IMCO CONTAINER COMPANY
OSHRC Docket No. 79
Occupational Safety and Health Review Commission
July 31, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER. This matter is before the Commission upon my order directing review of the decision of Judge Harold A. Kennedy. The Judge's decision found a non-serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter "the Act"), in that Respondent violated section 5(a)(2) of the Act by violating a standard published at 29 C.F.R. 1910.132(a). n1 No civil penalty was assessed by the Judge.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 29 C.F.R. 1910.132(a) provides: Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The relevant facts are not in dispute. Respondent produces plastic containers on which it prints enamel labels. Occasionally, the enamel blurs. It must then be removed and reapplied. "Stoddard" solvent is used for this purpose. n2 Bottles are partially submerged in the solvent and scrubbed with a brush. In the process, the hands of the employee removing the enamel become "wet" with solvent, since no gloves or other protective equipment are used.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 "Stoddard" is a petroleum distillate solvent sold under several brand names. Union S-76 was the brand being used at the time of the Secretary's inspection.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Complainant contends that Respondent's failure to provide its employees with gloves for use during the operation violates the above-mentioned standard because the solvent is a chemical hazard, necessitating such protection. For the reasons stated below, we find that Respondent did not violate the standard.
Violation of the standard in this case requires proof that the substance used is chemically hazardous and that it is used "in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact." We find neither element of a violation has been established.
The label on the solvent warns:
Union S-76 Solvent, Danger.
Harmful or fatal if swallowed. Combustible.
Contains Stoddard Solvent.
Keep away from heat and open flame.
Use with adequate ventilation.
Avoid prolonged breathing of mist or vapor.
Avoid frequent or prolonged contact with the skin.
If swallowed; do not induce vomiting.
Call a physician immediately.
KEEP OUT OF REACH OF CHILDREN.
The relevant part of the label is the direction to "Avoid frequent or prolonged contact with the skin" (emphasis added). n3 Credible evidence establishes that Stoddard solvent is not a primary skin "irritant." Regulations promulgated at 21 C.F.R. 191.11 under the Hazardous Substances Labeling Act, 15 U.S.C. 1261 et seq., prescribe the procedure by which substances are to be tested to determine the extent, if any, to which they are skin irritants. Respondent's expert witness testified that he personally made the prescribed tests and that such tests showed the solvent is not a skin irritant. There is no credible evidence of record which contradicts this testimony. n4 Furthermore, Complainant's own publication, "Material Safety Data Sheet -- Requirements for Reporting Hazardous Materials -- Safety and Health Regulations -- For Ship Repairing, Shipbuilding; Shipbreaking", defines a hazardous material, in relevant part, as one which "causes first degree burns to skin in short time exposure." We note that Stoddard solvent is used throughout industry. If it is considered not hazardous by Complainant in one industry, we cannot understand how it can be so considered in another.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 There is no contention that the solvent presents a hazard through absorption or that it is used in such a manner as to present a hazard through inhalation.
n4 Complainant introduced testimony of an expert witness tending to establish that the use of the solvent created a hazard for the employees. This witness did not have an educational background equivalent to Respondent's expert, nor did he have Respondent's expert's first hand experience with the solvent. His testimony was vague and conjectural.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In any event, the record fails to establish prolonged or repeated exposure to the solvent by Respondent's employees. Complainant's inspector testified that he observed the employees working with the solvent for a 30-minute period. There is no evidence tending to show how long or how frequently employees are exposed to the solvent. Even were we to assume that prolonged or repeated exposure would require protective equipment, the facts of record fail to establish what would be a crucial fact -- prolonged or repeated exposure.
Accordingly, it is ORDERED that the decision of the Judge is reversed and that the citation is vacated.
CONCURBY: MORAN; CLEARY
CONCUR:
MORAN, CHAIRMAN, concurring: I concur in the disposition of the case. In doing so, I also want to make it clear the purported occupational safety and health standard published as 29 C.F.R. 1910.132 is so vague and ambiguous that it is meaningless; impossible to enforce, and of no legal force or effect.
Section 5(a)(2) of the Act places upon the employer a duty to comply with occupational safety and health standards, which are defined by section 3(8) of the Act as follows:
The term "occupational safety and health standard" means a standard which requires conditions, practices, means, methods, operations or processes, reasonably necessary or appropriate to provide safe and healthful employment and places of employment. (emphasis supplied)
When a regulation adopted by the Secretary of Labor does not clearly specify the conditions or practices it requires, it cannot qualify as an occupational safety and health standard and thus cannot be the subject of a violation of section 5(a)(2).
The standard at issue in the instant case fails to meet the test of section 3(8). It sets forth neither the practice required n5 nor the conditions necessary for the implementation of that practice. n6 Respondent was charged with violating this regulation because it did not provide gloves for its employees while they were handling bottles which had been submerged in a chemical solvent. The language of the regulation which is supposed to inform respondent of this duty reads in pertinent part:
. . . personal protective equipment for . . . extremities . . . shall be provided . . . wherever it is necessary by reason of . . . chemical hazards . . . encountered in a manner capable of causing injury . . . through absorption, inhalation or physical contact.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The phrase "personal protective equipment . . . shall be . . . used" does not clearly describe a required practice since it could mean anything from a suit of armor to an umbrella. Furthermore, since the word "equipment" does not ordinarily include clothing, it is impossible for an ordinary prudent person to read the subject regulation and realize that its promulgators meant it to apply to items of clothing.
n6 To say something should be done "whenever it is necessary by reasons of hazards" is to say nothing. Who is to determine the meaning of the terms "necessary" and "hazard?" Each individual inspector? The employer? The worker on the job? If the Commission were to allow enforcement of regulations as vague as this one, the Department of Labor could drop all existing regulations and replace them with such standards as "Do good and avoid evil" or "The employer must do whatever is necessary to avoid injuries and illnesses to his employees."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This verbiage is so broad as to be meaningless. It never mentions the words "gloves" or "hands." It fails to specify not only what method is to be used as protection and to what extent protection is required, but also when the same becomes operative. How does one define a chemical hazard? Is it something that causes first-degree burns within a short period of exposure? Or is it any substance with the potential to cause the slightest irritation to the skin such as after-shave lotion? Is this regulation subjective or is it meant to apply irrespective of individual sensitivity or duration of contact? The words used in the regulation offer no assistance.
The enforcement of vague standards, in addition to being contrary to section 3(8), results in denial of respondent's right to due process under the law. The right to receive fair warning of the conduct required or proscribed must be afforded to parties against whom regulations are enforced where violations of such regulations are subject to civil or criminal sanctions. n7 As we have held in Secretary of Labor v. California Stevedoring, June 16, 1972, and Secretary of Labor v. Tilo Co., Inc.,
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Fleuti v. Rosenberg, 302 F 2d 652 (9th Cir. 1962); Jordan v. DeGeorge, 341 U.S. 223 (1951).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Due process requires also that a party be free from arbitrary application of the law and enforcement which can vary with each individual enforcement official. Standards like this which are subject to multiple interpretations permit such an unconstitutional state of affairs.
Finally, such standards are unenforceable because they do not further the underlying purposes of the Act: to provide safe and healthful workplaces. That purpose is achieved primarily by the promulgation of specific requirements which set forth what experience and research have shown to be necessary to eliminate hazards. n8 Where the requirements necessary to avoid hazards are obscured in the regulation, it permits a situation where even the most sincere and dedicated safety-oriented employers may do less than what research and experience have proven necessary to maintain safe environs for employees.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Section 3(8) of the Act; Secretary of Labor v. The Mountain States Telephone & Telegraph Co.,
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
CLEARY, COMMISSIONER, concurring: I concur with the vacating of the citation. Based upon the evidence of record complainant has failed to sustain his burden of proving the alleged violation.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 U.S.C. 651 et seq. ) to review a citation issued by the Secretary of Labor under the Act against Respondent Imco Container Company, a corporation.
The citation, issued on September 21, 1971, alleges that an inspection of Respondent's workplace at Goleta, California revealed a violation of the safety regulation set forth at 29 CFR 1910.132(a). The citation described the alleged violation as follows:
Failure to provide and maintain personal protective equipment (i.e. gloves) where necessary due to hazards of chemical irritants. (solvent bottle wash).
The citation fixed October 4, 1971, as the abatement date. Respondent was advised by a notice of the Secretary, also dated September 21, 1971, that no penalty was being proposed for the alleged violation.
Under date of October 1, 1971 Respondent submitted its notice of contest, which was filed with the Commission on October 13, 1971. The Secretary's complaint was filed on October 18, 1971, and Respondent's answer was filed on October 26, 1971.
The case came on for hearing, after due notice, in Santa Barbara, California, on January 28, 1972. Briefs as well as proposed findings, conclusions and orders have been filed by the Secretary and by Respondent. Respondent's employees are not represented by an authorized representative. No employee sought to participate in the proceeding.
FINDINGS OF FACT
I. JURISDICTION
Respondent Imco Company is a Delaware corporation with its principal office and place of business located at 4240 Blue Ridge Boulevard, Kansas City, Missouri. It also maintains a place of business at 725 South Kellog Avenue, Goleta, California for the manufacture and sale of plastic bottles. Such products are shipped, directly or indirectly, to points outside of the State of California. Respondent employs "employees" at its place of business in Goleta, California.
Upon the foregoing undisputed facts, it is found that Respondent is an "employer" and "a person engaged in a business affecting commerce who has employees" as defined in Section 3 of the Occupational Safety and Health Act of 1970.
II. THE ALLEGED VIOLATION
A. THE ISSUES PRESENTED
The complaint follows the allegations of the citation and avers that Respondent violated Section 5(a)(2) of the Act and the safety standard set forth at 29 CFR 1910.132(a) promulgated under the authority of Section 6(b) of the Act. This Section 5(a)(2) of the Act provides:
Each employer --
(2) shall comply with occupational safety and health standards promulgated under this Act.
The standard set forth at 29 CFR 1910.132(a) (36 Fed. Reg. No. 105, May 29, 1971, p. 10,590) became effective August 27, 1971 (36 Fed. Reg. No. 157, August 13, 1971, p. 15, 105) and reads:
Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
In language similar to that employed in the citation, the complaint (Para V) alleges that the cited standard was violated "in that the respondent corporation failed to provide personal protective equipment, that is gloves, to employees who were exposed to injury or impairment due to physical contact with a hazardous chemical, that is, a solvent bottle wash." The complaint avers that the alleged violation was not of a "serious" nature under the statute and required no penalty.
Respondent in its answer admits the jurisdictional allegations of the complaint and avers that it provided protective equipment to its employees by October 4, 1971, the date set for abatement of the alleged hazard. Respondent denies that the bottle wash solvent is in fact a hazardous chemical as used by Respondent.
Presented for determination, therefore, is the question of whether Respondent violated the cited safety standard and the Act by failing to provide protective gloves to employees exposed to a solvent bottle wash used in Respondent's manufacturing process. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Counsel for the Secretary indicates in her brief (p. 7) the basis on which she believes that the record establishes a violation: "The Regulations require that employees be provided with '[p]rotective equipment, including personal protective equipment for eyes, face, head and extremities . . . wherever it is necessary by reason of . . . chemical hazards . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact' . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
B. THE EVIDENCE
At the outset of the hearing the parties stipulated to the following matters (Tr. 18-21):
1. That the area or department involved in this action is called the "decorating department" in the Respondent's plant located in Goleta, California;
2. That there were approximately three employees employed in that department on the day of the inspection made by the Occupational Health and Safety Compliance Officer;
3. The specific process or procedure that was being employed by the three employees in question was the washing of bottles in a substance which consisted of Union 76 S-76 Solvent -- referred to frequently in the record as Stoddard Solvent (e.g. Tr. 24);
4. That on the day the inspection was made the three employees engaged in the washing of the bottles in the decorating department were not wearing gloves or other protective equipment;
5. That Respondent's Exhibit 1, a film depicting Respondent's bottle washing process, should be admitted into evidence.
The Secretary called three witnesses: Ward Howland, who is employed as a Research Associate in the Fuels Research Group of the Product Research Department of Union Oil Company Research Center in Brea, California; Meier Schneider, an Associate Industrial Hygiene Engineer for the Bureau of Occupational Health and Environmental Epidemiology in the State of California's Department of Public Health; and Gerald L. Holmes, the inspecting Occupational Safety and Health Compliance Officer, who testified as a rebuttal witness.
Appearing for Respondent were William E. Capps, the official in charge of Industrial Relations for Respondent, and Dr. William E. Rhinehart, a toxicologist in the employ of Respondent's parent, Ethyl Corporation.
Mr. Capps described Respondent's bottle washing process as Respondent's "demonstration" film was shown. n2 He explained that the polyethlene containers or bottles which Respondent manufactures have screened enamel printing, called a "decoration," placed on them (see bottle in evidence as Resp. Ex. 2). Such enamel "occasionally" blurs so the print of the label is not clear on a particular bottle. When this does occur, the bottle "must be taken from the production line oven and the enamel washed off, dried and go back through again to be screened again . . ." (Tr. 122). Bottles improperly printed are collected in a pile and taken by a "girl who has this bucket of Stoddard Solvent and she holds the bottle in one hand and uses a paint brush and it just washes right off because it isn't dry" (Tr. 123). The bottles then are dried by a towel which is changed about "every hundred bottles" (Tr. 124). The bottles are not submerged as they are not to get wet inside. Mr. Capps stated that the hands of Respondent's employees "do come in contact with the solvent, at least the hand that holds the neck of the container, as you are bound to slop it up on your fingers" (Tr. 129).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Mr. Capps explained that the film was made at Respondent's premises in Kansas City but that it depicts the typical procedure followed at the Goleta plant or at any other plant of Respondent, although the sizes of bottles or the type of enamel used may vary at the different places of manufacture (Tr. 126-7).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Mr. Capps said that before the issuance of the citation there had been no instructions given to its employees performing the solvent washing operation as to use of any protective equipment. He was not aware of any recommendation in this regard from Respondent's insurer or aware of any employee having dermatitis or any injury as a result of using Stoddard Solvent (Tr. 130-2).
Mr. Holmes testified on rebuttal that he observed three of Respondent's employees washing bottles in the solvent in the following manner when he inspected Respondent's Goleta plant (Tr. 211):
I observed them for a period of approximately one-half hour and the three female employees involved during that entire time had both hands completely moist for the entire duration of that time period about to the wrist and possibly a little above.
He noted also that such employees did rub "quite vigorously" on the bottles at times (Tr. 210). He acknowledged that he did not know if what he saw was "typical" of Respondent's solvent washing process.
According to Mr. Holmes, two representatives of Respondent whom he saw at the time of the inspection, a Mr. Hayes and a Mr. Manriquez, stated that the bottle washing "situation" had been discussed with Respondent's insurance carrier (Tr. 208-9).
Mr. Howland testified that he is a chemist with a Master of Science degree. His work is concerned primarily with gasoline and petroleum solvents. He said that he was familiar with Union 76 S-76 solvent, which he identified as a "Stoddard Solvent." According to the witness, a Stoddard Solvent is used primarily in the dry cleaning industry as it will dissolve dirt as well as fats and oils. He stated that the product is also used as a paint thinner (Tr. 24). He described Stoddard Solvent in chemical terms as a 100 per cent petroleum distillate containing a mixture of hydrocarbons, typically composed of 29% parafins, 64% napthenes and 7% aromatics (Tr. 24-5). Its composition, he said, is fairly uniform and has a boiling point range of about 300-360 degrees Fahrenheit. The manufacture of Stoddard Solvent involves a distillation process, also hydrogenation to remove sulphur and, finally, extraction to reduce aromatics (Tr. 45). Mr. Howland explained that the boiling point as well as the percentage of aromatics present will affect the rate of evaporation of a solvent (Tr. 29-36). S-76 has a lower boiling point, he said, than some other Stoddard Solvents (which may go as high as 410 degrees, Tr. 20). S-76 is "low to average" in aromatics (approximately 7, Tr. 30). Aromatics, according to the witness, do not evaporate as fast as parafins and napthenes. Mr. Howland identified the label which Union 76 places on its S-76 solvent (Tr. 26). It reads in part (Secretary's Ex. 1):
DANGER HARMFUL OR FATAL IF SWALLOWED COMBUSTIBLE
Contains Stoddard Solvent.
Keep a way from heat and open flame.
Use with adequate ventilation.
Avoid prolonged breathing of mist or vapor.
Avoid frequent or prolonged contact with the skin.
If swallowed, do not induce vomiting.
Call a physician immediately.
KEEP OUT OF REACH OF CHILDREN.
Mr. Howland testified on cross-examination that he had been exposed to physical contact with Stoddard Solvent over a period of 28 years without irritation. Further, he knew of no one in the Research Center where he was employed that had a problem of that kind. According to the witness (Tr. 41):
We have worked at times for periods of weeks maybe where we are working on the refining procedures for the solvent, where we are doing laboratory treating and extraction, blending or working with the solvent and it would go on for a matter of weeks where there would be intermittent contact with it and there has not been any problem of irritation from that solvent that I know of.
He pointed out that gloves were available in his laboratory but added "we don't consider the solvent to be hazardous material" (Tr. 42).
Mr. Schneider testified that he has a bachelor's degree in chemistry and has completed a master's program in environmental health except for the completion of his thesis. He is a registered professional chemical engineer. As an industrial hygiene engineer for the State of California, a position he has held since July 1970, he is concerned with providing technical support to the State's Division of Industrial Safety, training of occupational health specialists and development of standards for the control of hazardous industrial environments. He routinely reviews industrial disease and work injury reports filed by physicians with the State, visits workplaces and consults with physicians and other professional experts. Mr. Schneider said that he was employed for a number of years in the industrial safety-hygiene field by Lockheed Aircraft Corporation and North American (now North American Rockwell Corp.). He was also employed as a chemist for the Los Angeles Pollution Control District and in the Los Angeles City Health Department.
Mr. Schneider said he was familiar with Stoddard Solvent and has used it himself. In Mr. Schneider's opinion; skin contact with the solvent did present a hazard: "handled at room temperature, it is less of an inhalation hazard but more of a primary irritant to the skin" (Tr. 53-4). According to Mr. Schneider a solvent like S-76 "must not be allowed to come into prolonged contact with the unprotected skin" for the reason that "it dissolves the fat and oil in the integument or skin of the body thereby removing a barrier to the intrusion of bacteria" (Tr. 81-2). The witness said he would recommend that an employee exposed to skin contact with Stoddard Solvent be protected with an impervious apron, a face shield or safety goggles "and with impervious gloves containing a cotton liner so that the individual who wears the gloves will not complain of his hand sweating . . ." (Tr. 85). n3 He believed other industrial hygienists would agree with his recommendations (Tr. 86). Such recommendations were based on his review of the literature and experience; including the review of industrial injury reports and state legal requirements (Tr. 84-5; 104-5). He testified that a friend once apparently received a burn as a result of contact with the solvent (which "surprised" him, Tr. 98-9). He also recalled a physician at the Los Angeles Health Department "was involved in a dermatitis case in connection with Stoddard Solvent" (Tr. 72, 97). He could not specifically recall, however, any industrail complaint involving Stoddard Solvent (Tr. 96). Mr. Schneider was not aware if Stoddard Solvent were considered an "irritant" under any specific law or regulation (Tr. 92) and acknowledged that he was not able to say how much contact was necessary to produce an irritation (Tr. 106).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Dr. Rhinehart stated that wearing of the improper gloves could produce perspiration and dermatitis (Tr. 200).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Dr. Rhinehart testified that he is employed by Ethyl Corporation, Respondent's parent, as an Environmental Toxicologist. He is responsible for industrial hygiene of the entire corporation and its subsidiaries, including Respondent. He is responsible for the toxilogical evaluation and precautionary labeling of Ethyl Corporation chemicals (Tr. 134). He holds a B.S. in chemistry, a masters degree in industrial hygiene and a doctorate in applied hygiene. While he is not a physician he holds an appointment as a Clinical Assistant Professor at Tulane Medical School. Dr. Rhinehart said he had been employed as a chemist and as a toxicologist for the Chemical Warfare Service of the Armed Forces and has provided industrial hygiene services to Standard Oil of California and to Allegheny County, Pennsylvania as well as to Ethyl Corporation. He is a member of the American National Standards Institute as well as professional societies within his field.
Dr. Rhinehart said he had tested and worked with Stoddard Solvent. He pointed out that any hazard in using such solvent is related to the two factors of volability and aromaticity. A material of high volatility and low aromaticity will not stay on the skin long and, thus, is less likely to cause irritation (Tr. 140, 156). In Dr. Rhinehart's opinion, Stoddard Solvent presents no "absorption problem" (Tr. 143) and is not an "irritant." He also indicated that he did not consider it "hazardous" if properly used (Tr. 158). In his opinion, Respondent's use of the solvent at the Goleta plant has been proper and has presented no hazards. He believed that most of his "peers" would agree with his opinion (Tr. 196). He knew of no injury as a result of using the product (Tr. 155).
According to Dr. Rhinehart, Stoddard Solvent is not considered an irritant under any federal or any state law or any regulation of which he is aware. He stated that it is not even considered an irritant to the eye (Tr. 141-2). While he did not think it "good practice" for a man to dip his arm into any solvent for several hours a day (an "extremely adverse" situation), he felt that Respondent's washing process shown in the film did not present a "hazardous situation" (Tr. 150-1). n4 He testified that the precautionary language on the Union 76 label, "Avoid frequent or prolonged contact with the skin," was not mandatory and is included on the label to "prevent people from misusing the substance" (Tr. 148-50).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Dr. Rhinehart had not seen the bottle washing process at Respondent's Goleta plant but said he was generally familiar with the operation there (Tr. 195).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Dr. Rhinehart explained on cross-examination that "misuse" of the solvent would include a situation where a person would be excessively exposed ("more than several hours") to Stoddard Solvent "contaminated with used oils, grease and this type of thing, and I believe that this dirty material is responsible for more of the rashes than the Stoddard itself" (Tr. 179-80). In such a situation, he would recommend use of protective equipment (Tr. 182). Dr. Rhinehart indicated that at what point use of protective equipment is to be worn involves "judgment factors" and industrial hygienists may well not agree on the "cut-off point" in terms of the amount of exposure (Tr. 180-1). He would, however, institute protective measures if any employee suffered an ill effect, including any minor drying of skin (Tr. 182). He acknowledged that Stoddard Solvent alone is capable of dissolving fats and oil of the skin if the exposure is long enough to result in a "net loss" (Tr. 190). And he stated that it would be good practice for an employee to wear protective equipment if there were a "continual exposure" of the solvent to an employee's skin for eight hours a day five days a week (Tr. 191). He went on to explain what he meant by excessive exposure or misuse of the product as follows (Tr. 192):
So, it would be gross exposure such as you tried to get here; eight hours a day five days a week with an appreciable contact. By appreciable here, I mean almost continually dipping the hands in and out and pulling something out like this and so forth without proper measures of clean-ups during breaks, lunch periods, after work and so forth. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 On re-direct the doctor indicated that cross-examination presented "gross exaggeration of conditions as they exist" (Tr. 197).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
III. DISCUSSION
In this Judge's view, the record establishes a violation of the standard set forth at 29 C.F.R. 1910.132(a) and, thus, Section 5(a)(2) of the Act. The regulation imposes a duty on an employer to provide gloves or other appropriate protective equipment for his employees if the employment calls for them to come in physical contact with a "chemical hazard . . . in a manner capable of causing injury or impairment in the function of any part of the body . . ." The evidence in support of the Secretary's case is not overwhelming, but it is adequate to support the citation and complaint.
The Stoddard Solvent as used in Respondent's bottle washing process is a chemical "hazard." The word "hazard" is a broad term. The word connotes risk as opposed to certainty. People v. Miller, 327 P.2d, 236, 238 (Calif. 1938). It has been construed by the courts in a variety of contexts. It is commonly defined as a danger or risk lurking in a situation or place. See, for example, Eschmann v. Moyer, 220 So. 2d 86, 93 (La. 1969); also Service Welding & Machine Co. v. Michigan Mutual Liability Co., 311 F. 2d 612, 617 (6th Cir. 1962). It is the source from which an accident may arise or a danger or risk develops into an active agency of harm. Ketona Chemical Corporation v. Globe Indemnity Company, 404 F. 2d 181, 185 (5th Cir. 1968). It may involve a sharp curve, steep steps or one's life. Service Welding & Machine Co. v. Michigan Mutual Liability Co., supra. It can also involve the prolonged use of Stoddard Solvent.
Physical contact with Stoddard Solvent was not shown to be a serious hazard. There is no probative evidence that any individual has suffered any serious injury or impairment as a result of skin contact with Stoddard Solvent. And there is evidence that the product has been used, at least with intermittent contact with the skin, over a period of years. It can be argued that such experience demonstrates that there is no real risk of injury. But the standard requires that an employer furnish protective equipment even if there is only a possibility -- if "encountered in a manner capable of causing injury or impairment" (emphasis added) -- of an impairment to the body. That has been shown.
Witness Howland did not consider Stoddard Solvent to be "hazardous material" and was aware of no "problem of irritation" among Union employees at his laboratory over a period of many years of use. Their contact with it, however, was "intermittent," evidently not at all equal to the exposure that Respondent's employees have had with it at the Goleta plant. Mr. Howland also pointed out that gloves have been made available to Union employees in his laboratory and are worn "if there is to be a lot of work" with the solvent (Tr. 41).
Dr. Rhinehart, who is responsible for the industrial hygiene of Respondent's employees, is unquestionably a well-qualified expert. In testifying for the Respondent, he stressed the fact that Stoddard Solvent has not been classified as an irritant. Such fact, however, does not mean its use on the skin could not present a potential hazard. Dr. Rhinehart did not really dispute this or the wisdom of the non-mandatory language on the Union 76 label for its Stoddard Solvent warning against frequent and prolonged contact with the skin. He acknowledged that continual exposure of the skin to Stoddard Solvent day after day would result in a "net loss" of fats and oils in the skin, which could at least result in some drying out of the skin. To be sure, Dr. Rhinehart considered this would involve "misuse" of the product and a "gross exaggeration" of what has taken place at Respondent's Goleta plant.
In the Judge's view, the record does demonstrate that there was prolonged contact with the skin, day after day, without the necessary protection. In exonerating Stoddard Solvent as used by Respondent, Dr. Rhinehart took for granted that there was only intermittent contact with the substance. But the testimony of Compliance Officer Holmes indicated that the bottle washing procedure at Respondent's Goleta plant at the time of his inspection did involve excessive exposure of the product to the skin, certainly enough that it would be capable of causing, at the very least; a drying out of the hands of the bottle-washing employees. Mr. Holmes said that both hands of the three employees he saw were moist during the entire 30-minute period that he observed them working. He did not contend that what he saw was "typical" of Respondent's washing process. Yet, it was probative and persuasive evidence of Respondent's actual washing process. The agreement of the Secretary's counsel to stipulate Respondent's demonstration film into evidence did not foreclose her from showing that what the film depicted was not "typical" of what the Secretary's compliance officer saw of Respondent's washing procedure. Dr. Rhinehart stressed the need for clean-up procedures for those exposed to Stoddard Solvent, but Respondent did not explain what clean-up procedures were in use at the Goleta plant.
The expert testimony was not in real conflict. Neither Dr. Rhinehart nor Mr. Schneider would undertake to state at what point use of the solvent would produce an irritation or present a risk to the skin. Mr. Schneider would, no doubt, invoke protective measures before Dr. Rhinehart would. Mr. Schneider would recommend use of protective equipment before any employee developed any evidence of an impairment. This is in accord with the purpose of the regulation in requiring protective equipment even if there is but a possibility of injury. The undersigned does consider the opinion of Mr. Schneider, who testified as an impartial witness in the case, as sufficient to support the Secretary's allegation that use of the Stoddard Solvent at Respondent's Goleta plant involved an encounter with a chemical hazard in a manner capable of producing an impairment to the body.
While it is understandable that Respondent believed that use of Stoddard Solvent at the Goleta plant presented no real risk to its employees, the application of the standard does not present any serious constitutional issue. Vague laws in any area of the law of course may well suffer a constitutional infirmity. Ashton v. Kentucky, 384 U.S. 195, 200 (1965). In the early part of this century, the Supreme Court sustained challenges to economic regulation on this ground. n6 Respondent cites two of these cases, International Harvester Co. v. Kentucky, 234 U.S. 216 (1913) and United States v. Pennsylvania Railroad Company, 242 U.S. 208 (1916). But the regulatory laws involved in both of these cases placed the businesses involved in a far different position than Respondent is here. In the International Harvester case, the courts had interpreted a state constitutional provision and two statutes to permit conduct to affect prices unless it was "for the purpose or with the effect of fixing a price that was greater or less than the real value of the article." "Real value" had been construed to mean "market value under fair competition, and under real market conditions." Understandably, Justice Holmes concluded that it was impossible for businessmen to know what standard of conduct was prescribed (234 U.S. at 223):
To compel them to guess on peril of indictment what the community would have given for them if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers, is to exact gifts that mankind does not possess.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Later, the Supreme Court developed a distinct standard of impermissible vagueness in First and Fourteenth Amendment cases. See Ware v. Nichols, 266 F. Supp. 564 (1967) and cases therein cited at pp.568-9.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In the Pennsylvania case, an ICC order required the carrier to "provide . . . upon reasonable request and reasonable notice, at complaintant's respective refineries, tank cars in sufficient number to transport said complaintant's normal shipments in interstate commerce." Here, again, the Court clearly indicated that a business subject to such regulation was entitled to a clearer and more definite statement of the requirements of the law (242 U.S. at 237):
What is a reasonable request or reasonable notice, and what are normal shipments? The order affords no answer . . .
The Respondent in the instant case is not in either of the situations.
Respondent also contends that the Secretary may not by regulation lower the standard of conduct under the Occupational Safety and Health Act of 1970 so that there is less guidance than that afforded under the "general duty" standard of Section 5. As it points out, such standard requires proof of a "recognized" hazard which would at least "likely . . . cause death or serious physical harm . . ." The undersigned does not so understand the Act to so limit the Secretary. In fact, Section 5(a)(2) and other provisions of the Act suggest a different Congressional intent.
The record does not suggest that any penalty should be assessed, and the Secretary has not proposed one.
CONCLUSIONS OF LAW
1. Respondent is an "employer" and "a person engaged in a business affecting commerce" within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. Respondent violated the personal protective equipment standard set forth at 29 CFR 1910.132(a) and Section 5(a)(2) of the Act.
3. The violation was not a "serious" one as defined in Section 17(k) of the Act.
4. The non-assessment of a proposed penalty was appropriate.
ORDER
Based on the foregoing, it is ORDERED that the Secretary's Citation herein dated September 21, 1971, be, and the same hereby, is AFFIRMED.