Authorized Employee Representative.

OSHRC Docket No. 79-7193


Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.


This case involves a single-item citation issued by the Secretary of Labor (the Secretary) alleging that A.R.A. Manufacturing Co. ("ARA") committed a serious violation of the standard at 29 C.F.R. 1910.94(d)(9)(vi).[[1]]  The Secretary contends ARA violated the standard by failing to provide approved respirators for emergency use near degreasing machines containing 1,1,1 tri-chloroethane ("TCE")[[2]] where the possibility of accidental release of hazardous concentrations of TCE existed.  Administrative Law Judge Dee C. Blythe affirmed the citation, downgraded its severity to nonserious, and assessed a $100
penalty.  We affirm the judge.

The Occupational Safety and Health Administration (OSHA) conducted an inspection of ARA's Grand Prairie, Texas worksite on October 21, 1979, as a result of a complaint about a TCE spill that had occurred there on September 14, 1979.  Two employees had been attempting to connect a pipeline from an "enclosed degreaser" (a degreasing machine with a top on it) to a TCE storage tank located outside ARA's plant when the spill occurred.  About 50 gallons of TCE spilled on the floor in a 15-20 minute period. The two employees worked without respirators while attempting to stop the spill and were occasionally forced by TCE fumes to interrupt their efforts and go outside for fresh air.  The enclosed degreaser was located in a large room measuring 200 by 300 feet, but was just 15-20 feet from another degreaser, an "open surface degreaser" (a degreasing machine that is open at the top) which also used TCE as a cleaning agent.

The citation issued by the Secretary after the inspection read:

29 CFR 1910.94(d)(9)(vi):  Approved respirators for emergency use in open surface tank areas were not provided in marked, quickly accessible storage compartments, where the possibility existed of accidental release of hazardous concentrations of air contaminants:

Approved respirators for emergency use, selected based on the potential concentration released, were not provided where possibility existed of accidental release of hazardous concentrations of air contaminant-Phase 1, 1, 1, 1 Trichlorethane degreasers, east side of department; 1, 1, 1 Trichlorethane

A $490 penalty was proposed.  ARA contested the citation, and the Allied Industrial Workers of America, Local Union 300 elected party status.

Hathaway, one of the employees that had been involved in trying to stop the TCE leak, testified that the fumes from the spill made his eyes get watery and blurry and made his skin feel crawly.  He also testified that he felt light-headed and that his legs got wobbly. Hathaway did not subsequently, however, feel any ill effects from the fumes.

Hawpe, the other employee that had been involved in trying to stop the TCE leak, testified that his eyes and lungs had been irritated by the TCE fumes, and that he had subsequently been hospitalized for about a week with what he stated was diagnosed as "chemical pneumonia."  Although there was contradictory testimony about whether or not he had filed a workmen's compensation claim against ARA, Hawpe testified that he was still under a doctor's care at the time of hearing.

OSHA industrial hygienist McDaniel testified that the respirators ARA had available were not supplied air respirators appropriate for use during the TCE leak involved here and were not immediately available.[[3]]  He also testified that eye irritation and nervous-system related symptoms like weakness in the limbs occur at TCE concentrations of about 1000 parts per million (ppm) and that lung irritation can occur at 2000 ppm.  McDaniel stated that he thought employees Hathaway and Hawpe had been exposed to 1000 to 2000 ppm of TCE for about five minutes, taking into account that they had periodically left the area for fresh air.  He testified that exposure to high TCE concentrations for even a short period of time can cause irregular heartbeat or fibrillation of the heart, but he did not specify the amounts of exposure he believed might cause those conditions.  He further testified that if a person lost consciousness as a result of overexposure to TCE fumes, the person could die if he were not removed from the area by others.

OSHA Compliance Officer Hartman testified that death is a "conceivable" result of overexposure to TCE "depending upon the amount released."  She was unable to indicate what that mount might be.

ARA Plant Manager Rieke admitted that noxious fumes or vapors had been released into the plant as a result of TCE spills on several other occasions and that employees had been evacuated from the plant after the spills.  The spills had occurred at both the enclosed and open surface degreasers.  However, there was no evidence about the nature - size or vapor concentration level - of these other spills, other than that they had not been as large as the spill in this case.

ARA argued before the judge that the cited standard is applicable only to open surface tanks and is not therefore applicable to the closed surface degreaser involved in the TCE spill here.  ARA also argued that, if any violation did occur, the violation was nonserious.

Judge Blythe agreed with ARA that the cited standard pertains exclusively to open surface tanks.  His conclusion was based primarily on the numerous references made to open surface tanks in paragraph (d) of section 1910.94.  Although he concluded that the standard did not apply to the degreaser involved in the accident, which was of the closed type, the judge noted that there was an open surface degreaser just 15 or 20 feet away from the closed surface degreaser and that the open surface degreaser had also been included in the inspection.  He found that the cited standard was applicable to the open surface degreaser regardless of whether the standard was applicable to the closed surface degreaser and noted that the evidence demonstrated there had been several spills of TCE, some of which had occurred at the open surface degreaser.  The judge therefore affirmed the citation because employees had an emergency need for respirators in the immediate vicinity of the open surface tank and because the open surface tank had been the site of other TCE spills.

With respect to the severity of the violation, the judge stated that TCE is not as toxic as many other air contaminants.  Table Z-1 of section 1910.1000(a) specifies a permissible time-weighted average exposure to TCE of 350 ppm in an 8-hour work shift of a 40-hour work week; by comparison, the table limits exposure to carbon monoxide to 50 ppm and exposure to many other substances to less than 1 ppm.  Acknowledging that OSHA industrial hygienist McDaniel had testified that TCE inhalation could cause narcosis, arrhythmia, and even death, the judge stated there was no evidence that any of the TCE spills at ARA produced vapor concentrations strong enough to cause death or serious physical harm.  The judge further stated that while employee Hawpe testified he had been hospitalized with "chemical pneumonia," there was no expert evidence attributing Hawpe's chemical pneumonia to the TCE exposure or even confirming the diagnosis of chemical pneumonia.  In the light of TCE's low toxicity and the low likelihood of a TCE spill causing harmful concentrations in the large work area involved, Judge Blythe concluded that ARA's failure to provide quickly accessible, approved respirators to protect against accidental release of TCE in the area of the open surface degreaser did not create a substantial probability of death or serious physical harm.  The judge assessed a $100 penalty after finding that the gravity of the violation was low and that ARA had demonstrated good faith.

The Secretary petitioned for review and review was granted on whether the requirements of cited section 1910.94(d)(9)(vi) applied to ARA's closed surface degreaser and whether the judge erred in concluding that the violation was other than serious.   ARA did not take exception to the judge's decision finding that the standard was violated based on its applicability to open surface tanks, and we do not review that issue.

The Commission agrees with the judge's conclusion that cited section 1910.94(d)(9)(vi) applies only to open surface tanks.  The heading of section 1910.94(d), "Open surface tanks," supports that result.  Further, the cited standard specifically refers to employees working in "areas where [the] concentrations of air contaminants are greater than the limit set by paragraph (d)(2)(iii)" of section 1910.94.  Paragraph (d)(2) is headed "Classification of open-surface tank operations"; paragraph (d)(2)(i) specifically refers to open-surface tank operations and divides such tanks into sixteen separate classifications.  It thus appears that the areas of high area contaminant concentrations referred to in cited section 1910.94(d)(9)(vi) are areas where there are open surface tanks.  Finally, we also note, in support of our conclusion that the cited standard is applicable only to open surface tanks, that two other paragraphs, (d) (5) and (d) (9) (ii), in section 1910.94 refer specifically to open surface tanks.

We also find that the judge properly determined the violation should be characterized as nonserious.  The record shows that exposure to TCE at some unspecified, elevated level can be fatal.  However, there is no evidence that the concentrations of TCE that resulted from the spillage of that chemical could have approached such a high level.  The evidence shows that the negative effects of the TCE fumes on employees Hathaway and Hawpe were moderate and included eye and lung irritation and lightheadedness.  Hathaway felt no after effects.  Hawpe gave hearsay testimony that he contracted chemical pneumonia as a result, but the Secretary did not offer any expert evidence to corroborate the hearsay.  The judge was unwilling to credit the testimony, and we are similarly unwilling to do so.  The testimony was not simply uncorroborated hearsay, but hearsay relating to the diagnosis of a medical expert who was not present at the hearing to testify about either the accuracy of the diagnosis or the nature of the diagnosed disease.  Consequently, we find the violation to be nonserious; the Secretary failed to establish that the TCE spills at ARA's worksite had resulted in or could have resulted in vapor concentrations high enough to cause death or serious physical harm.  We further find that the judge properly determined $100 to be an appropriate penalty.  Accordingly, we affirm a nonserious violation of section 1910.94(d)(9)(vi) and assess a $100 penalty.



DATED:  MAR 16 1984

A.R.A. Mfg., #79-7193

CLEARY, Commissioner, concurring in part and dissenting in part:

I concur in the majority's finding that section 1910.94(d)(9)(vi) applies only to open surface tanks.  I would, however, find that the violation of that standard was serious.

When a violation involves exposure to toxic chemicals, we must determine seriousness by looking to "the harm the regulation was intended to prevent, and if that harm is death or serious physical injury, a violation of the regulation is serious per se."  Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237 (9th Cir. 1984).  TCE vapors can cause pronounced loss of concentration, pronounced loss of concentration, pronounced loss of equilibrium, and even death.  2B PATTY's INDUSTRIAL HYGIENE AND TOXICOLOGY 3502-10 (3rd ed. 1981).  This is sufficient to establish that failure to provide respirators where exposure to high levels of TCE can occur is a serious violation.

In this case, however, it is not necessary to apply a per se rule of seriousness, inasmuch as the record establishes that serious injury did actually result from the cited incident.  Hathaway testified that inhaling TCE vapors made him light-headed and that he felt his legs would fall out from under him if he did not quickly get to a source of fresh air.  Hathaway, therefore, along with Hawpe, intermittently broke away from his work efforts to rush sixty feet out the nearest door and breathe fresh air.  After the leak was stopped, both employees had to sit for about 45 minutes in a cool place to get rid of their lightheadedness.

It should further be noted that Hawpe testified he went to a doctor on the day following the spill, after his lungs had become irritated from breathing in the TCE fumes.  Hawpe stated that the doctor told him he had chemical pneumonia and, subsequently, Hawpe was hospitalized for a week.  Although the majority does not credit Hawpe's hearsay testimony about have chemical pneumonia, I would credit the testimony because I find it reliable and probative evidence.  See Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD 24,006 (No. 14907, 1979).  Also see R.C. Diving Co., 81 OSAHRC 15/F10, 9 BNA OSHC 1402 (No. 77-4487, 1981); York Heel of Maine, Inc., 81 OSAHRC 40/B11, 9 BNA OSHC 1803, (No. 78-5920, 1981).

Pneumonia is "[a]n acute or chronic disease marked by inflammation of the lungs, and caused by viruses, bacteria, and physical and chemical agents."  The American Heritage Dictionary of the English Language, New College Ed., 1976.  The testimony of industrial hygienist McDaniel was that lung irritation would result from the amount of TCE exposure experienced by Hawpe.  This testimony corroborates Hawpe's testimony about his lungs getting irritated by the TCE fumes and also corroborates, therefore, Hawpe's testimony about contracting chemical pneumonia, a disease that may be caused by a chemical agent which has irritated the lungs and caused them to swell.[[1]]  Accordingly, because both Hathaway and Hawpe were exposed to the possibility of death as a result of their overexposure to TCE and because Hawpe actually contracted chemical pneumonia and was hospitalized for a week as a result, I would find that the violation of section 1910.94(d)(9)(vi) was serious.

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[[1]] Section 1910.94(d)(9)(vi) provides:

1910.94 Ventilation.
* * *

(d) Open surface tanks--
* * *

(9) Personal protection.
* * *
(vi) When, during emergencies as described in paragraph (d)(11)(v) of this section, workers must be in areas where concentrations of air contaminants are greater than the limit set by paragraph (d)(2)(iii) of this section, or oxygen concentrations are less than 19.5 percent, they shall be required to wear respirators adequate to reduce their exposure to a level below these limits, or to provide adequate oxygen.  Such respirators shall also be provided in marked, quickly accessible storage compartments built for the purpose, when there exists the possibility of accidental release of hazardous concentrations of air contaminants.  Respirators shall be approved by the U.S. Bureau of Mines, U.S. Department of the Interior and shall be selected by a competent industrial hygienist or other technically qualified source.  Respirators shall be used in accordance with 1910.134, and persons who may require them shall be trained in their use.

[[2]] The TCE was being used as a solvent to clean manufactured air conditioner parts.

[[3]] ARA maintenance supervisors Lee had earlier testified that the available respirators were full face, single cartridge respirators located about 200 feet from the degreasers.  The respirators were kept in a locked, unmarked cabinet which also contained tools.

[[1]] I would not require corroboration of Hawpe's testimony that he was diagnosed as having chemical pneumonia.  However, even if the record did not establish the precise diagnosis of Hawpe's ailment, the fact that he was hospitalized for a week after his lungs became irritated from overexposure to TCE is sufficient evidence of the seriousness of the TCE hazard.