Document ka4Ea5EN579DmNObk5djNK1jO

AIR PRODUCTS AND CHEMI CALS, INC. Review Commission Final Order SECRETARY OF LABOR. Complain ant v. AIR PRODUCTS AND CHF.MICALS, INC., Respondent, OSAHRC Docket No. 76-150. March 28. 1977. Jack R. Fisher, New York, N.Y., for complainant. Raymond H. Schcnck, Law Department. Air Products and Chemicals. Inc., Allen town, Pa., for respondent. Warren J. Bunn. District 8, Oil. Chemi cal and Atomic Workers. International Union, Union, N.J.. for employees. Review Commission Judge Jerome C. Ditore. Before Bamako, Chairman; Moran and Cleary, Commissioners. CARCINOGENS 1. Vinyl Chloride "Emergency"--Failure to Report 220.04 30.031 Secretary's failure to establish that "massive release" of vinyl chloride into atmosphere of workplace occurred requires 5 OSHC 1242 vacation of citation for violation of 29 CFR 1910.1017(h)(2) for failure to report'vinyl chloride '`emergency" to Occupational Safety and Health Administration. 2. Medical Surveillance--Necessity 220.04 200.18 Evidence that one employee was exposed to eight-hour time-weighted average of 1.5 ppm of vinyl chloride on day of "emer gency" and that other employee who may have been exposed to vinyl chloride re quested medical attention and was refused such attention establishes violation of medi cal surveillance requirements of 29 CFR 1910.1017(k). Full Text of Order BY THE COMMISSION: The Respondent has filed a Motion to Vacate the Direction for Review in the above-captioned case. It is clear that the Respondent does not seek modification or reversal of the Judge's decision and. there fore. in accordance'with paragraph 1 of the Commission's policy statement, 41 Fed. Reg. 53015 (1976), Respondent's motion is GRANTED. The Judge's decision is the tinal order of the Commission. Commissioner Moran would deny the motion. Digest ofJudge's Report (Digest] The employer, a chemical manufacturer, was cited for 12 nonscrious violations of the Occupational Safety and Health Act following an inspection of its Piscataway, N.J., "Maintenance Shop and High Pressure Laboratory." Ultimately contested were an alleged violation of 29 CFR 1910.1017(n)(2) for failure to report a vinyl chloride "emergency" to the Occupa tional Safety and Health Administration, and an alleged violation of 29 CFR 1910. 1017(kX3) for a failure to afford appropriate medical attention to two employees ex posed to the "emergency." No penalties were proposed for these items. The contested charges were based on the events of October 14, 1975. During a test run involving the use of vinyl chloride (VC) in a closed reactor vessel, the alarm bell on a gas chromatograph monitor sounded repeatedly, indicating concentrations of VC in excess of the permissible 1 ppm at one or more sampling locations. The printout from the chromatograph showed readings of 200 to 700 ppni at two locations during this period. However, just before the alarm sounded the chromatograph had been used to monitor inside the closed system where the VC level was as high as 3500 ppm. The engineer in charge' of the laboratory thought that the chromatograph was saturated with VC and was not reading accurately. However, the Labor Depart ment's inspectors contended that the sampling lines and filters could not be saturated with VC because they were made of materials impervious to VC. In addi tion to the chromatograph readings, one employee was wearing a personal monitor ing device which on the day in question showed an eight-hour timewveightcd average exposure of 1.5 ppm. (1) The Secretary's evidence was not suf ficient to establish a "massive release" of VC gas into the atmosphere of the work place. in view of the doubtful accuracy of the chromatograph printouts. Paragraph (b)(5) of Section 1910.1017 defines "emer gency" in terms of a "massive release" of VC. Accordingly, no violation of the cited standards could be found. [2] However, the evidence was sufficient to establish a violation of the general medi cal surveillance requirements of 29 CFR 1910.1017(h). One employee was exposed to 1.5 ppm, three times tiie "action level" at which a medical program is required. The other exposed employee requested medical attention immediately after the incident, but was refused. Since the issues of employee exposure and protection were tried at the hearing, the pleadings were amended to conform to the proof estab lishing a violation of paragraph (k), and that portion of the citation was affirmed without penalty. , AP00000602 Air Products and Chemicals, Inc. 5 OSHC 1241 by different persons at different times, the also want to see or hear argument on the language of 1910.94(a)(2Xii) and 1910.94 Secretary's contention that the ventilation (bX2) cannot be used as a guide in inter* requirement cited here is in part directed preting 1910.94(dX4). See 2A Sutherland against sudden, temporary high levels of Statutory Construction $51.01-.03 (4th ed. airborne contaminants in excess of the 1973). TLV. No discussion or refutation of the The Secretary further argues that the argument is given in the lead opinion. Judge's interpretation of 1910.94(dX4) ren If no standard is found applicable, I ders that section redundant to 1910.1000. would not, in view of the testimony that However, as discussed above, the cited concentrations of sodium hydroxide not in standard applies where the Secretary has excess of the TLV may present hazards to shown either that the TLV level in 1910. employees, dispose of this case until con 1000 has been exceeded or that there is a sideration is given to remanding for further fire or explosion hazard. The standard at proceedings to investigate the possible ap 1910.1000 does not deal with hazards plication of section 5(a)(1). Dunlop v. Uriel from fire or explosion. Therefore, our in G. Ashworth. 538 F.2d 562, 564 (3 OSHC terpretation of 1910.94(dX4) does not render 2065] (4th Cir. 1976). There is testimony it redundant. by an expert industrial hygienist pointing ng the provisions of 1910.94(d)(4) out that simply because the TLV was not cts of this case, we conclude that exceeded does not mean that employees the Secretary has not proved that a haarzearndot subjected to health hazards. The within the meaning of 1910.94(dX3) einxhisatsla. tion of even small quantities of sodium The TLV level prescribed for sodium hy hydroxide, a caustic substance, could in droxide in 1910.1000 was not exceeded jure employees, and skin contact could and the Secretary failed to show a fire or cause skin ulcerations, defattening and explosion hazard. Therefore, additional emulsifying of skin tissue, bums, holes in ventilation in conformance with Tables the nasal septum and detmatitis. G-14 and G-15 of 1910.94 was unnecessary. Accordingly, we vacate the citation which alleged a violation of 1910.94(d)(4) and the penalty proposed therefor. It is so ORDERED. Dissenting Opinion AIR PRODUCTS AND CHEMI- CLEARY, Commissioner, dissenting: CALS, INC. I dissent from the disposition ordered Review Commission Final Order by my colleagues. Before deciding this im portant case involving the exposure of em- SECRETARY OF LABOR, Complain ant v. AIR PRODUCTS AND CHEMI ^s to sodium hydroxide 1 would invite CALS, INC., Respondent. OSAHRC or oral argument on the application Docket No. 76-150. March 28, 1977. of section 1910.94 from qualified amicJi ack R. Fisher, New York, N.Y., for such as ACGIH, ANSI, and NIOSH (Na complainant. tional Institute for Occupational Safety and Raymond H. Schenck, Law Department, Health). See 3A C.J.S. S3 at 424, Amicus Air Products and Chemicals, Inc., Allen Curiae. Cf. 1 CFR 5305.71.6, Recommen town, Pa., for respondent. dation No. 71-6 of the Administrative Con Warren J. Bunn, District 8, Oil, Chemi ference of the United States. I would also cal and Atomic Workers, International be receptive to a motion for reconsideration Union, Union, N.J., for employees. filed by the Secretary indicating that quali Review Commission Judge Jerome C. fied persons or organizations are willing Ditore. to express their views as amici upon rehear Before Bamako. Chairman; Moran and ing. Cleary, Commissioners. . To illustrate the need for briefing of this kind I note that Appendix H to the source standard, ANSI Z9.1--1971, gives sample CARCINOGENS .-calculations for minimum ventilation rates 1. Vinyl Chloride "Emergency"--Failure that are not triggered by the presence of to Report 220.04 30.031 amounts of airborne contaminants in excess of the threshold limit values. See particu Secretary's failure to establish that larly example H.4, which deals specifically "massive release" of vinyl chloride into with a sodium hydroxide solution. 1 would atmosphere of workplace occurred requires ( AP00000603 S OSHC 1242 Boise Cascade Corporation, Composite Can Division vacation pf citation for violation of 29 CFR 19l0.!017(n)(2) for failure to report vinyl chloride "emergency" to Occupational Safety and Health Administration. 2. Medical Surveillance--Necessity 220.04 200.18 Evidence that one employee was exposed to eight-hour time-weighted average of 1.5 ppm of vinyl chloride on day of "emer gency" and that other employee who may have been exposed to vinyl chloride re quested medical attention and was refused such attention establishes violation of medi cal surveillance requirements of 29 CFR 1910.10170c). Full Text of Order BY THE COMMISSION: The Respondent has filed a Motion to Vacate the Direction for Review in the above-captioned case. It is clear that the Respondent does not seek modification or reversal of the Judge's decision and, there fore, in accordance with paragraph 1 of the Commission's policy statement, 41 Fed. Reg. S3015 (1976), Respondent's motion is GRANTED. The Judge's decision is the final order of the Commission. Commissioner Moran would deny the motion. Digest ofJudge s Report (Digest1 The employer, a chemical manufacturer, was cited for 12 nonserious violations of the Occupational Safety and Health Act following an inspection of its Piscataway, N.J., "Maintenance Shop and High Pressure Laboratory." Ultimately contested were an alleged violation of 29 CFR 1910.1017(nX2) for failure to report a vinyl chloride "emergency" to the Owupational Safety and Health Administration, and an alleged violation of 29 CFR 1910. 1017(kX3) for a failure to afford appropriate medical attention to two employees ex posed to the "emergency." No penalties were proposed for these items. The contested charges were based on the events of October 14, 1975. During a test run involving' the use of vinyl chloride (VC) in a closed reactor vessel, the alarm bell on a gas chromatograph monitor sounded repeatedly, indicating concentrations of VC in excess of the permissible 1 ppm at one or more sampling locations. The printout from the chromatograph showed readings of 200 to 700 ppm at two locations during this period. However, just before the alarm sounded the chromatograph had been used to monitor inside the closed system where the VC level was as high as 3500 ppm. The engineer in charge of the laboratory thought that the chromatograph was saturated with VC and was not reading accurately. However, the Labor Depart ment's inspectors contended that the sampling lines and filters could not be saturated with VC because they were made of materials impervious to VC. In addi tion to the chromatograph readings, one employee was wearing a personal monitor ing device which on the day in question showed an eight-hour time-weighted average exposure of 1.5 ppm. (1] The Secretary's evidence was not suf ficient to establish a "massive release" of VC gas into the atmosphere of the work place, in view of the doubtful accuracy of the chromatograph printouts. Paragraph (b)(5) of Section 1910.1017 defines ``emer gency" in terms of a "massive release" of VC. Accordingly, no violation of the cited standards could be found. [2j However, the evidence was sufficient to establish a violation of the general medi cal surveillance requirements of 29 CFR 1910.1017(k). One employee was exposed to 1.5 ppm, three times the "action level" at which a medical program is required. The other exposed employee requested medical attention immediately after the incident, but was refused. Since the issues of employee exposure and protection were tried at the hearing, the pleadings were amended to conform to the proof estab lishing a violation of paragraph (k), 'and that portion of the citation was affirmed without penalty. BOISE CASCADE CORPORATION, COMPOSITE CAN DIVISION Review CommUsion Decision SECRETARY OF LABOR. Complain ant v. BOISE CASCADE CORPORATION, COMPOSITE CAN DIVISION. Respon dent, OSAHRC Docket No. 802, Apnl 7, 1977. John Weiss and Eugene DeShazo, Kan sas City, Mo., for complainant. Warren E. Jones, Boise, Idaho, for re spondent. Irene Miotk, President, United Steel Workers of America, Local 1965, for em ployees. o o I AP00000604