Wiley Organics, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Wiley Organics, doing business as Organic Technologies, ran a chemical manufacturing plant in Newark, Ohio, making a chemical called R-Glycidol under contract for ARCO Chemical. On April 24, 1991, a reactor vessel exploded during a distillation step and killed the reactor operator, Steven Wears. OSHA inspected and issued citations, and the parties settled most items, leaving four for Commission review. Two were general duty clause charges (29 U.S.C. 654(a)(1)): that Wiley created a recognized hazard by switching its reducing agent to Formalin without adequately developing and testing the change, so unreacted cumene hydroperoxide could remain and react violently when heated, and that the reactor's relief valves and vents discharged hazardous material into employee work areas. The other two were emergency-response violations of 29 C.F.R. 1910.120(q): that after the explosion two company managers entered the fire department's restricted hot zone without coordinating with the incident commander and without self-contained breathing apparatus. Administrative Law Judge Michael H. Schoenfeld affirmed all four items, and the Commission (Chairman Weisberg and Commissioner Montoya) affirmed his decision, rejecting Wiley's arguments on trial by consent, on the use of an expert who had also served the state grand jury, and on the merits. The Commission upheld penalties of $1,400 for each general duty subitem and $3,000 for each emergency-response item.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.120(q)(3)(i); 29 C.F.R. § 1910.120(q)(3)(iv)
• Outcome: All four contested citation items affirmed and the ALJ decision affirmed in full; penalties of $1,400 on each of two general duty subitems and $3,000 on each of two emergency-response items upheld.
• Key point: A general duty clause hazard can rest on an employer's inadequate development and testing of a process change, and the hazardous-substance emergency-response standard binds any employer's responders at the scene, not just the incident commander.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
.
Phone: (202) 606-S 100
Fax: (202) 606-5050

.
.
SECRETARY OF LABOR, ..
.
Complainant, .

v. Docket No. 91-3275

WILEY ORGANICS, INC., d/b/a
ORGANIC TECHNOLOGIES,

Respondent. ..

NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on March
25.1996. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF
THIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 5
660 .

FOR THE COMMISSION

March 25,1996 i?-JL13
Ray H. Darling, Jr.
Executive Secretary
Docket No. 91-3275

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Sarah J. DeBruin, Esq.
Bricker & Eckler
100 South Third Street
Columbus, OH 43215

Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St., N.W., Suite 990
Washington, D.C. 20036-3419
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
coM(302)~100
Frs(202)6owmo

..
SECRETARY OF LABOR,

Complainant, .n
..
v. .. OSHRC Docket No. 91-3275

WILEY ORGANIC& INC. d/b/a ORGANIC
TECHNOLOGIES

Respondent.

DECISION

Before: WEISBERG, Chairman; MONTOYA, Commissioner.

BY THE COMMISSION:

This case arises out of a catastrophic explosion of a chemical reactor vessel at the

chemical manufacturing facility of Respondent, Wiley Organics (‘Wiley”) in Newark,

Ohio on April 24, 1991. The explosion caused the death of Steven Wears, whom Wiley

employed as the reactor operator, and also resulted in state criminal proceedings against its

president, David B. Wiley. Following the explosion, the Secretary conducted an inspection

and issued citations charging Wiley with numerous violations of the Occupational Safety

and Health Act of 1970, 29 U.S.C. @ 651-678 (“the Act”), but these proceedings were
stayed pending resolution of the criminal action. When they resumed, the parties agreed on

a disposition of most of the citation items. Four charges in the Secretary’s citation for

serious violations are now before us for review: two of five subitems of item 1, alleging

• 1996 OSHRC No. 13
   2

violations of section 5(a)( 1) of the Act, the “general duty clause,” which requires that an

employer keep its worksite “free from recognized hazards that are causing or are likely to

cause death or serious physical harm,” and two alleged violations of 29 C.F.R.

9 19 10.120(q), a standard governing emergency response to releases of hazardous sub-

stances. Administrative Law Judge Michael H. Schoenfeld affirmed these four items, and

for the reasons that follow we affirm his decision. Before considering the merits of these

items, however, we must address two procedural issues.

I. TRIAL BY CONSENT ISSUE

A. Background

Wiley was manufacturing a chemical known as R-Glycidol under a contract with the

ARC0 Chemical Company (“ARC,“). In this process, two substances-alcohol and

cumene hydroperoxide- react with a solvent, methylene chloride. There were several

stages to the overall process, but for the purposes of this proceeding, only two are relevant.

First, the cumene hydroperoxide remaining at the end of the process was removed by a

reducing agent. Second, methylene chloride, which is commercially valuable, was distilled

out following the reduction of the cumene hydroperoxide. The reduction operation was

conducted in a 3800,gallon reactor; the remaining contents, known as “raffinate,” were

then transferred into a different, 2000-gallon reactor, for the distillation process.

As prescribed by ARCO, Wiley previously used the chemical sodium metabisulphite

as the reducing agent. Prior to the explosion, however, Wiley changed the reducing agent to

Formalin, which is a solution of formaldehyde and methanol in water. Wiley felt that

formaldehyde, which is known as a generally moderate and easily controllable reducing

agent, would be more suitable and would produce less waste products than sodium metabi-

sulphite. Although the explosion occurred during the final distillation process, the Secretary

concluded and alleged in subitem 1.a.2, one of the two section 5(a)( 1) charges in issue, that
a recognized hazard existed because Wiley had not properly developed and had not thor-
c -
 3

oughly tested the use of Formalin for the preceding reduction phase of the operation. The

procedural question before us is whether that allegation is limited to Wiley’s development

and testing as it relates to the adequacy of the reactor vessel or whether the parties had tried

by consent a more general proposition that the change to Forrnalin did not conform to

accepted industry standards for process develonment and was imnlemented without

ARCO’s consent or authorization.
B. Discussion

Subitem 1.a.2 of the citation alleged as follows:

[Elmployees working in the vicinity of the 2,000 gallon reactor (NlOO 1)
during process operations (such as the production of R-Glycidol and the
treatment of “Raffinate Waste”). were exposed to increased risks of fires,
explosions, hot materials, and toxic materials caused by the release of pro-
cessed materials from the reactor or its associated equipment, and due to the
employer not taking adequate measures to prevent the hazardous release of
corrosive, flammable, and/or toxic materials, in that:

. . . Formulation changes were made by Organic Technologies, Inc. to
the “Raffinate Waste” including, but not limited to, replacing sodium meta
bisulfite [sic] with formaldehyde in the reduction and treatment of peroxides.
The company made the changes without re-evaluating the adequacy of the
Nl 00 1 reactor vessel and its safety line and valve to ensure its ability to
safely handle runaway reactions and fire load situations.

The complaint simply alleged that “Formulation changes were made without reevaluating
the adequacy of the reactor vessel.” The judge concluded that nevertheless the parties

litigated the adequacy of Wiley’s preparation and implementation
U
of the change to Forma-

lin in general, not just with regard to the strength of the reactor, and we agree.

The first part of Fed. R. Civ. P. 15(b) reads as follows:

(b) Amendments to Conform to the Evidence. When issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues may be made upon motion of any party
 4

atanytime... but failure so to amend does not affect the result of the trial of
these issues.

As Wiley correctly notes, under the Commission’s lead case on application of this portion

of the rule, MeWilliams Forge Co., 11 BNA OSHC 2128,2129-30, 1984-85 CCH OSHD

fT 26,979, p. 34,669 (No. 80-5868, 1984), consent can only be found when the parties

“squarely recognized” that they were trying an unpleaded issue.

The parties here adduced virtually no evidence which could reasonably be construed

to demonstrate that they regarded the determination of the adequacy of the reactor as the

basis for the alleged violation. Rather, essentially all of the evidence pertaining to subitem

1.a.2 dealt with whether Wiley’s overall developmental, testing, and implementation proce-

dures conformed to industry standards or complied with ARCO’s protocols and require-

ments as communicated to Wiley. The record is replete with clear indications that both

parties were aware that they were presenting evidence that clearly and unmistakably went

beyond the limited allegation set forth in the pleadings. To mention just a few examples,

without objection from Wiley the Secretary questioned compliance officer Dennis Collins

regarding the evaluation of the potential for a runaway reaction, and Wiley cross-examined

on that point. Similarly, both parties examined the Secretary’s expert, Dr. Henry M. Grotta,

on the accuracy of Wiley’s testing method-iodometric titration-in determining the

effectiveness of Formalin as a reducing agent. One of the issues addressed in Grotta’s

testimony was the critical element of the comparative levels of heat produced in the reac-

tions with sodium metabisulphite and Formalin both in laboratory testing and process scale-

up when Formalin was tested in amounts approaching production quantities. In addition,

Wiley questioned its own personnel, such as Ted Virostko, its R-Glycidol process engineer,

regarding various aspects of the process development, including changes to the R-Glycidol

production manual resulting from the change to Formalin, as well as its witness Ray E.
Witter, who was admitted as an expert in chemical process safety, on his opinion of the
 5

adequacy of its analytical method including its literature search and qualitative and quanti-

tative testing.
As the Commission emphasized in Mc Williams Forge, consent need not be express

but may be implied from the parties’ words and conduct. However, while failure to object

to evidence that is not relevant to the issue as pleaded may be an indication of consent,

failure to object to evidence that is relevant to both a pleaded and unpleaded issue does not

imply consent absent some obvious effort to raise the unpleaded issue. Id. Arguably, evi-

dence regarding Wiley’s overall process development and testing might not necessarily

demonstrate consent to try issues unrelated to the adequacy of the reactor because such

evidence could be relevant to whether Wiley took appropriate measures to ensure that the

reactor would be able to withstand a runaway reaction. However, evaluating the adequacy

of the reactor in itself was hardly even mentioned in the case, and neither the parties nor

any of the witnesses made any more than the most perfunctory effort to link the process

development specifically to the adequacy of the reactor.’ It is clear on the entirety of this

record that the parties were trying the case on the basis that Wiley’s process development

and testing constituted a separate and distinct hazard under section 5(a)(l). See RGM

Constr. Co., 17 BNA OSHC 1229, 1234, 1993-95 CCH OSHD 130,754, p. 42,729 (No.

9 1-2 107, 1995) (employer consents to try an unpleaded standard dealing with runways

The presence of a direct and tangible connection between the overall process development
and the adequacy of the reactor vessel would have been more plausible had the Formalin
process development involved the same reactor as the one alleged in the citation and
complaint. However, the reactor referred to in the Secretary’s allegations, which is the
reactor that exploded, was used only in the distillation process whereas the reduction
operation in which Formalin was used was conducted in a different reactor. By presenting
evidence relating to the development and testing of the reduction process the parties must
have understood that were trying an issue broader than that set for-thin the pleadings.
 6

where citation alleges an unguarded open-sided floor or platform, and employer introduces

evidence that employees did not work in the area but walked through it).”

II. EFFECT OF GRAND JURY PROCEEDINGS
A. Background

This issue concerns the testimony of Dr. Grotta, who had previously appeared as an

expert witness for the state in its grand jury proceedings against David Wiley pursuant to an

order by the Ohio trial court allowing the disclosure “of matters occurring before the grand

jurytoany.. . expert consultants assisting in the investigation on behalf of the state as may

be necessary to allow said investigators . . . to arrive at any opinions or conclusions con-

cerning any matters to be considered by the grand jury.” The order expressly did not autho-

rize disclosure to any other persons not permitted by Ohio Crim. R. 6(E), which requires

permission of the court for disclosure of grand jury materials. In re Special Grand Jury

Investigation Concerning Organic Technologies, Inc. (C.P. Licking County, Ohio, Mar. 25,
1992). Subsequently, Wiley moved in the Ohio court for a temporary restraining order

enjoining Grotta from disclosing grand jury materials to OSHA and consulting with and

providing opinions to OSHA as an expert. Approximately 5 weeks before the hearing

before Judge Schoenfeld, the state court granted that motion in part in an order reading as

follows:

Henry M. Grotta is enjoined from disclosing to the Occupational Safety and
Health Administration any information obtained by [Grotta] by the Grand
Jury proceedings . . . . It is the court’s understanding that the witness . . . has
already agreed not to disclose any information and will base any and all testi-
mony upon that information which has been received outside of the Grand

2There are instances in the record in which Wiley objects to evidence on the ground that it
was not within the scope of the narrow citation allegation. However, these very occasional
objections are incidental in the entirety of this record. Indeed, notwithstanding Wiley’s
assertion at the outset of the hearing that it was not waiving its objection that the Secretary
was impermissibly expanding the scope of the allegation, Wiley’s review brief refers to the
“hazard related to the distillation process or the inadequacy of the rea&r” (emphasis added).
 7

Jury investigation . . . and will proceed with expert testimony based only on
those materials legally discovered or received through investigatory pro-
cesses.

The request for a temporary restraining order is denied as it relates to the
witness . . . consulting with or providing opinions to the Occupational Safety
and Health Administration as an expert in any matter relating to the company
or its Chief Executive Officer, David Wiley. This Court finds that the witness
may provide opinions to OSHA based upon materials received through dis-
covery or through investigatory processes. Furthermore, the witness . . . may
testify in the pending OSHA administrative proceeding as an expert consul-
tant on behalf of OSHA but with thestipulation that the testimony shall not
relate to any of the information obtained through Grand Jury processes.

Wiley Organics, Inc. v. Grotta, NO. 939CV-225 (C.P. Licking County, Ohio, June 3, 1993).

Thereafter, on July 2, 1993, Judge Schoenfeld denied Wiley’s motion in Zimine for

exclusion of Grotta’s testimony. The judge rejected Wiley’s implicit conclusion that by

testifying Grotta would necessarily reveal material obtained through his involvement with

the grand jury. The judge reasoned that through voir dire, cross-examination, and rebuttal,

Wiley would have ample opportunity to determine whether and in what respect Grotta’s

testimony was based on grand jury material, and that any testimony on grand jury informa-

tion would be excluded at that point. The judge also noted that the Ohio court had not

excluded Grotta as a witness, and as the judge put it, “This [ALJ] declines to take any more

stringent action in protecting grand jury secrecy than did the court under whose auspices

the grand jury convened.”

While Grotta testified at the hearing, the judge did not rely on Grotta’s testimony in

his decision and did not even cite to Grotta’s testimony. Wiley, however, contends that the

judge committed reversible error by simply allowing Grotta to testify. Thus, Wiley con-

tends in effect that the court’s restraining order was violated because the Secretary used

evidence and testimony derived from confidential grand jury information, and Wiley dis-

putes the judge’s conclusion that Grotta’s testimony can be severed into the portion attrib-

utable to grand jury information and a portion not attributable to fiat source. Moreover,
 8

Wiley asserts that the proceedings were “tainted” and it was denied due process because the

Secretary used grand jury materials of which Grotta had knowledge to change the theory of

the case from that originally set forth in the citation and complaint. In Wiley’s view, if the

Secretary had not had knowledge through Grotta of grand jury documents and testimony,

he would have been unable to formulate and present a more expansive charge. As Wiley

asserted before the judge, it would be prejudiced were the Secretary to rely on grand jury

material in formulating his case since Wiley would not have access to that information.3

3After the conclusion of the criminal case, the Secretary asked the state prosecutor for
“copies of the evidence” submitted to the grand jury. The state court issued a decision on the
prosecutor’s motion for leave of the court under state rule 6(E) denying the state’s motion
for release of information to the Secretary on the ground that the state had failed to prove a
“particularized need” for disclosure of grand jury information, as required by Ohio law. In
re Special Grand Jury Investigation Concerning Organic Technologies, No. 92-CR-111
(C.P. Licking County, Ohio, June 11, 1993). At the same time Wiley also contended that the
state had already impermissibly released some grand jury information contained in pleadings
which had been filed with regard to the sentencing portion of the criminal case as well as
some interview reports prepared by the Ohio EPA, and Wiley asked for sanctions against the
state. The court found that the material set forth in pleadings and the Ohio EPA reports were
public records and therefore disclosable.

On appeal by Wiley, the state appellate court ruled that the trial court had erred in concluding
that grand jury information filed with the presentence report could be disclosed as a public
record. Concluding that Wiley had established a prima facie showing of a violation of state
rule 6(E), the court remanded for an evidentiary hearing on whether a violation had taken
place. In re Special Grand Jury Investigation Concerning Organic Technologies, No. 93=CA-
00077 (C.P. Licking County, Ohio, 5th App. Dist. May 9, 1994). On November 15, 1995,
the Ohio Supreme Court affirmed the appellate court’s conclusion that a presentence report
is not a public record. 74 Ohio St. 3d, 656 N.E. 2d 329 (1995).

Wiley makes no argument before us with respect to the state prosecutor’s disclosure of grand
jury material to the Secretary; rather, its contentions relate only to contact
-- - between Grotta
and the Secretary.
 9

B. Discussion

On careful review of Wilev’s assertions. we conclude that Wiley has failed to pres-
d /

ent any grounds for relief by the Commission. In the first place, Wiley does not contend

that the Commission’s public record, including the judge’s decision, divulges confidential

grand jury information. Assuming for the sake of argument that the Secretary might reveal

confidential information in his possession, the appropriate course for Wiley would have

been to seek a protective order from the Commission. To the extent that Wiley is concerned

that the Secretary simply had access to secret grand jury information through Grotta, Wiley

sought relief in the state courts with respect to the Secretary’s use of Grotta as a witness.

Since the restraining order explicitly does not exclude Grotta as a witness but merely limits
his testimony to matters not developed as a result of grand jury information, Judge

Schoenfeld plainly did not err in allowing Grotta to testify. Under the doctrine of collateral

estoppel, a determination by a court in a prior action is binding on the parties to that action.

See Con-&a Flour Milling CO., 16 BNA OSHC 1137, 1153-54, 1993-95 CCH OSHD
7 30,045, p. 41,247 (No. 88-1250, 1993), rev’d inpart on other grounds, 25 F.3d 653 (8th
Cir. 1994). Since the restraining order specifically allows Grotta to testify as to information

derived outside the grand jury process, including information obtained from the Secretary’s

own inspection and investigation, the state court has effectively addressed and rejected

Wiley’s position that Grotta could not separate opinions or conclusions arising from the

grand jury information from opinions or conclusions based on other material.4

4At the hearing before Judge Schoenfeld, Wiley cross-examined Grotta as to the basis for his
testimony. Grotta relied on, among other things, analytical reports from the OSHA lab in Salt
Lake City and a deposition given by Thomas A. Dobbins, Wiley’s research and development
director who was responsible for developing and testing the Formalin process, as well as the
testimony he had listened to throughout the hearing and his own background as a chemist.
He also reviewed Wiley’s own records of its lab tests and pilot project scale-ups. This
recitation is consistent with the representations of the Secretary’scounsel regarding the
material he furnished Grotta.
 10

Wiley’s second contention -that the Secretary used confidential information avail-
able only through Grotta as a basis for expanding the allegations against it and that it was

prejudiced because it did not have access to that information-appears to assume that the

Secretary’s theory of the case and litigation strategy was based on privileged grand jury

information whereas the state court restraining order specifically prohibited Grotta from

disclosing any grand jury material to the Secretary. Moreover, Grotta was listed as an

expert witness in the Secretary’s prehearing statement, which afforded Wiley the opportu-

nity to conduct discovery to determine whether Grotta had given the Secretary any informa-

tion outside of the Secretary’s own investigation, just as all documents which the Secretary

had furnished to Grotta were disclosed to Wiley. On this record, Wiley’s argument that the

Secretary unilaterally benefited from material which was not available to Wiley is nothing

more than speculation. Moreover, as discussed supra, the parties freely and thoroughly

litigated the broader allegations which went beyond the Secretary’s pleadings. Even assum-

ing that the Secretary’s litigation posture was based on information not available to Wiley,

we cannot conclude on this record that Wiley was thereby prejudiced in the preparation and

presentation of its defense.

III. MERITS OF SUBITEM l.a.2
Having concluded that the parties tried by consent allegations relating to Wiley’s

overall development, testing, and implementation of the change to Formalin, we now turn

to the question of whether the Secretary proved that Wiley’s actions resulted in the exis-

tence of a recognized hazard at its workplace. A recognized hazard is defined in terms of

conditions or practices over which the employer can reasonably be expected to exercise

control. Morrison-Knudson Co./Yonkers Contracting Co., A Joint Venture, 16 BNA OSHC

1105, 1121-22, 1993-95 CCH OSHD 7 30,048, p. 41,279 (No. 88-572, 1993); Inland Steel

Co., 12 BNA OSHC 1968, 1970, 1986-87 CCH OSHD 7 27,647, p. 35,997 (No. 79-3286,
1986). A hazard may be recognized by either the individual employer itself or its industry.

---

11

Id. at 1970, 1986-87 CCH OSHD at p. 35,996. As Judge Schoenfeld noted, there is no
dispute that cumene hydroperoxide can react violently when exposed to heat. Since the

distillation process required that the raffinate be heated to a relatively high tempera-

ture-95 “C.-in order to distill out the methylene chloride, Wiley was aware that any

substantial amount of cumene hydroperoxide remaining in the raffinate after the completion

of the preceding reduction phase would present a hazard? Accordingly, the judge CU-

eluded that the heating of raffinate containing cumene hydroperoxide constitutes a recog-

nized hazard. Since the amount of cumene hydroperoxide remaining after reduction was

one of the factors with which Wiley was concerned and which it attempted to address

during its process development, we conclude that the judge’s definition of the recognized

hazard is sufficiently specific, and we adopt it.

In discussing whether Wiley discharged its duty under section 5(a)( 1) to keep its

worksite free from this hazard, the judge conducted a thorough and exhaustive analysis of

the evidence and made a number of findings regarding Wiley’s development of the Forma-

lin process. In brief, the judge found that Wiley continued the development and scale-up of

the Formalin into larger quantities even though the levels of cumene hydroperoxide it was

measuring exceeded the maximum prescribed in its own written procedures. The judge

noted that when Virostko, the engineer in charge of the R-Glycidol process, informed his

supervisors that excessive amounts of cumene hydroperoxide were present, his concerns

were not taken seriously, and Wiley made no attempt to follow-up by taking steps to ensure

that the Formalin scale-up conformed to the prescribed parameters. He also found that

Wiley withheld from ARC0 the fact that it had already put the Formalin process into

production even though Wiley understood that ARC0 had not approved the process and

5For instance, Dobbins testified that cumene hydroperoxide becomes hazardous when
exposed to heat. Carry Cunningham, production supervisor, agreed that there was a potential
for a runaway reaction during the distillation process if the reduction
-: a had not occurred
properly.
 12

wanted it studied further. The judge observed that under Wiley’s usual contractual arrange-

ments with ARCO, it knew or should have known that ARC0 had final authority over any

process modifications. The judge placed particular weight on the results of a Hazardous

Operations (“HAZOP”) review, a detailed study ARC0 customarily conducts of all chemi-

cal reaction processes performed by its contractors. In this case, the findings of the HAZOP

review included several reservations regarding the use of Formalin and prescribed specific

actions to deal with these concerns. Among other things, Dr. Ricardo Bogaert, ARCO’s

process development engineer, and Virostko were to conduct further studies of the effect of
using Formalin, including the influence of temperature! In sum, the judge concluded that

the prospect of financial gain from a more efficient production method caused Wiley to put

the Formalin reduction process into operation before it was fully tested and without taking

sufficient measures to ensure that unreacted cumene hydroperoxide would not be present in

hazardous quantities. These findings are supported by the evidence and are sufficient to

establish that Wiley’s worksite was not free from the recognized hazard.

Wiley contends, however, that the judge failed to give proper weight to the testi-

mony of its expert, Witter. Essentially, Witter gave his opinion that Wiley’s test methods

did not constitute a recognized hazard because iodometric titration, the testing method used

by Wiley, is an accepted means in the chemical manufacturing industry for measuring

substances such as cumene hydroperoxide. He also felt that Wiley was justified in putting

the process using Formalin into production notwithstanding the HAZOP report. Witter

opined that since the HAZOP report indicated that the “alternate” Formalin procedure was

6Dobbins also testified that no “conclusive decisions” had been reached between Bogaert and
him and that in fact he was still doing experimentation at the time of the explosion. Mark
Morehart, the Newark plant manager, testified that at a follow-up meeting with ARC0 about
two weeks before the accident, the “issue” of Wiley having gone into production was
“discussed,” and that this discussion included Bogaert’s progress in the
-: efurther study he was
to undertake as a result of the HAZOP review.
 13

subject to HAZOP review, the report should have specifically cautioned Wiley not to run

the Formalin process if ARC0 had any doubts that it had been adequately tested. Based on
I

Witter’s testimony, Wiley asserts that “the circumstances allegedly comprising the factual

basis for a general duty clause violation did not constitute recognized hazards within the

chemical industry” and that the HAZOP study did not put it on notice that using Formalin
l

presented any hazard.

Witter’s testimony to the effect that Wiley’s practices did not constitute recognized

hazards and Wiley’s reliance thereon misconstrue the issue presented in this case. As we

have said, the recognized hazard here is the presence of unreacted cumene hydroperoxide.

The question of whether Wiley took the measures considered customary and reasonable in

the industry may be pertinent to whether Wiley had discharged its duty under section

5(a)(l) to keep its worksite free from a recognized hazard, but the question of what condi-

tions the chemical industry would regard as hazardous is nevertheless a separate and dis-

tinct inquiry. See Wheeling-Pittsburgh Steel Corp., 10 BNA OSHC 1242, 1245, 1981 CCH

OSHD $I25,80 1, p. 32,244 (No. 76-4807, 198 1) ( consolidated) (distinguishing whether the

employer has taken adequate measures to protect its employees from whether there is

recognized hazard in the first instance).

Clearly, and contrary to the thrust of Wiley’s brief, Witter’s testimony does not

exculpate Wiley on the critical issue of the adequacy of Wiley’s process development.

Witter’s opinion that Wiley was justified in proceeding with Formalin as the reducing agent

is based on the written HAZOP reports he reviewed, which represent only a part of the

overall relationship between ARC0 and Wiley. It is clear Tom the record, as the judge

found, that ARC0 did not intend that Wiley put the Formalin process into actual production

and that Wiley could not have had any misunderstanding on this point. Moreover, nothing

in Witter’s testimony establishes that the amount of cumene hydroperoxide remaining after

the introduction of Formalin was within safe limits or that Wiley could have safely pro-
-: e
 14

ceeded with the Formalin process even though the levels of cumene hydroperoxide did not

conform to Wiley’s own specifications.

Accordingly, we reject Wiley’s contention that the judge’s decision is erroneous for

failing to give proper weight to Witter’s testimony.

IV. MERITS OF SUBITEM l.a.3
Item 1.a.3 alleges that a recognized hazard existed because the valves and vents of

the reactor that exploded were not configured so as to discharge to a safe location away

from employee work areas. The physical configuration of the reactor is undisputed. The

vent at the top of the condenser tower above the reactor, 47 feet above ground, was curved

and pointed downward. There was also a pressure relief valve on the reactor itself. Al-

though this valve could not be located after the explosion, the compliance officers deter-

mined fkom their investigation that it simply discharged into the atmosphere 10 to 12 feet

above the ground without being diverted. Finally, there was another relief valve on the

second level of the condenser platform which presented the same problem. The compliance

officers described several methods by which these conditions could be abated.7 There is

also no dispute that both methylene chloride and cumene hydroperoxide are hazardous

materials; among other evidence, Wiley’s own production manual contains “safety infor-

mation” which states that both chemicals are corrosive or hazardous to the skin and eyes.

7Compliance officer Amanda Lange testified that diverting the vent to a catch tank, header
pipe, or similar safe location would have been a feasible means of abatement. According to
compliance officer Dennis Collins, other mechanisms into which hazardous materials can be
diverted include scrubbers that can neutralize caustic or acidic materials or flares to burn off
the material, and such materials can also be discharged from locations sufficient to allow the
material to disperse into the atmosphere without coming into contact with employee work
areas. He had been involved in at least one case where this means of discharge was in issue.
Judge Schoenfeld did not consider Collins qualified to give an expert opinion as to the design
and operation of discharge systems but did give weight to his testimony to the extent Collins
described mechanisms he had observed during inspections of other chemical
-1 a manufacturing
companies.
 15

Moreover, the record clearly establishes not only that the vents and valves were

positioned over and facing employee work areas but also that discharges from the valves

and vents were known to occur. The reactor was heated and cooled by steam and water

lines, respectively, which were either controlled or capable of being controlled at the reac-

tor itself, and Carry Cunningham, the production supervisor, specifically stated that em-

ployees would have occasion to work at the reactor pad. Shortly before the accident oc-

curred, William F. Darling, Sr., an employee who was assisting Wears, observed material

pouring off the second floor of the tower. Wears then went outside the building to the tower

and did something Darling could not identify which stopped the flow of raffinate. Some of

the rafEnate fell onto Wears; when he returned, he used Wiley’s emergency shower to wash

it off the upper part of his body. In addition, on one prior occasion there had been a dis-

charge of liquid from the vent when sodium metabisulphite was being used as a reducing

agent.
In affirming the citation allegation, the judge relied in part on the testimony of

Witter, who conceded on cross-examination that a relief valve which discharged onto an

employee work location would not be considered a safe work practice. The judge further

determined that in any event, allowing toxic or heated chemicals to be discharged into

employee work areas is an obvious hazard for which no particular expertise is necessary to

establish recognition. In concluding that this hazard existed in Wiley’s worksite, the judge

further found that the discharge of hazardous materials into a work area was reasonably

predictable. On review before us, Wiley contends that the judge took Witter’s testimony out

of context because Witter otherwise testified that the location of the vent and valves con-

formed to industry standards and would not be recognized as unusual or hazardous. Wiley
also contends that the reactor and condenser tower where Wears went to shut off the dis-

charge was not in fact a work area and that Wears violated his training and instruction by

going to the reactor itself. Lastly, Wiley contends, as it did before the judge, that it fulfilled
-: e
 16

its duty under section 5(a)( 1) because it could not have reasonably anticipated that a dis-

charge would occur requiring an employee at the production tower, since after switching to

Formalin, it had never experienced any discharges during any distillation operation prior to

the accident.

While the Commission has authority to make its own factual findings, it is the prov-

ince of the judge to resolve factual issues and to determine how to weigh conflicting testi-

mony. Sanders Lead Co., 15 BNA OSHC 1640, 1641, 1991-93 CCH OSHD 7 29,690, p.

40,260 (No. 87-260, 1992) and cases cited therein; Seibel Modern Mfg.& Welding Corp.,

15 BNA OSHC 1218, 1228-29 & n.15, 1991 CCH OSHD 29,442, p. 39,685 & n.15 (No.

88-82 1, 199 1). Moreover, we have said that a judge’s findings are ordinarily entitled to

deference even if a different evaluation of the evidence and different findings might also be

equally reasonable. Okland Constr. Co., 3 BNA OSHC 2023, 1975-76 CCH OSHD
y 20,441 (No. 3395, 1976). In this case, we have no basis on which to set aside the judge’s

fmdings. Rather, the preponderance of the evidence clearly supports the judge’s determina-

tion that the configuration of the reactor valves and vents presented a recognized hazard.
As the judge correctly noted, a hazard may be considered recognized even in the

absence of expert testimony or testimony of those familiar with the industry. Not only

could the judge reasonably find on this record that the chemical manufacturing industry

would regard the discharge of hazardous substances onto an employee work area as a

hazard, but his conclusion that such a hazard is an obvious one as well is also reasonable.

See Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984), afg 10
BNA OSHC 1970, 1982 CCH OSHD 126,223 (No. 78-4555, 1982) (“obvious and glaring”

hazard); Litton Systems, Inc., Ingalls Shipbuilding Div., 10 BNA OSHC 1179, 1182,1982

CCH OSHD 7 25,817, p. 32,270 (No. 76-900, 1981) (hazard of operating a 30-ton crane
with obstructed view in an area customarily used by employees is “a matter of common

knowledge”). The evidence also plainly supports the judge’s findings that Wiley’s worksite
-. .
 17

was not free corn this hazard because the base of the reactor was an area where employees

could be expected to have occasion to go to perform work and because discharges of mate-

rial could reasonably be anticipated. Regardless of whether, as Wiley notes, it had never

previously experienced a discharge of raffinate while using Formalin, as discussed above

with respect to subitem 1.a.2, the company was on notice that its process development was

inadequate and that there was a potential for a violent discharge of material due to the

presence of excessive levels of unreacted cumene hydroperoxide. The risk of injury to

employees, not the specific incident or accident that results in injury, is the relevant consid-

eration in determining the existence of a recognized hazard. Waste Management of Palm

Beach, Div. of Waste Management, Inc. ofFlorida, 17 BNA OSHC 1308, 1309, 1995 CCH
OSHD T[30,841, p. 42,891 (NO. 93-128, 1995); Kelly Springfzeld, 10 BNA OSHC at 1973,
1982 CCH OSHD at p. 33,113. Accordingly, we conclude that the judge properly affirmed

this subitem.

V. MERITS OF THE SECTION 1910.120 ALLEGATIONS
A. Section 1910.120(q)(3)(I)

The cited standard provides as follows:

5 1910.120 Hazardous waste operations and emergency response.

(q) Emergency response to hazardous substance releases
. . . .
(3) Procedures for handling emergency response. (I) The senior emergency
response official responding to an emergency shall become the individual in
charge of a site-specific Incident Command System (ICS). All emergency
responders and their communications shall be coordinated and controlled
through the individual in charge of the ICS assisted by the senior official
present for each employer.

Assistant city fire chief Anita Stickle was the designated on-scene commander. She

controlled all access and directed that yellow warning lines be placed to indicate the “hot

zone,” the area having restricted entry. The first Wiley representative to come to the site in

response to the explosion was the plant manager, Morehart, and David Wiley subsequently
 18

joined him. Although Wiley and Morehart initially reported to the command post, in

Stickle’s view, they did not advise her of their intention to enter the premises, which were

within the designated hot zone. Rather, in Stickle’s words, they “disappeared” or would

“drift away” into the hot zone and the building itself. They were told more than once that

they were not permitted in the area, but each time they would return and go back in again.

Eventually, they had to be escorted out by a firefighter. While it is not clear precisely when

the warning lines were put in place, Stickle testified that they entered the building after the

lines had been set up. When Stickle determined that Wiley was trying to retrieve notebooks

describing its inventory and Material Safety Data Sheets (“MSDS”), she sent firefighters

into the building to get these documents, which she intended to use to determine what

chemicals and hazards existed at the facility.

Wiley testified that he and Morehart entered the building to see if they could identify

any of the chemicals involved in the fire. He did not notice any yellow tape in the area, but

he conceded that a firefighter did ask them to leave. He also did not dispute that he returned

but claimed that he did so only after the fire was out and he observed the fire trucks prepar-

ing to depart. He also asserted that he was asked to enter the facility at this time by a repre-

sentative of the state fire marshall’s office who was conducting an arson investigation.

Stickle, on the other hand, testified that while the fire was under control at this time, the

chemical hazard still existed and a hot zone was still in place. She also stated that no state

fire marshal1 was at the scene. Morehart corroborated Wiley’s testimony, and he also de-

nied that he and Wiley were escorted out of the area.

Judge Schoenfeld determined that under the facts here, Wiley’s representatives were

under the control of the fire department until emergency operations were terminated. He

found that they entered the premises contrary to the express instruction of the incident

commander and therefore “failed to coordinate” with the incident commander as required

by the standard. The judge also made a specific credibility finding in favor of Stickle based
 19

on demeanor and lack of self-interest on the issues of whether a state fire marshal1 was

present and whether warning tape was in place, and he concluded that Wiley’s testimony

regarding the absence of tape was inconsistent with Wiley’s concession that he was es-

corted out. In any event, the judge concluded, even assuming there was in fact no tape

visible, Wiley knew or should have known that he was entering an area the incident com-

mander did not want him to go into. The Commission will ordinarily accept a judge’s

evaluation of the credibility of witnesses based on factors uniquely within the province of

the judge to evaluate, such as demeanor. Waste Management, 17 BNA OSHC at 1309-10,

1995 CCH OSHD at p. 42,891; United States Steel Corp., 9 BNA OSHC 1641, 1644, 198 1

CCH OSHD 7 25,282, p. 31,252 (No. 76-5007, 1981). Wiley has not shown any basis for

us to overturn the judge’s credibility determination or to disturb his factual findings.*

Wiley also raises issues regarding the applicability of section 19 10.120(q)(3)(1).

Judge Schoenfeld rejected Wiley’s argument that the standard applies only to the incident

commander. The judge concluded that it would be unreasonable to interpret the standard to

mean that only the commander could be cited while employers having employees at the

scene could not be cited for failure to coordinate with the commander. While we agree with

the judge on this point, Wiley’s argument before us is somewhat different inasmuch as on

review Wiley asserts that only specifically trained personnel such as firefighters are subject

to the coordination of the incident commander.g

8However, we slightly modify the judge’s findings in one minor respect. While Wiley
conceded that a firefighter asked him to leave, his testimony is ambiguous on whether he and
Morehart were personally escorted out. We therefore conclude that Wiley corroborated
Stickle’s testimony with respect to whether he and Morehart were ordered out of the hot zone
. but not as to whether a firefighter accompanied them to ensure that they left.

‘Wiley also contends on review that the standard imposes no requirement that responders
subject to the standard actually comply with the commander’s instructions. As the judge
stated, the standard cannot reasonably be construed so as to exempt

• e anyone except the
  (continued.. .)
   20

Wiley’s contention is contrary to both the language of the standard and its intent as

indicated in its preamble. The standard expressly defines an “emergency response” as “a

response effort by employees from outside the immediate release area or by other desig-

nated responders (i.e., mutual-aid groups, local fire departments, etc.)” Section

19 10.120(a)(3) (emphasis added). The preamble to the standard makes even more explicit

that it is not limited to specialized response personnel.1o For instance, the Secretary empha-

sized that his “decision to propose coverage of all emergency response” (emphasis added)

was based on “the high risk associated with emergency response by untrained and unpro-

tected employees.” 54 Fed. Reg. 9298 (1989). In addition, the Secretary offered the follow-

ing illustration of the application of section 19 10.120(q):

In paragraph (q) OSHA is covering those emergency response situations that
occur at locations other than uncontrolled hazardous waste sites and RCRA
TSD facilities [sites covered by the Resource Conservation and Recovery Act
of 1976 or by regulations under that Act]. . . . [Slites covered by this para-
graph would included hazardous substance releases at chemical manufactur-
ing facilities . . . .

A typical scenario where this paragraph would be applicable would be the
emergency response to a derailed tank car containing a hazardous substance
that has begun to leak its contents into the atmosphere. The emergency re-

g(.. .continued)
incident commander for being cited for failing to coordinate activities. Furthermore, the
standard expressly requires that all responders be “controlled” through the incident
commander; that language clearly denotes compliance with the incident commander’s
instructions.

Wiley on review no longer argues, as it did before the judge, that it is exempt under section
19 lO.l2O(q)( 1) because it has an emergency response plan in conformity with section
1910.38 and otherwise meets the requirements of section 1910.120(q)(l).

loWhile we believe that the plain wording of the standard clearly indicates its scope, to the
extent any ambiguity exists, it is appropriate to look to the preamble to determine how the
standard is to be interpreted. American Sterilizer Co., 15 BNA OSHC 1476, 1478, 199 1-93
CCH OSHD 7 29,575, pp. 40,015.16 (No. 86-1179, 1992). - -
 21

sponse to this type of accident would usually include the first responders (i.e.,
witnesses, police, employees on the train), the first dispatched-responsers
(i.e., the first due rescue and fire apparatus), [and] any multiple-alarm dis-
patches (i.e., additional fire and rescue apparatus [)] . . . .

Id. at 9309 (emphasis added).
For these reasons, we reject Wiley’s argument that the cited provision does not

apply and we conclude that the judge properly affirmed this item.

B. Section 1910.12O(q)(3)(iv)

In this item the Secretary alleges that Wiley and Morehart were not using self-con-

tained breathing apparatus (“SCBA”) while in the hot zone contrary to section

19 lO.l2O(q)(3)(iv), which requires as follows:

Employees engaged in emergency response and exposed to hazardous sub-
stances presenting an inhalation hazard or potential inhalation hazard shall
wear positive pressure self-contained breathing apparatus while engaged in
emergency response, until such time as the individual in charge of the ICS
determines through the use of air monitoring that a decreased level of respira-
tory protection will not result in hazardous exposures to employees.

Because the nature of the hazardous materials present at Wiley’s facility was not

known at the time, Stickle prescribed full protective gear for the hot zone, including SCBA.

Protective gear was worn by the firefighter who escorted Wiley and Morehart out and also

by the firemen sent in to retrieve the notebooks and MSDS’s. Wiley, on the other hand,

testified that the fireman who first approached him was not wearing a respirator and that no

firemen were wearing respirators when they returned. While Morehart testified that an

emergency response team from Dow Chemical, which supplied the chemicals Wiley used,

did wear full protective clothing including SCBA when they entered the area after the fire

was extinguished in order to monitor for any hazardous environment, he claimed that

Stickle never informed him that personal protective equipment was required.
In affirming this item, the judge concluded that regardless of whether Wiley may

have thought that SCBA was no longer required after the fire had- been brought under
 22

control, a violation existed as a result of Wiley’s initial entry, and he concluded that Stickle

did not have an obligation to specifically inform persons who have been instructed not to

enter a hazardous area that they must use protective equipment if they do enter. Wiley takes

exception to these findings, and it contends that no violation was shown because the Secre-

tary adduced no evidence to establish that there was exposure to substances that would be

hazardous if inhaled. It also asserts that the citation should be vacated for lack of knowl-

edge of the alleged hazardous conditions because its personnel were not informed of a need

for protective equipment and firefighters were not wearing such equipment. We disagree.

There is no dispute on the facts that Wiley and Morehart did not use SCBA when

they entered an area which had been designated for such equipment by the incident com-

mander, Stickle. While there is no evidence that either cumene hydroperoxide or methylene

chloride present an inhalation hazard, contrary to Wiley’s argument, the standard depends

not on the actual existence of such a hazard but rather on a determination by the incident

commander that there is at least a potential for such a hazard. The facts establish that

Stickle made such a determination in accordance with the terms of the standard because at

the time she did not know what materials or substances were at the site. Furthermore, we

agree with the judge that it would be inappropriate to excuse Wiley’s personnel for not

having knowledge of Stickle’s designation of the area as one requiring breathing apparatus

where Wiley’s own actions were such as to be responsible for Stickle’s failure to make that

specifically known. An employer has a general obligation to inform itself of the hazards

present at the worksite and cannot claim lack of knowledge resulting from its own failure to

make use of the sources of information reasonably available to it. E.g., Hamilton Fixture,

16 BNA OSHC 1073,1087,1993-95 CCH OSHD 130,034, p. 41,182 (No. 88-1720,1993),

afd withoutpublished opinion, 28 F.3d 1213 (6th Cir. 1994); Bland Constr. Co., 15 BNA

OSHC 1031, 1036, 1991-93 CCH OSHD 7 29,325, p. 39,396 (No. 87-992, 1991). More-

over, Wiley had a duty to consult with Stickle under the explicit terms of section
 23

19 10.120(q)(3)(1) which requires “coordination” with the incident commander, that is,

Stickle. Lastly, assuming without deciding that the use or lack of use of SCBA by

firefighters is relevant to whether Wiley violated the standard by not using it, as we have

previously noted, the judge found Stickle’s testimony to be more credible than that of

Wiley. We have no basis not to give dispositive weight to Stickle’s testimony that

firefighters were using SCBA, particularly as her testimony is in accord with Morehart’s

testimony that the required equipment was being worn by the Dow Chemical personnel

when they came to the site.

For these reasons we conclude that the judge properly affirmed this item.

VI. CONCLUSION
The judge assessed penalties of $1400 each for subitems 1.a.2 and 1.a.3,

representing a pro rata portion of the aggregate penalty of $7000 the Secretary had pro-

posed for the originally-cited five subitems of item 1. The judge also assessed the proposed

penalties of $3000 each for items 5 and 6. Neither party takes exception to the judge’s

penalty assessment or presents any argument regarding the amount of an appropriate pen-

alty. Accordingly, we affirm the judge’s penalty assessments. The judge’s decision is

affirmed.

Stuart E. Weisberg
Chairman

Velma Montoya
Commissioner

Date& March 25, 1996
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE:
.
COM (202) 6064100 Ek (202) 6oG5050
. . Frs (202) 6064050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-3275
ORGANIC TECHNOLOGIES, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE UW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on May 5 !, 1994. The decision of the Judge
will become a final order of the Commission on June 23, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF TH35 s DEC~§IO~ BY ?mfE
COMMISSION MUST F’ILE A PETITIGN FUR DIZKXETIONARY .REVIEW.
Any such petition should be received by the Executie Secreq on cxr befare
June 14, 1994 in order to ermit sufficrent time for its review. See
Commission Rule 91,29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
ha.ng questions about review nghts may contact the Commission’s Executive
Secretary ix d (202) 606-5400.
FOR THE COMMISSION

Date: May 25, 1994
DOCKET NO. 91-3275
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOk
Room S4004
200Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitqr, U.S. DOL
Federal Office Buildmg, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Bernadette Bollas, Esq.
Sarah J. BeBruin, Esq.
Bricker & Eckler
100 ~SOU-UI
-T)H’rd Street
Columbus, OH 43215

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
One Lafayette Centre
1120 2m St. N.W., Suite 990
-W&itlgt~~ DC 20036 34l.9

00103532123:05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
PHONE:
COM (202) 6064050
COM (202) 6OG5100
Frs (202) 606-5050
Frs (202) 6064100

SECRETARY OF LABOR,

Complainant’,
.
..
v. Docket No. 91-3275

WILEY ORGANIC& INC., .
d/b/a ORGANIC TECHNOLOGIES, 1

Respondent.
..

Appearances:

Mary Ann Garvey, Esq. Michael S. Holman, Esq.
Christopher J.Camey, Esq. Bernadette J. Bollas, Esq.
Office of the Solicitor Sarah J. DeBruin, Esq.
U.S. Department of Labor Bricker and Eckler
For Complainant Columbus, Ohio
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

DECISION AND ORDER

Procedural Historv

This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 5 5
651 - 678 (1970) (“the Act”). ‘
 Having had its worksite inspected by compliance officers of the Occupational Safety
and Health Administration, Wiley Organics, Inc., (“Respondent” or ‘*Organic Technologies”)’
was issued three citations alleging numerous violations of the Act. Respondent timely
contested. Following the filing of a complaint and answer and pursuant to a notice of
hearing, the case came on to be heard in Columbus, Ohio on July 12 through 16 and July
26 through 29, 1993.’ No affected employees sought to assert party status. Both parties
have filed post-hearing briefs and reply briefs.

Jurisdiction

Complainant alleges and Respondent does not deny that it is an employer engaged
in the business of chemical manufacturing. Respondent does not deny that it uses tools,
equipment and supplies which have moved in interstate commerce. I find that Respondent
is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the
meaning of 5 3(5) of the Act.3 Accordingly, the Commission has jurisdiction over the
subject matter and the parties.

’ Despite any differentiation between the legal entities Wiley Organics, Inc., and
Organic Technologies, the names are used interchangeably in this decision.

’ At the beginning of the hearing, the Secretary vacated Items 7, 8, 9, 11, 21(b), 23, 24,
25, 29, 30 and 31 of Citation Number 1, as well as Item 3 of Citation Number 3. Organic
Technologies agreed to withdraw its Notice of Contest to Citation Number 1, Items 3, 4, 10,
12, 13, 21(a), 26, 27 and 28 as well as Citation Number 3, Items 1 and 2 (Tr. 78). The
Secretary also vacated Item l(a)(l) of Citation Number 1 (Tr. 80). Thus, evidence at the
hearing was taken as to Citation Number 1, Items l(a)(2) through l(a)(S), 5 and 6 (Tr. 7,
78). The parties agreed that a penalty of $12,000 was appropriate for those items to which
contest was withdrawn (Tr. 78).

3 Title 29 U.S.C. 5 652(5).
Discussion
Organic Technologies, (“Respondent”), a manufacturer of chemicals, is owned by
Wiley Organics, Inc. It has manufacturing facilities in Columbus, Newark and Coshocton,
Ohio. On or about August 15, 1988, ARC0 Chemical Company (“ARCO”) entered into a
two year contract with Respondent (R-42)4 under which Respondent was to manufacture
four Chiral Glycidols, including R--Glycidol, a chemical used in epoxy formulations and in
pharmaceuticals (Tr. 595). As a “toll manufacturer,” Organic Technologies produced R-
Glycidol exclusively for ARCO. Organic Technologies obtained the process for manufactur-
ing R-Glycidol from ARC0 and the right to be the exclusive supplier of R-Glycidol to
ARCO. As part of the agreement, ARC0 had exclusive rights to any process developments
or improvements developed by Organic Technologies and was entitled to a share of any cost
or material savings developed by Organic Technologies in the processing of R-Glycidol.
Organic Technologies stood to make more money if it could improve the efficiency of the
process or by increasing the recovery of Methyl Chloride by using a different type of
distillation procedure. ( Tr. 1427). Under the agreement with Organic Technologies, ARC0
could review all procedures and equipment used by Organic Technologies to produce R-
Glycidol. ARC0 had the contractual authority to implement procedures and require actions
with respect to the production of R-Glycidol when it considered the change in process or
procedure to be important to safety. Sales of R-Glycidol to ARC0 represented about five
or ten per cent of Organic Technologies’ business.
A by-product of the production of R-Glycidol is a liquid mixture known generically
as “raffinate.” The raffinate generated in the R-Glycidol process consisted of, among other
things, Methylene Chloride, Cumene Hydroperoxide, Alpha Cumyl Alcohol and Cumene.
According to David Wiley, it was originally anticipated that the raffinate resulting from the
process at Organic Technologies would be disposed of as waste. The raffinate was however,
a hazardous product. Organic Technologies had to pay hazardous waste disposal fees to
dispose of the untreated raffinate. It was early realized that if the amount of Cumene

4 References to the record in the matter are as follows; Complainant’s Exhibit, C-;
Respondent’s Exhibit, R-; Transcript of proceedings; Tr-.
 a
4 111

Hydroperoxide in the raffinate could be reduced or eliminated before disposal Organic
Technologies could achieve significant savings in the hazardous waste disposal costs. Such
savings would be shared with ARCO. Apparently, early in the relationship, ARC0
suggested that treating the raffinate with Trimethylphosphite to lower the amount of the
hazardous Cumene Hydroperoxide in the raffinate. (Tr. 624-25, 1453-54). Organic
Technologies never used Trimethylphosphite but suggested using Sodium Metabisulfite
instead. ARC0 agreed and the Sodium Metabisulfite treatment was tested at Organic
Technologies and put into production. (Tr. 1431). ARC0 personnel were made aware of
and approved the change from Trimethylphosphite to Sodium Metabisulphite (Tr. 1432).
ARC0 had, on at least two occasions, issued written instructions to Organic Technologies
as to procedures to be used in the R-Glycidol manufacturing process (R-43, 44). In
meetings with ARCO, David Wiley, chief executive officer of Organic Technologies,
introduced the proposal to change the reducing agent from Sodium Metabisulfite to
Formalin.’ Organic Technologies introduced the Formalin into its full scale production of
R-Glycidol in mid to late March 1991 (Tr. 635). On the night of April 24, 1991, during the
course of distilling a batch of previously treated (reduced) raffinate, a catastrophic explosion
and fire occurred. The conflagration was of such a size that emergency services from several
communities were called to the scene. One Organic Technologies employee died as a result
of injuries received.
Respondent was issued a citation alleging, among other things, five violations of
8 5(a)(l) of the Act, 29 U.S.C. 659(a)(l), the “general duty clause.“6

5 Formalin is the trade name of a mixture of Formaldehyde, Methyl Alcohol, Methanol
and water in a specified ratio. The terms are used interchangeably in this decision.

6 Section 5(a)(l) provides:
Sec.5. (a) Each employer - -
(1) Shall furnish to each of his employees employ-
ment and a place of employment which are free
from recognized hazards that are causing or likely
to cause death or serious physical harm to his
employees.
 B
5 m

The Secretary maintains that the gravamen of the second alleged general duty clause
violation encompasses the claim that Respondent switched reducing agents from Sodium
Metabisulfite to Formalin “without adequately researching the efficacy of Formalin as a
reducing agent for Cumene Hydroperoxide in raffinate.” The Citation, Item l(a)(2),
concerning the change in process alleges;
Formulation changes were made by Organic Technologies, Inc.
to the “Raffinate Waste” including, but not limited to, replacing
sodium meta bisulphite with formaldehyde in the reduction and
treatment of peroxides. The company made the changes
without re-evaluating the adequacy of the NlOOl reactor vessel
and its safety line and valve to ensure its ability to safely handle
runaway reactions and fire load situations.
The Complaint, ll V(e)(2), described the alleged violation as “[flormulation changes were
made without reevaluating the adequacy of the reactor vessel.”
While the above language does not specifically identify the general adequacy of
Respondent’s preparation for the process change as the central issue, implicit in the
allegation in the citation is the question of the degree of Respondent’s preparation for the
switch to Formalin.’ The Secretary maintains that Respondent itself raised the issue in its
pleadings, citing Respondent’s Motion for Partial Summary Judgment and Respondent’s
opening statement at the hearing (Tr. 24-25). The Secretary, relying on Rule 15(b),
Fed.R.Civ.P., argues that the issue, having been tried by the consent of the parties, must be
treated in all respects as if it had been raised in the pleadings.
Pointing to the narrow language of Item l(a)(2) of the citation, Respondent argues
that the Secretary “changed his theory (of the case and instead attempted to argue at the

7
During the course Iof the hearing, the Secretary placed his emphasis on the
assertions that Respondent’s research into and preparation for the change from Sodium
Metabisulfite to Formalin in the reduction process was inadequate because the persons
designated by Respondent to investigate and design the process change were not qualified
to do so; that their preparation for the investigation into the process change, particularly
their literature search, was inadequate; that Respondent’s laboratory testing methodology
to investigate the effects of the process change were inadequate; and that Respondent’s use
of tritation as its basic method of quantitative analysis of the results of using Formalin as a
reducing agent, did not meet minimally acceptable scientific standards.
 0
6 0

hearing that the analytical test methodology...was deficient.” (R.Brief. p. 17). Respondent’s
too narrow reading is rejected.
Respondent’s Prehearing Statement, Page 2, 5 5 I.A.2.c - d, acknowledges, as issues
in the case:
c. What was the nature and extent of the reevaluation undertak-
en prior to the formulation change (sodium metabisulfite
replaced by formalin) at issue ?

d. Did the formulation change at issue create a significant risk
3.

e. Did the formulation change create any hazard that was
generally recognized by industry or Respondent ?
Respondent was thus well aware of the issues surrounding the adequacy of its
preparation and execution of the formulation change from Sodium Meta Bisulfite to
Formalin (Tr. 858862). Moreover, at the outset of the hearing, at the request of the parties
and with the approval of the Judge, each party presented a summary of its forthcoming
position and evidence (Tr. 4-47). After a recess, the Judge informally informed the parties
of his view of the case as presented by the evidence outlined by the parties. At that time,
the Judge outlined for the parties the issues as he saw them regarding the adequacy of
Respondent’s preparation for the process change (Tr. 55-59).
To the degree that the Secretary’s case deviated from the more narrow wording of
the citation items, Respondent was well on notice that the trial would encompass factual and
legal questions surrounding its general preparation for the process change. Respondent is
not prejudiced and indeed, presented both evidence and argument encompassing its general
preparation for the process change. Respondent has tried the issue by consent.
The evidence of record presents a detailed history of the activities surrounding the
change in the raffinate treatment process. As a whole, that evidence shows that Responden-
t’s commencement of production of R-Glycidol using Formalin to reduce the Cumene
Hydroperoxide in the raffinate was premature in that ARC0 had expressed its reservations,
taken the proposed change in process under advisement for study and not yet communicated
to Respondent any final conclusions, recommendations or authorizations regarding the
proposed change in process. Moreover, production was begun despite the fact that pilot
batches using the new process produced results inconsistent with the results anticipated by
Respondent’s own laboratory testing.
In August 1988 ARC0 and Wiley Organics entered into a contract under which Wiley
Organics was to produce R-Glycidol (R-42). Jack Etheridge, a Wiley Organics Vice
President (Tr. 1422) who negotiated the contract (Tr. 1424-1426) testified that as obtained
from ARCO, the original process used a different reducing agent (Tr. 1450). He recalled
(Tr. 1454) that prior to the initial running of the process at Organic Technologies, the
decision was made to switch the reducing agent to Sodium Metabisulfite. He thought that
Trimethylphosphide was originally to be used as the reducing agent for removal of Cumene
Hydroperoxide from the raffinate. David Wiley, he said, was concerned that
Trimethylphosphate, a product of that reaction, was highly toxic and a suspected carcinogen.
David Wiley, according to Etheridge, thus requested, and the parties agreed, to use the
Sodium Metabisulphite for the reducing agent (Tr. 1431). Etheridge recalled that the testing
work (to determine whether Sodium Metabisulfite would be a good reducing agent) was
done by Organic Technologies, not ARCO. Etheridge stated, “[tlhere was no express written
authorization from ARC0 authorizing Wiley to make that change, I don’t think it was
required” (Tr. 1432).
As early as May 1990, Organic Technologies facilities were toured by ARC0
personnel for the purpose of examining facets of the R-Glycidol process (C-18, p.16).
According to Thomas A. Dobbins, Organic Technologies’ Director of Research and
Development (Tr. 763), in middle or late January 1991 David Wiley requested him to find
alternative ways to reduce the Cumene Hydroperoxide in the raffinate (Tr. 1022). Dobbins
stated that Wiley both supervised and assisted him (1023, 1028). By late January 1991
Dobbins said he had eliminated the use of catalysts as not safe (Tr. 1028).
Shortly thereafter, from February 4 through February 8, 1991, the Organic
Technologies facilities were again visited by a team from ARC0 (Sowa and Bogaert) who
wanted to obtain more detailed information about the operating conditions at Organic
Technologies (C-18, Pp. 27-8; R-44). This “manufacturing audit” covered the manufacturing
and inventory practices related to the production of R-Glycidol (Tr. 1436). Part of the
purpose of the audit was to determine whether the equipment Organic Technologies was
using was appropriate (Ibid.). The manufacturing audit was also designed to prepare for a
later Hazardous Operations (“HAZOP”) study (C-18, p. 27). During the manufacturing audit
the ARC0 personnel observed raffinate reduction in which Sodium Metabisulfite was being
used (C-18, p. 55). At about that time, “some time in January, early February”, according
to David Wiley, Organic Technologies became “focused” on Formaldehyde as a reducing
agent as a result of a conversation with a Dr. Joseph Delphini (Tr. 1121, see also, Tr. 1030).
David Wiley could not recall who mentioned the use of Formaldehyde first but did recall
that at the time of the conversation Organic Technologies had not yet done any experiments
(Tr. 1118-19). Dobbins identified February 1991 as the time during which he conducted
experiments. ’ He claimed that he reported his results to David Wiley and to Bogaert at
ARC0 (Tr. 1043, 1045). At least two previous changes in the R-Glycidol process were
initiated by Organic Technologies. Etheridge, claiming to be unsure in his recollection (Tr.
1431) stated that he thought that some testing of the change from Sodium Metabisulfite to
Formalin was done at Organic Technologies’ Columbus facility. He claimed to “have a
difficult time in remembering all the details” but thought he “was involved in running, per-
haps, some of those reactions on the laboratory scale.” (Tr. 1431) He claimed to know of
no testing done by ARCO. He also maintained that Organic Technologies did not require
authorization from ARC0 to make such a change in the process although he also thought

• The reliability Tom Dobbins’ testimony as to the testing of alternative reducing agents
  is highly doubtful. Dobbins maintained, after several minutes of evasion and equivocation,
  that his laboratory notes and data, which were not destroyed by the explosion and fire, were
  given to David Wiley (Tr. 790-794). David Wiley testified that he could “not specifically
  recall (Dobbins) giving me the lab notes” (Tr. 1126). David Wiley claimed that he was “not
  aware of the location of the documentation” (Tr. 1124). He tried to imply that the volume
  of documents involved in the case (“boxes and boxes”) and the number of different law firms
  he has had working on the case at one time or another were somehow the cause of the
  documentation being misplaced. Respondent’s claim that David Wiley’s explanation for the
  lack of the lab notes is “entirely plausible” is rejected. Moreover, the undated written
  summary of lab testing (R-19) is given no weight. Given the voluminous record keeping in
  other areas and the obvious importance, both scientifically and legally, of documentation of
  research, the “loss” of the lab notes raises a significant question as to the weight to be
  accorded the testimonial summaries of the testing offered by Dobbins and Wiley.
   0
  9 0

that such authorization was given by orally ARC0
,
(Tr. 1431-32). He noted that in other
circumstances when ARC0 wanted Organic Technologies to take “immediate action” they
7

communicated with Organic Technologies by contacting him or Morehart “by phone. . .[I]n
.

important matters they would follow with a written communication” (Tr. 1432). He cited as
examples of such communications exhibits R-33 and R-34 (Tr. 1433).
The first specific notice of record to ARC0 that Organic Technologies was, in fact,
experimenting with the substitution of Formaldehyde as a reducing agent is a facsimile letter,
dated February 21, 1991 (R-25) from Dobbins to Bogaert which, according to Bogaert,
followed a phone call from Dobbins in which he talked about a “new technique” to reduce
raffinate. In response to Bogaert’s request for details during the phone call, he received the
February 21 fax from Dobbins (Tr 1049, C-18, p. 24.) Neither the phone call nor the fax
indicated that Organic Technologies was scaling up or in production using the substitute.
Dobbins agreed, describing the February 21, 1991 facsimile letter as “my initial substantive
communication with Riocardo Bogaret regarding technical issues” (Tr. 1047-48). He stated,
“this letter is the first time I ever briefly summarized the experiments that I was conducting
in raffinate treatment” (Tr. 1047).
Only four days later, on February 25, 1991, ARCO, by facsimile letter thanked
Etheridge for Organic Technologies’ cooperation during the February 4-8,199l manufactur-
ing audit. ARC0 indicated that the information gathered would be useful for the upcoming
HAZOP, scheduled to take place during the week of March 4th (R-44). ARC0 identified
two items (presumably noticed during the manufacturing audit) which “require immediate
attention.” ARC0 also noted that after the HAZOP study they would “detail changes we
require.” (R-44).
During the week of March 4,1991, ARC0 conducted a HAZOP study at the Organic
Technologies’ facilities. Hazard and Operability Studies are designed to examine in great
detail operations being conducted, identify items (parts, equipment or processes) which
might present problems or hazards as well as needing replacement or repair and catalogue
and set up priorities for the repair and maintenance work which needed to be done to
prevent hazards or danger arising from the operations being studied. Etheridge, in more
detail, described the HAZOP study as a very specific “line by line” review of the processes
 -lO-

and equipment related to the R-Glycidol manufacturing process to identify, limit or remove
inefficiencies, inadequate equipment, inadequate personnel or improper procedures. The
HAZOP study was done as a follow-up to the manufacturing audit. It was designed to
discover any hazards associated with each step in the manufacturing process and to plan how
such hazards could be reduced or eliminated. (Tr. 1436, 1560). The review was to be so
thorough that “no stone would be unturned” (Tr. 1437).
There is no disagreement that the HAZOP meetings lasted a minimum of eight hours
per day, Monday through Friday throughout the week of March 4, 1991 (Tr. 1236). In
attendance for ARC0 were Bogaret, Sowa and Levine (Tr. 1049, 1236; C-18, Pp. 29-33).
Wiley and Dobbins attended for a short time on Friday afternoon, at the very end of the
week-long meetings. According to Ted Virotsko, Respondent’s Chief Operator, the proposal
to change from Sodium Metabisulfite to Formalin was presented by Wiley and Dobbins to
the ARC0 people at about mid-day on Friday, the last day of a five day study which had
been going on at Organic Technologies (Tr. 1239).
What transpired at the meeting on Friday afternoon is subject to some disagreement.
Respondent claims that information regarding Dobbins’ experiments with changing
the raffinate reduction process by switching from Sodium Metabisulfite to Formaldehyde was
presented at the HAZOP meetings. David Wiley testified that he asked for time to attend
the HAZOP meeting with the intention of introducing a “possible change” in the reduction
process (Tr. 1113). He stated that he had Tom (Dobbins) make the presentation since he
(Dobbins) conducted the lab work. (Tr. 1117). David Wiley described his involvement at
the meeting as discussing the lab work with Dobbins (Tr. 1121). According to Dobbins, they
discussed his experiments at the HAZOP meeting. He stated that it was “very probable”
that he provided copies of documents relating to his experiments at the meeting (Tr. 1049).
According to Dobbins, the material he presented to ARC0 at the HAZOP meeting was a
summary of his methods and results. He stated that there were discussions on the topic for
more than an hour. At another point, he could not recall presenting any specific test data
to the ARC0 people and claims that ARC0 never asked for any additional information
from him as to his testing (Tr. 1075-1076). Dobbins acknowledged that ARC0 attendees
expressed some “concerns” (Tr. 1049-50).
 -ll-

Ricardo J. Bogaret, a Ph.D. chemical engineer working for ARC0 attended both the
manufacturing audit and HAZOP meetings. Both Bogaert and Etheridge indicated in their
testimony that the manufacturing audit was designed, at least in part, to prepare for the
HAZOP study (C-18, Pp. 31-31). Bogaert’s testimony indicates that because ARC0 had no
notice at the manufacturing audit or any time before last afternoon of the week-long the
HAZOP meetings of Wiley’s wanting to commence with the change to using Formalin, the
ARC0 people at the HAZOP were unprepared to deal with any discussions surrounding the
change to Formalin (C-18, p. 29-33). An ARC0 report of March 15, 1991 confirms
Bogaret’s recollection of the impact of having no advanced knowledge of the proposed
change in process. It states;

One portion of the process which we had expected to HAZOP
review was not, the bisulfite treatment of the raffinate to
eliminate excess cumene hydroperoxide from methylene chloride
solvent. Instead, an alternative procedure utilizing aqueous
formaldehyde solution was quickly drafted and subjected to
HAZOP review. This new process was represented by Mr.
David Wiley as being a considerable improvement over the
presently used bisulfite reduction.
(R-15).
Bogaert noted that diagrams and drawings of equipment which Organic Technologies
had at the time of the manufacturing audit were taken back to ARC0 for its experts “to
amplify them and make them clear enough so they could be used in the HAZOP” (C-18,
p.32). Then, at the HAZOP the diagrams of the machinery, as amplified and clarified by
ARC03 experts, would be used to review the process in detail step by step seeking to
uncover potential faults or hazards associated with each individual step (C-18, p. 31).
Another ARC0 memorandum, dated March 19, 1991, described as “preliminary” what was
accomplished at the HAZOP in regard to the change in the reduction process. It was done,
says the memo, “to uncover any gross problems that could ensue and to direct development
work in this item.” (R-16)
Bogaret noted that the Friday afternoon session of the week-long HAZOP meetings
was the only one which David Wiley attended. He characterized David Wiley as being
 -120

“insistent” that reducing the raffinate with Formalin was better than reducing with Sodium
Metabisulfite and that Organic Technologies was no longer going to use Sodium Metabisulf-
ite. Bogaret’s description of David Wiley as “insistent” on using Formalin is corroborated by
Virotsko who testified that it was conveyed to ARC0 that Organic Technologies was going
to use the Formalin procedure (Tr. 1247). Bogaret testified that ARCO’s main reservation
was that ARC0 did not know enough about using Formalin. Bogaert noted that ARCO,
based on the manufacturing audit, had prepared to do a HAZOP on the Sodium
Metabisulfite treatment of raffinate. It was only learned during David Wiley’s presentation
of March 8, that Organic Technology was considering changing to Formalin. Boagert and
ARC0 wanted time to study it. Bogaret reported that at the HAZOP meeting that
afternoon everyone agreed that Dobbins and Bogaret would both do further studies. (C-18,
p. 33). ARC0 (Bogaret) chose to do further analytical studies because “ARC0 had more
analvtical resources and would thus be in a better position to evaluate that technique” (C-18,
p. 33).
Equally important is the nature of discussions the held at the HAZOP meeting
regarding the scale-up by Organic Technoligies to processing larger quantities of raffinate
c

using Formaldehyde.
Dobbins maintains that although he was present and did not “actively” participate,
there were discussions of a scale-up of several hundred gallons (Tr. 1050). David Wiley
agreed that he was “concerned” about scaling up the process using the Formaldehyde in
place of the Sodium Metabisulfite;
.in the sense that we’re always concerned when we scale-up
a’reaction. So, that was discussed at some length with ARC0
at the Hazard and Operability Study meeting. It was my under-
standing that they agreed to go ahead and conduct some small
scale pilot plant runs in production equipment and at that point,
I left [the HAZOP meeting [in] what I thought were very
competent hands.
(Tr. 1128). At the hearing, it was David Wiley’s recollection that at the HAZOP the
pxticipants did not get to consider the final phase of the process, the stripping of Methylene
Chloride. Wiley testified that he merely presented the idea of switching to Formaldehyde
and then;
 -13-

I left - - once we introduced the idea (of switching to Formalin),
I thought my mission was largely over because we had experts
from ARC0 that were going to work with our people to
develop operating instructions for the pilot scale work . . . .
(Tr. 1131). Only after Wiley and Dobbins left the meeting were procedures for the use of
Formalin worked out (Tr. 1239). Item 6 of the procedure established by those who
remained at the HAZOP meeting directs that the reduction process was to “[clontinue until
hydroperoxide concentration is < 1% [less than 1 per cent] of total calculated amount of
formalin solution” (R-40).
During his deposition, Bogaret recalled that at the HAZOP meeting, Respondent was
assigned the task of “checking out the viability” of using Formalin in the reduction of the
raffinate. He also agreed that “checking out the viability of using Formalin” included the
scaling up of the use of Formalin (C-18, p. 66). Dr. Bogaret, however, also stated in his
deposition that, other than a phone discussion he initiated with Morehart regarding the ratio
of surficant, ARC0 received no information, questions or inquiries from Organic
Technologies regarding the progress, problems or results of any scale-up test runs using
Formaldehyde (C-18, Pp. 66-67).
Ted Virotsko, Respondent’s Chief Operator, testified that there were no discussions
at the HAZOP meeting as to the specific quantities of chemicals Wiley would be using in
scale-up tests, “[tlhere was no discussion as far as volumes” (Tr. 1247). He said that upon
leaving the meeting;
It was my understanding that we were going to utilize [the
Formalin] procedure in a conservative manner to begin with
.I mean small scale raffinate reduction using Formalin. . .it
was my understanding that we were going to utilize this for
small scale.
(Tr. 1248). Virotsko assumed at the HAZOP that Respondent would do the scale up
because:
That was the normal procedure as far as initially, you would
institute small-scale runs and develop a data base as far as the
behavior of the process, and then you would up scale to
production size.
(Tr. 1256 - 1257).
 -140

A March 19,199l ARC0 “progress report” (R-16) describes ARCO’s desire for more
information and experimentation with Formalin.
Sometime between March 15 and March 17, 1991, after the HAZOP meetings,
Bogaret ordered tests run at ARC0 on the use of Formalin as the reducing agent. He
described the results as “puzzling” and said that he was “unsatisfied” with the results of the
tests which were “inconclusive” as to whether Formalin was an effective reducing agent (C-
18, Pp 38-41). He did not discuss the results of his testing with anybody at Organic
Technologies (Id. p.40).
Almost simultaneously, Organic Technologies began ran scale-up operations using
Formalin as the reducing agent. Virostko, as he had anticipated during the HAZOP study,
instituted small scale runs of the process using Formaldehyde in order to “develop a data
base as far as the behavior of the process, and then. . .up scale to production size (Tr. 1256.
57). In preparation for the hearing, Virostko reviewed Organic Technologies’ records as to
the scale-up runs and produced a chart which included the information below (R-36).

SCALE-UPS ON USE OF FORMALIN - MARCH & APRIL 1991

II# IVessel I
Volume of Raffinate
I
Initial %
I
Final %
I
Date
II
Treated Peroxide Peroxide

1 NlOOl 300 Gallons 15.80 3.50 March 12

2 NlOOl 925 Gallons 11.50 1.90 March 13-14
I
3 NlOOl 1500 Gallons 16.80 1.80 March 14
,
4 NlOOl 1500 Gallons 3.50 -- March 24
, A
5 NlOOl 1500 Gallons 13.34 1.42 March 26
1 ,
6 Nll05 2622 Gallons 11.90 2.60 April 3-16

7 N1105 3000 Gallons 14.66 2.48 April 18-21
,, 4
 -150

(See, R-36, Tr. 1296 -97) Virotsko noted that Organic Technologies never attained the
degree of reduction of Cumene Hydroperoxide to less than 1% as the HAZOP procedures
specified (Tr. 1298, R-40). Organic Technologies was thus aware from the very begining of
its scale-up attempts that it was never able to duplicate the lab experimental results or
achieve the level of reduction called for by the hastily drawn up HAZOP procedure.
Nonetheless, it expanded the Forrnalin reduction of raffinate to production quantities of
chemicals (Tr. 1299). Virotsko recalled,
[tlhere was some concern on my part and Don Lee’s part and
I believe other operational personnel that we were unable to
get the [Cumene] Hydroperoxide concentration down below one
percent.
Morehart, Respondent’s Vice President, in reviewing the data included in the above
chart, claimed at the hearing that the first run of 300 gallons basically concluded that the
scale-up “confirmed” what had been seen in the experiments. He found nothing unusual in
the second run (Tr. 1374-1375).
There was a follow-up meeting at an ARC0 facility on April 11 & 12, 1991 attended
by Etheridge and Morehart from Organic Technologies and Bogaert, Sowa and Shih for
ARC0 (Tr. 1375). Called a “checkpoint meeting,” ARC0 memos indicate that the subjects
discussed included the HAZOP, manufacturing and production and environmental
compliance (R-17). \
Mr. Etheridge, although claiming a less than complete memory, stated that his
recollection was that the use of Formalin was discussed at the follow-up meeting (Tr. 14410
1442). He testified “I know that we [Organic Technologies] were performing a scale up
operations on the process and I believe that we communicated that information to ARC0
at that meeting” (Tr. 1442).
As recalled by Morehart, all testing and scale up by Organic Technologies had been
completed by the time of the follow-up meeting and Organic Technologies was, at that time,
running the process of reducing the raffinate with Formalin at full production quantities (Tr.
1376). Morehart maintained that he was not aware of any problem Organic Technologies
was having duplicating the experimental results in the scale-up and specifically denied being
informed by Virostko that there was such a problem (Tr. 1408-1409). He did, however,
 -160

recall that he and Virotsko discussed peroxide levels and “how things were going” (Id.).
Discussions about the peroxide levels during scale-up not being reduced to the levels
reported to have been accomplished during experimentation by Dobbins were held (Tr.
1409). Morehart dismissed the differing readings of the peroxide levels achieved as “slight
fluctuations” (Tr. 1409-1410). When Morehart learned from Virostko that the scale-up runs
were not achieving the peroxide reductions that were expected based on Dobbins’s
experiments he “suggested” that Virostko call David Wiley because he was “much more
familiar with the experimental results and what they could possibly suggest to correct the
situation (Tr. 1413). Morehart was certain that David Wiley and Tom Dobbins were aware
that scale-up was not producing the result anticipated by experimentation (Tr. 1410, 1414).
Morehart also claimed that he discussed the issue with Bogaret at ARC0 who;
essentially confirmed that during his studies. . .he was seeing a
similar result and that he was going on to use Gas Chromatog-
raphy to check for the peroxide levels and he was noticing that
if his titration maybe showed 2’percent, he was showing even
less based on GC analysis.
(Tr. 1410).
An ARC0 memorandum dated April 17, 1991, describes the activities at the
“checkpoint meeting” of April 11 and 12, 1991 (R-17). It appears that Organic Technologies
was under pressure from ARC0 to increase its production of R-Glycidol. Adding a third
shift and reducing the “cycle time” were recommended as ways to increase production.
Table I, Items 80 -85 refer to raffinate treatment/procedure. Item 84, (study raffinate
reduction with formalin) was assigned a “#l” priority with a target for completion set at 7/15
(R-17). It was assigned to Bogaert.
The fatal explosion at Organic Technologies took pl ace one week after the April 17,
1991 memorandum during the processing of the second full-scale production run of R-
Glycidol (Tr. 820). According to David Wiley, as of that date, “there was ongoing
uncompleted work at ARC0 involving their responsibilities with the raffinate treatment” (Tr.
1166).
A number of factual findings are warranted on this record. The evidence
demonstrates that Organic Technologies had at least one prior experience with a change in
 -170

the R-Glycidol process which was discussed with and had specific approval from ARCO. In
1988 or 1989, prior to even running the first batch of R-Glycidol when Organic Technologies
wanted to change from Trimethylphosphide to Sodium Metabisulfite as the raffinate
reducing agent, ARCO’s agreement was received before the production change was made.
Although Organic Technologies had begun to explore and experiment with changing the
reducing agent from Sodium Metabisulfite, and had even possibly “focused” on formaldehyde
as a substitute, no mention of this was made to the ARC0 team present at Organic
Technologies ‘s plant for the manufacturing audit visit from February 4 through 8, 1991.
One of the specific purposes of the audit visit, known to both ARC0 and Organic
Technologies, was to prepare for the detailed HAZOP study which would follow. Bogaret’s
specific testimony as to when ARC0 first had knowledge of the possible change is credited
over that of the rather vague assertions by Etheridge. The facsimile of February 21, 1991
(R-25) was Bogaret’s first clear notice that Organic Technologies was moving towards a
change in reducing agents. Etheridge’s testimony is filled with vague recollections and claims
of lack of clear memory. There is no indication that Etheridge, the designated contact
person from Organic Technologies to ARC0 (see R-44) was telling ARC0 of Organic
Technologies’s Formalin experimentation yet Etheridge knew and understood the purpose
of the HAZOP meetings and even helped to set them up (Tr, 1436-37).
There is also ample evidence that Organic Technologies had reason to move the
process change along as quickly as it could. It had a financial share in any profits or savings
realized. It was under pressure from ARC0 to increase the amount of R-R-Glycidol it was
producing. And ARC0 was considered a very important client by Organic Technologies.
It is clear that Organic Technologies waited until the last moments of a long and
complicated series of HAZOP meetings to bring up its proposed change to Formalin. Wiley
and Dobbins left the HAZOP meeting after their presentation and did not stay for further
discussions. David Wiley, at the HAZOP meeting was “insistent” on changing to Formalin
even though no prior notice had been given to ARC0 and despite the ARC0 people
expressing concern over the change.
Organic Technologies never told ARC0 at the HAZOP meeting that it would actually
go into full production using Formalin. Scale-up was discussed briefly, but there was no
 -180

discussion of production quantities. ARC0 had no reason to believe that anything other
than additional testing and experimentation with Formalin would be carried out after the
HAZOP meetings. Even David Wiley understood that ARC0 agreed that Organic
Technologies would conduct some small scale pilot plant runs in production equipment (Tr.
1128). Respondent’s Chief Operator, who took part in the HAZOP, anticipated only that
formalin would be used on a small scale.
It is clear from the ARC0 reports after the HAZOP that ARC0 did not anticipate
that Organic Technologies would be using production quantities at least until further
discussions were held. Even by April 17, 1991, several weeks after the HAZOP meetings,
and only one week before the explosion, ARC0 was reporting that a target date of July 15,
1991 for the completion of Bogaert’s raffinate treatment studies had been established and
discussed at the April 11 and 12, 1991, checkpoint meetings.
The record also shows that ARCO’s early testing found “puzzling results.”
Respondent’s rush to production using the Formalin reduction method is also demonstrated
bv the fact that less than one week after the HAZOP meetings, it began scale-up trials using
4

Formalin. Respondent’s highly experienced Chief Operator (whom Respondent moved to
be accepted as an expert witness) became concerned when scale-up runs did not reduce the
Cumene Hydroperoxide in the raffinate to the levels specified in the procedure written
during the HAZOP meeting or those predicted by Dobbins. Indeed, as the amount of
raffinate treated approached production quantities the final percentage of peroxide
remaining in the raffinate after treatment generally increased. Since Respondent knew the
initial amount of Cumene Hydroperoxide in the untreated raffinate, it maintained that it
could calculate the amount of Formalin necessary to reduce the Cumene Hydroperoxide.
The Formalin was added in batches. After each addition of Formalin the raffinate was
tested for the amount of Cumene Hydroperoxide remaining. According to Respondent’s
production records, the reductions did not proceed as expected. There were occasions when
the percentage of Cumene Hydroperoxide in the raffinate appeared to increase after the
addition of more formalin (Tr. 1301-1310; R-36, R-37). The Chief Operator spoke to a Vice
President of Organic Technologies of his concern and was told merely to tell it to David
Wiley. There is no indication that Etheridge, who was Organic Technologies chief point of
 -19-

contact with ARCO, ever passed the information to David Wiley or any other management
official. Nor did he send the results of scale-up testing to ARCO.
Respondent thus withheld negative or inconsistent information from ARCO.
Although Etheridge testified that he “believed” that scale-up was discussed at the follow up
meeting, there is no indication anywhere else of that. There is no evidence that ARC0 was
ever informed that the scale-ups at Organic Technologies were not producing anticipated
results. The ARC0 summary of the discussions at the follow-up meeting do not indicate that
Respondent’s scale-up activity was discussed or that production was discussed. Based on
ARCO’s other reports, it is reasonable to infer that such information would have appeared
in the ARC0 summary of the follow-up meetings if it had been discussed at those meetings.
Respondent’s expert found nothing abnormal in Organic Technologies doing scale-up runs
using Formalin despite items relating to it being identified in the HAZOP as number 1
priority needing further study. He apparently would only immediately cease an operation
if such a study concluded that the circumstances were “immediately dangerous to life or
health” (Tr. 1564-65). Respondent’s expert became hesitant and equivocal at best when
asked if going into production quantities would also be regarded as normal (Tr. 1572-1573).
Organic Technologies officials knew that if ARC0 specifically directed it to stop a
particular operation, it would comply as it had in the past. By depriving ARC0 of the
information that the scale-up was not turning out as predicted or that Organic Technologies
was actually starting on production quantities of raffinate, Organic Technologies was assured
that ARC0 would not stop the operation on that basis. Indeed, David Wiley knew at that
time that ARC0 was still engaged in experimentation seeking to gather more information
about the process change and had a target date of July 15 for the completion of its studies.
David Wiley thus had Organic Technologies in full-scale production while ARC0 was still
considering the problem.
The evidence as a whole reveals a series of consistent acts and omissions by Organic
Technologies aimed at getting into full production using Forrnalin as the reducing agent on
raffinate. Each of Respondent’s acts and omissions, by itself, might not rise to the level of
a violation of the Act. I am persuaded however, by the totality of the evidence as to
Respondent’s activities, that Respondent engaged in a pattern of conduct over the period
 -200

of several months prior to the fatal explosion which amounted to a violation of 6 5(a)(l) of
the Act.
The record as a whole portrays a pattern of conduct designed to speed up and
increase the production of R-Glycidol, even though such actions meant exposing employees
to risks greater than those which would have existed if Respondent more cautiously planned
and experimented with the process change before instituting it on a full scale production
basis. The record also warrants the conclusion that Respondent knew or reasonably should
have known that the actions it took to put the change in process in place prematurely could
be hazardous to employees. Proposed changes in the process were the subject of hurried
and incomplete experimentation by Organic Technologies. Information about the process
was not shared with ARC0 at the time of its manufacturing audit. ARC0 was not given
notice sufficiently before the HAZOP study to prepare for a complete study of the proposed
process change. Even during the HAZOP study meetings, the proposed change was
presented to ARC0 only at the very last few hours of a week-long meeting. The HAZOP
participants from ARC0 had to scramble and improvise in order to hurriedly and admittedly
incompletely deal with the process change they thought was in the future. I am also
persuaded that the facts also show that ARC0 personnel left the HAZOP meeting believing
that Organic Technologies would do some more experimentation and only small scale-ups
using Formalin. ARC0 had no reason to know or believe that Organic Technologies would
actually go into production using the changed process. ARC0 was kept in the dark by
Organic Technologies. Throughout the scale-up tests at Organic Technologies red flags were
waived each time a batch was run in which the amount of remaining Cumine Hydroperoxide
was not reduced to the level anticipated by the procedure drafted at the HAZOP or to the
levels Dobbins said was attainable. Warnings from Organic Technologies chief man on the
spot that things were not as expected were ignored.
8
In sum, a preponderance of the evidence of record demonstrates that
Respondent proceeded with scale-ups and went into full scale production of R-Glycidol using
Formalin as a reducing agent knowing (perhaps by design) that ARCO, from whom it had
 -210

obtained the process’, had not had enough time to research the change and despite the
actual notice that what research had been done by ARC0 and its by own Chief Operator
raised concerns that the process was not performing as predicted by the initial laboratory
research. I conclude that such a planned and considered course of conduct is violative of
5 5(a)(l) of the Act.
Under Ij 5(a)(l) a h azard is recognized if either the industry in which Respondent is
engaged, as whole, understands a particular condition to be hazardous or the cited condition
or process is actually known by the employer to be hazardous. The amount of Cumene
Hydroperoxide remaining in the rafflnate after reduction is important because the raffrnate,
after reduction, was heated to distill off and recover Methylene Chloride. Both David Wiley
and Tom Dobbins knew and understood that Cumine Hydroperoxide could be hazardous
when heated and when in the presence of other chemicals? Both also knew that Organic

g Even if, as Respondent argues, the treatment of raffinate was a portion of the overall
process which was not obtained from ARCO, there is sufficient evidence that the process
change which gave rise to the hazard in this case was discussed with ARC0 and that ARC0
clearly expressed its reservations. Moreover, ARCO, as the toller, and as the larger, better
staffed and equipped chemical company, was in a far better position to effectively evaluate
the process change when it was proposed by Respondent.

lo The parties vigorously debated whether iodometric titration was a proper analytical
method for determining the level of cumene hydroperoxide in raffinate both before and after
reduction. The Secretary claims that the method was ineffective and unacceptable.
Respondent maintains that iodometric titration was the preferred method of analysis as
demonstrated by standard scientific references, manufacturers of cumene hydroperoxide, and
the preponderance of expert testimony. The issue need not be resolved.
In this regard, however, the claim made by both Wiley and Dobbins that the
iodometric tritation results he got in his testing were confirmed by gas chromatography is
rejected on credibility grounds. Although Dobbins maintains in several places in his
testimony that gas chromatography was done as part of the laboratory work (e.g. Tr. 10330
1034). He stated that gas chromatography was done on “many” samples (Tr. 1034), or “in
many cases” (Tr. 1035). There is no claim that it was done consistently or as part of a usual
testing protocol. Moreover, at times when his attention was not directed towards the
question of whether he had gas chromatography done there is no mention of it. For
example, in his February 21, 1991 letter to Dr. Bogaert at ARC0 (R-25) only tritation is
mentioned. Similarly, he testified that in describing the “test methodology he used” to
ARC0 at the HAZOP meeting he mentions only iodometric tritation (Tr. 1049). That such
data was confirmed by gas chromatography would have been important information to
 -220

Technologies was heating the post-reduction raffinate to temperatures significantly higher
than its boiling point in order to remove as much Methylene Chloride as possible.
Respondent’s admission of the dangerous potential of heating raffinate containing Cumine
Hydroperoxide constitutes a recognized hazard. See, Detroit Steel Corp. v. OSHRC, 579 F.2d
378 (6th Cir. 1978). In addition, the hesitation and concerns of ARCO’s experts as well as
the apparent agreement that the changed process needed further testing clearly put
Respondent on notice that ARC0 had reservations? Indeed, ARC0 specifically wanted
to “run more experiments to determine the influence of 1) temperature . . . .I’(R-17).
Similarly, the concerns of its own Chief Operator went unanswered. Respondent’s reliance
on the HAZOP and its contention, in its post-hearing brief (Pp. 18-19) that ARC0 found
no hazard arising out of the process change is rejected completely. The facts do not support
the argument nor is it a reasonable inference which could be drawn from the evidence of
record. ARCO’s last word on the subject was that it had concerns and that their studies
were not yet completed.
As a general proposition, proceeding with the manufacture of production quantities
of volatile chemicals u.nder circumstances such as existed here (s, with the owner of the
process urging further study) would appear to create a hazard which could result in serious
injury or death. It is the likelihood of serious injury or death resulting from an injury rather

impart inasmuch as it would have constituted strong confirmation of the results of the
tritations. That any mention of it was omitted leaves doubt as to whether it was conducted.
This is especially so because gas chromatography was the very analytical method which
Bogaret at ARCO, and OSHA at Salt Lake employed.

I1 Respondent’s attempt to imply that ARC0 approved or authorized Organic
Technologies’ use of the changed process in production quantities is rejected. David Wiley’s
testimony to that effect (Tr. 667) is disingenuous. It is inconsistent with his other statement
that he made his presentation to the HAZOP meeting then left, leaving to the others to do
the rest of the work. Moreover, even if his statement is correct, he indicates that he
believed that ARC0 was in agreement that Organic Technologies would move from scale-up
to production if the scale-up runs proceeded without incident and they attained the same
results as the Dobbins experiments. Neither of those conditions were met. The scale-up
results did not reach the levels supposedly reached by the Dobbins experiments and their
own Chief Operator was rebuffed when he communicated his “concern” to management.
 -230

than the likelihood of an accident occurring which is determinative of this element of the
5 5(a)( 1) violation. As the above discussion indicates, the nature of Cumine Hydroperoxide
and its known explosive potential, especially when subjected to heat and pressure, presented
a hazard likely to result in serious injury or death. Motion-khudsen Co.fl?onkers Contracting

Co., A Joint Entzue, 16 BNA OSHC 1105, 1122 (No. 88-572, 1993).
In order to eliminate or materially reduce the hazard Respondent could at least
awaited going into production with Formalin as the reducing agent until the completion of
the HAZOP study begun in March. Respondent had been producing R-Glycidol for two
years without apparent mishap. Since it had produced the R-Glycidol, albeit in smaller
quantities, using Sodium Metabisulfite as the reducing agent, continuing to use that process
until all studies could be completed can reasonably be found to be a method by which the
hazard of using the less-than-comDletelv-tested nrocess of using Formalin, would be
eliminated or significantly reduced.

Item l(a)(2) of the Citation is thus AFFIRMED.
The violation alleged in Citation Number 1, Item l(a)(3)12 is also AFFIRMED.
The Secretary takes the position that “the discharge locations and the orientation of
the safety valves and vents of the reactor, and or its associated equipment were not directed

l2 Item l(a)(3) alleges a violation of 0 5(a)(l);

a. In that employees working in the vicinity of the 2,000 gallon
reactor (NlOOl) during process operations (such as the produc-
tion of R-Glycidol and the treatment of “Raffinate Waste”) were
exposed to increased risks of fires, explosions, hot materials, and
toxic materials caused by the release of processed materials
from the reactor or its associated equipment, and due to the
employer not taking adequate measures to prevent hazardous
release of corrosive, flammable, and/or toxic materials, in that:

3. The discharge locations and the orientation of the
   safety valves and vents of the reactor, and or its associated
   equipment (including the condenser, its safety valve, and the
   reactor’s vent line) were known to be highly reactive, corrosive,
   flammable, and/or toxic.
    -240

to a catch tank, header pipe, flare system, fire pit, or other safe location.” (Complaint,

lI ww).
Complainant relies greatly on the testimony of Compliance Officer Collins who
testified about the hazards of discharges from valves and vents entering into employee work
areas. On the basis of his having performed between 30 and 40 chemical manufacturing
industry inspections and having conducted seminars on chemical process safety, the Secretary
looks to Compliance Officer Collins as an expert. He opined that having two relief valves
and one relief vent into the atmosphere at locations where employees worked was contrary
to safe industry practice (Tr. 270). As Complainant notes, Respondent’s expert agreed that
having valves and vents discharge into employee work areas is considered unsafe by the
Chemical Processing industry (Tr. 1618). There is thus no dispute that “the failure to direct
the discharge locations of pressure relief valves and vents to safe locations is a recognized
hazard in the chemical manufacturing industry” (Sec. Brief, p. 34).
The testimony of Collins as to his “expert opinion” as to the technical design and
operation of discharge systems is accorded little weight. He has a bachelor’s degree in
Education and has done some graduate work towards a degree in Environmental Health and
Safety (Tr. 250). His having conducted previous inspections of chemical manufacturing
facilities is of some moment but without some assurance that he learned to do so properly
or under a structured learning program, the number of such inspections cannot, by itself, be
reasonably found to add significantly to his expertise. He might be more familiar with the
general layout and operations of a chemical processing plant than a less experienced
inspector but that additional experience does not amount to qualifications upon which
acceptance of his opinion regarding complex organic peroxide reactions or the necessary and
proper manner in which they are to be carried out.13 Mr. Collins’ experience of having
previously inspected some kind or another of chemical facility is not, by itself, sufficient to

l3 The applicable Federal Rule of Evidence, Rule 702, adopted by the Commission by
virtue of its Rule 71, 29 C.F.R. 5 2200.71 (1993), requires that an individual offering an
opinion as to “scientific, technical. or other specialized knowledge” must be qualified as an
“expert” in those matters “by knowledge, skill, experience, training or education.”
 -250

show that he is an expert in the particular operations at issue in this case. There is little
need, however, for the Secretary to have to rely on Collins’ “expertise” in this matter.
On the other hand, Dr. Witter, Respondent’s highly qualified expert in chemical
process safety with extensive experience in the industry, conceded that discharge systems
which allow or place discharged materials on to work areas are considered unacceptable by
the chemical industry (Tr. 1618). It is not only Dr. Witter’s education or expertise in
chemical process safety which warrants affording his testimony on this matter significant
weight. More importantly, through his lengthy service in the industry and his contacts
throughout the industry he has had the opportunity to learn what the industry standards for
safety are and how they are applied. Moreover, a hazard which would be recognized by a
reasonably prudent person engaged in Respondent’s industry is imputed to Respondent.
That toxic or heated discharges from chemical processes should not be discharged into areas
where employees are working seems so obvious a proposition that expertise is probably not
needed at all to appreciate the dangerous potential of such discharges. The fact that the
discharge system may have been technically designed to industry specifications as to its other
aspects (heights above walkways, bends in proper places, sizes of valves, Etc.), is of little
consequence where, as here, the discharge exhausts liquid from the system on to an area
where employees are or are reasonably likely to work. Similarly, Respondent’s expert’s
opinion that the discharge was unanticipated is of no avail as a defense to the alleged
violation in that the likelihood of an occurrence is more a question going to penalty
calculation once it is established that such an incident (the discharge of materials on to a
work area) was reasonably predictable and, in fact, did occur.
There is virtually no question that on the evening of the explosion, the deceased
employee was splattered with material discharged from a vent on to a process pad, a
location at which employees would have occasion to work (Tr. 1447 -48). As with “employee
exposure” cases arising under 5 5(a)(2), the question is whether employees, within reasonable
predictability, were within the zone of danger created by the violative condition. See,
Brennan v. Gilles & Cotting, Inc., 504 F. 2d 1255, 1263 (4th Cir. 1974). ,
Finally, Compliance Officer Collins testified that Respondent could have directed the
outflow from the valves and vents away from employee work stations (Tr. 265-270).
 -260

Respondent, according to Collins, might have to take other things into account in its re-
design of the exhaust locations. He maintained that it could, however, accomplish the task.
Respondent points to no testimony to the contrary. Thus, while Collins has not demonstrat-
ed an expertise in chemical engineering to the degree which would be necessary to offer an
expert opinion on the feasibility of specific designs of exhaust and vent systems, he does have
enough experience to testify as to what he has seen during inspections of other chemical
manufacturers. His testimony is uncontradicted and I find that it constitutes a preponderance
of the evidence on the question of the availability of a feasible means by which Respondent
may eliminate or materially reduce the hazard of exhausting or venting materials within
employee work areas. Complainant has thus established the third of the alleged violations
of $ 5(a)(l). Item l(a)(3) of the citation is AFFIRMED.
The claimed insufficiency of Respondent’s operating manuals and procedures forms
the nucleus of the Secretary’s fourth alleged violation of the general duty clause. The
citation’s broad language14 was made more specific in the Secretary’s complaint, ll V(e)(4),
which specified that “there no written operating procedures that defined the steps that were
to be taken to return the operating situation from abnormal to normal.” The alleged
violation was explained by Senior Compliance Officer - Industrial Hygienist Amanda Lange.
She took the position that Respondent’s manual of procedures for its employees was
deficient because it lacked procedures for identifying and rectifying abnormal operating

l4 This Item of the Citation reads:

4. Operating practices were inadequate. The employer did not
   provide formal written operating procedures to be used in
   normal and abnormal situations. the employer did not clearly
   define the boundaries between normal and abnormal operating
   situations. The employer did not clearly define the steps that
   were to be taken to return the operating situation from
   abnormal back to normal operation. The employer did not
   clearly define the operator’s authority to exercise the steps to
   return the operation to norma, nor did the employer clearly
   define the situations under which the operator were to declare
   an emergency, inform management, and turn over control
   responsibility to the plant manager or to his/her designated
   emergency manage
    -270

conditions, did not contain shut-down procedures or operating parameters, and did not
instruct operators in casualty procedures (Tr. 123-127). Complainant gives as examples of
the faults of the manual; its failure to define “out of specification condition” while instructing
employees to report the same; its failure to specify the conditions under which the reaction
was to be quenched with cold water, indicating only that the need for the same might arise;
its lack of instructions to employees regarding the actions to be taken in the event of a
release or a leak (Brief, Pp. 38-39). Complainant acknowledges that a manual did exist and
that it was in the process of being revised (Brief, Pp. 39-40). The Secretary identifies the
“hazard” as follows;
The hazard associated with the lack of comprehensive operating
procedures is obvious; it there are no procedures which
delineate how employees are to act and how they are to react
in the event of a malfunction, employees have nothing to refer
to when running a process or when a malfunction occurs.
(Brief, p. 40). Complainant further argues that “industry recognition of the need for
adequate procedures is evinced by the operating procedures requirement in OSHA’s process
safety management standard. (Citation omitted.) Complainant’s reliance on a standard
promulgated after the inspection and date of alleged violations in this case is totally
misplaced. The standard to which Complainant refers was a proposed standard at the time
of the citation in this case. Since the Secretary, after notice and comment can, quite literally,
completely rewrite any proposed standard before it is issued in final form, reliance on a
proposed standard as a statement of industry wide-recognition is not acceptable.
Respondent maintains that Complainant’s position is not well founded in fact or law.
It argues first that the Secretary’s case is based on an out-dated version of the R-Glycidol
Production Manual. The Compliance Officers apparently never examined the most recent
revision of the R-Glycidol Production Manual (Tr. 234-235; 1199-1200). Respondent notes
that its Chief Operator testified that the manual revisions, including instructions regarding
the reduction process using Formalin, had been distributed to operators prior to using
Formalin in production. Respondent’s expert reviewed the major provisions of the manual
and opined that it was consistent with industry standards (Tr. 1581). Most of the measures
identified as necessary by Complainant were located in the new manual by Witter or
 -2%

Virostko. The Secretary sought to rely in the expertise of compliance officers who had no
training or experience in chemical process management (Tr. 149-151). Some were a matter
of common sense. The opinions of Witter as to training methods, manuals etc., are accorded
significantly greater weight than those of the Compliance Officers, based on their relative
degree of experience.
Finally, the Secretary’s proposed method of abatement, the use of a manual several
volumes in length (Tr. 237-238) appears to be more unrealistic than any fault found in the
present volume. There is no demonstration that the contents, organization or omissions
from Respondent’s production manual constituted a recognized hazard. Accordingly, Item
l(a)(4) is VACATED.
The fifth and final alleged violation of §5(a)(l)was described in the complaint,
7 V(e)(5), as “employee operators were not adequately trained in their duties and
responsibilities.” This alleged violation was initially set forth in the citation as:

5. The employer did not establish a formal training program to
   instruct the operators in their duties and responsibilities
   regarding the reactor operating procedure. The employer did
   not test the operators to ensure their full understanding of their
   responsibilities. Having not given the operators specific
   operating instructions and no formal training, the employer did
   not closely monitor and control the actions of the operators,
   using managers who had been formally educated in chemical
   engineering and in the operation of chemical reactors.
   At the hearing Complainant’s evidence regarding the training of Respondent’s
   employees centered around the lack of “formal” training, meaning classroom hours, (e.g., Tr.
   1220) and argues, in essence, that no amount of on-the-job training can adequately prepare
   employees for some jobs (Sec. Brief, p. 43). Mr. Virostko did most of the training of
   employees in regard to the R-Glycidol process. His credentials as an expert in training are
   impressive. He was a reliable and probative witness whose testimony is accorded significant
   weight. He indicated that Wears, the process operator on the night of the explosion, had
   received training in detail regarding the R-Glycidol operation (Tr.1188.1193). The
   operators, as part of their training, were tested and given rankings on their progress (Tr.
   1189-1191). Some other supervisory personnel appeared to give operators less formal
    -290

training (Tr. 1194-l 195). He conceded that the operators did not receive class room
training, undergo written testing or engage in “drills” (Tr. 1270-1271). The Secretary points
to the lack of training in the R-Glycidol process received by Darling who was working with
Wears on the night of the explosion. The record shows that Darling was new to the R-
Glycidol process and was more of a helper to Wears than an operator of the process. As
discussed above, it is both a matter of common sense and a matter of Witter’s testimony that
the chemical manufacturing industry recognizes the importance of training. Lack of
appropriate training is a hazard recognized both by reasonably prudent employers and the
chemical industry. The Secretary seems to argue that because an employee made an error
on the night of the explosion he must have received inadequate training (Sec. Brief, p.45).
The Secretary’s argument is rejected. The Secretary has forged no link between the lack of
classroom lectures and written examinations (“formal” training) and the recognized hazard
of having employees inadequately trained. He points to nothing inherent in the manner in
which Respondent’s employees were trained which would lead to a recognized hazard. The
mere fact that the type of training Virostko received in the navy as a nuclear technician,
which was indeed more formal, extensive and highly organized, than that Respondent
provided to its operators, does not mean that Respondent’s training was inadequate. Item
l(a)(5) of the citation is VACATED.

Citation 1, Item 515
29 C.F.R. 5 1910.132(q)(3)(i)

Alleged as Item 5 of the citation alleging serious violations of the Act, was the claim
by the Secretary that emergency responders from Organic Technologies on the night of the

l5 Items 5 and 6 of the citation allege violations of 8 5(a)(2) of the Act which, basically,
require an employer to comply with all safety and health standards which apply to its
business.
 -300

explosion, entered the facility without the knowledge or consent of the on-scene command-
er .l6 For the following reasons, Item 5 of the citation is AFF1RMED.l’
Complainant notes that the Newark Fire Department, which was directing the
emergency response operation following the explosion, had established a hot zone, entry into
which was under the control the incident commander, Assistant Fire Chief Anita Stickle.
Under the cited standard’s scope provision, 1910.120(a)(5), the requirements of the
rest of the standard are invoked at any emergency operation at a scene where there are
“releases or substantial threats of releases of hazardous substances.” The responding
emergency service, the Newark Fire Department, knowing only that the explosion had
occurred at a plant manufacturing chemicals, operated under the assumption that they were
involved with an emergency operation. Complainant correctly maintains that it was
reasonable for the Newark Fire Department to conclude that there was a substantial threat
of a release of hazardous chemicals. Just as important is the fact that the determination was
made to commence an emergency operation. It was in effect at the time Respondent’s
officials arrived at the scene. Thus, even if the Newark Fire Department was in error in
declaring an emergency operation in progress, officials of Respondent were under the
control of the incident commander until that commander ceased emergency operations. In
the face on ongoing emergency operation, all of Respondent’s personnel at the scene were

l6 The cited standard provides, in pertinent part:
All emergency responders and their communi-
cations shall be coordinated and controlled
through the individual in charge of the ICS
assisted by the senior official present for each
employer.

I7 To prove a violation of a standard, the Secretary must demonstrate by a preponder-
ance of the evidence (1) that the cited standard applies, (2) non-compliance with the terms
of the standard, (3) employee exposure or access to the hazard created by the non-
compliance, and (4) the employer knew or, with the exercise of reasonable diligence, could
have known of the condition. Astra Phawnaceutical Products, Inc., 9 BNA OSHC 2126,2129
(No. 78-6247, 1981); Dun-Par Engineered Fawn Co., 12 BNA OSHC 1949 (No. 79.2553),
rev’d & remanded on. other grounds, 843 F.2d 1135 (8th Cir. 1988), decision on remand 13
BNA OSHC 2147 (1989).
 -319

required to comply with sub-paragraph q of 29 C.F.R. 0 1910.120. Respondent’s argument
(Brief, p.49) that the cited standard applies only to the incident commander is rejected.
Under Respondent’s reading of the standard only an incident commander can be cited for
failure to coordinate activities at the scene while individual employers who have people at
the scene can not be cited for their failure to coordinate their activities with the indecent
commander. Such a one way street is the antithesis of the clear meaning of the standard.
All employers of personnel at an emergency response site must be under the control of the
one individual who has access to all information at all times.
Respondent posits another “applicability” argument. Citing 1910.12O(q)( l), it claims
that since Organic Technologies had an emergency response plan in accordance with
1910.38(a), it was exempt under 1910.120(q)(l). Respondent, however, failed to carry the
burden of proving each element of the exemption. Where as here, a Respondent claims the
benefit of an exemption which is part of a cited standard, it bears the burden of proving by
a preponderance of the evidence all elements of the exemption. Even if the provision were
applicable to Respondent, it failed to show that it in fact had a written plan (no less one
which met all of the detailed requirements of 1910.38(a)) or that it filed a copy of such a
plan with the Newark Fire Department. Accordingly, I find that the Secretary established
that the cited standards are applicable.
There is virtually no question that officials of Organic Technologies entered the
premises after the Newark Fire Department established it as an emergency response
operation. They did so despite the specific prohibition of the Newark Fire Assistant Chief
whom they knew to be the incident commander (Tr. 361.362,381.382). Complainant alleges
that in disregarding the specific prohibition of the incident commander, Respondent “failed
to coordinate its response efforts” in violation of the cited standard.
Organic Technologies concedes that David Wiley and Mark Morehart entered an area
surrounding the facility. They claim, however, that the gate through which they entered was
not blocked or marked with the yellow tape used to designate the “hot zone.” Both claim
that neither the Newark Assistant Fire Chief nor any other fireman “told them to stay out
of the gate area.” Respondent maintains that Ms. Stickle, the incident commander, did not
“secure the scene” as she was required to, failed to give Respondent’s officials clear
 -320

directions as to areas which were restricted and failed to ensure that employees did not
enter those areas. Respondent’s arguments are rejected.
The testimony of the incident commander leaves no doubt that she instructed David
Wiley and at least two other men whom she believed to be officials of Respondent, not to
enter the building itself or the hot zone (Tr. 361-362; 381). Despite the emergency
conditions at the site Ms. Stickle’s memory was quite clear and specific. She was a highly
credible witness and recalled matters with detail and clarity. She testified in an open and
non-evasive manner and has no interest in the outcome of the case. Her version of events
is credited over that of David Wiley or Mark Morehart. Although David Wiley maintains
that he saw no yellow tape “up in that area” (Tr. 1134) he conceded that he was escorted
away from the property at least once and that he was told by the incident commander to
stay out of the area (Tr. 1137). Even if Wiley’s testimony that yellow tape was “not up*’is
accurate, he had reason to know he was entering an area into which the incident commander
did not want him to go. Moreover, the Assistant Chief stated that David Wiley had been
inside the restricted area several times, at least more than once and that she had to have
him escorted out. (Tr. 381, 388-389). I find that David Wiley entered into an area of
emergency operations which he knew, or reasonably should have known, the incident
commander did not want him to enter. Such an activity is, I conclude, a failure to
coordinate efforts under the cited standard. Item 5 of Citation 1 is AFFIRMED.

Citation 1, Item 6
29 C.F.R. 5 1910.132(q)(3)(iv~i8

Item 6 alleged a serious violation in that emergency responders from Organic
Technologies entered the facility on the night of the explosion without respiratory protection.
There is no question that when Wiley entered the area he was using no protective
equipment. Organic Technologies argues that when Wiley entered the building area again

l8 The cited standard requires that employees engaged in emergency response
operations who are exposed to potential inhalation hazards wear positive pressure self-
contained breathing apparatus.
 -339

in the early morning hours there had been an “all clear,” that firemen in the building at that
time were not wearing protective equipment and that he was accompanied a representative
of the State Fire Marshall’s office. He also argued that at that time, no hazardous materials
lingered in the air. Finally, Respondent claims that the incident commander never informed
Respondent’s officials that respiratory equipment was required.
Respondent makes no mention of the first entry into the area, through the gate, prior
to the claimed “all clear’* when he was accompanied only by Morehart and when there was
a possibility of hazardous materials in the air. Finally, there is no need for an incident
commander to specifically inform persons who have already been told to stay out of an area
that those in the area should wear protective breathing apparatus. In addition, Assistant
Chief Stickle testified that no representative of the state fire marshal1 was on the premises
the night of the explosion and that at no point during the night did she authorize personnel
of Organic Technologies to enter the premises. I credit the testimony of Assistant Chief
Stickle over that of David Wiley.lg Accordingly, Item 6 of Citation 1 is AFFIRMED.
Neither party presented any argument as to the appropriateness of the amount of
penalties proposed by the Secretary. Although the amount of penalties to be assessed upon
the finding of violations of the Act is within the discretion of the judge or Commission, in
this instance the amounts proposed by the Secretary are assessed.

FINDINGS OF FACT

All findings of fact necessary for a determination of all relevant issues have been
made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

lg Among the facets considered in assessing credibility were the facts that Mr. Wilev’s
testimony was contradicted several times. It was contradicted by more than one other
witness. He has an interest in the outcome of the proceedings. At times he seemed to
avoid direct answers in favor of equivocation.
 -34-

CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning
   of 6 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 8 9 651 - 678
   (1970).

2. The OccuDational Safetv and Health Review Commission has jurisdiction over the
   A d

parties and the subject matter.

3. Respondent violated 0 5(a)(l) of the Act by making process changes (reduction
   of raffinate waste with formaldehyde) on a production scale without making adequate
   nreDaration and evaluation of the change.
   A A

4. Respondent violated 8 5(a)(l) of the Act by positioning discharge locations of
   vents or valves in such a manner so that materials were vented or exhausted on to employee
   work areas.

5 . Respondent did not, as alleged, violate 0 5(a)(l) of the Act by failing to provide
1

aaequate written operations procedures or manuals.

6. Respondent did not, as alleged, violate 8 5(a)(l) of the Act by failing to
   adequately train employees in their duties and responsibilities.

7. Respondent violated 0 5(a)(2) of the Act by failing to comply with the standards
   at 29 C.F.R. $ 5 1910.120(q)(3)(i) and 1910.12O(q)(3)(iv) as alleged. The violations are
   serious within the meaning of the Act.
    -350

ORDER

1. Citation Number 1, Item l(a)(l) is VACATED.
2. Citation Number 1, Items l(a)(2) and l(a)(3) are AFFIRMED. Penalties of
   $1,400 are assessed for each item.
3. Citation Number 1, Items 5 and 6 are AFFIRMED. Penalties of $3,000 are
   assessed for each item.
4. Pursuant to the statements of the parties:
   a. Items l(a)(l), 7, 8, 9, 11, 21(b), 23, 24, 25, 29, 30 and 31 of
   Citation Number 1, and Item 3 of Citation Number 3 are
   VACATED.
   b. Citation Number 1, Items 3, 4, 10, 12, 13, 21(a), 26, 27 and
   28 and Citation Number 3, Items 1 and 2 are AFFIRMED. A
   penalty of $12,000 is assessed for the above items.

/‘- MICHAEL H. SCHOENFELD

Dated:
Washington, D.C.