Docket No. 86-0740

SECRETARY OF LABOR,
Complainant,

UNION CARBIDE CORPORATION, LINDE
DIVISION,
Respondent.

OSHRC DOCKET NO. 86-0740

ORDER

The Secretary's notice to withdraw citation is construed as a motion to withdraw the citation. Respondent's response is construed as consent to an order granting the Secretary's motion. Accordingly, the Secretary's motion is granted and the citation is hereby vacated.

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: October 28, 1987

SECRETARY OF LABOR,
Complainant,

UNION CARBIDE CORPORATION,
LINDE DIVISION,
Respondent.

OSHRC Docket No. 86-0740

APPEARANCES:

Mary Anne Garvey, Esquire, Office of the Solicitor, U. S.
Department of Labor, Cleveland, Ohio, on behalf of complainant

Donald R. Crowell, II, Esquire, Danbury, Connecticut, on behalf
of respondent

DECISION AND ORDER

Burroughs, Judge: Union Carbide Corporation, Linde Division ("Carbide") contests an alleged violation of 29 C.F.R. § 1910.1200(f)(1)(ii) for allegedly failing to include "appropriate hazard warnings" on labels affixed to containers of acetylene for out-of-plant shipment to, and use by, manufacturing sector customers. The alleged violation was set forth as subitem e of item 1b set forth in an "other" citation issued to Carbide on May 2, 1986.[[1/]] Carbide further contests item 1a of the "other" citation, alleging a violation of 29 C.F.R. § 1910.1200(d)(6), for failing to furnish written procedures used to determine the hazards of a chemical.

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

The issues in dispute involve provisions of the Hazard Communication Standard ("HCS") 29 C.F.R. § 1910.1200, which was published in the Federal Register on November 25, 1983. 48 Fed. Reg. 53,280. The standard requires that chemical manufacturers or importers conduct a hazard evaluation of the chemicals being produced in their workplace or imported by them to determine if they are hazardous. 29 C.F.R. § 1910.1200(a). Once a chemical has been evaluated and the hazards determined, the chemical manufacturer or importer must transmit this information to the manufacturing employer. This is accomplished, in part, by means of label on each container of hazardous chemicals leaving the workplace. Section 1910.1200(f)(1)[[2/]] sets forth the information necessary for inclusion on the label. The controversy in this case centers on what "appropriate hazard warnings" should have appeared on the labels affixed to containers of acetylene shipped to out-of-plant customers.

The HCS is applicable to all employers in Standard Industrial Classification Codes 20-39. It is designed to enhance employer and employee awareness of the safety and health hazards associated with employee exposure to chemicals. This objective is achieved through an integrated three component hazard communication program. The hazard communication program includes labels on containers, material safety data sheets ("MSDS"), information and training. 29 C.F.R. § 1910.1200(e). The HCS applies to hazardous chemicals, which are defined by 29 C.F.R. § 1910.1200(c) as "any chemical which is a physical hazard or a health hazard." The standard establishes a "floor" of substances which must be treated as hazardous in any occupational setting. 29 C.F.R. § 1910.1200(d)(3). There is no dispute in this case over the fact that acetylene is a hazardous chemical.

During the inspection conducted in this case on December 4, 1985, Industrial Hygienist Kenneth Gilbert concluded that Carbide's label for acetylene was deficient because it provided no warning for the hazard of asphyxiation. There is no dispute over the fact that acetylene is a simple asphyxiant. The material safety data sheet and evidence offered by both parties confirm this fact.

While Carbide does not dispute the determination that acetylene is a hazardous chemical, it does not concur in the determination that the words "simple asphyxiant" should be included on the label. The words have been included on the MSDS. The standard, § 1910.1200(f)(1)(ii), requires the label to include "appropriate hazard warnings." The parties disagree over the question of whether a "simple asphyxiant" warning is appropriate for the label. Carbide argues that "the risk of simple asphyxiation is not sufficiently plausible, significant, or foreseeable so that its inclusion on acetylene's label would provide any effective or useful hazard information" (Brief, p. 12).

OSHA Instruction CPL 2-2.38 was issued by the OSHA Office of Health Compliance Assistance on August 5, 1985. [[3/]] The instruction, according to its stated purpose, was issued for the purpose of establishing policies and providing clarifications to ensure uniform enforcement of the HCS. Appendix A of the instruction offers some clarification of what is appropriate. Page A-6 of the appendix states as follows (Ex. 6):

It will not necessarily be "appropriate" to warn on the label about every hazard listed in the MSDS. The data sheet is to address essentially everything that is known about the chemical--determination of the hazards to be highlighted on the label will involve some assessment of the weight of the evidence regarding each hazard reported on the data sheet. However, this does not mean that only acute hazards are to be covered on the label, or that well-substantiated hazards can be left off the label because they appear on the data sheet.

The CPL requires well-substantiated hazards to be included on the label. The Secretary contends that the scientific evidence is substantially well established that acetylene can displace oxygen and cause suffocation.

In making the determination that acetylene is a simple asphyxiant, the Secretary referred to the Material Safety Data Sheet, Patty's Industrial Hygiene and Toxicology, and a NIOSH document entitled "Occupational Diseases, A Guide to Their Recognition." Reference was also made to Appendix E of the American Conference of Governmental Industrial Hygienist TLV book. All of these sources reflect that acetylene is a simple asphyxiant (Exs. 2, 3, 5; Tr. 14-17, 29-32). Additional scientific references placed into evidence by Carbide also reflect that acetylene is a simple asphyxiant (Exs. B, C, D).

Carbide directed considerable evidence toward establishing that asphyxiation was too remote of a possibility to require reference to it on the label. It argues that "the possibility of asphyxiation from exposure to acetylene is not only remote, but is virtually impossible to occur" (Brief, p. 9). In its view there is no significant risk of asphyxiation in the use of acetylene. Assuming the presence of an ignition source, it argues that "the gas would ignite long before it reached a degree of concentration necessary to suffocate a human" (Brief, p. 11).

Thomas Willoughby, the former associate director for regulatory affairs for Carbide, testified that he coordinated the development of the label affixed to containers of acetylene (Tr. 88). Carbide's toxicologists did not believe asphyxiation was an appropriate warning (Tr. 93). He concurred in the decision of Carbide that there should be no asphyxiation hazard on the warning label. His concurrence was based on the fact that in his 39 years of experience with acetylene, he knew of no worker ever having been asphyxiated (Tr. 89).

Acetylene is well recognized as a simple asphyxiant. Carbide recognizes this fact by including the statement that it is a simple asphyxiant on the MSDS. It is so recognized by several authoritative scientific studies placed in evidence by both parties (See Exs. 2, 3, 5, B, C, D). The NIOSH criteria document for a recommended standard for acetylene [[4/]] recognizes a potential hazard exists whenever acetylene is inadvertently allowed to enter a confined space. One of the recommendations of the document is as follows (p. 10):

(4) Confined spaces shall be ventilated while work is in progress to keep the acetylene concentration and concentrations of combustible byproducts below acceptable limits and to prevent oxygen deficiency.

This recommendation tacitly recognizes that there can be a problem of oxygen deficiency in confined spaces where acetylene is used.

Carbide points out that "unrebutted evidence establishes that labeling acetylene as anything other than a 'flammable' gas would be misleading, contrary to the standard's stated purpose of only including significant risks on the label and, ultimately, result in an increased hazard to Respondent's employees" (Brief, p. 2). According to Frederick Kitson, flammability of acetylene is the principal hazard of the gas (Tr. 126-127). There is no dispute over this fact. Kitson expressed the view that an employee might ignore the flammability warning and utilize precautionary procedures suited to an asphyxiation situation if a "simple asphyxiant" warning is placed on the label (Tr. 126-127, 132-133). Dr. Christine F. Chaisson agreed that it is well established that acetylene is a simple asphyxiant (Tr. 147). She does not concur that the label for acetylene should contain a "simple asphyxiant" warning (Tr. 179). She, like Kitson, felt that the inclusion of the words "simple asphyxiant" would diminish the meaning of flammability by confusing the employee (Tr. 193, 198). There is no evidence to support the views of Kitson and Chaisson. Their opinions are simply expression of personal views. The opinions are not based on any studies. In view of the large red diamond on the label with the word "flammable" across it in white capital letters, it is highly unlikely that the flammability warning would be overlooked or ignored.

The principal thrust of Carbide's argument, is based on its assumption as to how the acetylene will be used by its customers. Acetylene is used in a wide variety of industrial operations. "[N]IOSH estimates that approximately 1,700,000 workers are potentially exposed to acetylene in the U.S." (See NIOSH Criteria Document for Acetylene, pp. 16-18.)

The HCS imposes a duty on the chemical manufacturer to provide thorough hazard information. Employers must be furnished the information they need to properly inform their employees and to design and implement employee protection programs. In Hilton-Davis Chemical Co. (Docket No. 86-0494, Judge's Decision issued February 19, 1987), this Judge concluded that "[i]t is not the intent of the standard to allow the upstream chemical manufacturer to limit the known hazards of a substance by speculating as to its use by a downstream employer." The decision further stated:

A limited disclosure by the upstream manufacturer would impede the downstream employer's ability to adequately evaluate the hazards of the chemical in relation to its anticipated use. It is the downstream employer and not the upstream manufacturer that is best able to determine the normal conditions of use of the product. The downstream employers must train their employees regarding the risks involved in particular exposure situations in their work area and have a need for complete and thorough information. To permit the chemical manufacturer to speculate as to the uses of the product by the downstream employer and limit disclosure of hazards based on such speculation would undercut the fabric of the standard and, in some instances, might lead to repercussions against the manufacturer. The preamble to the standard makes the following pertinent observation (48 Fed. Reg. 53,295):

* * * And since manufacturers or importers cannot know whether there will be a "significant risk" in downstream uses, thorough information on potential health hazards must be provided.

The hazard potential of a substance does not change. The risk of experiencing health effects will vary with the type and degree of exposure. As pointed out by the preamble (48 Fed. Reg. 53,296):

* * * The chemical manufacturer or importer, in making hazard determinations, should evaluate and communicate information concerning all the potential hazards associated with a chemical, whereas the employer may supplement this information by instructing employees on the specific nature and degree of hazard they are likely to encounter in their particular exposure situations. (Underlining added)

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. They must provide complete information on all potential hazards.

Acetylene is recognized by authoritative scientific sources as a simple asphyxiant. It is so recognized by Carbide on the MSDS. While asphyxiation may be remote, the use of acetylene could result in this potential hazard. The potential for such a hazard should be disclosed on the label. There are multiple industrial uses for acetylene. The decision as to what should be included on the label is not to be made on the relative risk or potential exposure as determined by the manufacturer. Well-substantiated potential hazards should be disclosed. Since possible asphyxiation is a well-substantiated potential hazard for acetylene, it is concluded that Carbide has failed to furnish thorough information on all potential hazards for acetylene. The alleged violation is affirmed.

Alleged Violation of 29 C.F.R.§ 1910.1200(d)(6)

Section 1910.1200(d)(6) of the HCS requires chemical manufacturers, importers, or employers evaluating chemicals to describe in writing the procedures they use to determine the hazards of chemicals they evaluate. The written procedures are to be made available, upon request, to employees, their designated representatives, and the Assistant Secretary for OSHA or his designated representative. Item 1a of the "other" citation issued to Carbide alleges that it failed to furnish the written procedures as required by § 1910.1200(d)(6).

At the commencement of the hearing, the parties filed a "stipulation of facts and law" resolving this issue in the following manner (Jt. Ex. 1-A):

5. Item 1a of the Citation alleges that Respondent violated 29 C.F.R. § 1910.1200(d)(6).

6. On December 4, 1985, a designee of the Assistant Secretary requested the Respondent's written procedures utilized for chemical hazards evaluation.

7. The parties agree that the issue presented by Item 1a is whether prior to May 25, 1986 Respondent was required to make available to the Assistant Secretary a written hazard determination procedure as specified in 29 CFR 1910.1200(d)(6).

8. The issue presented in Brock v. Katalistiks, Inc., OSHRC Docket No. 85-0595, is identical to the issue presented by Item 1a of the Citation at issue in this proceeding.

9. The parties agree to be bound by the Commission's decision in Brock v. Katalistiks, Inc., which is asserted by Carbide, is that it was not required to make available the written hazard determination procedure as specified in § 1910.1200(d)(6) until after May 25, 1986.

The defense raised in Katalistiks, Inc., which is asserted by Carbide, is that it was not required to make available that written hazard determination procedure as specified in § 1910.1200(d)(6) until after May 25, 1986.

On February 17, 1987, an order was issued granting the motion of Katalistiks, Inc., for summary judgment. The order concluded that the written procedures specified by § 1910.1200(d)(6) were not required prior to May 25, 1986, in lieu of November 25, 1985, as advocated by the Secretary. Since the demand and refusal in this case occurred on December 4, 1985, there can be no violation of § 1910.1200(d)(6). The written procedures were not required to be made available prior to May 26, 1986. The issue is decided for respondent.

Abatement Procedure

Industrial Hygienist Kenneth Gilbert testified that the violation could be abated by adding words like "asphyxiant," "simple asphyxiant" or "asphyxiant hazard" to the warning label (Tr. 19). There is no indication by Carbide that the prescribed abatement procedure would be too costly or unduly burdensome.

FINDINGS OF FACT

1. Union Carbide Corporation, Linde Division ("Carbide"), has a place of business and does business at 797 Marion Road, Columbus, Ohio. It is a major producer of compressed gas (Jt. Ex. 1-A; Tr. 10, 99).

2. Kenneth Gilbert is a supervisory industrial hygienist for the Occupational Safety and Health Administration (Tr. 8). On December 4, 1985,[[5/]] he conducted an inspection of Carbide's Linde Division located on Marion Road, Columbus, Ohio (Tr. 10-11).

3. The warning label for acetylene reflected on the acetylene compressed gas containers contained the word "FLAMMABLE" in white letters on a red diamond background. It contained the following additional warning (Ex. 1; Tr. 11):

DANGER! FLAMMABLE GAS MAY FORM EXPLOSIVE MIXTURES WITH AIR. FUSIBLE PLUGS IN TOP, BOTTOM, OR VALVE MELT AT 212°F. DO NOT DISCHARGE AT PRESSURE ABOVE 15 PSIG. ODOR: GARLIC LIKE.

Keep away from heat, flame and sparks. Close valve when not in use and when empty. Do not store, carry or use in a confined, unventilated space. Use in accord with Linde Form L-4559 (MSDS) and safe practices booklets L-2035 and L-3499. Keep out of reach of children.

FOR INDUSTRIAL USE ONLY BY PROFESSIONAL CRAFTSMEN

There was no warning on the label that addressed the fact that acetylene is a simple asphyxiant (Ex. 1; Tr. 11).

4. Acetylene is a simple asphyxiant (Exs. 2, 4, 5, B, C, D; Tr. 14, 85, 100-101, 147, 179).

5. A simple asphyxiant is an inert gas or vapor that can reduce the oxygen content of air below an acceptable level that would sustain appropriate bodily functions (Ex. 4, p. 7; Tr. 13, 146).

6. Acetylene poses an asphyxiation hazard in any situation where there is a potential for displacement of oxygen. If present in concentrations high enough to deprive the lungs of oxygen, it can cause suffocation (Exs. 5, B, C, D; Tr. 19, 42, 44-45, 134).

7. Acetylene is highly flammable (Exs. 2, 5, A, C; Tr. 55). If there is an ignition source, an explosion will occur before asphyxiation can occur (Tr. 101-104).

8. Acetylene is used for a wide variety of purposes. Approximately 1,700,000 workers are potentially exposed to acetylene in the United States. NIOSH Criteria for a Recommended Standard - Acetylene (pp. 16-18, Table XII-4).

CONCLUSIONS OF LAW

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

2. Carbide, 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. On December 4, 1985, Carbide was not in violation of 29 C.F.R. § 1910.1200 (d)(6) since it was not legally required to make its written procedures used to determine the hazards of a chemical available until May 25, 1986.

4. On December 4, 1985, Carbide was in violation of 29 C.F.R. § 1910.1200 (f)(1)(ii) for failure to include on the label affixed to containers of acetylene the warning that acetylene is a simple asphyxiant. The violation is "other than serious."

ORDER

Based upon the foregoing findings of fact, conclusions of law and the stipulation of the parties in the record at the commencement of the hearing (Tr. 5-6), it is

ORDERED: (1) That item 1a of the "other" citation issued to Carbide is vacated;

(2) That subitems a and e of item 1b of the "other" citation issued to Carbide is affirmed; and

(3) That subitems b, c and d of item 1b of the "other" citation issued to Carbide are vacated.

JAMES D. BURROUGHS
Judge

Date: March 30, 1987

SECRETARY OF LABOR,
Complainant,

UNION CARBIDE CORPORATION, LINDE
DIVISION,
Respondent.

OSHRC Docket No. 86-0740

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 affirming a citation subitem alleging a violation of 29 C.F.R. § 1910.1200(f)(1)(ii) for failure to label containers of acetylene as required by the cited standard;

(2) Specifically, whether the Administrative Law Judge erred in concluding that the hazard of "simple asphyxiation" should have been included among the "[a]ppropriate hazard warnings" on the container labels;

(3) Whether the Administrative Law Judge erred in concluding that, since simple asphyxiation is a known, recognized, and well-substantiated hazard, it must be stated on the container labels as well as in the material data safety sheets and that chemical manufacturers cannot omit such a hazard from labels on the basis of improbability of the hazard occurring;

(4) And if so, whether the administrative law judge erred in weighing the chemical manufacturer's expert testimony regarding the relative significance of risk of exposure to a hazard and the appropriateness of labeling to warn of asphyxiation.

The briefing order may designate additional issues.

E. ROSS BUCKLEY
CHAIRMAN

DATED: April 29, 1987

SECRETARY OF LABOR,
Complainant,

UNION CARBIDE CORPORATION,
LINDE DIVISION,
Respondent.

OSHRC Docket No. 86-0740

DIRECTION FOR REVIEW

Pursuant to 29 U.S.C. § 661(j) and 29 C.F.R. § 2200.92(a), Respondent's petition for discretionary review is GRANTED.

John R. Wall
Commissioner

DATED: April 24, 1987

WILLIAM E. BROCK, SECRETARY OF
LABOR, UNITED STATES DEPARTMENT
OF LABOR,
Complainant,

UNION CARBIDE CORPORATION, LINDE
DIVISION, and its successors,
Respondent.

OSHRC Docket No. 86-0740
Region V

RESPONDENT'S PETITION FOR DISCRETIONARY REVIEW

Pursuant to Rule 91(b) of the Rules of Procedure of the Occupational Safety and Health Review Commission ("the Commission"), 29 C.F.R. § 2200.91(b), Respondent Union Carbide Corporation, Linde Division ("Respondent" or "Linde"), hereby petitions the Commission to exercise its discretion to review the decision entered by Administrative Law Judge James D. Burroughs ("the Administrative Law Judge") in the above-captioned action.

BACKGROUND AND ISSUES PRESENTED FOR REVIEW

On May 2, 1986, a Citation and Notification of Proposed Penalty was issued, alleging that Respondent committed five "other than serious" violations of the Hazard Communication Standard, 29 C.F.R. § 1910.1200 ("the standard" or "HCS"), at its Columbus, Ohio acetylene manufacturing facility. Soon after the Citation's issuance, the parties reached an agreement as to four of the cited conditions.[[1/]]

On October 22, 1986, the remaining sub-item of the Citation was tried before the Administrative Law Judge. That item alleged that the labels on Respondent's acetylene cylinders did not warn of acetylene's potential as a simple asphyxiant. In his decision dated March 10, 1987, the Administrative Law Judge sustained the Complainant's position. He held that, because several standard reference texts document acetylene's capability of causing simply asphyxiation,[[2/]] a hazard warning for that property--irrespective of how remote it might be--should be included on the labels affixed to acetylene cylinders. (Order at 13-14.)

The Commission should grant review of this decision for three reasons. First, as one of the first decisions addressing the labeling requirements of the Standard, the decision is of major importance to chemical manufacturers generally and to the compressed gas industry in particular. See, e.g., Secretary of Labor v. The BOC Group, Inc., Airco Welding Products, OSHRC Docket No. 86-1757 (filed February 10, 1987); Secretary of Labor v. Middletown Oxygen Co,. Inc., OSHRC Docket Nos. 87-0131 and 87-0132. The function of a label is to communicate the actual risks posed by the material, not to convey theoretical and unlikely risks from remote hazards. The latter is the function the material safety data sheet, and Review Commission guidance is critical to clarify these respective requirements under the Standard. Secondly, the Administrative Law Judge's decision is directly contrary to the terms and the policy of the Standard. Finally, in rendering his decision, the Administrative Law Judge's treatment of the testimony of Respondent's expert witnesses constituted prejudicial error that, standing alone, warrants reversal of the decision.

The specific issues presented for review are the following:

(1) Whether the Administrative Law Judge's conclusion that the label must include the hazard of simple asphyxiation is contrary to the terms and purpose of the Standard inasmuch as it disregards the integrated functions of the three components of the required hazard communication program by failing to recognize the distinction between a label and a material safety data sheet;

(2) Whether the Administrative Law Judge's determination that simple asphyxiation is an "appropriate hazard warning" required to be included on acetylene labels failed to accord the deference to Respondent's professional judgment required by the Standard; and

(3) Whether the Administrative Law Judge acted contrary to applicable law and practice by disregarding the uncontradicted testimony of Respondent's expert witnesses and substituting his own judgment on the matters as to which Respondent's experts testified.

ARGUMENT

A. Requiring Labels to Carry Warnings For "All Hazards" Is Clearly Contrary to the Standard.

Throughout his opinion, the Administrative Law Judge emphasized that "[a]cetylene is well recognized as a simple asphyxiant." (Order at 5, 6, 9.) However, the fact that "authoritative scientific sources," (id. at 9), recognize that acetylene may be a "simple asphyxiant" under essentially implausible circumstances by no means compels -- or even suggests -- the conclusion that "the potential for such a hazard should be disclosed on the label." (Id. at 9.)

In his decision, the Administrative Law Judge seemingly relied on the proposition that an employer is obligated to "furnish thorough information on all potential hazards" posed by its shipped hazardous chemicals. (See id. at 9.) (emphasis added.) In so doing, the Administrative Law Judge applied the rationale of another of his decisions rendered after the instant case had been tried and fully briefed. That is, "[i]t is not the intent of the standard to allow the upstream chemical manufacturer to limit the known hazards of a substance by speculating as to its use by a downstream employer." (Id. at 8, citing Hilton-Davis Chemical Co., OSHRC Docket No. 86-0494 (issued Feb. 10, 1987).) However, unlike Hilton-Davis, this is not a case where an employer has attempted to limit its hazard communications. On the contrary, as the record clearly reflects, Respondent included information as to the potential for simple asphyxiation in its material safety data sheet on acetylene, (id. at 9), and in its employee information and training programs. Rather, the issue here is whether all information on potential hazards contained in a material safety data sheet must be included on a label without regard to the probability of the particular hazard actually occurring.

The Administrative Law Judge's summary dismissal of the material safety data sheet as an appropriate supplementary source of hazard information demonstrates his fundamental misapplication of the purpose underlying the tripartite hazard communication program. (See Respondent's Post-Hearing Brief at 12-19.) As the preamble to the Standard states:

Under the provisions of this final standard, each employee who is exposed to hazardous chemicals will receive information about them through a comprehensive hazard communication program. Chemical manufacturers and importers will be required to evaluate the hazards of the chemicals they produce or import, and to transmit this information to downstream employers by means of labels on containers and material safety data sheets.

(48 Fed. Reg. 53281.) (emphasis added.) It further clarifies:

Under the proposed [and final] provisions, the 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.

* * *
The identity on the label is keyed to the material safety data sheet for the chemical, which will contain more extensive information. . . . [T]he employee will be provided with extensive information on each chemical through the integrated elements of the comprehensive hazard communication program.

(Id.)
To be sure, the OSHA instruction relied upon by the Administrative Law Judge advises that the implementation of a multi-part program does not necessarily mean that "well-substantiated hazards" may be left off the label simply because they appear on the material safety data sheet. (OSHA Instruction CPL 2-2.3A (App. A).) However, explicit in this instruction and implicit throughout the preamble to the Standard is the recognition that the label's warnings should be determined through an assessment of the relative risks of the chemical's potential hazards. (See Respondent's Post-Hearing Brief at 22-25). This HCS-required assessment is designed to assure that the label will contain only significant information that should be immediately and visually transmitted to users in an emergency situation.[[3/]] (See 48 Fed. Reg. 53301, C.3.)

The Administrative Law Judge's decision makes the label equivalent in function to the material safety data sheet, i.e., to serve as the "primary vehicle for transmitting detailed hazard information to both downstream employers and employees." (Id. at 53305, C.3.) In so doing, it fails to recognize the very different purposes of these two components of the required hazard communication program. [[4/]] Accordingly, given the purpose for the label as stated in the preamble -- namely, to provide an immediate visual warning of the significant or foreseeable risks of the chemical -- the Administrative Law Judge's conclusion that acetylene's "potential for [simple asphyxiation] should be disclosed on the label" is, based on the record evidence in this case, a plainly incorrect application of the terms and policy of the Standard.[[5/]]

B. The Administrative Law Judge Acted Contrary to Law in Ignoring the Employer's Role and Responsibility in the Determination of "Appropriate Hazard Warnings."

At page 9 of his Order, the Administrative Law Judge concluded that "[t]he decision as to what should be included on the label is not to be made on the relative risk or potential exposure as determined by the employer." Not only is that statement an erroneous interpretation of the Standard and its underlying policy, but it directly contradicts a recent labeling decision rendered by the same administrative law judge. (See Hilton-Davis Chemical Co., supra.)

The preamble to the Standard expressly recognizes that labeling is a performance-oriented obligation. (48 Fed. Reg. 53301, C.1; see also Respondent's Post-Hearing Brief at 22-25.) Accordingly, "the employer is responsible for selecting the message and insuring that it is effective for the purpose involved." (48 Fed. Reg. 53306, C.3 - 53307, C.2.) In Hilton-Davis, the Administrative Law Judge correctly interpreted this performance standard, stating:

No effort was made by OSHA to impose a standardized labeling system. The preamble makes it clear that OSHA recognized that the selection of hazards to be highlighted on the label involved the use of professional judgment to determine what information is to be looked at and what conclusions to be drawn from it. 48 Fed. Reg. 53,298.

The Administrative Law Judge's reversal of positions in this action compels a result at odds with the Standard.

C. The Dismissal of the Uncontradicted Testimony of Respondent's Expert Witnesses Is Contrary to Federal Practice and Procedure and, In and of Itself, Constitutes Reversable Error.

A key element of Respondent's argument below was that the hazard warning suggested by the Complainant would be "misleading, contrary to the Standard's stated purpose of including only significant risks on the label and, ultimately, result in an increased hazard to Respondent's employees." (Respondent's Post-Hearing Brief at 2.) In support of this position, Respondent offered the testimony of Dr. Christine Chaisson and Mr. Frederick Kitson. Both of these witnesses were qualified -- without objection -- as experts in the fields of toxicology and compressed gas, respectively. Their uncontradicted testimony established that the inclusion of an asphyxiation warning could diminish -- with potentially fatal results -- the value of the traditional flammability warning. (Transcript at 126-127; 177; 193.)

The Administrative Law Judge summarily dismissed the expert testimony of these individuals on the ground that they were "simply expression[s] of personal views." (Order at 7.) In their place, he relied exclusively on his personal view -- unsupported by the record evidence -- that, "[i]n view of the large red diamond on the label with the word "flammable" across it in white capital letters, it is highly unlikely that the flammability warning would be overlooked or ignored." (Id.)

In replacing uncontradicted expert testimony with his own unqualified opinion, the Administrative Law Judge acted contrary to well-established federal and administrative practice and procedure. (See Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978) ("While an administrative law judge is free to resolve issues of credibility as to lay testimony or to choose between properly submitted [expert] opinions, he is not free to set his own expertise against that of [an expert] who testified before him.").) His dismissal of Respondent's expert testimony was not based upon expressed doubts as to the witnesses' credentials or their credibility. Rather, he rejected these opinions--the only, and necessarily unrebutted, record evidence on this issue--simply and erroneously because he disagreed with them.

WHEREFORE, Respondent requests that its Petition for Discretionary Review be granted.

Respectfully submitted,

UNION CARBIDE CORPORATION,
LINDE DIVISION

By:
Donald R. Crowell I

Its Attorney

Of Counsel:
Willis J. Goldsmith
Julia M. Broas
JONES, DAY, REAVIS & POGUE

Dated: April 21, 1987

FOOTNOTES:

[[1/]] Item 1b of the citation, alleging a violation of 29 C.F.R. § 1910.1200(f)(1), contained subitems a, b, c, and d, leaving only subitem e for decision (Tr. 5). The terms of settlement have been included in the order issued in this case.

[[2/]] 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.

[[3/]] On May 16, 1986, OSHA Instruction CPL 2-2.38A was issued and CPL 2-2.38 issued on August 5, 1985, was cancelled. On July 18, 1986, change one was issued to CPL 2-2.38A. CPL 2-2.38 issued on August 5, 1985, was in effect at the time the citation was issued. In Hilton-Davis Chemical Company, Docket No. 86-0494, issued on February 19, 1987, this Judge concluded that OSHA Instruction 2-2.38 is interpretative, and deference to the Secretary's construction is in order if his interpretation is reasonable.

[[4/]] At the request of counsel for Carbide, judicial notice was taken of this document (Tr. 119-120).

[[5/]] The citation erroneously refers to the inspection date as December 4, 1986.

[[1/]] A Stipulation reflecting that agreement was entered into at the hearing in this matter.

[[2/]] Simple asphyxiation occurs when a material displaces the available oxygen in the atmosphere to the extent that it causes a significant reduction in the availability of usable oxygen to the body. (Transcript at 146.) Of course, any material of a sufficient weight and concentration can displace oxygen so as to pose an asphyxiation hazard. (Id. at 9.) Therefore, a decision requiring a hazard warning for simple asphyxiation solely asphyxiation has implications for a wide range of chemicals, not just acetylene.

[[3/]] In light of the Standard's express recognition of the need for an assessment of a chemical's potential hazards, the Administrative Law Judge's previously noted conclusion that "all" potential hazards for acetylene should be included on the label is unsupported. The sole document relied upon by the parties containing an explicit label recommendation the NIOSH Criteria document for acetylene that was judicially noted at the hearing--describes a label warning only of the flammability hazard, the same warning on the label at issue in this case.

[[4/]] Moreover, in relying upon the Instruction to mandate a label warning in all circumstances where there exists information that a chemical has potentially hazardous properties, we submit that the decision effects an unlawful modification of the Standard by an administrative interpretation.

[5/] See 48 Fed. Reg. 53301, C.1. This decision contravenes another stated purpose of the Standard as well: to ensure uniform requirements for hazard communication within the industry. (Id. at 53281, C-2.) As Respondent's expert witness, Dr. Christine Chaisson, testified, labeling acetylene as a simple asphyxiant would be "prohibited" under analogous federal regulatory criteria. (See Respondent's Post-Hearing Brief at 18.) As Linde argued below, the inconsistency among federal labeling requirements of different federal agencies created by the Administrative Law Judge's decision could well create havoc on an industry-wide basis. (Id. at 19.)