Docket No. 676

GEORGIA-PACIFIC CORPORATION, CROSSET DIVISION

OSHRC Docket No. 676

Occupational Safety and Health Review Commission

August 20, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On November 8, 1972, Judge John S. Patton issued a decision whereby he found Respondent in serious violation of the standard prescribed by 29 CFR 1910.261(b)(2) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). A penalty of $650 was assessed. n1 Judge Patton also vacated an allegation that Respondent had violated the standard prescribed by 29 CFR 1910.261(h)(2).

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n1 Subsequent to issuing his decision Judge Patton advised the Commission that the penalty assessment therein should be $600.

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We have reviewed the record, including the Judge's decision, and the briefs filed by the parties. We concur in the conclusion that the standard prescribed by 29 CFR 1910.261(h)(2) is limited in application to "Bleach mixing rooms." Respondent was not in violation since its operation was not performed in a bleach mixing room.

We also concur in the conclusion that Respondent violated 29 CFR 1910.261(b)(2) n2. Respondent argues, on review, that the standard is vague because it requires the wearing of personal protective equipment ". . . when the extent of the hazard is such as to warrant . . ." its use. We do not agree. The hazard in this case is the exposure of employees to 40 parts per million (ppm) of chlorine and chlorine dioxide gases. The evidence is that the unprotected exposure of employees to chlorine gas at concentrations in excess of 1 ppm is, and has long been known to be, hazardous. See 29 CFR 1910.93, Table G1. Moreover, it is also known that protection must be provided as is evidenced in this case by the fact that Respondent provided protective equipment for its employees.

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n2 29 CFR 1910.261(b)(2) provides:

Personal protective clothing and equipment. Foot protection, shin-guards, hard hats, noise attenuation devices, or other personal protective clothing and equipment shall be worn when the extent of the hazard is such as to warrant their use. Such equipment shall be worn whenever specifically required by other paragraphs of this section. All equipment shall be maintained in accordance with applicable American National Standards. Respirators, goggles, and protective masks, rubber gloves, rubber boots, and other such equipment shall be cleaned and disinfected before being used by another employee. Eye, head, respiratory, and ear protection, where specified, shall conform to American National Standards Z24.22 -- 1957, Z87.1 -- 1968, Z88.2 -- 1969, and Z89.1 -- 1969.

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Under these circumstances we conclude that persons of common intelligence in Respondent's industry are apprised of the conduct required by the standard and need not guess as to its meaning. See Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 396, 19 LEd. 2d 244 (1967); McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 1106, 6 LEd. 2d 393 (1961); United States v. Petrillo, 332 U.S. 1 at 7-8, 67 S. Ct. 1538, 1542, 91 LEd. 1877 (1947). n3 Accordingly, the decision of the Judge will be affirmed.

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n3 The cited cases deal with the question of vagueness as it pertains to the interpretation of criminal statutes. The Act is civil, and less exactitude is required of the terms used in it and in regulations promulgated under it. See Massachusetts Welfare Rights Organization v. Ott, 421 F.2d 525, 527 (1st. Cir. 1969).

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Turning now to the matter of an appropriate penalty, we note that after considering the requirements of section 17(j) the Judge determined that the proposed penalty of $600 was appropriate. We concur.

Accordingly, it is ORDERED that the Judge's decision be amended so as to assess a civil penalty in the amount of $600 and that the decision as amended be and the same is hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I disagree with the Commission's conclusion that a violation of the Act has been established in this case because of failure of compliance with the occupational safety and health standard published as 29 CFR 1910.261(b)(2). I also disagree with the veracity of the following statements in this decision:

The hazard in this case is the exposure of employees to 40 parts per million (ppm) of chlorine and chlorine dioxide gases. The evidence is that the unprotected exposure of employees to chlorine gas at concentrations in excess of 1 ppm is, and has long been known to be, hazardous. See 29 CFR 1910.93, Table G1.

First of all, there was no evidence in this case as to Table G1 of 29 CFR 1910.93. No judicial or official notice was taken of its existence and consequently no party had an opportunity to argue whether or not it was applicable to this case. As a matter of interest, I have examined this regulation and find it would have no bearing on this case even if it had been in evidence. In addressing itself to both chlorine and chlorine dioxide, it specifies employee exposure limits for an 8 hour time weighted average. The facts of this case involve only an occasional momentary exposure to such chemicals in an area where employees do not ordinarily work.

There is also no evidence to support the assertion made in the first sentence of the above-quoted portion of this decision. The only conceivable time employees could be exposed to chlorine or chlorine dioxide was when they were out checking the chlorine dioxide generator which was not in the building where they worked. The Judge's finding of fact is that "The normal concentration in the upper part of the generator during regular operations was 4.6 percent chlorine." He also found that "The chlorine discharged into the atmosphere was in excess of 40 parts per million" [emphasis added]. This, of course, does not say that any employee was exposed to the same.

Furthermore, complainant does not argue that the hazard to employees comes from their exposure to excess concentrations of chlorine and chlorine dioxide. He claims that an employee might panic if a chlorine "puff" occurs while he is near the generator which might cause him to fall while making his exit. That position is made in the argument of counsel and in the following excerpt from the direct examination of complainant's representative whose inspection of respondent's premises formed the basis of complainant's case:

Q. Now, have you concluded that the exposure to this chlorine gas caused a substantial probability of serious physical harm or death to the employees?

A. I did.

Q. Would you state for us, please, the basis for your conclusion?

A. One of the things that could happen to a person who had a sudden exposure to a very high concentration of gas, is to become distraught, distracted, possibly temporarily blinded, and be more concerned with his inability to breathe. And he would be motivated to attempt to escape the environment.

Many times, under these conditions, people have tripped and fallen, lost their cool, or their head, and have further injured themselves.

Since the slab, the floor of that room was concrete, a fall would likely injure a man to where he would be unable to escape and find the opening.

On the basis of that possibility, I decided there was a -- there was a probability of a man being seriously injured or killed. The same witness took a similar position on cross examination:

Q. In other words, you feel that there's more danger from the distraught condition of the employee, than there was the gas?

A. I think that's a major problem.

The respondent in this case is a corporation engaged in manufacturing plywood, paper and particle board. It operates a rather sophisticated automated plant in Crossett, Arkansas, which requires only one operator per shift. In the manufacturing process at this plant, respondent uses chlorine dioxide. The chlorine dioxide is made on the premises in a chlorine dioxide generator which converts chlorine gas into chlorine dioxide.

The generator is essentially a large outdoor boiler enclosed in a 3-story building with no exterior or interior walls on two of the three floors. It is equipped with a relief valve to allow small escapes of chlorine gas (known in the industry as "puffs") whenever excess pressure is built up inside the generator.

The generator is inspected by a single Georgia-Pacific employee once or twice during each 8-hour work shift. The employee's regular work is to monitor indicators. This is performed in a control room located in another building. Once or twice during an 8-hour shift he goes to the generator building to inspect the generator. During the inspection he sometimes goes near the relief valve for a short period of time.

Although portable canister-type respirators are made available by respondent for the use of its employees, the evidence revealed that the employees do not wear them when they make their periodic checks of the generator.

During the winter, temporary walls of canvas or machine-weight felt were draped around the two opensided floors of the building to keep it warm and to protect the generators from the elements. Complainant's representative observed when inspecting these premises that, as a result, the "puffs" of gas discharged from the relief valve into the atmosphere around the generator were not being dispersed as they were before installation of these drapes. That observation formed the basis for this action.

Complainant's representative concluded from the facts related above that an employee who had occasion to enter the draped area could be subjected to hazardous accumulations of chlorine gas and/or chlorine dioxide should one of the "puffs" coincide with his presence there. In complainant's opinion, this warranted the wearing of respirators by employees when they went to look over the generator. Since respondent conceded that t did not require employees to follow this practice, it was cited for violating the Act because it allegedly was not complying with the aforementioned standard.

As noted in the decision, respondent is claiming before this Commission that the standard it allegedly failed to observe is unenforceably vague. I agree with that position for reasons discussed below, but even if it were a valid requirement, the evidence in the record before us would not establish that respondent had not complied with it.

The basis for complainant's case is not a constant or regular or even occasional exposure of an employee to a hazard. The alleged hazard can exist only when the occurrence of an instantaneous chlorine "puff' happens to coincide with the presence in the vicinity of the generator of an employee who may spend a few minutes there on irregular occasions each day. Since only one employee operates the plant, the possibilities of occurrence of the alleged hazard would have to be described as remote.

In addition, the evidence of hazard when these two events happen to coincide is less than convincing. There was considerable conjecture by various witnesses as to whether or not any hazard resulted to the employee who was exposed to a "puff." We, of course, cannot base our decision upon conjecture.

There was, however, direct evidence adduced by complainant on this point. One employee of respondent who had been exposed to a "puff" testified on direct examination as follows:

Q. During the times when you were present when the valve puffed, did you experience any discomfort from the exposure to the gas?

A. That's hard question to answer. Like I said, I really don't know how to answer that.

I told you how long I had worked there?

Q. Yes, sir.

A. And, well, I kind of know how to conduct myself around this material, and everything. And I didn't suffer any ill effects from it.

Q. Did you suffer any discomfort? By that I mean, were you choked, or suffer any breathing impairment?

A. Other than fright I suffered no discomfort.

Obviously the "personal protective equipment" which complainant maintains that employees should wear during such incidents would not protect the employee from fright.

On this record a hazard could not be established in my opinion.

I regret that this Commission decision dismisses in a rather summary fashion respondent's contention that the occupational safety and health standard at issue in this case is unenforceably vague. I believe it at least merits some discussion.

The basis for respondent's noncompliance according to the argument of counsel for complainant in this case was "failing to require employees . . . [to use] eye protection and respirators or full gas masks."

The language of 29 CFR 1910.261(b)(2), essential to the facts of this case, mandates that respondent require that its employees wear ". . . personal protective clothing and equipment . . . when the extent of the hazard is such as to warrant their use." n4 Exactly what constitutes "personal protective clothing and equipment" or how one is supposed to be able to know "when the extent of the hazard is such as to warrant their use" is not explained anywhere. Terminology of such general nature does not lend itself to any precise or comprehensible definition measured by common understanding and practices. It certainly does nothing to advance the objectives sought by the enactment of this law. I submit that the most sincere safety-oriented employer in the country could not know from a lengthy study of this standard what he is supposed to do and when it must be done. Such loosely worded and ill-defined regulations do nothing to advance this Act's purpose of achieving safe and healthful workplaces. If employers cannot understand the regulation, it is inconceivable how the Secretary of Labor can expect them to observe it.

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n4 It is noted that the very next sentence of this regulation states: "Such equipment shall be worn whenever specifically required by other paragraphs of this section." I have been unable to locate any such specific requirement. This rather important sentence seems to have been overlooked up to this point by everyone involved with this case.

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The representative of complainant who conducted the inspection upon which the citation was based stated at the hearing that the nature of respondent's offense was the failure of its employees to wear "respirators or goggles." There is nothing before us to indicate that this was anything other than his own individual opinion of the meaning of the term "personal protective clothing and equipment." To find an employer in violation of the law on the basis of such an opinion is contrary to constitutional due process. Whether or not a law or regulation has been violated depends upon the wording of the law or regulation itself, rather than on an ad hoc appraisal of the subjective expectations of a particular safety inspector.

Nowhere in the citation or the complaint, the documents designed to advise respondent of the nature of its violations, are the words "respirator," "gas mask," "goggles" or "eye protection" used.

Furthermore, neither the record of this case, nor the regulation allegedly violated, contains any definition of any of such terms. Assuming, for example, that the term "respirator" has some specific meaning and that complainant desires to require the use of same, he has the power under section 6 of the Act to do so. The regulation under which respondent has been cited in this case, however, contains no such requirement.

It is my opinion that any regulation or safety standard which necessitates research on the part of the employer in order to apprise himself of the meaning of ambiguous language is invalid because it does not implement the purposes for which this law was enacted. It is well-established law that a regulation which operates to create a rule out of harmony with the statute is a mere nullity. Lynch v. Tilden Produce Co., 265 U.S. 315, 320-322; Miller v. U.S., 294 U.S. 435, 439-440.

The substance of any valid regulation must afford reasonable notice of conduct which it requires or proscribes. Secretary of Labor v. J.A. Walder, Inc., Secretary of Labor v. Anaconda Service Station, Inc., Prospectively, the standard at issue in this case could not be fully understood even if each employer did extensive research on its meaning. Even when viewed retrospectively there is no way anyone could know exactly what this standard required and just when whatever-it-is had to be worn.

Moreover, to permit the enforcement of so vague a standard is to subject an employer to the unbridled discretion of the complainant's inspectors and other representatives in the determination of what constitutes compliance. One inspector could say that only a canister-type respirator would meet the requirements of this occupational safety and health standard. Another might say that only those with a specific type of purifier or capacity would suffice. Still others could specify certain manufacturers or retailers of respirators. The possibilities are limitless when the requirement is as all-encompassing as "personal protective clothing and equipment." Common sense requires that an enforceable regulation must contain an ascertainable standard of misconduct in order to circumscribe the discretion of the agents of the enforcement authority. This is particularly true where, as here, complainant has many hundreds of inspectors scattered in many different offices throughout the country.

The instant case is a perfect example of the latitude which exists when obscure and hazy words are used in a regulation. Although at one point a witness for complainant surmised that an employee of respondent could conceivably be exposed to chlorine gas of 100 parts per million, complainant offered no evidence that such a hazard to employee health could be prevented by use of respirators, goggles, eye protection or gas masks. Nevertheless this decision tells respondent that he must compel his employees to wear the same. It is noted, however, that respondent has no assurance that its choice of such equipment will satisfy the next inspector who happens to inspect respondent for compliance with this standard.

Permitting the input of subjective criteria thus places upon respondent the onerous task of attempting to comply with an unclear occupational safety and health standard as it happens to be interpreted in each case by an individual inspector or other representative of complainant. I submit that this respondent cannot even now be certain exactly what must be done to comply with this standard. In Secretary of Labor v. California Stevedore and Ballast Company, This decision is a retreat from that sound principle.

The purposes of this Act require specificity in the wording of the regulation sought to be enforced against the employer. Secretary of Labor v. The Mountain States Telephone & Telegraph Company, If what is to be achieved is safe and healthful working conditions, employers must be presented with discernible standards by which they can guide their own conduct, and the requirements of such standards must be apparent upon a reading thereof by an ordinary prudent employer. Indeed, by definition in section 3(8) of the Act, an occupational safety and health standard is one that:

. . . requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

29 CFR 1910.261(b)(2) does not meet this test. While requiring the use of personal protective clothing and equipment, it fails to make explicit just what that clothing and equipment might be or the conditions which necessitate its use.

In my opinion, the standard at issue in this case suffers from the same ambiguousness as 29 CFR 1910.265(d)(4)(iii) which was held to be unenforceably vague for being open to various interpretations in Secretary of Labor v. Moser Lumber Company,

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is before me on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, against Georgia Pacific Corporation, Crossett Division, hereinafter referred to as respondent alleging that respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (Ad. Stat. 1604; 29 U.S.C. Section 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standards 29 CFR 1910.261(b)(2) and 1910.261(h)(2)(ii). It was alleged that a serious violation occurred in violation of Standard 29 CFR 1910.261(h)(2)(ii) on or about December 16 and 17, 1971. It was alleged that flowing gas was being discharged into the atmosphere of the workplace of the respondent and was not carried away from said workplace and the breathing area of the employees working in said workplace was not protected by an exhaust system and further that the chlorine gas was not rendered neutral or harmless before being discharged into the atmosphere. It was further alleged that respondent violated Standard 29 CFR 1910.261(b)(2) in that employees at the aforesaid workplace were required to enter said work area containing hazardous accumulations of CL2 and/or CLO2 without personal protective clothing and equipment when the extent of the hazard was such as to warrant the use of such protective clothing and equipment. It was proposed that a penalty of $600 be assessed.

Citation was issued by the Department of Labor alleging said violations and a penalty in the amount of $600 was proposed. The respondent filed a notice of contest of said citation whereupon the aforesaid complaint was filed by the complainant. Hearing was held before John S. Patton, Judge, on August 29, 1972, in El Dorado, Arkansas. Mr. James E. White appeared as counsel for the complainant and Mr. Paul Sullins appeared as counsel for the respondent. There was no motion to intervene by any of the employees or by any employee representative. All parties were accorded the right to present evidence and orally argue the case. The parties were accorded the right to file written briefs but counsel for both parties stated that no request to file briefs was being made and, therefore no briefs have been received.

LAW AND ISSUES OF THE CASE

Occupational Safety and Health Standard 1910.261(h)(2) provides as follows:

Bleach mixing rooms (i) The room in which the bleach powder is mixed shall be provided with adequate exhaust ventilation located at the floor level in accordance with American National Standard Z9.1.

Standard 29 CFR 1910.261(b)(2) provides as follows:

Personal protective clothing and equipment. Foot protection, shinguards, hard hats, noise attenuation devices or other personal protective clothing and equipment shall be worn when the extent of the hazard is such as to warrant their use. Such equipment shall be worn whenever specifically required by other paragraphs of this section. All equipment shall be maintained in accordance with applicable American National Standards. Respirators, goggles and protective masks, rubber gloves, rubber boots and other such equipment shall be cleaned and disinfected before being used by other employees. Eye, head respiratory and ear protection where specified shall conform to American National Standards Z24.22.

The respondent made motion at the conclusion of the proof of the complainant that the case be dismissed on the grounds that standards 29 CFR 1910.261(h)(2)(ii) relates only to rooms in which there is bleach mixing and that the room in question in this cause did not involve bleach mixing and on the further ground that the condition had not been established as unsafe. This motion was taken under advisement and will be disposed of in this decision.

The issues for decision are, therefore, whether the room in which the activities alleged in the complaint occurred was a bleach mixing room and if so, whether Standard 29 CFR 1910.261(h)(2)(ii) applies. If said standard applies, the issue must be determined as to whether the room provided adequate exhaust ventilation located at the floor level. The issue also arises as to whether the extent of the hazard was such as to necessitate the use of protective clothing and equipment by employees in the area.

EVIDENCE IN THE CASE

Respondent's answer admitted that respondent is a corporation having its principal place of business at Crossett, Arkansas, where it is engaged in manufacturing plywood, paper and particle board, and is engaged in a business affecting interstate commerce.

It was substantially conceded by the counsel for complainant that the room in question was not a bleach mixing room but that bleach mixing rooms had been replaced in the process of making wood and wood products by the process of manufacturing the bleach and that bleach manufacturing took place in the previous bleach mixing room. According to the testimony of Mr. Henry Ray James, Compliance Officer for the complainant, Mr. Earl Jones, pulp mill superintendent for the respondent and Mr. Alek Morton, Project Manager for Multi-fiber process, Montreal, Canada, which company designs and builds chlorine dioxide and associated chemical plants, the respondent had erected a chlorine dock generator facility which was as follows: Chlorine dioxide and water made the bleach which was necessary in the respondent's business. In the process little explosions occur which are described in the industry as puffs. The generator was equipped with a relief valve on top which was for the purpose of opening when a puff occurred and the valve would rise, it would vent gasses consisting of chlorine and chlorine dioxide. Chlorine gas was not being manufactured but was introduced to be converted to chlorine dioxide. Mr. James who testified was an industrial hygienist with a Bachelor of Science degree in chemical engineering from the University of Wisconsin, one year of graduate training with the University of California School of Public Health in the field of industrial health and a certified safety professional certified by the Board of Safety professionals and by the American Board of Industrial Hygiene. He testified that he made assumptions that if a puff occurred the valve would move approximately one-half foot in one-tenth second. He was of the opinion from said calculations that the volume of gas released during a six-inch lift would be 6.6 cubic feet of chlorine. The generator was originally in an open area without any sides to impede a normal ventilation of air.

Because of the insistence of the employees and in order to protect the machinery, the respondent had to enclose the area with felt drapes.

Mr. James testified that there was no visible means of exhausting the gas when it was released from the reactor, that there was no vent hood or exhaust hood, there were no blowers or fans. He stated there were a few small openings in the ceiling which would permit air to defuse in and out depending on temperature difference. He did not examine to find out how the sides were joined. He did not observe how the bottom was secured. The room was 19 by 29 feet in width and 12 feet high. He stated that he believed there were openings in the floor but he made no calculations as to the air flow under the floor. He conceded that an exhaust system can consist of free air. He stated he knew that the valve would lift during a puff.

Mr. William Wade Upshaw, who operated a chlorine dioxide plant stated that without the protection of the sides there was no protection from the elements. Mr. Fred E. Woods, paper operations manager for respondent, testified that a new plant was erected in 1969, that the generator was not a new design but part of the decision to replace the old was because of improvements made in chlorine dioxide generation. He stated there was substantial improvement in filtration systems, that it limited the number of puffs. He stated the chlorine dioxide generator they used was standard in the industry. He knew of no plant that provided any different means of disbursing the gasses that were emitted. He admitted there was no fan to carry the chlorine away, but stated that a natural draft can be an exhaust system and that there was considerable open area in the concrete floor. He conceded however, that after the felt was put out the relief valve no longer emitted into a relatively open free space. He further stated that if the design had called for the tower to be enclosed, design criteria would have included an exhaust system. He was of the opinion that a natural draft from the opening in the floor constituted an exhaust system.

Mr. Alek Morton testified that the valve had a flat disc assembly lifted due to internal pressure. He stated that the puff and sensing elements would trigger the automatic shut down of the system. The valve on the air purge line above the liquid would be opened and approximately 500 cubic feet per minute of air would be immediately released into the top of the generator. He stated this would be discharged into the atmosphere. He stated that an explosion lid is a standard part of each and every chlorine dioxide generator in existence. He stated he inspected it for respondent and agreed that the type of open type design would not require any special mechanical exhaust system. He stated that the design for a closed room ventilating system would give ten changes per hour. The valve opening pressure was according to him one half pound per square inch. Mr. Earl Jones, the pulp mill superintendent testified that the generator was more modern and better than some because it comes in from the top rather than from the bottom. He had only seen one other generator in any enclosed space and the gas condition at that gas generator was terrible. He stated that it was bound to have some exhaust system.

Mr. James explained concentration of chlorine or chlorine dioxide above 10 per cent by volume becomes unstable. He stated if this happens the puff usually occurs. When it happens the relief valve relieves pressure so the reactor itself is not ruptured. He stated there is no way to know when a puff will occur. He testified that the percentage of chlorine which would be dangerous under various circumstances was as follows: 0.35 to 1 part per million maximum concentration for prolonged exposure, 5 parts per million would cause respiratory complaints, corrosion of the teeth, inflamation of the mucus membranes of the nose and increase susceptibility to tuberculosis; 15 parts per million in a paper mill had caused a case of chronic poisoning due to exposure over a number of years. There were slight adverse affects on respiratory ailments if men were exposed to lesser concentrations of chlorine dioxide. He stated that the affect on the person was to irritate violently the mucus membrane in the upper respiratory tract to the extent that the automatic reflex prevents a person from inhaling the gas into his lungs. Concentrations too low to affect the lower respiratory passages may irritate the eyes, nose and throat. It was stated that Pupp and Henschler, on the basis of irritation observed by experimental human subject, recommended a limit of 0.5 parts per million. It was stated that Cook in 1945, suggested 5 parts per million, Soviet limit 0.3 per million, Czechoslovakia, 1 part per million. A TLV of 1 part per million was recommended to minimize chronic changes in the lungs, accelerated aging, and erosion of the teeth. As to chlorine dioxide, it was shown that concentration of chlorine dioxide of 5 parts per million was definitely irritating and 19 parts per million of the gas inside a bleach tank was sufficient to cause the death of one worker although the time exposure was not specified. It was suggested that an acceptable concentration of one part per million should be adopted. It also is shown that bronchitis and pronounced emphysema occurred to a chemist reportedly repeatedly exposed during several years to chlorine dioxide. There were symptoms increasing dyspnes and asthmatic bronchitis even without exposure. He stated that Gloemme and Lundren's Clinical investigation of workers exposed for five years to chlorine dioxide in a sulfite-cellulose plant reflected the following: Except for leaks from faulty vacuum, concentrations of chlorine dioxide were below 0.1 part per million, chlorine about 01. part per million. Symptoms and signs of irritation of the eyes and respiratory tract leading to slight bronchitis were found in a majority (7 to 12) of the workers. Certain individuals showed irritation of the gastrointestinal tract, but no cerebral effects. All effects were attributed to short periods of exposure to concentration considerably in excess of 0.1 part per million of chlorine dioxide and chlorine. Sampling procedures were not sufficiently frequent to establish the magnitude of the chlorine dioxide exposure except that 0.1 part per million apparently caused no untoward effects. He stated that experiments by authorities reflected that 0.25 part per million resulted in slight effects on respiratory ailments. Concentrations approximately 0.1 part per million chlorine dioxide produced no abnormal reactions in rats exposed 5 hours for 10 weeks. This evidence being found in American Conference of Governmental Industrial Hygienists documentation introduced into evidence as Exhibit 2 was not objected to. Mr. James stated that the effect on a human being of chlorine and chlorine dioxide is to irritate violently the mucus membranes and upper respiratory tract to the extent to where the automatic reflex prevents the person from inhaling the gas in his lungs. He stated that the chlorine has a very pronounced choking effect, that it is almost impossible to stay in an environment where an appreciable concentration of chlorine exists without protection, that he was of the opinion that exposure to this chlorine gas caused a substantial probability of serious physical harm or death to employees. He expressed the opinion that one of the things that happened to a person who had a sudden exposure to a very high concentration of gas was to become distraught, distracted, possibly temporarily blinded, be more concerned with his inability to breathe and that he would be motivated to attempt to escape the environment, that under these conditions people have tripped and fallen and have injured themselves. He stated that since the floor of the room was concrete a fall would likely injure a man to such an extent that he would be unable to escape and find the opening. It was for these reasons that he was of the opinion there was a probability a man could be seriously injured or killed. He pointed out that if a person fell or became unconscious he would be subject to the chlorine and chlorine dioxide and could not escape.

Mr. James testified that he did not know the composition of what was introduced in air, that the testimony that there were 100 parts per million was based on the formula of probabilities based on his expertise. He stated that temperature would not make a great deal of difference. He stated it was impossible to breathe for several minutes with 5 parts per million. He stated that the amount that would be dangerous and have serious affect in thirty minutes to one hour would be 40 to 60 parts per million. He stated 1,000 parts per million kills animals in a very short time. He testified he had visited a paper mill only one time before. He stated that threshold limit values for chlorine dioxide were ten times lower than for chlorine itself, that chlorine dioxide is more toxic than chlorine, more likely to kill. His testimony was based on the assumption that chlorine gas constituted ten per cent by volume of emission from a pump if the concentration was less he would change his opinion. He stated that to be safe the concentration must be below one point per million. Calculations in his testimony were based only on chlorine. Chlorine dioxide would increase the probability of danger. He stated the only thing absolutely certain from his standpoint was that chlorine was present although he knew the reaction was designed to create chlorine dioxide. He stated if there had been no evidence of danger from chlorine, he would have disregarded chlorine dioxide.

Mr. Morton, the project manager of Multi Fiber Process, Montreal, Canada, who as previously stated, had inspected the plant, and advised the respondent, testified that the normal concentration in the upper part of the generator during regular operations is 10.75 per cent by volume of sulfuric acid, 4.15 per cent by volume of chlorine, and the remainder, 85.1 per cent, is air. He stated there is no chemical reaction between the air and the chemicals which are added. He stated that some chlorine was formed, but the major product is chlorine dioxide. He stated that during a puff, chlorine dioxide decomposes to its constituents which are chlorine and oxygen. He stated the opinion that although chlorine dioxide is disassociated from the oxygen what is released is a mixture of air, chlorine, and oxygen. He reiterated the chlorine was 4.6 percent. He stated that during normal operation, the whole of the generator right on through the process is under a vacuum and therefore, there is no way that any chlorine dioxide would be emitted from this process during normal operations. The testimony of Mr. James was to the effect that employees working in the area were not protected in any way. If an employee was present when a puff occurred, he would be exposed to escaping gas. He stated he did not know where in the room an employee would be required to go, did not know how far in the room an employee went. He felt, however, that one breath of the chlorine would cause some difficulty.

Mr. Morton, however, testified that the concept of the equipment was for an unmanned remotely controlled operation with the control room away from the tower. He stated that at some points away from the operation, there would be a control room. In some cases, the control room would be 120 feet in the air, totally separated from the generator. He stated that in the case here involved, the control room was closer but in a separately contained building, that within that building there was a control panel, and on it, there were instruments designed to indicate what was going on. Recording certain things on charts enabling those directing the operation to make changes in the feed rates of the chemicals to change the product rate of the unit. He stated the operator's job is first of all to match the product rate that is required by the bleach plan, and secondly to monitor the quallty of the product by analysis of the content of the generator and the acidity of the liquid. He stated these samples were taken on the ground floor, according to the design concept. He stated that the person making said decision might choose to make a check once per hour, twice per hour, or even as seldom as twice per shift. Other than this, he would not be required to be in the generator area. He stated it would be wise for a man to make a patrol once per shift just to visually see the situation, although all the important materials were read out in the instrument control room. He stated there are a number of pipes rising vertically in which there are indicating instruments to show the balance of the air distribution within the generator, and this would be the kind of thing he would question. He also might pass by on a control type operation to see if anything occurred to register differential feed rates. He stated a man might have occasion to go there twice a shift.

Mr. William Wade Upshaw, who operated said generator, testified that he normally made one inspection per shift. It was testified that the company at the time of the inspection was operating on a two-shift and part of a third shift basis, that the company is now operating said generator on a three-shift basis. At the time of inspection, there were four employees involved, one for each shift and one spare employee. At the date of the hearing, there were five, one for each shift, and two additional employees. Mr. Upshaw testified that he goes alone to examine the valve. If nothing is wrong, he has no reason to inspect. Even if it is normal, however, he will inspect once or twice a shift. He has been present several times when it puffed, although he has never been in the room after it was enclosed at a time when it puffed. He stated there is no necessity for anyone being in the room except for an inspection. He also testified that no one normally works on the floor underneath. He testified that when inspecting the equipment, he was only there a very short time.

EVALUATION OF THE EVIDENCE

As previously stated, the respondent, at the conclusion of the complainant's proof, made a motion to dismiss the complaint. One of the grounds of this motion was that the standard provided that it was applicable to bleach mixing rooms, and that the operation in the respondent's plant was not a bleach mixing room. It was conceded by counsel for the complainant that the method of operation has changed and although the bleach is created as a result of the operation in question, it is not done through the bleach mixing process and, therefore, is not technically a bleach mixing room.

I am of the opinion that the position of the respondent in this regard is sound and must be sustained, and the motion to dismiss should be sustained insofar as the complaint is based upon said standard. It will be noted that Standard 1910.261(h)(2) provides as follows:

Bleach mixing rooms. The room in which the bleach powder is mixed shall be provided with adequate exhaust ventilation located at the floor level in accordance with American National Standard Z9.1

There is very substantial evidence in the record that the modernization of the method has not eliminated the inherent danger to employees in creation of the bleach where there is an enclosed area and no ventilation system. A Judge, however, even in those instances in which a dangerous condition may exist, cannot create a standard where none exists. The standard specifically states that it is applicable to bleach mixing rooms, stating "the room in which the bleach powder is mixed" (emphasis added). Congressional history reflects considerable discussion at the time the Act was passed as to the appropriate area of authority for the creation of standards, the prosecution of alleged violations of standards and judicial determination after an appropriate trial. Some members of Congress were of the opinion that although these functions should be exercised by different divisions in the Department of Labor, that they should all fall under the Secretary of Labor. Other members of Congress were of the opinion that the power to create standards should be given to the Secretary of Labor, but that the power of adjudication should be completely separate and apart from the Labor Department. The latter view prevailed, and the Occupational Safety and Health Review Commission was created separate from any cabinet department and solely for the purpose of judicial determination of issues arising under the Act. The only function of the Review Commission and its judges is judicial and no authority to enact standards or to reform or expand standards is granted to a judge. This division of powers is consistent with the basic concept of the American Standard of Government which provides complete separation of the judicial functions from the legislative function. It has been repeatedly held that a Commission Judge has no authority to make exceptions to standards based upon an argument of the respondent that in the respondent's situation a standard is impractical or unduly expensive or that the respondent has a method of operation that is as sound and safe as that suggested by the standard. Hodgson v. Joseph Buchiet & Sons Co., The basis of these decisions is that it would be an invasion of the sole province of the Secretary of Labor for a Judge to expand or "up date" a standard beyond the language of the standard as promulgated by the Secretary in order to meet an "updated" operating process. If an amendment of the standard is required because of a difference in methods of operation in the industry, the need for such amendment should be addressed to the Secretary, rather than addressed to an Occupational Safety and Health Review Commission Judge. For this Judge to expand the standard to fit a situation not stated by the standard would be for this Judge to legislate, whereas Congress has only seen fit to give this Judge the authority to adjudicate. Therefore, notwithstanding the fact that the evidence does establish that there can be substantial danger in exposure to chlorine or chlorine dioxide, the complainant's complaint, insofar as it is based upon Standard 29 CFR 1910.261(h)(2) must be dismissed. There is no allegation based upon the general duty clause Section 5(a)(1) of the Occupational Safety and Health Act, and therefore, the question of whether the general duty clause would be involved under the facts of this case does not arise.

Standard 29 CFR 1910.261 is not restricted, however, to bleach mixing rooms, but simply states: ". . . equipment shall be worn when the extent of the hazard is such as to warrant their use." It would appear from the evidence in this cause that the possible hazard from chlorine and chlorine dioxide fumes was of sufficient severity to warrant the wearing of protective clothing at any time an employee entered the area. The testimony of the Compliance Officer was based on an assumption that the volume of chlorine was 10 percent. He stated, however, that this was only an assumption from the general circumstances of the case. It will be noted that Mr. Morton testified that the volume in the respondent's plant was 4.6 percent chlorine. It would appear that Mr. James, the Compliance Officer, is a highly qualified expert and his opinion evidence is competent and therefore was received. The knowledge of the specific situation however, was more peculiarly that of Mr. Morton who had actual knowledge of the volume of chlorine and, therefore, Mr. Morton's testimony in this regard should be credited. The testimony of Mr. James was that based upon a 10 percent volume formula there would be 100 parts per million. Even reducing this formula to conform to the testimony of Mr. Morton, substantial hazard could still result from the percentage of chlorine involved.

This hazard, however, was greatly reduced by the very short period of exposure of any employees exposed to the hazard. The testimony was to the effect that the area of the generator was not a work area, that employees worked in another building but that the person in charge of said operation did have to go into the area for a few minutes approximately twice a shift in order to inspect the condition existing there. On all other occasions the control room's control of the generator was adequate and working in the immediate area was not required. There was some variation in the testimony as to the length of time an employee would have to be exposed to this chlorine to suffer ill-effects from it. It will be noted that there was some testimony that 30 minutes exposure would be very detrimental. On the other hand, Mr. James testified that one breath would cause irritation. The weight of the testimony is to the effect that the safe level would be below 1 part per million. It would appear that the level in the case at bar is over 40 parts per million. The one part per million, would contemplate a great deal longer period of exposure than that which the respondent's employees were exposed to. It would seem notwithstanding the short period of exposure that prudence would require the use of protective clothing and equipment upon entering the area.

It is true that respondent provided such equipment and clothing but the testimony was to the effect that the employees entering the area were not required to wear same. The decision as to whether it should be worn was left to the employee. It will be noted that Standard 29 CFR 1910.261(b)(2) does not merely provide that said protective equipment and clothing shall be furnished, but provides as follows:

Foot protection, shin guards, hard hats, noise attenuation devices or other personal protective clothing and equipment shall be worn when the extent of the hazard is such as to warrant the use. (Emphasis added).

It is not enough for a respondent to provide the clothing and equipment but the standard requires that the respondent see that such clothing is worn when the extent of the hazard is such as to warrant its use. It would appear that there is some potential danger from even a short exposure to chlorine and chlorine dioxide and that, therefore, there was some degree of hazard. Under these circumstances, the respondent should have required the wearing of the equipment and protective clothing. This is not a situation in which the respondent alleges that it ordered its employees to comply with the standard but the employees disobeyed the order. On the contrary, the testimony is that there was no requirement for the wearing of said clothing and use of said protective equipment and that the matter was left entirely to the employee's discretion. In view of these facts, the respondent is in violation of said standard. It would appear that the short period of exposure would make it unlikely that an employee would suffer the most serious conseqences of exposure, there could, however, be some impairment to health. This Judge is of the opinion that in view of the likelihood of some harm to the employee if said protective clothing and equipment was not used in an enclosed area without any mechanical ventilation, the violation could be classified as serious as said term is used in the statute. It will be noted that the evidence establishes that even one breath of said fumes causes some physical irritation. Therefore, notwithstanding the very short period of exposure this Judge is of the opinion that the proposed penalty of $650 is proper. The consequences of failure to wear protective clothing have now been substantially reduced by the removal of the felt on sides to the area allowing for complete cross-ventilation. This Judge, therefore, makes the following findings of fact.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and office at Crossett, Arkansas, where it is engaged in the business of manufacturing plywood, paper and particle board.

2. Respondent is engaged in a business affecting interstate commerce within the meaning of the Act.

3. Between December 15 and 17, 1971, respondent maintained a chlorine dock generator facility with a release valve on top of it which opened when there was a puff.

4. A puff is a term used in the industry when a minor or little explosion occurs.

5. The normal concentration in the upper part of the generator during regular operations was 4.6 percent chlorine.

6. The chlorine discharged into the atmosphere was in excess of 40 parts per million.

7. Some degree of chlorine dioxide was also discharged into the atmosphere.

8. The process of the generator was not a bleach mixing operation but was a different method of processing.

9. No employees of respondent worked regularly within the area of said generator but the closest employees working regularly worked in another building. In the month of December 1971, one employee for each of two and part of a third shift was assigned the responsibility of said generator.

10. One additional employee, not on a regular shift basis, was assigned the responsibility of said generator.

11. Said generator was primarily controlled from a control room in another area of respondent's plant.

12. No employees worked on the floor beneath said generator.

13. The employees in charge of said generator went into the area of said generator approximately twice each shift.

14. Said generator was, in December 1971, enclosed by felt which was hung from the sides of the room in which said generator was located.

15. There was some opening in the floor of said area and there was some degree of ventilation, but the ventilation was inadequate to remove a hazard.

16. There was no mechanical ventilation nor were there any fans ventilating the area.

17. The maximum safety concentration for prolonged exposure to chlorine is .35 to 1 part per million. Any substantial period of exposure to chlorine with cause the following health impairments. Five parts per million will cause respiratory complaints, corrosion of the teeth, inflammation of the mucus membranes of the nose and increase the susceptibility to tuberclosis, 15 parts per million, in a paper mill, can cause chronic poisoning, if the exposure exists for a number of years. In excess of one part per million can cause chronic changes in the lungs accellerated aging and erosion of the teeth. Concentration too low to affect the lower respiratory passages may irritate the eyes, nose and throat.

18. Concentration of chlorine dioxide of 5 parts per million is irritating and a maximum of acceptable concentration is one part per million. Chlorine dioxide in excessive amounts can cause bronchitis and pronounced emphysema, if the exposure exists for several years. Chlorine dioxide, for a period of years, can cause symptoms and signs of irritation of the eyes, the respiratory tract leading to bronchitis and, on occasion, irritation of the gastro-intestional tact.

19. Chlorine causes a choking effect and normally causes an employee to seek a very rapid exit from the area.

20. One breath of chlorine causes an employee some difficulty. The respondent provided a MSA respirator which is a portable canister type respirator.

21. The operators going into the area were not required to wear said respirators, but it was optional with the employees whether or not they should wear them.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce within the meaning of the Act and is governed by the Act and the Occupational Safety and Health Review Commission has jurisdiction of this cause.

2. The operations of the respondent alleged in the complaint did not occur in a bleach mixing room and, therefore, standard 29 CFR 1910.261(h)(2) has no application to said operations of the respondent.

3. Respondent did not require equipment to be worn to reduce the hazard and, therefore, has violated Standard 29 CFR 1910.261(b)(2).

ORDER

It is, therefore, ordered as follows:

The citation and allegations of the complaint alleging violations of Standard 29 CFR 1910.261(h)(2) be and the same hereby are dismissed.

The citation and allegations of the complaint alleging violation of Standard 29 CFR 1910.261(b)(2) are sustained. The respondent is assessed a penalty in the amount of $650.00 for said violation.

The abatement date for violation of Standard 29 CFR 1910.261(b)(2) is sustained.