SECRETARY OF LABOR,
Complainant,
v.
PPG INDUSTRIES, INC., INDUSTRIAL
CHEMICAL DIVISION,
Respondent.
INTERNATIONAL CHEMICAL WORKERS
UNION AND ITS LOCAL 45,
Authorized Employee
Representative.
OSHRC Docket No. 82-1195
DECISION
Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
BY THE COMMISSION:
This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
§ 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678 ("the Act"). The Commission is an adjudicatory agency, independent of
the Department of Labor and the Occupational Safety and Health Administration
("OSHA"). It was established to resolve disputes arising out of enforcement
actions brought by the Secretary of Labor under the Act and has no regulatory functions.
See section 10(c) of the Act, 29 U.S.C. § 659(c).
As a result of an inspection of a plant in Natrium, West Virginia, by an OSHA industrial
hygienist, two citations were issued to PPG Industries, Inc., Industrial Chemical Division
("PPG"). This review concerns only one item in one citation. That item alleged
that. PPG committed a serious violation of 29 C.F.R. § 1910.134(f)(2)(ii)[[1]] by failing
to fully charge the air cylinders of six self-contained breathing apparatuses
("SCBA's") In four different departments in the plant. A combined penalty of
$420 was proposed for that item and another item.
The six SCBA's at issue, which were kept in fiberglass boxes that were mounted on walls,
were intended for use only by designated employees for shutdown and repair operations in
the event of a chemical leak or spill or other emergency. Those designated employees were
trained in the use of the SCBA's. In addition, for escape purposes, each employee had his
or her own respirator and access to gas masks.
Five of the cited SCBA's were charged to 1900 psi (pounds per square inch) while one was
filled to 1850 psi. According to the. manufacturer's instructions, the cylinder on each
SCBA should be fully charged at 2015 psi plus 10 percent overcharge, which would supply
approximately 30 minutes of air under ideal conditions. However, users could get as little
as 15 minutes of breathing air from a fully charged cylinder because the time depends on a
number of factors, such as the exertion required to perform the work and the physical
condition of the employee. Each SCBA was equipped with an alarm that would ring when five
minutes of air remained in the cylinder. Each SCBA also had two pressure gauges, one of
which, when worn, would be on the employee's chest and could be observed by the employee.
PPG had a policy that a particular employee in each department must check SCBA's in the
department each month for such factors as sufficient pressure. If it was determined as a
result of the inspection that repair or recharging of the cylinder was necessary, that
work was accomplished by employees called safety cleaners. The safety cleaners also
inspected, serviced, and cleaned the SCBA's every six months. Records were kept of both
the monthly and six-month inspections.
In his decision, Administrative Law Judge Edwin G. Salyers concluded that PPG had violated
section 1910.134(f)(2)(ii), but he characterized the violation as de minimis rather than
serious. Based on the evidence showing that the SCBA's at issue were below the full charge
level, the judge concluded that PPG had violated the cited standard. However, the judge
concluded that the potential hazard of running out of air while in a contaminated
atmosphere would be eliminated by the chest gauge and the five-minute alarm bell. He
stated that the alarm would sound when five minutes of air remained, which would allow
enough time to evacuate the building, no matter whether the SCBA was fully charged or not.
The judge therefore reduced the charge from serious to de minimis and assessed no penalty.
The Commission is divided on whether the judge erred in concluding that the violation was
de minimis.[[2]] Chairman Buckley would affirm Judge Salyers' decision that the violation
was de minimis. [[3]] He notes that, under any circumstances, a fully charged SCBA
provides a limited amount of breathing time that will vary from 15 to 30 minutes due
factors such as the physical condition of the user and the of the work. Thus, employees do
not remain in a contaminated atmosphere in reliance on any specific amount of breathing
time from an SCBA. The only reliable means of assuring that an employee does not run out
of air are the Audi-Larm, which sounds when five minutes of air remain, and the chest
gauge, which indicates when the air supply is getting low. Chairman Buckley further notes
that the relatively slight amount by which the cited SCBA's were undercharged would not
substantially reduce the amount of breathing time available and would have no effect on
the time available after the Audi- Larm sounded. He therefore concludes that the violation
bears only a negligible relationship to employee safety and health and is properly
classified as de minimis. See, e.g., Keco Industries, Inc., 84 OSAHRC 7/A2, 11 BNA OSHC
1832, 1984 CCH OSHD ¶ 26,810 (No. 81-1976, 1984).
Commissioner Cleary would affirm the item as a serious violation. The cited SCBA's were
intended for use under emergency conditions in atmospheres incapable of supporting human
life. Because of the emergency conditions under which the respirators would be used, it is
important that the respirators be as fully charged as possible because unforeseeable
conditions, such as an employee becoming trapped or attempting to rescue another employee,
may endanger an employee who prematurely runs out of oxygen. Devices that warn the
employee that he is running out of air are simply another type of gauge which will tell
how much air,remains in the SCBA, but this is unrelated to a standard which requires that
the SCBA's contain a full supply of air. However, Commissioner Cleary would asses a
minimal penalty. He notes that PPG provided adequate emergency respirators and had a
program of inspection, repair, and recharging of SCBA's,.Moreover, all of the SCBA's
checked by the industrial hygienist, the percentage of insufficiently charged ones was
very small.
Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken by the
Commission with the affirmative vote of at least two members. The two Commission members
are divided on whether the judge erred in his disposition in this case. To resolve this
impasse and to permit this case to proceed to a final resolution, the members have agreed
to affirm the judge's decision but accord it the precedential value of an unreviewed
judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053,
1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991
(4th Cir. 1979).
FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
DATED: FEB 27 1985
FOOTNOTES:
[[1]]The cited standard reads as follows:
Self-contained breathing apparatus shall be inspected monthly. Air and oxygen cylinders
shall be fully charged according to the manufacturer's instructions. It shall be
determined that the regulator and warning devices function properly.
[[2]]As established by the Act, the Commission is composed of three members. Section
12(a), 29 U.S.C. § 661(a). Because of a vacancy, the Commission is currently composed of
two members.
[[3]] Chairman Buckley notes that no party has taken issue with the judge's
conclusion that the standard was violated. He therefore does not address that question.