures in the gunk tanks.  While a means of abatement need not
be perfectly protective, it must be shown by the evidence to promise a material reduction
of the hazard.  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).   This was not shown on
this record.

The Secretary next focuses on alleged deficiencies in
FMC's control of temperatures on the transfer pipe.  The Secretary observes that FMC
did not have thermocouples on the transfer lines, thus making it impossible to determine
the temperatures in those lines. Furthermore, the Secretary argues that the transfer lines
should have been relocated out of the pit to an area where they would not have been
exposed to the hot water used to heat the gunk tanks.  Finally, the Secretary argues
that FMC should have adopted a system to "dump" large quantities of diluents
into the pipes to reduce hot spots and to "dump" the contents of the gunk tanks
into diluents when the tanks reached critical temperatures.

The evidence is undisputed that FMC was unable to
determine the temperature of the gunk as it passed through the transfer pipes. The danger
of hot spots developing without warning due to contact with an external heat source, such
as hot water or steam, and an ensuing exothermic reaction resulting in an explosion was
therefore a danger inherent in FMC's system.

We find, however, that the Secretary failed to
establish either the feasibility or likely utility of an abatement method with respect to
this danger.  The first method of abatement suggested by the Secretary was to place
thermocouples on the transfer lines that would be able to detect hot spots.  He
points to the testimony of Mr. Colpous that thermocouples on the line would improve the
ability to detect hot spots.  However both Dr. Grelecki and Mr. Colpous testified
that due to the unpredictability of hot spot formation, numerous thermocouples would have
to be placed along the transfer pipes.  Mr. Colpous could not state how many
thermocouples would be necessary or how far apart they would have to be placed to be
effective but opined that even one would be helpful.  Dr. Grelecki, on the other
hand, testified that to thoroughly monitor the pipes, thermocouples would have to be
placed about a foot apart along the entire length of the pipes.  Lionel Updyke, a
chemical engineer for FMC, testified that the thermocouples might have to be placed two to
three inches apart along a hundred feet of piping in order to pick up a localized heat
source.  Both Dr. Grelecki and Lionel Updyke testified that the use of thermocouples
to detect hot spots on the transfer pipes was not an accepted practice within the
chlor-alkaline industry to reduce the hazard of hot spot formation within the pipes.
  Moreover, Dr. Grelecki testified that from the viewpoint of engineering principles
and industry standards, such a method of monitoring is not practical.

Having considered the testimony of both experts, we
find the Secretary failed to establish the feasibility of placing thermocouples on the
pipes.  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 be
located in the immediate vicinity of the hot spot.  A thermocouple might enable FMC
to monitor temperatures in the pipe as a whole, but it would be of little if any benefit
in detecting hazardous hot spots.

The Secretary next argues that the hazard of hot spot
formation could have been reduced by relocating the transfer lines out of the pit where
water, used to heat the gunk tanks, would accumulate.  He notes that, after the
accident, the transfer lines were relocated, thus establishing the feasibility of the
measure.[[5]]

Although we agree that the Secretary established the
feasibility of relocating the lines, we find that the evidence fails to establish the
likely utility of this abatement measure.  We do not believe the record establishes
that the lines were located in an area that endangered employees, a sump pump was used in
the pit to prevent the accumulation of water.  It activated automatically when the
water reached one inch in depth.  Superintendent Updyke testified that, with the pump
operating, it was impossible for water to accumulate to the level of the pipes, which were
more than 3-1/2 inches above the bottom of the pit.  He explained that while the flow
rate of the hot water hose was four gallons per minute, the pump was able to handle seven
gallons per minute.  Several operators testified that the pumps had worn out and were
subject to corrosion.  However, FMC checked the pump three times a week and required
an inspection sheet, indicating whether the sump pump was in proper condition, to be
completed after each inspection.  These reports establish that during the period
January 5 through February 28, 1983, a problem occurred with the sump pump only once and
that 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 was
working well.  Gunk neutralization operator Cassell stated that normally a PUMP is
kept in good working condition.[[6]]

Despite the efforts by FMC to keep the sump pump in
good repair, FMC operators testified that water did reach the lines.  Their
testimony, however, is in conclusive regarding the time when this occurred.  Both
Robert Jones and James Jones testified that they had seen the lines covered with water but
they did not identify when this happened.  Gunk neutralization operator Cassell said
he had observed water over the pipes during the two months before the accident but weekly
inspection logs for the period of January 7 through February 25, 1983, naming Cassell as
operator, all state that there was no water standing in the diked area during that period.
  In addition control room operator Eleanor Garrett, who recalled occasions when
water accumulated to pipe level, stated this occurred when FMC was using a different
system of water disposal.  She did not testify that water had ever accumulated to
pipe 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.  As
previously noted, superintendent Updyke testified that the flow rate of the hot water hose
was four gallons per minute.  He also testified that approximately 300 gallons of
water would be required in the pit before it would back up to the lines.  Considering
these facts together with other characteristics of FMC's operation, Dr. Grelecki opined
that by the time the water would reach the pipes its temperature would be too low to heat
the contents of the pipe to any significant temperature.  Based on the evidence it
would take at least one hour and fifteen minutes for enough water to accumulate to reach
the lines.  The water would, of course, be cooling during this time period.  At
some point in time the water would actually act as a conductor of heat away from the pipes
much like the cooling system in an automobile engine.  There is simply no evidence to
support the view that the pipes were or could ever be "submerged in hot water"
as the dissent postulates.  Dr. Grelecki also testified that FMC's facility design
was both appropriate and consistent with industry practice.  Given this evidence, we
are not convinced that there was a problem with the water disposal system in use at the
time of the inspection.

The fact that FMC relocated the lines after the
accident does not alter our conclusion.  As we recently noted in another case,
"Employers may decide . . . to take other precautions against injury or illness out
of an abundance of caution rather than a belief that the absence of such precautions would
expose employees to a significant risk of harm."  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).  The Secretary introduced no evidence to show the reason
for FMC's relocation and we decline to speculate as to why the lines were moved.

Finally, the Secretary argues that FMC should have
installed a dump system that would have utilized large quantities of diluent or coolents
to neutralize the development of an exothermic reaction.  Although the Secretary
presented evidence to establish that the introduction of diluents into the gunk would
reduce the hazard of an explosion, we find that the record fails to establish the
feasibility of such a system.

The use of a "dump system" was recommended by the Secretary's expert witness
Duane Colpous.  Mr. Colpous testified that either carbon tetrachloride could be
quickly added to the pipes as a coolant when a hot spot developed, or the material in the
tank could be dumped into a coolant.  He stated that the latter type of dump system
is used in TNT plants to reduce the danger of explosion. However, Colpous did not testify
that he had ever seen such a "dump system" used in a chlorine plant, or present
any details that would indicate how such a system would work in the FMC facility.  He
also did not identify any similarities ties between a TNT plant and FMC's facility that
would indicate that a "dump system" could be used in a chlorine plant.[[7]]

Dr. Grelecki, on the other hand, testified that a
dump 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 hot
spot.  According to Dr. Grelecki, an attempt to "dump" diluents into a full
pipe would only displace the gunk already in the line and move the hot, spot to another
location within the pipe.  Moreover, Dr. Grelecki testified that because of the
rapidity of an exothermic reaction of NCl3, once one was detected there would not be
sufficient time to "dump" the material in the tanks into a coolant.

We find Dr. Grelecki's testimony to be more
persuasive than that of Mr. Colpous.  While Mr. Colpous discussed a dump system in
only general terms, Dr. Grelecki specifically identified technical problems that would
have rendered such a system infeasible in a chlor-alkaline plant.  The Secretary
introduced no evidence to show how FMC might overcome those technical problems.  We
therefore conclude that the Secretary failed to establish the feasibility of a dump
system.

We find that the evidence is insufficient to
establish either that FMC failed to adequately train its employees in the hazards of
overheating the tanks or that FMC failed to institute adequate methods of temperature
control, and vacate item 1 of the citation.

VI

The second item of the citation alleges that FMC increased the hazard of explosion by
using 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 in
the gunk tank is 5%.  To maintain a safe concentration FMC adds chloroform to the
scrubbers and carbon tetrachloride to the gunk tanks.  Besides being a diluent in the
scrubbers, the chloroform acts as an antifreeze for the carbon tetrachloride in the gunk
tanks, which freezes at -23� C.  The temperature of the chlorine in the gunk tanks
is -33� C.  By itself, the carbon tetrachloride would freeze and separate, leaving a
concentration of pure NCl3.  The chloroform lowers the freezing point of the carbon
tetrachloride, allowing it to be an effective diluent.  A device called a rotometer
controls the addition of chloroform and can be adjusted to vary the chloroform flow.

The evidence establishes that both FMC and the
chlor-alkaline industry recognized that the addition of insufficient quantities of
chloroform to the scrubbers would greatly increase the danger of explosion from
excessively pure concentrations of NCl3.  The Secretary does not argue that FMC's
formal procedures and requirements for the addition of chloroform and testing for NCl3
concentrations were inadequate.  Rather, the issue is whether FMC's failure to follow
those procedures increased the hazard of explosion.  The Secretary points to three
specific instances where FMC's failure to follow its written procedures allegedly
increased the hazard.  First, the Secretary contends that FMC failed to sample the
gunk to determine the concentration of NCl3 as often as required by its own Chlorine
Operating Bulletin .  Second, the Secretary contends that, during a couple of
weeks before the accident, problems with the rotometer resulted in quantities of
chloroform being added to the scrubbers that were below the amounts required by FMC's own
operating procedures.  Third, the Secretary argues that on the day before the
accident FMC began an experiment that resulted in the flow of chloroform to the scrubbers
being interrupted for three hours.

We find that the Secretary failed to establish that
FMC's failure to follow the sampling requirements in its own Chlorine Operating Bulletin
increased the possibility of an explosion due to undetected high concentrations of
NCl3.  The Bulletin, written in 1973, requires that the gunk be sampled at least
three times a week to ensure that the concentration of NCl3 does not exceed 5%. 
Duane Colpous testified that, in his opinion, the gunk should be sampled daily, but he
agreed that three times a week would be adequate. Terry Fontalbert, FMC's senior process
engineer, testified that the gunk was not sampled for NCl3 concentrations as often as
recommended by the Bulletin.  However, he further testified that it was not necessary
to sample the gunk this often.  He noted that the Bulletin was prepared early in the
history of the system, and speculated that the sampling requirement was included because
the company was still learning the dynamics of the process.   Fontalbert's testimony
was corroborated by Dr. Grelecki.  Dr. Grelecki testified that industry practice is
to frequently monitor the NCl3 levels when first establishing a gunk neutralization
process.  After enough control over the process is established and confidence in the
process grows, monitoring can occur less frequently.   At some point, Dr. Grelecki
testified, monitoring of NCl3 levels can stop altogether.

Our conclusion that FMC's failure to monitor NCl3
concentrations as required by the Bulletin was not hazardous is strengthened by
evidence of other FMC work practices.  Both employee testimony and work sheets
introduced at the hearing establish that employees were required to check and record
chloroform levels every two hours.  Moreover, Lionel Updyke testified that FMC tested
their production process five days a week to determine the amount of NCl3 being produced.
  Therefore, FMC knew the amount of NCl3 entering the neutralization process. Given
FMC's regular monitoring of the chloroform being added to the scrubbers and the amount of
NCl3 being introduced into the neutralization process, and FMC 's long experience with the
process, we conclude that FMC adequately controlled the concentration of NCl3 in the
system.  Accordingly, its failure to monitor NCl3 concentrations three times a week
did not exacerbate the hazard of explosion.

The Secretary next argues that a pluggage in the line
feeding chloroform into the scrubber that existed for a couple of weeks before the
accident, together with problems with the rotometer which regulates the flow of
chloroform, resulted in inadequate amounts of chloroform being added to the scrubber.
  We find that, despite the technical problems described by the Secretary, the
evidence establishes that the required monitoring of the chloroform by employees ensured
that adequate quantities of chloroform were being added.[[8]]

Operator Robert Jones testified that, during the
problem with the chloroform line and rotometer, his regular monitoring of chloroform
levels disclosed that an inadequate amount had entered the scrubber.  Accordingly, he
made adjustments in the rotometer until the proper amount entered the system.  
Operator James Jones also stated that when there was trouble with the chloroform flow he
would adjust the flow and keep checking the level until the proper amount entered the
scrubber.  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 at
one-third to one-half of the rates called for in FMC's Operating Bulletin or about
five gallons in a 24-hour period. Lionel Updyke, however, noted that even if chloroform
was flowing below normal levels, the amount in the system before the accident was adequate
because the system was operating at only 65% capacity.  He also stated that the
minimum- required flow of chloroform was 1/4 gallon per hour or six gallons in a 24- hour
period.  Updyke's conclusion was also supported by Dr. Grelecki, who noted that the
fact that the explosion took place in the lines and not in the tank indicates that the
flow of chloroform was sufficient.

Analysis of the gunk made after the accident revealed a chloroform concentration of 24.6%.
  In comparison, FMC'S Operating Bulletin calls for a 20%
concentration, while Lionel Updyke testified that 10% was sufficient.  The accuracy
of the post-accident analysis was questioned by Duane Colpous, who testified that the
instability of NCl3 and its ability to react with moisture might have resulted in the
samples showing a lower level of NCl3 than actually existed at the time of the accident.
  Dr. Grelecki agreed that the gunk samples were unreliable, but stated that
"very reliable" samples from the reactor indicated an NCl3 concentration of
3-1/2 - 4%, well-within the 5% limit for safe operation.  Thus, the NCl3 was
adequately diluted.

We also find that, while FMC did have occasional
problems with the rotometer and chloroform lines, it promptly repaired the defects.  
Moreover, its experienced and competent operators readily recognized and compensated for
the technical problems to ensure that the flow of chloroform remained at safe
levels.  The post-accident analysis of the gunk, which provided the only concrete
evidence of diluent levels at the time of the accident, indicated more than sufficient
levels of chloroform.  Those results were supported by other tests that showed that
the NCl3 was adequately diluted.  We therefore find that the problems with the
rotometer and chloroform lines did not create a danger of explosion due to overly pure
concentrations of NCl3, and that employees were not exposed to a hazard of explosion due
to unsafe concentrations of NCl3.  We therefore conclude that FMC took adequate
measures to maintain NCl3 concentrations at a safe level and vacate item 2 of the
citation.

Accordingly, the judge's decision in No. 83-0488 is reversed and items 1 and 2 of the
citation are vacated.  The direction for review as to No. 83-0489 is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  AUG 28 1986

BUCKLEY, Chairman, dissenting in part:

I respectfully dissent from my colleagues'
disposition of item 1 of the citation.  In my view, the Secretary established that
both FMC and the chloralkaline industry in general were aware of the hazard of locating
pipes containing NCl3 in an area susceptible to external sources of heat.  By placing
its transfer pipes in an area where it was in proximity to hot water, FMC failed to free
its workplace of the hazard, and therefore was in violation of section 5(a)(1) of the
Act.[[9]]

In my view, FMC's expert, Dr. Chester Grelecki,
established that nitrogen trichloride in a pipe is highly susceptible to exothermic
heating and explosion if exposed to external heat.  This is due to the confinement of
the NCl3 in the pipe, which allows no space for the gases generated during heating to
expand, and to the very low autoignition temperature for NCl3.  His testimony also
confirms industry knowledge of such susceptibility.

The record generally substantiates that the explosion which occurred at FMC's chlorine
purification facility was initiated in a pipe carrying NCl3 from a reboiler (where a
chlorinated organic mixture containing NCl3 was heated to vaporize and remove chlorine) to
a reactor for neutralization of the NCl3.  In the heating process, water at a
temperature 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.  As the majority
opinion points out, the evidence indicates that hot water which was being applied
externally to the reactor flowed directly onto the transfer pipe, overheating the NCl3,
and commencing an exothermal reaction within the pipe.  The evidence, however, is not
clear as to precisely how the hot water came in contact with the transfer pipe.  
Either of two hypotheses can be made:  that the water level in the diked pit rose due
to a faulty sump pump, reaching the transfer pipe which traversed the diked pit, or that
the hot water from the hose which was being used on the reboiler was directed onto the
transfer pipe.

The record establishes the substantial likelihood
that hot water could accumulate in the pit to a level where it came in actual contact with
the pipe.  Testimony of the operators established that the sump pumps frequently
broke down.  Problems with the pumps were especially acute during the winter when
they would freeze up.  Significantly, it was during such cold weather when the
operators were most likely to use hot water to gasify the tanks.  While FMC did act
promptly to repair the pumps, there is no evidence that gasification was stopped during
sump pump malfunction.  Indeed, according to FMC's daily inspection report, on
January 21, 1983, the day the sump pump was reported to be not in proper condition, two
drums of nitrogen trichloride byproduct were generated.

Moreover, unlike my colleagues, I find no inconsistency in the evidence concerning
whether, during the two months before the accident, hot water accumulated to the level of
the transfer pipes.  The majority finds it significant that, despite operator Robert
Jones' testimony that he observed the water level reach the pipes during the two months
before the accident, weekly logs kept during that period show that there was no standing
water in the diked area.  They fail to consider, however, the possibility that the
accumulation of water observed by Jones was removed by the time of the weekly inspection.

I am also not persuaded by Dr. Grelecki's testimony
that even if the water did reach the level of the pipes, it would have cooled off too much
to constitute a hazard.  First, Dr. Grelecki's opinion was not shared by Duane
Colpous 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.   When
discussing the temperature dynamics in the tank, Dr. Grelecki recited a principle of
physics 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 less
dense than the surrounding cold fluid.  So that--if you had a big vessel and a hot
spot would develop in that vessel it would tend to rise and sort of stir itself, like if
you heat a pot on the bottom the hot water gets from the bottom to the top."  
Applying this principle to the pit area, it is apparent that while the overall temperature
would have cooled, hot water continuing to flow into the pit would rise to the top where
the pipes are located.

The evidence also indicates that at the time that the
instruments in the control room showed an increase from -30�C to -5�C in the contents of
the 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.   It
is not improbable that he directed the flow of water into the diked pit, and it is
possible that the hose somehow became aimed at the transfer pipe.

FMC should have anticipated and avoided the danger
that external heat sources would come into proximity to the pipe.  FMC knew that hot
water was applied externally to assist in heating the contents of the reboiler and that
hot water was in proximity to the transfer pipe.  It also knew that heat applied to
the transfer pipe could initiate an exothermic reaction of the NCl3.  Its failure to
prevent such contact increased the risk inherent in the chlorine purification process
which FMC was using.  The Secretary established the feasibility of relocating the
pipes.  Indeed, after the accident, FMC did relocate the pipe to an area away from
the hazards presented by the pit.

Accordingly, I find that the record establishes that
FMC failed to free its workplace of a recognized hazard that was likely to cause death or
serious injury, and that the Secretary established a feasible means of abatement.  
Therefore, I would affirm item 1 of the citation.

The Administrative Law Judge decision in this matter is unavailable in this
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FOOTNOTES:

[[1]] Another citation issued to FMC was docketed as
No. 83-0489.  Although never officially consolidated, both Nos. 83-0488 and 83-0489
were heard and decided together by the judge.  Both docket numbers were listed on the
direction for review.  However, neither party has taken exception to any part of the
judge's decision in No. 83-0489.  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 employment
and a place of employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.

[[3]] Item 1 alleged a violation of section 5(a)(1)
in that:

Employees were exposed to the hazard of an explosion
due to critical temperature change which could initiate a decomposition of NCl3 (nitrogen
trichloride) 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 the
grounds that:  Employees were exposed to the hazard of an explosion due to the
instability of NCl3 (Nitrogen trichloride) created by unknown amounts of chloroform being
added to the scrubber; and unknown levels Of NCl3 in the chlorine vaporization and gunk
neutralization process, Cell Room #1, on or about March 1, 1983.

[[4]] Dr. Grelecki's name appears misspelled throughout the record.  Our spelling of
his 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 to
establish feasibility.  The Federal Rules of Evidence are generally applicable to
Commission proceedings.  See Commission Rule 72, 29 C.F.R. � 2200.72.

[[6]] The Secretary argues that another method of
reducing the danger of hot spots would have been to keep the sump pump in good repair to
keep water from accumulating in the pit.  However, the evidence indicates that FMC
properly maintained the pump and that the pump was replaced promptly whenever a problem
arose.

[[7]] Similarly, the Secretary introduced an exhibit
establishing that a chlorine plant operated by PPG uses a mandatory dump system requiring
that the reactive material be dumped into a coolant at 60� F.  As with the TNT
plant, however, the Secretary failed to introduce any evidence to indicate that the
techniques and processes used by PPG were sufficiently similar to those at FMC to warrant
a 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 explosion
where the chloroform flow was cut-off establishes that FMC failed to maintain the
concentration of NCl3 at a proper level.  We do not agree.  The test to which
the Secretary refers was conducted under the direction of FMC's engineers.  There was
no showing that FMC's engineers were not skilled to perform this test.  Nor is there
any evidence that cutting-off the chloroform flow for several hours in any way increased
the likelihood of an explosion or endangered the employees.

[[9]] FMC contends that the citation did not contain
any suggestion that relocation of the transfer lines was a proper method of abatement, and
therefore should not be considered by the Commission.  I disagree.   The
citation expressly addressed itself to hazards caused by critical temperature changes
during the nitrogen trichloride byproduct neutralization process.  Also, the citation
stated that, "among other methods," a feasible and useful method of abatement
would be to "initiate the use of instrumentation to control temperatures on the
piping system."  In my view, the citation put FMC on notice that if the
Secretary failed to establish the feasibility of instrumentation to detect hot spots on
the pipes, he would attempt establish other feasible methods of abating the hazard.  
To the extent the Secretary's failure to specifically list the "other" methods
of abatement may have confused FMC, such confusion could have been remedied by moving for
a more particular statement pursuant to Fed. R. Civ. P. 12(e).  Similarly, to the
extent the Secretary's raising of the issue of moving the pipes at the hearing may have
surprised FMC, any prejudice could have been remedied by a motion for a continuance
pursuant to Fed. R. Civ. P. 15(b).  Indeed, through its own expert witness, FMC
introduced testimony concerning the cause of the explosion.  Therefore, I conclude
that FMC was not prejudiced by having to address the relocation of the pipes.