SECRETARY OF LABOR,
PRATT & WHITNEY AIRCRAFT GROUP, INC.,
OSHRC Docket Nos. 85-0558 & 85-0598
John Casler, Esq., and Kevin Sullivan, Esq.
U. S. Department of Labor
W. Scott Railton, Esq., and John M. Wood, Esq.
Reed, Smith, Shaw & McClay
Rudy Buck, President, and John Bilodeau
Industrial Aircraft Lodge No. 1746 I.A.M.A.W.
Paul Schmelke, President, and
William L. Cormier
Int'l. Assoc. of Machinists and Aerospace Workers
DECISION AND ORDER
These cases arose under 29 U.S.C. section 651 et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration (OSHA) of the Respondent's premises on or about March 18 - April 26, 1985 [for #0558] and April 3 - May 6, 1985 [for #0598], Citation #1 was issued on or about April 29, 1985, for #0558 and Citation #1 for #0598 was issued on or about May 7, 1985, each charging that the Respondent violated section 5(a)(2) of the Act by the serious violation of the standard at 29 C.F.R. 1910.132(a) in that protective equipment was not used by employees who were exposed to oils containing elevated concentrations of poly- chlorinated biphenyl's [PCB's].
On or about May 23, 1985, the Respondent filed Notice of Contest to Citation #1 of case #0558 and the penalty proposed therefor, and on or about May 30, 1985, filed Notice of Contest to Citation #1 of case #0598 and the penalty proposed therefor.
The pertinent sections of the Act and the standard are appended to this decision under appropriate titles.
(1) Was the presence of PCB's in the oil hazardous to employees?
(2) If so, did the Respondent require employees to use personal protective equipment?
Representatives of Employees
Appearing as representatives of employees were Rudy Buck and Jean Bilodeau [Local 1746, East Hartford]; and Paul Schmelke and William Cormier [Local 700, Middletown]. All four attended conscientiously and, as apparent from the Transcript, they participated competently in the proceedings.
While working on machines in the Respondent's plants in East Hartford and Middletown, Connecticut, employees came in contact with oil used on the machines. Some of the oil was contaminated by PCB's.
The testimony of several of the employees was consistent with or tended to establish the contact with oil as a cause of rashes or skin disorders. For example, instances were determined where rashes appeared in places where oil had touched the employee's person, or a rash had disappeared when the employee was shifted to an area where there was no oil leakage from the machinery. However, those witnesses were all lay persons and often their testimony was weakened by other evidence, such as testimony from medical personnel, or the unexplained absence of rashes in the presence of oil, or the appearance of skin disorders even where there was no oil. For example, one employee [Cormier] testified he had rashes but didn't know what caused them . . . Tr. 73. Another employee [Graham] testified he had a rash but his physician didn't know what caused it . . Tr. 185. Another employee [Booker] testified in substance that from 1978 to 1982 she had had several skin disorders but no one could say exactly what caused them, and no one even mentioned oil as a possible cause. She said that three or four doctors were dermatologists who gave her their opinion that the condition was an allergic response to grinding dust . . . Tr. 203-210.
Personal Protective Equipment
It was clearly established that employees who worked on the machines in question were exposed to oil that was a part of the machine's normal operation or constituted leakage. Several employees gave direct testimony to that effect. Most of the witnesses also testified that they did not wear any kind of personal protective equipment and that the Respondent did not require them to use any. . . Tr. 27, 62, 122-142, 149, 163, 183, 184, 341-343, 410, 418, 526, 559, 836.
I find that most employees who were exposed to oil contaminated by PCB's did not wear protective equipment and the Respondent did not require them to use any
PCB's a Hazard?
As was pointed out in the cases of Secretary of Labor v. Anoplate Corporation, 12 OSHC 1678, Industrial Union Dept., AFL-C10 v. American Petroleum Institute, 448 U.S. 607, and Secretary of Labor v. Kastalon, Inc., and Conap, Inc., 12 OSHC 1928, to prove a hazard, the Complainant must show that the amount of poison to which the Respondent's employees are exposed presents a significant risk of harm; a significant risk at any level of exposure cannot be presumed simply because a "safe" level of exposure cannot be established; and the mere fact that the chemical is a suspect human carcinogen does not establish that a hazard exists.
In the instant case, the basic issue seems to be: assuming employees were exposed to oil contaminated by PCB's, did that constitute a hazard, as alleged? While the major witnesses on that question were the medical experts [Doctors Emmett, Sorenson, and O'Brien] the witnesses Boycenshi, Citroni, Owen, Gower, and Chamberlain also testified on it.
The testimony of Boycenshi, the OSHA industrial hygienist, tended to establish that,
while he believed PCB's were harmful, he would have to rely on the opinion of medical
experts . . . Tr. 620-621. Citroni, an environmental engineer, testified there was no
hazard to employees from PCB's . . . Tr. 774. Owen, an industrial hygienist and safety
professional, said the PCB's did not present a health hazard to the employees . . . Tr.
765. Gower, an engineer and safety professional, said there was no hazard to employees in
the way they could potentially come in contact with PCB's . . . Tr. 883. Chamberlain, a
safety engineer, said the hazard was "little to none" . . . Tr. 854-855.
Whether the presence of PCB's constituted a hazard really is a medical question that would be best decided on the testimony of the three expert witnesses, Doctors Emmett, Sorenson, and O'Brien.
Dr. Emmett's testimony tended to establish that there are 209 different kinds of PCB's; that they can enter the body in various ways including inhalation, skin absorption, and ingestion, with the major route being absorption of PCB's through the skin; that everyone has positive low levels of PCB's in the blood; that the hazards of exposure to PCB's are chloracne, liver damage, neurological damage, production of toxicity to the immune system; and PCB's are carcinogenic to animals...Tr. 234-248, 263.
However, Dr. Emmett also testified in substance that there is really no precise knowledge about chloracne; that there is very little knowledge about liver damage; that just what happens to the immune system is not clear; that little is known about neurological damage, and most of the studies have been of monkeys; and there is not enough knowledge about the carcinogenic effects of PCB's on animals...Tr. 234-239, 263.
In answer to the question: "...you do not have any good information on the effect of PCB exposures on existing diseases in people?" Dr. Emmett said: "Yes, I think that is probably correct..."
Dr. Emmett was also asked: "And you have no information or no good information...with respect to the amount of PCB's that are needed to cause liver damage, correct?" His answer: "That would be correct. We know that it can cause liver damage but we don't have--we can't, with any accuracy, say at what level that occurs"...Tr. 280-290, 301.
Dr. Emmett was also asked if he knew of any studies that have been done on exposure of
people to hydraulic oils for periods of time, such as an eight hour
shift. He answered that he had "not seen any studies of such work "... Tr. 301. He also said that he had no idea of the types of PCB's that were found at the Respondent's plant ... Tr.296.
Dr. Sorenson testified that the rashes sustained by employees were not due to PCB's, and these was no hazard . . . Tr. 917-924, 947, 948.
Dr. O'Brien testified that he would not expect any PCB-related disease from the levels described in the case; and that the rashes sustained by employees were not due to oil contaminated by PCB's . . . Tr. 964-969.
In my opinion, all three were excellent witnesses who were well-qualified and honest. I do not give more weight to the testimony of any one of the three than to the others. In my opinion, an analysis of their testimony clearly indicates that there is not enough knowledge about PCB's to justify any finding based on their presence at any of the levels described in the case. The "proof" does not rise above speculation or conjecture; and any conclusions to be drawn amount at most to possibilities rather than probabilities.
Although the Respondent pleaded section 4(b)(1) as one of its defenses, no evidence was presented at the hearing to sustain it. In any event, 15 U.S.C.A. 2608 says that for purposes of section 653(b)(1), the Environmental Protection Agency is not deemed to be exercising any statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. I find that section 4(b)(1) is not available to the Respondent as a defense.
Proposed Findings of Fact and Conclusions of Law
Except as found in other places in this decision, the Respondent's Proposed Findings of Fact and Conclusions of Law have not been found or concluded.
FINDINGS OF FACT
Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made:
1. At all times concerned, the respondent regularly received, handled or worked with goods which had moved across state lines.
2. As concerns Citation #1 of #0558 and Citation #1 of #0598, employees were exposed to oil that was contaminated by PCB's but there was no proof that those conditions exposed the Respondent's employees to sustaining harm because of PCB's in the oil; and there was no proof that those conditions exposed the Respondent's employees to sustaining serious or fatal harm because of PCB's in the oil.
3. Employees of the Respondent who were exposed to oil contaminated by PCB's were not required to wear personal protective equipment.
4. One or more officers or supervisory personnel of the Respondent knew of the conditions described herein and knew that employees who were exposed to oil contaminated by PCB's were not wearing personal protection equipment.
CONCLUSIONS OF LAW
1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties.
2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the conditions that constituted the alleged violation.
3. The Complainant has not sustained the burden of proving the Respondent violated section 5(a)(2) of the Act (section 654).
The whole record having been considered, and due consideration having been given to 29 U.S.C. section 666(j), it is ordered: (1) Citation #1 of case #0558 is vacated, together with the penalty assessed therefor, (2) Citation #1 of case #0598 is vacated, together with the penalty assessed therefor.
It is ORDERED.
Dated: January 2, 1987
Section 654 [section 5 (a)(2)] Employer" ...shall comply with occupational safety and health standards..."
Section 666 [section 17(b) ]"...employer who has received a citation for a serious violation ... of this Act ... shall be assessed a civil penalty of up to $1,000 for each such violation."
Section 666 (section. 17(c)] "...employer who has received a citation for a violation of ... this Act ... specifically determined not to be a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation."
Section 666 [section 17(j)] "...assess all civil penalties ...giving due consideration to...the size of the business... gravity of the violation, the good faith of the employer, and the history of previous violations."
Section 666 [section 17(k)] "...a serious violation shall be deemed to exist... if there is a substantial probability that death or serious physical harm could result... unless the employer did not, and could not... know of the presence of the violation."
29 C.F.R. § 1910.132(a): "Protective equipment, including personal protective equipment for eyes, face, head, and extremities . . . shall be provided, used, and maintained . . . whenever 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."
SECRETARY OF LABOR,
PRATT & WHITNEY AIRCRAFT GROUP, INC.,
OSHRC Docket Nos. 85-0558 & 85- 0598
The Commission grants the Secretary's motion to withdraw his citation.
FOR THE COMMISSION
Ray H. Darling, Jr.
Dated: May 28, 1987