SECRETARY Of LABOR,
Complainant,

v.

MONSANTO COMPANY,
Respondent,

and

INTERNATIONAL CHEMICAL WORKERS
UNION AND ITS LOCAL 561,
Authorized Employee Representative.

OSHRC Docket No. 86-0391

ORDER

The Parties' Stipulation and Settlement Agreement is approved. This order is issued pursuant to a delegation of authority to the Executive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: December 4, 1987


WILLIAM E. BROCK,
SECRETARY OF LABOR,
Complainant,

v.

MONSANTO COMPANY,
Respondent,

and

INTERNATIONAL CHEMICAL WORKERS
UNION AND ITS LOCAL 561,
Authorized Employee Representative.

OSHRC DOCKET NO. 86-0391

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement of the instant case which is currently pending before the Commission.

II

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29 U.S.C. 651 et seq.) (hereinafter "the Act").

(b) Respondent, Monsanto Company, is a corporation with a place of business and a plant facility located in Addyston, Ohio. Respondent's principal place of business is located in St. Louis, Missouri. It is engaged in the business of manufacturing chemicals and during the course of its business its employees perform various tasks in the nature of producing chemicals. During the course of its business, respondent uses materials and equipment which it receives from places located outside Addyston, Ohio. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by sections 3(3) and 3(5) of the Act, and has employees as defined by Section 3(6) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on November 26, 1985 at Monsanto's Port Plastics workplace at River Road, Addyston, Ohio, a citation alleging two other-than-serious violations of the Hazard Communication Standards at 29 CFR 1910.1200(f)(1)(ii) and 1910.1200(g)(2)(vi), with no proposed penalty, was issued to Respondent on March 11, 1986, pursuant to Section 9(a) of the Act, all of which was attached to the Complaint in OSHRC Docket No. 86-0391.

(d) Respondent timely contested the citation as to all items in the citation. The Secretary agreed to vacate certain items in the citation prior to hearing, but not other items. On April 3, 1987, the Commission Administrative Law Judge James D. Burroughs issued his Decision and Order on the amended citation in which he affirmed the alleged violation of 1910.1200(f)(1)(ii) [items 1 and 4 of item 1b(a)], which is the subject of the instant Stipulation and Settlement Agreement. The judge also affirmed the alleged violation of 1910.1200(g)(2)(vi), and stated in his decision those items of the citation previously vacated. Thereafter, respondent filed a timely Petition for Discretionary Review which was granted by the Commission on May 26, 1987. The Commission issued a Briefing Notice on June 5, 1987.

III

Now the Secretary of Labor and Monsanto Company, in order to conclude this matter without the necessity of further litigation, stipulate and agree as follows:

(a) Respondent hereby states that it promptly will abate the alleged violation of 1910.1200(f)(1)(ii) by including, until such time as may otherwise be required or be permitted by law, the following words on the label Respondent prepares for its chemical product styrene monomer, inhibited:

1. Excessive overexposure can cause central nervous system effects.

2. An irritant to the respiratory tract.

(b) The Secretary hereby withdraws its citation for alleged violation of 1910.1200(f)(1)(ii), with prejudice, issued to Respondent on March 11, 1986. The Secretary believes that the judge's decision was correctly decided. However, in view of Respondent's existing comprehensive hazard communication program and its representation contained herein, the Secretary has determined that further litigation of this case is not merited.

(c) Respondent and Complainant agree that each party shall bear its own fees, costs and other expenses incurred by such party in connection with any stage of this proceeding.

(d) Nothing is this Stipulation and Settlement Agreement constitutes any admission by the Respondent of any violation of the Occupational Safety and Health Act or regulations and standards promulgated thereunder. Further, nothing in this Settlement Agreement, nor any order of the Commission entered pursuant to this Stipulation and Settlement Agreement, nor any documents gathered or prepared in connection with this matter constitute, or shall be construed by any person, or federal or state court or agency to constitute, any wrongdoing either civilly, criminally, at common law, or under any state or federal statute or regulations promulgated thereunder. Further, neither this Stipulation and Settlement Agreement nor any order of the Commission entered pursuant to this Stipulation and Settlement Agreement, nor any documents gathered or prepared in connection with this matter shall be offered, disclosed, used or admitted in evidence in any other proceeding or litigation, whether state or federal, or whether civil, criminal or administrative, except for subsequent proceedings pursuant to the Occupational Safety and Health Act involving Respondent. By entering into this agreement, the Respondent does not admit to the truth of any alleged facts contained in the citation, as amended, to any of the characterizations of the Respondent's alleged conduct by Complainant, or to any of the conclusions set forth in the citation, as amended, in this matter.

Respondent specifically denies and disclaims any violation of the Occupational Safety and Health Act or regulations and standards promulgated thereunder, believes the judge's decision was incorrectly decided, and states that it is entering into this Stipulation and Settlement Agreement solely for the purposes of compromising and settling this matter economically and amicably and avoiding the cost and expanse which would otherwise be associated with the further litigation of the issues raised by the citation, as amended.

IV

Respondent agrees to post this Stipulation and Settlement Agreement in accordance with the Commission Rules 2200.7 and 2200.100.

WHEREFORE, the parties request that this Stipulation and Settlement Agreement be approved by the Commission.

ORLANDO J. PANNOCHIA                     MICHAEL S. GLASSMAN
Attorney for the Secretary of Labor           Attorney for Monsanto Company

 

 

SECRETARY OF LABOR,
Complainant,

v.

MONSANTO COMPANY,
Respondent,

and

INTERNATIONAL CHEMICAL WORKERS
UNION and its LOCAL 561,
Authorized Employee Representative.

OSHRC Docket No. 86-0391

APPEARANCES:

Bruce C. Heslop, Esquire, Office of the Solicitor, U. S.
Department of Labor, Cleveland, Ohio, on behalf of complainant

Michael S. Glassman, Esquire, Cincinnati, Ohio, on behalf of respondent

Mr. William Wegman, President, International Chemical Workers Union, Local 561, on behalf of authorized employee representative

DECISION AND ORDER

Burroughs, Judge: Monsanto Company ("Monsanto") contests alleged violations of 29 C.F.R. 1910.1200(f)(1)(ii), for failure to include appropriate hazard warnings on labels for styrene monomer, inhibited and 29 C.F.R. 1910.1200(g)(2)(vi), for allegedly failing to list the OSHA 200 ppm ceiling PEL for styrene and the OSHA 600 ppm peak PEL for styrene on the material safety data sheet ("MSDS").

On November 26, 1985, Compliance Officer Jim Washam conducted an inspection at Monsanto's Port Plastics plant located in Addyston, Ohio. The inspection was conducted as part of the Occupational Safety and Health Administration's ("OSHA") special emphasis program for enforcing the newly enacted Hazard Communication Standard ("HCS"). As a result of the inspection, an "other" citation was issued to Monsanto on March 11, 1986. On October 20, 1986, a Motion to Amend Citation was received from the Secretary. A Supplemental Motion to Amend Citation was received from the Secretary on November 3, 1986. The motions dismissed item 1a of the citation, deleted warning number three listed under item 1b, dismissed item two, dismissed subitem (a) of item three and amended the description of the alleged violation set forth as subitem (b) of item three. The motions were granted by order dated November 4, 1986. At the commencement of the hearing, the Secretary withdrew item 1c of the citation (Tr. 4). Remaining for decision are the alleged violations set forth as items 1b, alleged violation of 29 C.F.R. 1910.1200(f)(1)(ii), and subitem (b) of item three of the amended citation, alleged violation of 29 C.F.R. 1910.1200(g)(2)(vi).

Styrene monomer, inhibited is produced by Monsanto for out-of-plant shipment to, and use by, manufacturing sector customers (Tr. 6). The label on containers leaving the plant and the MSDS for that substance were obtained by the Secretary's representative during the inspection of Monsanto's plant facility on November 26, 1985 (Exs. 1, 2; Tr. 12-14). In recommending that a citation be issued, Industrial Hygienist James Sweeney, who reviewed the data collected by Washam, referred to provisions of the HCS and to OSHA Instruction CPL 2-2.38 dated August 5, 1985 (Ex. 3; Tr. 17-18).

On November 25, 1983, OSHA promulgated the HCS in its final form. 48 Fed. Reg. 53,280 (1983). Its purpose is to provide for uniform requirements in the manufacturing sector concerning information made available to workers regarding toxic and hazardous substances in the workplace. The standard recognized the need for apprising workers of the hazards of chemicals handled in the workplace. 48 Fed. Reg. 53,281 (1983). The first substantive provision of the HCS requires chemical manufacturers and importers to evaluate the chemicals produced in their workplace or imported by them to determine if they are hazardous. 29 C.F.R. 1910.1200(d)(1).

The standard combines an evaluation approach with a list incorporation approach. It refers to several lists that establish substances which chemical manufacturers or importers must treat as hazardous. 29 C.F.R. 1910.1200(d)(3) and (d)(4). Chemicals not included in the designated lists must be evaluated to determine if they are hazardous by reference to "available scientific evidence." 29 C.F.R. 1910.1200(d)(2). "[E]vidence which is statistically significant and which is based on at least one positive study conducted in accordance with established scientific principles is considered to be sufficient to establish a hazardous effect if the results of the study meet the definitions of health hazards in this section." 29 C.F.R. 1910.1200(d)(2).

The first list incorporated in the standard is OSHA's own toxic and hazardous substance section.[[1/]] The second list incorporated is the latest edition of Threshold Limit Values for Chemical Substances and Physical Agent in the Work Environment, a work by the American Conference of Governmental Industrial Hygienists. The standard incorporates three lists to establish chemicals as carcinogens or potential carcinogens.[[2/]] The standard further provides for the treatment of chemical mixtures. 29 C.F.R. 1910.1200(d)(5). If the mixture in question has been tested as a whole to determine its hazards, the results must be used to determine whether the mixture is hazardous. If the mixture has not been tested as a whole, it is presumed to present the same health hazard as the components which comprise one percent or greater of the mixture.

The standard provides for dissemination of information by three methods. First, it requires labeling of all hazardous substances that leave the workplace of the manufacturer, importer or distributor. 29 C.F.R. 1910.1200(f). This is one of the most important provisions of the HCS. Under this provision chemical manufacturers, importers, and distributors are to ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with (i) the identity of the hazardous chemical; (ii) appropriate hazard warnings; and (iii) the name and address of the chemical manufacturer, importer or other responsible party.[[3/]]

The HCS also requires chemical manufacturers and importers to obtain or develop a MSDS for each hazardous chemical they produce or import. Employers are required to have a MSDS available for each hazardous chemical which they use. 29 C.F.R. 1910.1200(g)(1). The MSDS provides technical information for a given chemical. Extensive information is required to be included on the MSDS. The MSDS must be provided to each employer in the manufacturing sector (SIC Codes 20-39) purchasing a hazardous chemical. Copies of the MSDS are required for each hazardous chemical in the workplace and must be readily accessible during each work shift to employees when they are in their work areas. 29 C.F.R. 1910.1200(g)(8).

A third requirement is imposed on employers by 1910.1200(h) and requires then to provide employees with information and training. Training must be provided at initial assignment and when any new hazard is introduced in the work area. Employees are to be informed of the requirements of the standard, of operations in their work area where hazardous chemicals are present, and of the availability of additional information. The training itself is to include methods to detect the presence or release of a hazardous chemical in the workplace, the physical and health hazards of the chemicals, protective measures, and explanations of the required labels and material safety data sheets.

Aside from the merits of the factual information concerning each of the alleged violations, Monsanto raises two legal arguments that must be considered. It contends that portions of the standard at issue in this case are invalid because OSHA had no authority to promulgate those requirements and that the standard does not require target organ effects to be included on the label. Monsanto submits that the requirement for target organ effects emanates from OSHA Instruction CPL 2-2.38 and not from the standard. It contends that OSHA Instruction 2-2.38 is invalid.

OSHA Did Not Lack Authority to
Promulgate the Label and MSDS Provisions

Monsanto contends that "OSHA's promulgation and enforcement of the Hazard Communication Standard, to the extent that it requires manufacturers to conform to standards for the benefit of downstream third-party employees, is beyond the scope of authority granted to it in the Occupational Safety and Health Act" (Brief, p. 13). It is argued that the Act does not give the Secretary authority to promulgate and enforce any standard that reaches beyond the workplace of the employer-employee relationship. This argument is aimed at those provisions of the HCS which impose the duty of hazard evaluation on the manufacturers who produce hazardous chemicals for distribution in commerce. While the HCS requires the manufacturer to disclose hazardous information to its employees, it also requires disclosure by the label and the MSDS to employers to whom the chemical is shipped. It is this last requirement which Monsanto believes exceeds the scope of authority granted in the Act.

In American Petroleum Institute v. OSHA, 581 F.2d 493 (5th Cir. 1978). aff'd other grounds sub nom., Industrial Union Dept. AFL-CIO v. American Petroleum Institute, 448 U. S. 607 (1980), the circuit court vacated the benzene standard. Although the labeling provision was vacated with the rest of the standard, the court addressed the jurisdictional attack on requiring labels to be affixed to all containers of benzene and benzene containing products since it was certain the labeling or some similar requirement would be considered by OSHA on remand. In the preamble to the standard, OSHA cited the American Petroleum Institute case in support of its authority to require labels and MSDS for downstream employers. 48 Fed. Reg. 53,322. Monsanto contends that the Act gave OSHA the authority to regulate workplaces, not products, and that American Petroleum was dicta and not controlling on the issue. In commenting on the issue, the court stated (581 F.2d at 510):

Placing the responsibility to warn downstream employees of concealed hazards on those upstream employers who create the hazards and know of the hazard is consistent with the remedial purpose of the Act and is within OSHA's broad authority to prescribe warning labels. If on remand OSHA decides to promulgate a new benzene standard which includes warning labels, OSHA may require an employer in the chain of distribution of those products to assure that such warning labels remain affixed when the product leaves the employer's workplace, provided, of course, the labeling requirement as a whole is shown to be reasonably necessary to provide safe workplaces.

The court expressly approves the label requirement where it "is shown to be reasonably necessary to provide safe workplaces." 581 F.2d at 510.

Monsanto argues that the dicta in American Petroleum Institute was rejected by the fifth circuit in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981), a negligence action concerning a third party's failure to follow OSHA regulations. The court rejected the argument that the failure of a third party that was not the plaintiff's employer to follow OSHA regulations establishes that third party's negligence. The court was concerned over the fact of whether the plaintiff was a member of the class that OSHA regulations were intended to protect. The court concluded that "OSHA regulations protect only an employer's own employees." 659 F.2d at 712. Monsanto argues that the dicta in American Petroleum Institute was openly criticized and rejected by the fifth circuit in Melerine and that OSHA "plainly lacks the authority to promulgate or enforce the Hazard Communication Standard as it relates to an employer's duties to downstream employees" (Brief, p. 17).

The Occupational Safety and Health Act ("Act"), 29 U.S.C. 651-678, was passed in 1970 to assure safe and healthful working conditions for the nation's work force and to preserve the nation's human resources. 29 U.S.C. 651 (1976). To achieve that goal, the Act allows the Secretary of Labor, after public notice and opportunity for comment by interested persons, to promulgate rules and standards for occupational safety and health. 29 U.S.C. 655(b). Section 6(b)(7), in particular, provides, in part:

Any standard . . . shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure.

The quoted provision authorizes the Secretary to prescribe the use of labels or other appropriate forms of warning. The authority is specific in this regard. The court in United Steelworkers of America v. Auchter, 763 F.2d 728 (3d Cir. 1985), concluded that the HCS was a standard promulgated under section 6 of the OSH Act. In making reference to section 6(b)(7), the court stated that "[t]he Secretary has given reasons why the labeling, MSDS, and instruction requirements comply with section 6(c)(7) [sic] for employees in the manufacturing sector . . . ." 763 F.2d at 738. The court's decision implicitly recognizes the authority of the Secretary to require the manufacturer or importer to label hazardous chemicals and to furnish a MSDS to downstream employers.

A manufacturer is not being held accountable for violations of the HCS by employees of downstream employers. All employers in SIC Codes 20-39 have the duty of providing information to their employees about the hazardous chemicals to which they are exposed. 29 C.F.R. 1910.1200(b)(1). This duty is imposed on manufacturers and importers for the benefit of their own employees. In carrying out this duty, chemical manufacturers and importers are required to assess the hazards of the chemicals which they produce or import in order to comply with the HCS with respect to their own employees. The only additional affirmative act required by the manufacturers and importers is that they transmit the information previously ascertained by them to downstream employers.

The HCS directs the manufacturer or importer to disclose hazardous information to their own employees and to employers to whom the chemicals are shipped by means of the label and MSDS. The manufacturer or importer is required to enforce the HCS with respect to its own employees. It is not accountable for lack of enforcement by a downstream employer. In a technical sense, the requirement imposed on the manufacturer or importer does not violate the fifth circuit's adherence to the policy that "OSHA regulations protect only an employer's own employees." 659 F.2d at 712. The HCS creates no duty on behalf of the manufacturer or importer to see that downstream employers enforce the requirements of the standard.

As the court noted in American Petroleum Institute, supra, the manufacturer is in a far better position to warn downstream employees in operations using their product. A heavy regulatory burden is not being imposed on the manufacturer solely for the benefit of the employees of another. The court observed that "the regulation [labeling requirement] says no more than that an upstream employer may not take affirmative steps to withdraw from downstream employees a protection that he must furnish to his own employees." 581 F.2d at 510. OSHA's promulgation of the standard is not beyond the scope of authority granted to it under section 6(b)(7) of the Act. See United Steelworkers of America v. Auchter, 763 F.2d 728 (3d Cir. 1985).

Target Organ Effects Required on Labels
OSHA Instruction CPL 2-2.38 Is Valid

The parties disagree as to whether target organ effects must be included on the label. Monsanto argues that "[t]he very first indication of OSHA's position that 'appropriate hazard warnings' required 'target organ effects' labeling came about only when OSHA issued Instruction CPL 2- 2.38" (Brief, p. 8). It contends that OSHA Instruction CPL 2-2.38 issued by the OSHA Office of Health Compliance Assistance on August 5, 1985, is a modification of the HCS "in that it, for the first time, requires target organ labeling when such was not previously required by the Standard and differentiates between the labels OSHA claims are required for in-plant and shipped containers" (Brief, p. 19). It argues that CPL 2-2.38 was a substantive modification to the HCS and was void for failure to follow the notice and comment procedures required by the Administrative Procedure Act. 5 U.S.C. 553.

For the reasons stated in this Judge's decision in Hilton-Davis Chemical Company (Docket No. 86-494, February 19, 1987), Monsanto's argument is rejected. The purpose of CPL 2-2.38 was to establish policies and provide clarifications of the HCS. It simply interpreted the HCS as a whole in advising the regulated persons as to how to proceed under the HCS. It did not create new requirements. It simply clarified existing requirements. Instruction CPL 2-2.38 is interpretative and was exempt from the rule-making requirements of 5 U.S.C. 553(b) and (c). The standard and not CPL 2-2.38 requires target organ effects labeling. CPL 2-2.38 merely interprets the HCS and provides guidance as to how the duty imposed by the HCS should be fulfilled. The words "appropriate hazard warnings" require that target organ effects be included on the label. Hilton-Davis Chemical Company, supra.

Styrene Monomer, Inhibited is a Hazardous Chemical

In determining whether the HCS is applicable, styrene monomer, inhibited must be found to be a hazardous chemical. The standard defines " hazardous chemical" as any chemical which is a physical or health hazard. 1910.1200(c). Pursuant to 1910.1200(d)(3),[[4/]] certain chemicals must be treated as hazardous. This includes chemicals listed in 29 C.F.R. Part 1910, Subpart Z, and those for which threshold limit values have been established by the American Conference of Governmental Industrial Hygienists. Styrene meets both criteria of 1910.1200(d)(3). For purposes of 1910.1200(f)(1), the record clearly establishes that styrene monomer, inhibited is a "hazardous chemical." Monsanto does not dispute this fact.

Alleged Violation of 29 C.F.R. 1910.1200(g)(2)(vi)

Subitem (b) of item three of the citation alleges a violation of 29 C.F.R. 1910.1200(g)(2)(vi). The description of the alleged violation was amended to read as follows:

The Material Safety Data Sheets for "Styrene Monomer, Inhibited" did not list the OSHA 200 ppm ceiling PEL for styrene and the OSHA 600 ppm peak PEL for styrene.

The MSDS lists only one of three OSHA PELs which have been established for styrene; namely, 100 ppm for an eight-hour time-weighted average. The Secretary contends that the MSDS must contain all OSHA PELs.

The provision in controversy, 1910.1200(g)(2)(vi), requires each MSDS to contain the following information:

(vi) The OSHA permissible exposure limit, ACGIH Threshold Limit Value, and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the material safety data sheet, where available.

Monsanto argues that the plain meaning of the cited requirement does not require listing all three PELs on the MSDS. It submits that "the standard requires only 'the OSHA permissible exposure limit' (singular)" (Brief, p. 34). Since the MSDS listed the eight-hour OSHA PEL, Monsanto contends it was in compliance with the provisions of 1910.1200(g)(2)(vi).

Table Z-2 of 1910.1000 establishes exposure limits for styrene based on an eight-hour time-weighted average, an acceptable ceiling concentration and an acceptable maximum peak exposure. During an eight-hour shift an employee may be exposed to a concentration of styrene above 200 ppm (but never above 600 ppm) only for a maximum period of five minutes in any three hours. Such exposure must be compensated by exposures to concentrations less than 100 ppm so that the cumulative exposure for the entire eight-hour shift does not exceed a weighted average of 100 ppm.[[5/]]

The three different exposure limits established by OSHA are important in educating employers and employees as to potential exposure. It is important that they be aware of the acceptable ceiling concentration and the acceptable maximum peak concentration in making certain that the eight-hour exposure limit is not exceeded. It is also important that they know that no exposure is ever allowed above 600 ppm and that anything in excess of 200 ppm cannot exceed five minutes in three hours. Interpreting the provision of 1910.1200(g)(2)(vi) to require the manufacturer to include only one PEL would permit the manufacturer to selectively choose which PEL it wanted to include. Downstream employers and employees, as well as the manufacturer's own employees, would be denied important information as to the use of the hazardous substance. The intent of the standard is that thorough information will be furnished to downstream employers.

Industrial Hygienist James Sweeney testified that in his experience it is a more frequent occurrence that an employee is overexposed to the ceiling or peak PEL for styrene than to the eight-hour limit (Tr. 31). He felt it was important that downstream employers and employees know the permissible exposure limits applicable to the product. Such information is necessary because exceeding the ceiling or peak PEL would be extremely obnoxious and unbearable to employees. It would also be essential in bringing about improvement in engineering controls (Tr. 31-32).

The clear purpose of the standard would be undercut by construing 1910.1200(g)(2)(vi) in the manner suggested by Monsanto. There is no indication that the standard intended to limit the requirement to any specific OSHA permissible exposure by the use of the word "limit." The "OSHA permissible exposure limit" is construed to refer to all OSHA PELs in a collective sense. The word "limit" in the case of styrene refers to three different exposure levels. A manufacturer must include all permissible exposure levels listed by OSHA for a hazardous substance. The violation has been established.

While Monsanto argues that exposure limit refers to the OSHA PEL in the singular, it did include the ACGIH TLV/TWA and the ACGIH TLV/STEL even though the standard refers to the "ACGIH Threshold Limit Value." Monsanto did not construe "Limit Value" to mean that it had to choose between the two and determine which one must be included on the MSDS. There is no explanation as to why Monsanto construed the two requirements in a different manner.

Monsanto argues that any violation of 29 C.F.R. 1910.1200(g)(2)(vi) determined in this case must be deemed to be a de minimis violation because the OSHA ceiling and peak PELs are less protective than the ACGIH STEL. It relies on a letter dated August 18, 1986, which is executed by John B. Miles, Jr., who was director of field operations at the time he executed the letter. The letter states, in part (Ex. 7):

From a compliance standpoint the material safety data sheet must contain the OSHA permissible exposure limit (PEL), and any more protective exposure limit, if one or more exists. Failure to include a less protective exposure limit, other than the OSHA PEL, will be considered a de minimis violation and will not result in the issuance of a citation.

The letter clearly requires the listing of the OSHA PEL. The quote allows a de minimis classification where the PEL is "other than the OSHA PEL." The OSHA PEL is required even if it is less restrictive than any other applicable PEL. The de minimis argument is without merit. It is questionable whether the OSHA ceiling and peak PELs are less protective than the ACGIH STEL since they pertain to different time periods. An employee, in the case of a serious leak, could still be exposed to concentrations in excess of the OSHA ceiling and peak PELs and still not be in violation of the ACGIH STEL.

Alleged Violation of 29 C.F.R. 1910.1200(f)(1)(ii)

Item 1b of the citation, as amended, alleges a violation of 29 C.F.R. 1910.1200(f)(1)(ii) for failure to include the following alleged "appropriate hazard warnings" on the container labels for styrene monomer, inhibited (Tr. 23):

1. A central nervous system depressant

2. May cause dryness and blistering of the skin

3. An irritant to the respiratory tract

The Secretary contends that labels for hazardous substances shipped out of the manufacturer's plant must list "target organ effects." He argues that the labels for styrene monomer, inhibited should have included the three listed hazard warnings. In determining that the label was not in compliance with the standard, the Secretary relies on information contained in the MSDS and in the NIOSH/OSHA Occupational Health Guidelines for Chemical Hazards (Tr. 44). The MSDS sets forth a section referred to as "Warning Statements" and contains the following:

Causes Irritation to Eyes and Skin
Vapor Irritating to Respiratory Tract

Under the "Physiological Effects Summary" section of the MSDS is the warning that "[e]xposure to 375 ppm for 1 hour causes central nervous system depression." Reference is also made to the fact that "[v]apor concentrations of 200-400 ppm may cause eye and respiratory tract irritation." The NIOSH/OSHA Occupational Health Guidelines for Chemical Hazards (Ex. 6) makes reference to irritation of the eyes, nose, throat and skin and central nervous system depression.

Monsanto does not argue that the hazards referred to by the Secretary do not exist. It has in fact included them in the MSDS. According to Monsanto, it "assessed the weight of the evidence regarding each of the hazards and found that the evidence did not warrant listing the warning on both the label and the Material Safety Data Sheet" (Brief, p. 29). It then correctly states that "the mere fact that a hazard is identified on the MSDS does not automatically require its inclusion on the label" (Brief, p. 29).

Monsanto submits that professional judgment is essential in determining which hazards recognized on a MSDS are appropriate for inclusion on the label (Tr. 100). Unquestionably, professional judgment is involved in the preparation of the label. However, as exercised by Monsanto, the professional judgment factor is misguided. Dr. Michael W. Stevens testified (Tr. 100):

Q. Does it involve some exercise of professional judgment as to what would or would not be appropriate to include on the label?

A. Yes. We would certainly look at it with a risk situation. The hazard is simply present with the material. We identify that and say that under some conditions, that may occur. But, we try then to look at the kinds of conditions that we would expect to occur and adjust our labeling according to those kinds of conditions.

In preparing the label, Monsanto has substituted its judgment for that of the downstream employer in determining the type of workplace conditions that might arise.

The limiting of information on a label that is based on the manufacturer's speculation as to downstream uses is unwarranted. This approach by a manufacturer was discussed in Hilton-Davis Chemical Company, supra, and rejected. In Hilton-Davis, it was concluded:

* * * The intent of the standard is that manufacturers and importers will furnish thorough information on all potential hazards without qualifications as to possible use. They cannot limit disclosure of potential hazards by speculating as to how the product will be used.

Where a manufacturer is aware that whether the hazard arises is dependent on such factors as the concentration and exposure levels in the workplace, as in this case, it cannot limit information on the label on the basis of what it assumes will be the concentration levels and that an employee will not be overexposed.

Monsanto argues that "the MSDS and not the label is the document on which 'health hazards' found to exist as a result, in part, of the Appendix A analysis, must be reported" (Brief, p. 7). The standard is much more specific with respect to the information that must be included on the MSDS. Monsanto points to 1910.1200(g)(2)(iv) in support of its position that the health hazards found to exist must be included on the MSDS. This provision states that the MSDS must contain the following:

(iv) The health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical;

The specificity of 1910.1200(g)(2)(iv) is compared with the requirement of 1910.1200(f)(1)(ii) to include "appropriate hazard warnings" on the label. The fact that the requirements for the MSDS are more specific than 1910.1200(f)(1)(ii) does not mean target organ effects should not be included on the label. Likewise, Monsanto is correct in concluding that the standard does not "require that a 'health hazard' identified on the MSDS be set forth in like fashion on the container label" (Brief, p. 8).

Where the hazardous substance is known to affect one of the target organs listed in Appendix A, reference to that target organ must be included on the label. Whatever affects the target organs could conceivably cause serious physical complications to the employee. He should be aware of those risks when he handles the hazardous substance. In determining what information to include on the label, one must keep in mind that the basic purpose of the label is to serve as an immediate warning to all persons handling the substance. This purpose must be construed in connection with the primary goal of the HCS; namely, to provide in a useable and readily accessible form information to employees concerning the hazards in their workplaces. The ultimate goal of the HCS is to reduce the incidence of chemical source illnesses and injuries in the manufacturing sector by providing employees with information they need to help protect themselves.

Central Nervous System Depressant

Dr. Michel W. Stevens, Monsanto's manager of toxicology projects,[[6/]] testified that the statement, "a central nervous system depressant," was not included on the label because it was concluded that such a hazard "could only occur in a situation which would be outside the normal controls" (Tr. 98). Monsanto representatives did not feel that an appropriate hazard warning was "necessary for an effect which would not occur in the normal workplace situation" (Tr. 98). This was especially true since they "felt it was appropriately accounted for in the MSDS" (Tr. 99). However, Stevens acknowledged that the potential for this hazard to occur was present (Tr. 98). He testified that certain words on the label helped prevent the hazard (Tr. 99):

A. Certainly, on the label, we caution the individuals that they should avoid breathing the vapor but we also caution that it should be used with adequate ventilation. The concern we have is a concentration type effect, if anything, and so with the appropriate ventilation and appropriate precautions for inhaling the material, then the hazard would not occur.

Stevens acknowledged that whether styrene acts as a central nervous system depressant is dependent on such factors as the concentration in the particular environment and how long the individual is exposed (Tr. 101). He alluded to precautionary information on the label which advised employees to avoid breathing the vapor and to use it with adequate ventilation. He acknowledged that Monsanto had some concern about the concentration levels. The precautionary language was included or the label to prevent high concentration levels from occurring (Tr. 99).

Sweeney concluded that the label should include the phrase, "a central nervous system depressant," because the nervous system is listed as a target organ in Appendix A to the standard (Tr. 66-68). There is no dispute that styrene can act as a depressant to the central nervous system. The MSDS states that "[E]xposure to 375 ppm for 1 hour causes central nervous system depression" (Ex. 2; Tr. 67). Sweeney concluded that where the hazard affects a target organ listed in the standard, that adverse effect should be included on the label (Tr. 72).

Where the MSDS identifies or references a hazard involving an organ of the body and that adverse effect relates to one of the health hazards set forth in the standard's definition of a "health hazard," reference to the target organ must be set forth on the label. While the MSDS made reference to depression of the central nervous system, reference should also have been made to this fact on the label. The violation has been established.

Irritant to the Respiratory Tract

Sweeney concluded the label should contain a warning that styrene is "an irritant to the respiratory tract" because the MSDS and NIOSH/OSHA Occupational Health Guidelines for Chemical Hazards indicates a respiratory tract irritation can occur. Appendix A to the standard includes an irritant as a health hazard, and damage or irritation to the pulmonary tissue is listed as a target organ (Tr. 75-76).

The MSDS states that "[v]apor concentrations of 200-400 ppm may cause eye and respiratory tract irritation" (Ex. 2; Tr. 107). Stevens testified that the words "an irritant to the respiratory tract" were not included on the label because the company used the American National Standards Institute standard ANSI Z129.1-1982 as a guide or basis for the preparation of the label (Tr. 107). The label used the words "vapor irritating" (Ex. 1). Section 4.7 of ANSI Z129.1-1982 uses similar language. Stevens stated that the respiratory tract was not specifically identified but that if the material were in a vapor form, "one could certainly expect to have respiratory exposure" (Tr. 108).

ANSI Z129.1-1982 was designed to fill the need for a system of precautionary labeling of hazardous chemicals used in industrial operations. Its goal is different from that sought to be obtained by the HCS. Since ANSI Z129.1- 1982 does not require warnings in terms of target organ effects, compliance with the standard, 1910.1200(f)(1)(ii), is not achieved by relying on the labeling requirements of the ANSI standard. ANSI Z129.1-1982 is directed toward the use of precautionary labeling and falls short of advising the employer or employee of target organ effects. It fails to advise or warn of the consequences of overexposure. It primarily advises the employee to reduce, minimize or, if possible, eliminate exposure.

Where the substance is in a vapor form, Stevens acknowledges that respiratory exposure would occur (Tr. 108). The use of the words "vapor irritating" does not identify the affected target organ. The definition of health hazard is defined to include irritants and lists the organs of the lungs and mucous membranes on which the irritant might act. Target organ effects listed in Appendix A refer to agents which damage or irritate the pulmonary tissue. The use of the words "vapor irritating" is a precautionary warning and does not set forth an "appropriate hazard warning" as required by 1910.1200(f)(1)(ii). The violation has been established.

Dryness and Blistering of Skin

Sweeney concluded the label should contain a warning that styrene "may cause dryness and blistering of the skin" because the MSDS and the NIOSH/OSHA Occupational Health Guidelines for Chemical Hazards (Ex. 6) indicated the chemical could cause an irritation of the skin and that skin irritation was one of the hazards referred to in Appendix A of the standard (Tr. 73-74). Stevens testified that this warning was not included on the label because blistering would arise only after a prolonged exposure to the substance and that the substance was not an irritant as defined by the standard (Tr. 103). Appendix A of the standard defines a skin irritant as follows:

A chemical, which is not corrosive, but which causes a reversible inflammatory effect on living tissue by chemical action at the site of contact. A chemical is a skin irritant if, when tested on the intact skin of albino rabbits by the methods of 16 CFR 1500.41 for four hours exposure or by other appropriate techniques, it results in an empirical score of five or more . . . . (Underlining added)

The "Animal Data" section of the MSDS shows tests for skin irritation on rabbits resulted in a score of 2.4, on a scale of 8.0. which is only slightly irritating (Ex. 2; Tr. 104-105). The Secretary argues that this should not be the deciding factor since the MSDS states under the "Human Experience" heading that "[s]tyrene monomer is a more severe irritant to human skin and eyes than is indicated by experimental animal data."

The definition of "health hazard" includes irritants. 1910.1200(c). Appendix A to the standard defines a skin "irritant." The evidence in this case, which is not disputed by the Secretary, reflects that styrene monomer is not a skin irritant that is deemed a health hazard under the definition of "health hazard" in 1910.1200(c) and the definition of a skin "irritant" under Appendix A. The score in this case was 2.4, whereas a score of five or more is required to satisfy the criteria established for a skin irritant. The fact that the MSDS points out that styrene monomer is more of a skin irritant than indicated by experimental animal data does not change the test results. The Secretary has not challenged the test results of 2.4. The MSDS reflects such a score as being only slightly irritating. Since the irritation level is insufficient to qualify the substance as a skin irritant under Appendix A, no reference to target organ effects of the skin has to be included on the label. The requirement alleged by the Secretary is vacated.

Abatement

Sweeney testified that he recommended an abatement period of one month, which he felt was adequate to add the missing information to the label and MSDS (Tr. 33-34). Monsanto makes no argument that it cannot comply with the abatement procedures within the specified time period. The abatement date is reasonable.

FINDINGS OF FACT

1. Monsanto Company ("Monsanto") is involved in the manufacturing of resins, polymers, plastics and other specialty chemicals at its Addyston, Ohio. plant (Tr. 14-15).

2. On November 26, 1985, Compliance Officer Jim Washam conducted an inspection at Monsanto's Addyston, Ohio, plant (Tr. 12, 13). The inspection was part of OSHA's special emphasis program for the newly enacted HCS (Tr. 12-13).

3. Industrial Hygienist James Sweeney, HCS coordinator for OSHA's Cincinnati Area Office, reviewed the material safety data sheets and container labels for styrene monomer, inhibited, obtained by Washam, to determine if they were in compliance with the HCS (Tr. 11, 14-15). As a result of Washam's inspection and Sweeney's review, an "other" citation was issued to Monsanto on March 11, 1986 (Tr. 15-16).

4. In determining whether to issue a citation, Sweeney referred to OSHA Instruction CPL 2-2.38 issued August 5, 1985 (Tr. 17-18). The stated purpose for CPL 2-2.38 is to establish policies and provide clarification to ensure uniform enforcement of the HCS (Ex. 3; Tr. 17-18).

5. Styrene monomer, inhibited is produced by Monsanto for shipment to customers in the manufacturing sector (Tr. 6-7). It is a hazardous chemical (Exs. 4, 5; Tr. 20).

6. The material safety data sheet for styrene monomer, inhibited reflects the following for airborne exposure limits (Ex. 2; Tr. 21, 29):

ACGIH TLV/TWA = 50 ppm; STEL = 100 ppm
OSHA PEL/TWA = 100 ppm (Z37.15-1969)

The MSDS does not list the acceptable ceiling concentration of 200 ppm or the peak ceiling concentration of 600 ppm (Ex. 2; Tr. 21, 29).

7. Table Z-2 of Subpart Z of 29 C.F.R. Part 1910 lists three permissible exposure limits for styrene (Ex. 2; Tr. 79).

8. Styrene is reflected in Table Z-2 of Subpart Z of 29 C.F.R. Part 1910 with an eight-hour, time-weighted average of 100 ppm, an acceptable ceiling concentration of 200 ppm, and an acceptable peak ceiling concentration of 600 ppm for five minutes in any three-hour period (Ex. 4; Tr. 20-21, 30).

9. The Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment adopted by the American Conference of Governmental Industrial Hygienists reflects an eight-hour TLV for styrene of 50 ppm and the short-term TLV for styrene of 100 ppm (Ex. 5; Tr. 21).

10. The label for styrene monomer, inhibited contained the following warnings (Ex. 1):

EXCESSIVE HEAT WILL SPOIL THIS MATERIAL
Must be stored in coolest place available.
____________________________________________

WARNING!
FLAMMABLE
CAUSES EYE IRRITATION.

VAPOR IRRITATING.
____________________________________________

Keep away from beat, sparks, and flame.
Avoid contact with eyes.
Avoid breathing vapor.
Avoid prolonged or repeated contact with skin.

Use with adequate ventilation.
Keep container closed.
Wash thoroughly after handling.

FIRST AID: In case of contact, immediately flush eyes with plenty of water for at least 15 minutes. Call a physician.

In case of:
FIRE, use water spray, foam, dry chemical or CO2.
SPILL or LEAK, flush area with water spray.

The label does not indicate the following warnings (Ex. 1; Tr. 23, 26):

1. A central nervous system depressant

2. May cause dryness and blistering of the skin

3. An irritant to the respiratory tract

11. The physiological effects summary of the MSDS states as follows (Ex. 2; Tr. 23-24):

Human Experience

Styrene Monomer is primarily toxic by the route of vapor absorption through the lungs; however, liquid absorption through the skin may also occur. Vapor concentrations of 200-400 ppm may cause eye and respiratory tract irritation. Exposure to 375 ppm for 1 hour causes central nervous system depression. 10,000 ppm may be hazardous to life within 30-60 minutes. 2,500 ppm may be dangerous to life in 8 hrs. Due to the odor and irritant effects exposure greater than 800 ppm is objectionable to humans.

Styrene monomer is a more severe irritant to human skin and eyes than is indicated by experimental animal data. Prolonged skin contact, such as from contaminated clothing, may cause skin blistering. Repeated skin contact may cause dryness. Liquid styrene monomer may produce severe eye irritation.

12. The section of the NIOSH/OSHA Occupational Health Guidelines for Chemical Hazards pertaining to styrene contains the following under the heading, "Health Hazard Information" (Ex. 6; Tr. 25):

1. Short-term exposure: Styrene may irritate the eyes, nose, throat and skin * * *

2. Long-term exposure: Repeated skin contact with styrene may produce a skin rash.

* * *
-- Central nervous system disorders: Since exposure to styrene vapor or liquid on the skin has been observed to result in central nervous system depression * * *

* * *
-- Skin disease: Styrene is a defatting agent and can cause dermatitis on prolonged exposure * * *

CONCLUSIONS OF LAW

1. Monsanto, at all times material to this proceeding, was engaged in a business within the meaning of section 3(5) of the Act.

2. Monsanto, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. Monsanto was in violation of 29 C.F.R. 1910.1200(f)(1)(ii) for failure to list the following hazard warnings on the label for styrene monomer, inhibited:

    1. A central nervous system depressant

    2. An irritant to the respiratory tract

4. Monsanto was not in violation of 29 C.F.R. 1910.1200(f)(1)(ii) for failure to list the following hazard warning on the label:
May cause dryness and blistering of the skin.

5. Monsanto was in violation of 29 C.F.R. 1910.1200(g)(2)(vi) for failure to list the OSHA 200 ppm ceiling PEL for styrene and the OSHA 600 ppm peak PEL for styrene on the MSDS.

ORDER

Based upon the foregoing findings of fact and conclusions of law, and concessions by the Secretary, it is

ORDERED: (1) That items 1a, 1c, 2 and subitem (a) of item three of the "other" citation issued to Monsanto on March 11, 1986, are vacated;

(2) That items 2 and 3 of subitem (a) of item 1b of the "other" citation issued to Monsanto on March 11, 1986, are vacated and that items 1 and 4 are affirmed; and

(3) That subitem (b) of Item 3, as amended, of the "other" citation issued to Monsanto on March 11, 1986, is affirmed.

JAMES D. BURROUGHS
Judge

Date: April 23, 1987

 

 

 

SECRETARY OF LABOR,
Complainant,

v.

MONSANTO COMPANY,
Respondent.

OSHRC Docket No. 86-0391

DIRECTION FOR REVIEW

The Respondent has filed a Petition for Discretionary Review. Pursuant to 29 U.S.C. 661(j) and 29 C.F.R. 2200.92(a), the report of the Administrative Law Judge is directed for review. Based on a preliminary examination of the record and the report, the issues to be considered are:

(1) Whether the Administrative Law Judge erred in concluding that the Secretary has authority under the Occupational Safety and Health Act of 1970 to require manufacturers of chemicals to conform to standards for hazards communication for the protection of employees of distributors and industrial users of the chemicals;

(2) If so, whether the Judge erred in concluding that 1910.1200(f) and (g)(6) do not violate the legal principle that "OSHA regulations protect only an employer's own employees" because the label and Material Safety Data Sheet were required primarily for the protection of the manufacturer's own employees;

(3) Whether the judge erred in concluding that the Occupational Safety and Health Administration (OSHA) Instruction CPL 2-2.38 merely interpreted the hazards communication standards, did not create any new, substantive requirements, and therefore was properly promulgated pursuant to the requirements of the Administrative Procedure Act, for interpretative rules;

(4) Whether an employer may be required to observe the requirements of Instruction CPL 2-2.38 without its being published in the Federal Register. See 5 U.S.C. 552(a)(1) and Phoenix Forging Company, 12 BNA OSHC 1317, 1984-85 CCH OSHD 27,256 (No. 82-398, 1985). If not, whether this employer had actual and timely notice of the requirements of the Instruction?

(5) Whether the judge erred in concluding that the Secretary's hazards communication standards, particularly the cited standard at 29 C.F.R. 1910.1200(f)(1)(ii), requires labeling as to the target organ effect;

(6) Whether the Judge erred in concluding that this employer violated 29 C.F.R. 1910.1200(f)(1)(ii) by excluding reference on labels to a health hazard based on an evaluation of the improbability that the concentration and exposure in a typical user's workplace would pose a hazard.

E. ROSS BUCKLEY
CHAIRMAN

DATED: May 26, 1987

 

 

 

SECRETARY OF LABOR,
Complainant,

vs.

MONSANTO COMPANY,
Respondent,

and

INTERNATIONAL CHEMICAL WORKERS
LOCAL 561 AUTHORIZED EMPLOYEE
REPRESENTATIVE.

OSHRC DOCKET NO.: 86-0391

RESPONDENT, MONSANTO COMPANY'S PETITION FOR DISCRETIONARY REVIEW

On April 3, 1987, Administrative Law Judge (ALJ) James Burroughs issued a Decision and Order affirming a citation issued to Respondent on March 11, 1986, for allegedly not specifying certain "target organ effects" on the labels for one of its products.

Respondent, Monsanto Company, hereby petitions the Occupational Safety and Health Review Commission ("Review Commission") for discretionary review of the April 3, 1987, Decision and Order (hereinafter the "Decision") to be submitted to the Commission's Executive Secretary on April 23, 1987 in the above captioned case.

Pursuant to Review Commission Rule 91, Respondent takes exception to the following portions of that Decision and seeks discretionary review thereof:

Conclusions of Law Nos. 2 and 3.

Order No. 2, affirming items 1 and 4 of subitem (a) of item 1b of the "other" citation issued to Respondent on March 11, 1986.

Additionally, Respondent takes exception to all those portions of the Decision and Order which otherwise address the findings of fact and conclusions of law which served as a basis for those portions of the Decision to which Respondent objects.

I. INTRODUCTION

Review should be granted and the ALJ's Decision reversed. The issues presented by this case relating to so-called "target organ effect" labeling under the Hazard Communication Standard (HCS) are truly of major importance. The "target organ effect" labeling requirement, the ALJ found to exist, affects manufacturers and importers nationwide. Moreover, the ALJ's Decision addresses critical questions of law that have not been previously presented to the Review Commission and which are critical to the overall enforcement of the HCS.

Respondent submits review should be granted to consider these important issues and to correct the ALJ's conclusions that OSHA has jurisdiction over manufacturers and importers vis a vis persons other than its own employees, and that Respondent's label violated the HCS because it did not include two specific phrases constituting so-called "target organ effect" labeling held to be required under the HCS.

II. THE ALJ'S CONCLUSION THAT OSHA HAS JURISDICTION TO PROMULGATE AND TO ENFORCE THOSE PORTIONS OF THE HCS WHICH IMPOSE DUTIES ON AN EMPLOYER VIS A VIS PERSONS OTHER THAN ITS OWN EMPLOYEES WAS ERRONEOUS.

The issue of OSHA's authority to promulgate the sections of the HCS that require manufacturers and importers to provide labels and MSDSs to downstream/third party employees never has reached the Review Commission. It is an issue whose resolution is critical in defining the extent to which OSHA properly may enforce such portions of the HCS. Respondent's position before the ALJ was that OSHA lacked authority to promulgate and to enforce the HCS as it relates to the imposition of duties on manufacturers/employers vis a vis downstream/third party persons not its own employees. (Br. 13-17)[[1/]] The ALJ, however, held that OSHA did not lack authority to promulgate and enforce the label and MSDS provisions of the HCS (29 C.F.R. 1910.1200) as they relate to a manufacturer's or importer's purported duty to a downstream/third party employee. (Dec. 7)[[2/]]

Respondent submits the ALJ's conclusion is erroneous.

First, the OSH Act, itself, limits OSHA's jurisdiction to promulgate standards concerning labeling to ones affecting an employer vis a vis its own employees. Section 6(b)(7) of the OSH Act provides that:

"Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warnings as are necessary to ensure that EMPLOYEES are apprised . . . ."

(Emphasis added) 29 U.S.C 655(b)(7) (1985).

The term "employee" is specifically defined in the OSH Act as:

"an employee of an employer who is employed in a business OF HIS EMPLOYER. . . . "

The above quoted statutory provisions read together demonstrate that the ALJ erred by finding OSHA had jurisdiction to promulgate the HCS insofar as it created obligations on Respondent vis a vis persons who are not even Respondent's employees.

Second, judicial authority, consistent with the OSH Act, itself, supports Respondent's position. Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975); Johnson v. Koppers Co., 524 F.Supp. 1182 (D.C. Ohio 1981), appeal dismissed, 705 F.2d 451, 454 (6th Cir. 1982); Gazdar v. Koppers Co., 524 F.Supp. 1194 (D.C. Ohio 1981), appeal dismissed, 705 F.2d 451, 454 (6th Cir. 1982). Nevertheless, the ALJ brushed this authority aside, and instead relied on American Petroleum Institute v. OSHA, 581 F.2d 493 (5th Cir. 1978), aff'd other grounds sub nom., Industrial Union Dept. AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), despite the fact that American Petroleum Institute was openly criticized and rejected in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981). In this respect, the ALJ also erred.

The ALJ's recitation of a series of assertions as purported justification for finding OSHA has jurisdiction to impose obligations on an employer vis a vis persons other than its own employees are also unavailing. For example, the ALJ concluded that "[t]he only additional affirmative act required by the manufacturer and importer is that they transmit the information previously ascertained by them to downstream employers." (Dec. 11) "The HCS creates no duty on behalf of the manufacturer or importer to see that downstream employers enforce the requirements of the standard." (Id.) "A heavy regulatory burden is not being imposed on the manufacturer solely for the benefit of the employees of another." (Id.) These assertions, however, are completely unresponsive to the basic tenet that OSHA simply lacks authority to regulate an employer vis a vis downstream/third party persons not its own employees.

III. THE ALJ'S CONCLUSION THAT "TARGET ORGAN EFFECT" LABELING IS REQUIRED UNDER THE HCS WAS ERRONEOUS.

The ALJ decided that "target organ effect" labeling is required by the HCS, and that the Respondent's label at issue herein was deficient because it did not contain the precise words "A central nervous system depressant," or "An irritant to the respiratory tract."

The ALJ's Decision completely ignores the fact that the HCS nowhere dictates the precise text that must appear on the label of any hazardous chemical. The HCS merely requires that a label contain an "appropriate hazard warning." 29 C.F.R. 1910.1200(f)(1). As defined in 29 C.F.R. 1910.1200(c) "hazard warning" means:

"any words, pictures, symbols or combination thereof appearing on a label or other appropriate form of warning which convey the hazards of the chemical(s) in the container(s)." (Emphasis added)

Thus, insofar as an "appropriate hazard warning" is concerned, the HCS only requires that the "hazards of the chemical(s)" be on a label. The HCS plainly does not specify that such warning must include so-called "target organ effects."

In fact, the HCS nowhere even defines the phrases "hazards of the chemical(s)," "target organ," or "target organ effect." Absent any definition in the HCS, the phrases "appropriate hazard warning" and "hazards of the chemicals," standing alone, are far too vague for the ALJ to have concluded that "target organ effects" are mandated by either phrase for inclusion on a label. In fact, the phrases "target organ" and "target organ effect," also without definition anywhere in the HCS, are also equally vague. A standard is unenforceably vague if it does not provide "fair warning" as to what is required or prohibited.[[3]]

It was unchallenged that Respondent's styrene monomer inhibited label complied with the ANSI consensus labeling systems expressly sanctioned by the HCS and its Preamble. The label stated:

EXCESSIVE HEAT WILL SPOIL THIS MATERIAL
Must be stored in coolest place available.
________________________________________________

WARNING!
FLAMMABLE
CAUSES EYE IRRITATION,

VAPOR IRRITATING.
________________________________________________

Keep away from heat, sparks, and flame.

Avoid contact with eyes.
Avoid breathing vapor.
Avoid prolonged or repeated contact with skin.
Use with adequate ventilation.

Keep container closed.
Wash thoroughly after handling.

FIRST AID: In case of contact, immediately
flush eyes with plenty of water for at least
15 minutes. Call a physician.

In case of:
FIRE, use water spray, foam, dry chemical or CO2.
SPILL or LEAK, flush area with water spray.

Respondent submits that such label does, in fact, convey the "hazards of the chemical," and, therefore, was an "appropriate hazard warning" under the terms of the HCS.

OSHA's position, upheld by the ALJ, that a label, in effect, must further state every possible result of misuse or overexposure in language dictated by OSHA has no support in the HCS or its Preamble. That position is at total odds with the performance-oriented nature of the labeling requirements under the HCS placing discretion in the employer as to what to put on the label. It also conflicts with the comprehensive hazard communication program required by the HCS, consisting of labels, MSDSs, and training, for apprising employees about chemicals with which they work. In fact, the HCS Preamble acknowledged that the purpose of the label, within the context of the comprehensive hazard communication program, is only to:

serv(e) as an immediate warning and as a reminder of the more detailed information provided in other forums, . . . (t)he identity on the label is keyed to the Material Safety Data Sheet for the chemical, which will contain more extensive information. The training program will explain to employees both the labeling system and the Material Safety Data Sheet, so the employee will be provided with extensive information on each chemical through the integrated elements of the comprehensive hazard communication program.

(T)he labels were not intended to be either the sole, or the most complete source of information regarding the nature or identity of hazardous chemicals in the workplace. . .

48 Fed. Reg. 53, 301.

The Preamble to the HCS further discussed the HCS's labeling requirements by stating that:

. . . the PROVISIONS WERE WRITTEN IN BROAD, PERFORMANCE-ORIENTED LANGUAGE SO THAT MANY OF THE EXISTING LABELING SYSTEMS COULD CONTINUE TO BE USED. This did not mean that labels of any type could continue to be used in all cases--the performance-orientation meant that those labels would have met the minimal information requirements established, regardless of the format it was presented in, could continue to be used. Thus, for example, LABELS IN ACCORDANCE WITH . . . THE GUIDELINES IN THE AMERICAN NATIONAL STANDARDS INSTITUTE VOLUNTARY CONSENSUS STANDARD ON LABELING [would be acceptable].

48 Fed. Reg. 53, 301 (emphasis added).

The ALJ's Decision, if allowed to stand, effectively vitiates the broad performance-oriented language of the HCS, and erroneously prohibits any exercise of professional judgment by a responsible chemical manufacturer. Also, contrary to the language and intent of the HCS, OSHA's position upheld by the ALJ, will force chemical manufacturers to include on labels all inclusive information from the MSDS. This very well could have the unintended effect of changing the entire scope, tenor, and effectiveness of the HCS.

IV. OSHA'S CPL 2-2.38 WHICH WAS THE FIRST INDICATION THAT CHEMICAL LABELS HAD TO SPECIFY "TARGET ORGAN EFFECTS" CONSTITUTED IMPROPER SUBSTANTIVE RULEMAKING.

As set forth above, the HCS does not specify that labels, must include any target organ effects." The HCS was promulgated in November, 1983 with an effective date two years hence so as to allow chemical manufacturers to undertake the enormous task of complying therewith. Then, in August, 1985, just three months before the HCS was to take effect, the very first indication of OSHA's position that labels have to state "target organ effects" came about when OSHA issued Instruction CPL 2-2.38. OSHA Instruction CPL 2-2.38 clearly was a substantive modification of the HCS in that it, for the first time, required target organ labeling when such was not previously required by the HCS. As a substantive modification to the HCS, CPL 2-2.38 was put in place without following the notice and comment procedures required by the Administrative Procedure Act, 5 U.S.C. 553.

The ALJ, however, found that CPL 2-2.38 was not impermissibly implemented, citing only his own unreviewed earlier decision in Hilton-Davis Chemical Company (Docket No. 86-494, February 19, 1987).

Under the factors set forth in Arrow Air, Inc. v. Dole, 784 F.2d 1118, 1122-23 (D.C. Cir. 1986) for determining when an agency rule is invalid for failure to follow the Administrative Procedures Act, the ALJ erroneously upheld the validity of CPL 2-2.38. The ALJ either misapplied certain factors or ignored others altogether. In discussing certain factors, the ALJ stated that the purpose of CPL 2-2.38 "did not create new requirements," but merely was intended to "provide clarifications of the HCS." Simply, not so.

As set forth in Section III, above, the HCS, itself, contains no mandatory specifications whatsoever as to any precise wording or to be included on any label. It was CPL 2-2.38 which substantively altered the HCS by mandating in precise fashion exactly what had to be included on the label.

The validity of CPL 2-2.38 has been erroneously decided and, therefore, should come before the Review Commission for consideration and correction.

CONCLUSION

Based on the foregoing, Respondent requests that the Review Commission grant discretionary review of the Decision and Order in the above captioned case. The erroneously decided issues involving so-called "target organ effect" labeling which Respondent urges the Review Commission to consider are ones of first impression, critical to the application and enforcement of the Hazard Communication Standard, and ones which affect many employers and their employees nationwide.

Should the petition be granted, Respondent reserves the right to file supplemental brief(s) in support of its position and as the OSHRC may direct. This petition for discretionary review was intended merely to summarize the important and critical issues raised herein and to explain briefly why said review is warranted.

Respectfully submitted,
Michael S. Glassman
Philip J. Schworer
Dinsmore & Shohl
Attorneys for Respondent Monsanto Company


FOOTNOTES:

[[1/]] Section 1910.1200(d)(3) provides:

The chemical manufacturer, importer or employer evaluating chemicals shall treat the following sources as establishing that the chemicals listed in them are hazardous:
(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA); or,
(ii) Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition).
The chemical manufacturer, importer, or employer is still responsible for evaluating the hazards associated with the chemicals in these source lists in accordance with the requirements of the standard.

[[2/]] Section 1910.1200(d)(4) states:

(4) Chemical manufacturers, importers and employers evaluating chemicals shall treat the following sources as establishing that a chemical is a carcinogen or potential carcinogen for hazard communication purposes:
(i) National Toxicology Program (NTP), Annual Report on Carcinogens (latest edition);
(ii) International Agency for Research on Cancer (IARC) Monographs (latest editions); or
(iii) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration.

[[3/]] Section 1910.1200(f)(1) provides:

(1) The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information:
(i) Identity of the hazardous chemical(s);
(ii) Appropriate hazard warnings; and
(iii) Name and address of the chemical manufacturer, importer, or other responsible party.

[[4/]] Section 1910.1200(d)(3) provides as follows:

(3) The chemical manufacturer, importer or employer evaluating chemicals shall treat the following sources as establishing that the chemicals listed in them are hazardous:
(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA); or
(ii) Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition).

[[5/]] See 1910.1000(b)(2) and example set forth at 1910.1000(b)(3) explaining the meaning of the PELs set forth in Table Z-2.

[[6/]] As manager of toxicology projects, Dr. Stevens oversees and supervises activities that are involved in the preparation of the MSDS and labels for company products (Tr. 94).


[[1/]] Respondent's post-hearing brief cited as "Br. __".

[[2/]] Administrative Law Judge Burrough's Decision cited as "Dec. ___".

[[3/]] For example, Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119 (7th Cir. 1981), where the pre-1981 OSHA noise standard was found void for vagueness. The pre-1981 noise standard required only that "a continuous effective hearing conservation program shall be administered." Id. at 122. The employer was cited by OSHA for failure to have a hearing conservation program that included six specific elements, such as audiometric testing and training in use of hearing protectors. The court, citing United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921), which held that a standard not providing "fair warning" of what is required or prohibited is unenforceably vague, found the pre-1981 OSHA noise standard vague because "the standard does not give any warning to employers that their conservation programs must contain those six elements." Id. at 112.