UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 78-4674 |
WITCO
CHEMICAL CORPORATION, |
|
Respondent. |
|
November 20, 1979
ORDER
Since
the Secretary requests to ‘withdraw’ his petition for Discretionary Review and
Respondent and the union assent, and this case presents no issue of compelling
public interest, The Commission affirms the Administrative Law Judge’s decision
and accords it the precedential value of an unreviewed Judge’s decision. See Potlatch
Corporation, —— OSAHRC ——, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No.
77–3589, 1979).
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: NOV 20, 1979
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 78-4674 |
WITCO
CHEMICAL CORPORATION, |
|
Respondent. |
|
June 11, 1979
APPEARANCES:
Agnes M. Johnson-Wilson, Esq. For
Complainant
William Prickett, Esq. For Respondent
Ted Duer, President Local 8–898, Oil,
Chemical and Atomic Workers International Union For Employees
DECISION AND ORDER
Chalk, Judge
The
inspection of Respondent’s New Castle, Delaware, plant, conducted in stages
between April 7, 1978 and August 25, 1978, resulted in the issuance of the
following alleged serious violations of 29 U.S.C. 654(a)(2):
1a 29 CFR 1910.134(a)(2): Respirators were
not provided by the employer when such equipment was necessary to protect the
health of the employee(s):
a) D–104 reactor, operator exposed to TDI,
6/1/78
b) D–107 reactor, operator exposed to TDI,
6/1/78
1b 29 CFR 1910.1000(a)(1): Employee(s)
were exposed to material(s) in excess of the ceiling value(s) listed for the
particular material(s) in table Z–1 of subpart Z of 29 CFR part 1910:
a) Toluene-2, 4-Diisocyanate, D–104
reactor operator, 6/1/78
b) Toluene-2, 4-Diisocyanate, D–107
reactor operator, 6/1/78
1c 29 CFR 1910.1000(e): Feasible
administrative or engineering controls were not determined and implemented to
reduce employee exposure(s):
a) D–104 reactor operator, 6/1/78, exposed
to TDI
b) D–107 reactor operator, 6/1/78, exposed
to TDI
*Step 1—Effective respiratory protection
shall be provided and used by employee(s) as an interim protective measure.
*Step 2—A written detailed plan of
abatement leading to the complete abatement of this item shall be submitted to
the Area Director. Such a plan shall: a) employ the use of qualified
engineering personnel; b) include detailed engineering studies and their results;
c) outline the ordering of equipment and materials and completion of the design
phase; and d) outline dates for the anticipated implementation of the plan.
*Step 3—Feasible engineering controls
and/or administrative controls shall be determined.
*Step 4—Abatement shall be completed by
implementation of feasible engineering and/or administrative controls and its
effectiveness at achieving compliance verified. 90-day progress letters are
requested during the abatement period.
A
penalty of $400 was proposed for this charge.
The
standards involved respectively provide:
29 C.F.R. 1910.134(a)(2)
Respirators shall be provided by the
employer when such equipment is necessary to protect the health of the
employee. The employer shall provide the respirators which are applicable and
suitable for the purpose intended. The employer shall be responsible for the
establishment and maintenance of a respiratory protective program which shall
include the requirements outlined in paragraph (b) of this section.[1]
29 C.F.R. 1910.1000(a)(1)
Materials with names preceded by
‘C’—Ceiling Values. An employee’s exposure to any material in table Z–1, the
name of which is preceded by a ‘C’ (e.g., C Boron trifluoride), shall at no
time exceed the ceiling value given for that material in the table.[2]
29 C.F.R. 1910.1000(e)
To achieve compliance with paragraph (a)
through (d) of this section, administrative or engineering controls must first
be determined and implemented whenever feasible. When such controls are not feasible
to achieve full compliance, protective equipment or any other protective
measures shall be used to keep the exposure of employees to air contaminants
within the limits prescribed in this section. Any equipment and/or technical
measures used for this purpose must be approved for each particular use by a
competent industrial hygienist or other technically qualified person. Whenever
respirators are used, their use shall comply with 1910.134.
I
Respondent,
according to the compliance officer, Maria Shanahan, manufactures ‘components
of isocyanate systems, and these components are packaged and sold to foam
manufacturers who mix the two components together to produce a foam’ (Tr. 10).
One of the components of foam systems is toluene diisocyanate (TDI) which,
according to one of Respondent’s witnesses, is used by Respondent about
‘three-fourths of the time’ in its production process (Tr. 145).
The
Co started her inspection on April 7, 1978 and returned on April 14, 1978 to
review Respondent’s records. As Respondent had monitored TDI levels in the
past, and its records indicated ‘a few’ levels that exceeded the ceiling value,
although most were ‘of a low level,’ she decided to return on another occasion
and take her own readings (Tr. 13).[3] Because of other commitments,
she was unable to return until June 1, 1978, after ascertaining from an
official of the company that TDI would be used in the production process that
day.
The
two employees whose work areas she monitored were involved in what was called a
drumming process. They accomplished this task in separate booths,[4] each of which contained a
spigot from a separate reactor nearby in which the compounds were ‘cooked’
(Exhs. J–1. J–2; Tr. 168). In the top of each booth was a hood with an exhaust
fan that was designed to draw away any harmful material from the employee’s
breathing zone. Drums were wheeled into each booth and the employee’s exposure,
if any, occurred when they opened the spigots from the reactors and filled the
drums. Neither of the employees was wearing a respirator when the CO monitored
their areas, nor had they worn respirators in the past.
The
monitoring device employed by the CO, conceded by Respondent to be ‘a standard
testing unit,’ was affixed to the person of each of the two employees (Tr. 22).[5] She took five samples on
each employee, each sample lasting about 15 minutes. When these samples were
analyzed by a qualified chemist, it was found that three samples on each
employee exceeded the ceiling limit of the standard (Exh. C–1). The specific
results, received by her in July, 1978, were as follows:
Standford Downward—0.4, 0.5, 0.3
milligrams of TDI per cubic meter of air,
Paul Robert—0.16, 0.2, 0.18 milligrams of
TDI per cubic meter of air.
At
the time, she informed two company officials—William J. Neary and Phillip
Stitzer—that the ‘levels had come back high and that they should begin to
investigate possible engineering controls and also respiratory protection as
soon as possible’ (Tr. 74).
On
the day the CO took the samples, she took velometer readings in both hoods
because she noted ‘that the hoods were not particularly effective in that they
seemed to create a good deal of turbulence’ (Tr. 35). She further explained:
The idea[l] situation would be to have the
air drawn away from the employees’ breathing zone. This was the case in some
situations, but in certain areas along the face of the hood at the top of the
hood, where the employee stood, the air was actually being forced back out
towards the employee (Tr. 35).
The problem existed in both booths and she informed
Mr. Stitzer who said that it would be ‘look[ed] into’ (Tr. 35). Her velometer
readings, apparently taken after she talked to Stitzer, were identical for both
booths and reflected a range from plus 150 feet of air per minute on the left
side of each hood to minus 100 feet of air per minute on the right side of each
hood, with the turning point from plus to minus at about the mid-point of the
hood. The minus readings meant that air was being forced in by the fan rather than
drawn out of the hood, as indicated by the plus readings.
The
CO conducted her closing conference about August 25, 1978 with Neary, the plant
manager, Stitzer, the safety director, and two union representatives.
Respondent indicated that it was aware that it had a problem with the ventilators
and stated that it would be corrected. In her opinion, Respondent could have
‘engineer[ed] out the existing problems’ by additional ‘localized ventilation’
and by improving the hood design (Tr. 159).
Doctor
John Peters, a medical doctor who also had a Masters degree in Public Health
and the degree of Doctor of Science and Occupational Health, testified that he
was a Professor of Occupational Medicine at the Harvard School of Public Health
and was that school’s Director of its Occupational Health Program. His duties
included teaching and research in occupational medicine, and lung diseases were
his specialty. He had done extensive research in connection with exposure to
TDI, which he referred to as ‘a strong irritant,’ and had published papers on
the subject (Tr. 113).
Doctor
Peters first stated that certain individuals, about five percent of the
population, are sensitized to TDI, or are allergic to it, and cannot tolerate
any exposure to TDI. He then proceeded to detail possible acute effects that
may lead to chronic effects of TDI exposure on the balance of the population,
stressing his view that these effects can occur at levels below the standard’s
ceiling level and his opinion that a safe level in certain cases was about
one-sixth less than the ceiling level. Much of his testimony on acute effects
seemed to be addressed to a situation where workers were exposed to TDI ‘day in
and day out’ over a period ‘of one, two three, or four years’ (Tr. 115).
According to him, they might develop chronic pneumonia, or more commonly,
sustain loss of lung capacity. Loss of lung capacity, moreover, normally occurs
in the aging process and is known to occur more rapidly among smokers. They
might also develop chronic bronchitis or chronic obstructive lung disease, both
of which are serious chronic respiratory diseases.
It
appeared to be Doctor Peter’s view that diminished lung capacity was the most
common result from TDI exposure. On this subject, he stated:
A. The acute reaction seems to predict the
chronic reaction. That is, if we were measure [sic] anybody [sic] in this room
exposed to TDI, those of us who had the biggest change over a days [sic] shift
are going to be the ones that have the biggest change over two, or three, or four
years. So, in that sense, it predicts a serious effect, but by itself it may
not be a serious effect. That is, if we worked in the TDI plant one day and
never worked there again, there may be no other effect other than what happened
on just that one day.
Q. If an employee works for a period of,
say, three years, would you classify the effect as a serious health hazard?
A. I prefer to talk about groups of
employees, because they don’t all react the same way, as you might think. Not
all cigarette smokers get lung cancer, and not all workers exposed to asbestos
get lung cancer. It is the same in this instance, but there would be some
people who would have serious effects during that three years [sic] period of
time, if we had 100 people, let’s say. (Tr. 117, 118)
When
asked if ‘the exposure’ in this case, ‘in and of itself,’ constituted a hazard
to these individuals, he replied in the negative (Tr. 125). He also stated that
the diminished lung capacity effect could be serious ‘over a period of time’ (Tr.
127). Finally, although stating that one exposure of the types involved herein
would not ‘likely’ be serious, he stated that the contrary would be true if the
exposures occurred two or three times a week for two or three hours each. When
asked to relate this last statement to a specific period of time, he never
responded, although it became clear that he had directed his comments to the
sensitized type of person who was representative of five percent of the
population.
The
two exposed employees testified that they occasionally experienced tightness in
their chests and sore throats, like cold symptoms, that lasted about 24 hours.
Downward, who had been with Respondent 13 years, only worked with TDI 10 or 15
times a year when he substituted for absent employees. He thought that what he
experienced was ‘probably’ attributable to TDI (Tr. 136). Although he was ill
for two months the prior year with an upper respiratory infection, he ‘[could
not] say it was from TDI’ (Tr. 138). Roberts, who had worked continually with
TDI for one year, testified that he experienced these symptoms only ‘one in a
while’ and that he never noticed any other effects (Tr. 144). Roberts also
stated that the employees had been wearing respirators since September 1978 and
that he never noticed any difference in air flow across the face of the hood.
The
plant manager, Neary, Respondent’s only witness, was a mechanical engineer who
had designed one of the ventilation systems involved in the case, although both
were the same. According to him, Respondent’s monitoring device, ‘the
recommended unit for sensing TDI,’ had been used almost daily when first
purchased, but it had not been so used for ‘a couple of years’ because
Respondent believed it had detected all problems and corrected them (Tr. 163,
179). He stated that Respondent was protective of the health of its employees
involved with TDI, as they were given complete physicals every year. He also
stated:
We have a doctor employed on a one hour a
week basis at the plant with a medical doctor who would use the Professional
Health Services van out of Philadelphia to do pulmonary function and chest
X-rays. (Tr. 166)
Although
Respondent had on occasion hired individuals whom it soon found to be ‘within
the five percent group of hypersensitive people,’ Respondent ‘[got] rid of them
just as quickly as [it] could get them out of the plant’ (Tr. 166). Respondent
had never had a workman’s compensation case involving respiratory problems
attributable to TDI.
Neary
testified that the fans in the hoods were designed to exhaust 150 feet of air
per minute. Not knowing that the CO had conducted velocity tests, he did so in
October 1978 and determined that, with some minor variations, the fans were
functioning at that level (Exh. R–1). His tests produced no minus readings. In
any event, the wearing of respirators was made mandatory when the citation was
received, the ventilation systems were redesigned, bids on the fans were
requested, and the new ventilation systems should be in place by mid-June 1979.
A
union witness testified that on several occasions in late 1977 and early 1978,
the union complained to Respondent that the ventilation in the hoods of the
reactors needed improvement, (Exhs. U–1, U–2, U–3). On these occasions,
Respondent normally employed its monitoring device to test the TDI levels,
although the witness believed that on several of these occasions Respondent did
not use it with dispatch. The witness also testified that the monitor was used
rather steadily the first 6 months after its acquisition, but afterwards, it
was only used when someone complained about the ventilation. Respondent’s
employees had been unionized only since the middle of 1977. Since that time, no
‘grievance problem’ had been raised in connection with the ventilation (Tr.
196).
II
Starting
with an unadjusted penalty of $800, the CO gave Respondent a 20 percent
reduction for size and a 30 percent reduction for good faith.[6] Thus, the proposed penalty
was $400.
The
CO testified that Complainant’s Field Operations Manual mandated that this type
of charge be characterized as serious and that thus, she had no choice in the
matter.
III
Respondent’s
counsel objected, both at the hearing and in his posthearing brief, to the
admissibility of Exhibit C–1,[7] the document that reflects
the chemist’s results of the tests he performed on the samples forwarded to the
lab by the CO. In the main, relying upon 29 C.F.R. 1905.23, counsel objected
because he was informed by Complainant’s counsel at a prehearing conference
that she would offer no documents as evidence at the hearing, and he never was
informed of the existence of the exhibit until the hearing was convened.
Counsel
did not avail himself of my offer at the hearing to move for a continuance of
the hearing if he believed that my acceptance of the document over his
objection occassioned further preparation of Respondent’s defense. I shall
first address his objection on the ground he raises, assuming that what he was
told at the conference amounted to misinformation.
29
C.F.R. 1905.23, the regulation counsel claims Complainant violated, is not
applicable to the situation he complains about, as it deals with conferences
convened and attended by the administrative law judge, whereas the parties in
this instance, pursuant to my prehearing order, met by agreement without my
presence. However, I perceive little if any distinction between the two
situations, as the crux of the matter is whether an employer is misinformed of
a fact that could affect the preparation of its defense. Conceivably, in some
cases where the information is furnished either by design or innocently,[8] the receipt of the
document over objection might require dismissal of the charge because the leads
to a viable defense no longer exist as a result of the passage of time. In
other cases, on the other hand, the acceptance of the document in evidence will
not prejudice the employer so long as the employer is furnished adequate
additional time to prepare. This case falls into the latter category.
The
information contained in the exhibit could not have come as a surprise to
Respondent, as it reflected specific tests results in excess of the standard’s
ceiling of 0.14 milligrams per cubic meter of air. This was information
conveyed to Respondent by the citation itself—exposure in excess of the
ceiling—less the specific levels. Thus, from the moment it received the
citation, Respondent knew it had to defend against alleged exposures of
employees to levels in excess of ceiling; and the specific levels to which they
were exposed, the only additional matter provided by the exhibit, would not
have anything to do with the preparation of Respondent’s defense. This may well
have been the reason why counsel did not seek additional time, when offered the
opportunity at the hearing. In any event, counsel’s failure to do so invoked
the waiver doctrine and foreclosed Respondent’s right to pursue the matter
further at this time.
There
is, however, an entirely different reason why there is no sound foundation for
Respondent’s objection, one that leads me to conclude that Complainant’s
counsel did not err in making the statement she made at the prehearing
conference.[9]
It is common practice, known to all practitioners at the bar, that a potential
witness often makes notes of matters as they occur or are observed and that
these notes may be used by the individual on the witness stand to refresh his
recollection, or may be received in evidence as recollection past recorded,
when his recollection is not refreshed, thus becoming nothing more than an extension
of the witness’ testimony. This is especially true in the case of experts,
particularly chemists in working on one case among many that involves numerous
samples with identifying numbers or codes. Clearly, the exhibit in this case
could have been used in that manner and counsel would have had no valid ground
upon which to complain, as he was informed in writing prior to the hearing that
the chemist would appear as a witness and testify about the tests he performed
and the results reached.
Respondent’s
objection was properly overruled at the hearing and its assignment of error
lacks merit.
IV
The
remainder of Respondent’s arguments go to the merits of the case, as it asserts
that there was insufficient evidence to establish that serious violations occurred,
that the validity of the test results was questionable, and that there was lack
of proof of knowledge to sustain the serious allegation. In sum, Respondent
seeks ‘dismiss[al]’ of the charges or ‘at the very least,’ a reduction of the
charges to other than serious.
Although
it is true, as Respondent asserts, that the chemist corrected one test result
shown on Exhibit C–1 from a finding of TDI in one sample at a level above the
ceiling to a negative finding, I do not agree that this fact, with or without
any other fact surrounding the taking and testing of the samples, serves to
impeach the remainder of the test results. On the contrary, I find them valid
and compelling. However, I do not agree with Respondent’s implication that an
other than serious violation does not involve the element of knowledge.
Nevertheless, I find the evidence insufficient to establish that the violations
were serious, and will accordingly affirm them as other than serious
violations.
Knowledge
is an element of nonserious violations (Secretary v. Scheel Construction,
Inc., 76 OSAHRC 138/B6; Secretary of Labor v. Rockwell International et
al., 540 F.2d 1283 (6th Cir., 1976)). As in the case of serious violations,
it may be actual or constructive. Constructive knowledge exists when the
circumstances are such that through the exercise of reasonable diligence, an
employer should have known of the hazard (Secretary v. Borg-Warner Corp.,
78 OSAHRC 18/A2).
Knowledge
in this case must be imputed to Respondent, for it knew that it was using a
harmful compound in its manufacturing process, it had in the past periodically
tested for its presence in areas where the employees worked and found excessive
levels, it admitted that it had stopped routinely testing the same areas a
substantial period of time before the inspection, and it failed to exercise
reasonable diligence by maintaining a continual detection program under
circumstances where it had to rely on ventilation systems that could have
failed or become less efficient at any time (Secretary v. Borg-Warner,
supra).
As
indicated above, however, I conclude that Complainant has not carried his
burden of establishing that these violations were serious because he has shown
only brief exposures of the two employees in excess of the standard on June 1,
1978, he has not shown that they were similarly exposed before or after that
time, and his expert witness’ testimony, considered as a whole, does not
convince me that such brief exposures could result in serious bodily harm or
death (see Secretary v. Hermitage Concrete Pipe Co., 76 OSAHRC 2/C1, and
Secretary of Labor v. Hermitage Concrete Pipe Co. et al., 584 F.2d 127
(6th Cir. 1978)).
V
It
appears from the record that Respondent was fully cooperative with the CO
throughout the investigation and took appropriate measures by requiring the
employees to wear respirators when it learned the results of the monitoring,
and by designing new ventilating systems that should eliminate the hazard.
Accordingly, and in consideration of the fact that Respondent was given no
credit for prior history, a penalty of $50 appears appropriate and will be
assessed.
VI
Findings of Fact
1. At
the time and place alleged, during the course of drumming activities,
Respondent’s two employees were briefly exposed to various levels of TDI above
the ceiling permitted by the standard,
2.
The two employees were not wearing respirators at the time,
3.
There was no evidence tending to establish that these two employees or any
other employee were so exposed to excessive levels of TDI before or after that
time,
4.
The evidence indicates that the ventilating systems on each of the two reactors
may have been malfunctioning and thereby caused these exposures, and
5.
The evidence was insufficient to establish the probability that the exposures
of these two employees at the time in question could have resulted in serious
injury or death.
Conclusions of Law
1.
The Commission has jurisdiction over the proceedings, and
2.
That Respondent violated 29 U.S.C. 654(a)(2) by not complying with 29 C.F.R.
1910.134(a)(2), 29 C.F.R. 1910.1000(a)(1), and 29 C.F.R. 1910.1000(e), but that
such violations were other than serious.
VII
Citation
number 1 for serious violations, modified to allege other than serious
violations, is affirmed and a penalty of $50 is assessed therefor.
So ORDERED.
JOSEPH L. CHALK
Judge, OSHRC
Dated: June 11, 1979
Hyattsville, Maryland
[1] The provisions of
29 C.F.R. 1910.134(b) are not relevant to these proceedings.
[2] TDI (toluene
diisocyanate) is so listed and its ceiling value is shown as 0.14 milligrams of
particulate per cubic meter of air.
[3] The records did
not reflect any monitoring by Respondent after August 1977.
[4] The booths were
described as resembling closets without doors.
[5] Respondent’s
monitoring device was described by the CO as a large unit on a 5 or 6 foot high
stand with wheels that took area samples.
[6] Although she
assigned no reason, the CO testified that she gave Respondent no credit for
prior history.
[7] The chemist
testified that he recorded the results of his tests in his notebook and that
the exhibit was a Xeroxed copy of the appropriate page of the notebook that he
himself made. Respondent raised no objection to the exhibit on this basis.
[8] I find no reason
to reject Complainant’s counsel’s representation at the hearing that she never
knew of the existence of the exhibit until it was presented to her by the
chemist-witness from Salt Lake City, Utah, the morning of the hearing.
[9] At the hearing, I construed the exhibit as a report prepared by the chemist reflecting the results of his tests.