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.