SECRETARY OF LABOR,
OSHRC Docket No. 88-2021
This case was directed for review before the Occupational Safety and Health Review Commission by Former Acting Chairman Linda L. Arey on October 10, 1989 from a decision by Administrative Law Judge James A. Cronin dated August 29, 1989. The Secretary has filed a Notice to Withdraw Item 1b of Citation 2 pursuant to Commission Rule 102, 29 C.F.R. § 2200.102.
Having reviewed the official record in this case, the Commission construes the Secretary's Notice to Withdraw as a Motion to Withdraw Item 1b of Citation 2 and grants the motion. In addition, the Commission sets aside the Judge's decision to the extent that it rules on Item 1b of Citation 2, the withdrawn citation. Judge Cronin's Decision and Order now becomes a final order to the extent that it rules on Items 1a and 1c of Citation 2.
Edwin G. Foulke, Jr.
Donald G. Wiseman
Dated: May 24, 1990
ELIZABETH DOLE, SECRETARY OF LABOR,
OSHRC Docket No. 88-2021
Secretary's Notice to Withdraw Citation
In a decision dated August 8,1989, Administrative Law Judge James Cronin, Jr. vacated a citation for serious violations of 29 C.F.R. 1910.1200(f)(1)(ii), 1910.1200 (f)(5)(ii) and 1910.1200(g)(6) which had been issued to respondent by the Secretary on August 2, 1988 (items 1a, 1b, and 1c of serious Citation 2). The Secretary's subsequent petition for discretionary review of the judge's decision was granted by the Commission on October 10, 1989. The Commission's Direction for Review was limited to item 1b of serious Citation 2; the 1910-1200(f)(5)(ii) violation.
After extensive review of the record evidence, the Secretary
has determined that further litigation of this case is not merited.
WHEREFORE, the Secretary hereby withdraws the citation for violation of 29 C.F.R. 1910.1200 (f)(5)(ii) issued to respondent on August 2, 1988.
ROBERT P. DAVIS.
CYNTHIA L. ATTWOOD
Associate Director for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional
ORLANDO J. PANNOCHIA
SECRETARY OF LABOR,
For the Complainant:
Mary D. Wright, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, MO
For the Respondent:
Larry Jones, Esq., Missoula, MT,
Bert P. Krages, II, Esq., Louisiana-Pacific
Corporation, Portland, OR
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").
Following an inspection of respondent's manufacturing plant at Missoula, Montana, on April 20 and 21, 1988, the Secretary of Labor issued to respondent, Louisiana-Pacific Corporation, a "serious" citation alleging three violations of the Hazard Communications Standard (29 C.F.R. § 1910.1200 et seq.). A total penalty of $1,000.00 was proposed for the alleged violations. A hearing was held at Missoula, Montana, on April 18, 1989, and both parties have filed comprehensive briefs. This case is now ready for decision.
1. Whether the HCS applies to respondent's manufactured particleboard?
2. Whether § 1910.1200 (f)(1)(ii) requires respondent to address the carcinogenic hazard of formaldehyde on the shipping labels for its particleboard?
3. Whether respondent is required by § 1910.1200(g)(6) to provide either a material safety data sheet (MSDS) relating to its particleboard or separate MSDS relating to formaldehyde and wood dust to distributors and employers to whom respondent directly ships its particleboard?
4. Whether § 1910.1200 (f)(5)(ii) requires respondent to address the carcinogenic hazard of formaldehyde on its stationary tanks containing formaldehyde?
5. Whether respondent established its "greater hazard" defense?
6. Whether the HCS is invalid as applied to respondent?
A. Applicability of the HCS to Respondent's Particleboard
By order dated March 29, 1989, a partial summary adjudication was issued deciding that the HCS is not inapplicable to respondent's particleboard by reason of the wood or wood products exclusion in §1910.1200(b)(6)(iii). The parties, however, were alerted by the later order of April 12, 1989, that this partial summary adjudication was subject to change, modification, and even reversal by this Judge's final decision in this proceeding. Both parties have addressed the applicability issue in their briefs.
Section 1910.1200 (b)(6)(iii) declares that the HCS at § 1910.1200 et seq. does not apply to "Wood or wood products." The Secretary at the hearing stipulated that particleboard is a "wood product" and that wood dust, a component of respondent's particleboard, is "made out of wood" (Stipulation Nos. 19, 20, Tr. 19). The Secretary, however, claims that the HCS was never intended by the Secretary not to apply to particleboard. In support, she points to the Secretary's interpretation of the applicability of the HCS to wood or wood products found in the preamble to the HCS's final rule published in the Federal Register on November 25, 1983, 48 Fed. Reg. 53,280 et seq. and in the Secretary's comments to the proposed and final rules governing occupational exposure to formaldehyde 50 Fed. Reg. 50,412 (Dec. 10, 1985); 52 Fed. Reg. 46,168 (Dec. 4, 1987).
The Secretary's comments in the HCS preamble specifically discussed the wood and wood products exclusion from the HCS explaining that:
"while both kinds of materials are no doubt flammable and may pose other hazards as well under some circumstances, their identity within the workplace is unmistakable and their characteristic hazards should be well known to the workers involved. Accordingly, their exclusion from this standard is appropriate (emphasis provided) . . . "
The preamble goes on to indicate that wood and wood products also were excluded from application of the HCS because some of the chemicals with which some such products are frequently impregnated are subject to a labeling exclusion provided in the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for regulated insecticides. Finally, the preamble states that "it should be noted again that, as with the other exclusions, nonexcluded chemicals which are used in conjunction with tobacco and wood products, or are known to be present as impurities in those materials are covered by this standard." 48 Fed. Reg. 53,289 (Nov. 25, 1983)
Subsequently, the secretary specifically addressed the issue of whether wood products which contain formaldehyde were exempt under the HCS in the comments to the proposed rule governing exposure to formaldehyde and stated that "wood products which use formaldehyde would not be exempt from the requirements of the Hazard Communication Standard since the use of formaldehyde, in this instance, is not for pesticidal purposes. Therefore, the intention of the hazard communication standard was to cover wood products treated with a non-excluded chemical such as formaldehyde." 50 Fed. Reg. 50,483-84, (Dec. 10, 1985)
Later, the Secretary reiterated this position in the preamble to the final rule of the formaldehyde standard stating that, "wood products that are capable of emitting formaldehyde are not exempted from the standards of the Hazard Communication Standard since such uses of formaldehyde are not pesticidal." 52 Fed. Reg. 46,284 (Dec. 4, 1987)
"Wood dust," was never referenced or mentioned in the preamble to the HCS in November 1983. But some 45 months later on August 24, 1987, the preamble to an expanded HCS commented that, "OSHA never intended, however, that wood dust be excluded from the standard's coverage under the wood and wood products exemption. Wood dust is not generally a wood 'product,' but is created as a by-product during manufacturing operations involving sawing, sanding or shaping of wood. Wood dust does not share solid wood products "self-evident hazard characteristics that supported the exemption of wood products from the HCS coverage." 52 Fed. Reg. 31,863 (Aug. 24, 1987)
Respondent, on the other hand, argues with some persuasion that the Secretary is bound by the plain meaning of the language of § 1910.1200(b)(6)(iii) and by her stipulations that respondent's particleboard is a "wood product" and that wood dust "is made of wood." According to respondent, the Secretary's interpretation of § 1910.1200 (b)(6)(iii) is inconsistent with the plain meaning of the words used in (b)(6) and its adoption or acceptance by this Commission, therefore, would be contrary to law.
The exclusion or applicability question posed by this case is a
difficult one. But further review of the case law tends to support respondent's position
rather than the Secretary's.
When dealing with an administrative regulation or standard that provides penal sanctions for noncompliance, as we do here, the coverage or application of the standard is no broader than what is encompassed by its terms. Dravo Corp. v OSHRC, 613 F.2d 1227 (3d Cir. 1980)
On its face, the language of 1200 (b)(6)(iii), which appears under the "scope and application" section of the HCS, expressly excludes from coverage "wood or wood products" without any exceptions. Because the Secretary stipulates that respondent's particleboard is a "wood product," the plain and ordinary meaning of 1200.(b)(6)(iii) excludes respondent's particleboard from the application of the HCS.
Citing Church of Scientology v. U.S. Dept. of Justice, 612 F.2d 417 (9th Cir. 1979) in support, the Secretary forcefully argues that the Commission should not rely solely on the so-called "plain meaning" rule in interpreting the wood products exclusion because such reliance would ignore the Secretary's avowed intent and would expose countless employees to the hazardous chemicals formaldehyde and wood dust.
The interpretation of an administrative standard by the promulgating agency is entitled to "great deference" but not if this interpretation is "clearly erroneous or inconsistent with the regulation itself." See Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215 (1945) and Udall v Tallman, 330 U.S. 1 at 16, 87 S.Ct. 792, at 801 (1965). As the courts have held, a promulgated standard under the Act cannot be construed to mean what the Secretary intended but did not adequately express. See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649-650 (5th Cir. 1976); Usery v Kennecott Corporation, 577 F.2d 1113 (10th Cir. 1977)
In this Judge's view, the coverage of the HCS cannot be broadened to apply to some wood products when the HCS excludes all wood products without exception. Cf. Dravo Corp v OSHRC, supra, where a standard was held inapplicable to certain work places because the standard's language did not include them.
Moreover, the Act grants to the Secretary, and not to this judge or Commission, the means and responsibility to amend § 1910.1200(b)(6)(iii) to express what was intended by the Secretary but not stated in the standard. The Secretary may be right to be concerned that respondent's particleboard is not subject to the HCS but she needs only to amend § 1910.1200(b)(6)(iii) to eliminate that concern.
This Judge expressly overrules his partial summary adjudication which held that the HCS is not inapplicable to respondent's particleboard by reason of 1200.(b)(6)(iii). But to obviate the need for a remand should the Commission or a reviewing court decide that the HCS applies to respondent's particleboard, items 1a and 1c of the citation will be decided as if the HCS is applicable to respondent's particleboard.
In its answer, respondent also raised the affirmative defense that the HCS was inapplicable to respondent's particle-boards because they are "articles," which are expressly excluded from the HCS by § 1910.1200(b)(6)(iv). Although this defense was not addressed by respondent in its brief and apparently has been abandoned, a brief discussion of the issue appears in order.
"Article" is defined at § 1200(c) as
". . . a manufactured item:
(i) which is formed to a specific shape or design during manufacture, (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which does not release, or otherwise result in exposure to a hazardous chemical under normal conditions of use."
Exposure exists under §1910.1200 (c) when
"an employee is subjected to a hazardous chemical in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption; etc.) and includes potential (e.g. accidental or possible) exposure."
Respondent's particleboard clearly fails to satisfy the third definitional criterion of "article" because the record establishes that respondent's particleboard releases the hazardous chemicals formaldehyde and wood dust under normal conditions of use by downstream employees and that these employees are exposed to formaldehyde and wood dust through inhalation. Respondent's particleboards, therefore, are not "articles" and not excluded from application of the HCS by reason of § 1910.1200(b)(6)(iv).
B. Item 1a - Alleged Violation of § 1910.1200(f)(1)(ii)
The Secretary has charged respondent with the failure of its
shipping labels that are attached to the units of its particleboard to address the
carcinogenic hazard of the formaldehyde contained in the particleboard (Ex. C-3).
§ 1910.1200(f) provides in pertinent part:
Labels and other forms of warning. (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.
Most of the facts are undisputed and many of them were stipulated by the parties.
Respondent is an employer engaged in a business which affects commerce and is listed within the SIC codes 20 through 39.
Respondent manufactures particleboard, a material formed by binding small particles of wood and wood dust with urea formaldehyde resin. The formaldehyde content of this manufactured particleboard varies from .007 to .021 percent. The particleboard also contains more than 1% of soft wood dust.
The HCS defines a chemical manufacturer as "an employer with a workplace where chemicals are produced for use or distribution. See § 1910.1200(c).
A "chemical" is broadly defined in 1200(c) as "any element, chemical compound or mixture of elements and/or compounds." The term "hazardous chemical" is defined as "any chemical which is a physical hazard or a health hazard." "Health hazard" also is defined in section 1200(c) and means a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The parties stipulated that formaldehyde has been the subject of at least one such study and was found to be a carcinogen. Therefore, formaldehyde is a "health hazard" and a "hazardous chemical."
The HCS also establishes a "floor" of hazardous substances which chemical manufacturers are required to treat as hazardous chemicals or carcinogens. See 1910.1200(d)(3) and (4).
Both formaldehyde and wood dust are listed in the Threshold Limit Values for Chemical Substances in the Work Environment, American Conference of Governmental Industrial Hygienists (ACGIH). Formaldehyde also is regulated under Subpart Z. of 29 C.F.R. Part 1910 at § 1910.1048. Formaldehyde additionally is listed by both the International Agency for Research on Cancer (IARC) Monographs (latest editions) and by the National Toxicology Program (NTP), Annual Report on Carcinogens (latest edition) as a carcinogen. Both formaldehyde and wood dust, therefore, must be treated as "hazardous chemicals," and formaldehyde additionally treated as a "carcinogen," for purposes of the HCS.
Particleboard is not the result of a chemical reaction and,
therefore, is a "mixture" of chemicals as that term is defined under § 1200(c).
Because wood dust, a hazardous chemical, comprises more than 1% of the mixture
constituting the particleboard, the particleboard itself also must be treated and
considered as a "hazardous chemical." See 1200 (d)(5)(ii).
Respondent is found to be a chemical manufacturer and its particleboard a "hazardous" chemical subject to the labeling requirements of the HCS under § 1200.(f)(1)(ii).
Respondent, however, was not charged with the failure of its shipping label to address the hazards generally associated with wood dust, but only with the failure to address the carcinogenicity of formaldehyde. Respondent initially argues that a label referencing the carcinogenic hazard of formaldehyde is not appropriate and not required given the insignificant emission levels of formaldehyde from its particleboard. This Judge agrees that this record does not establish that respondent's shipping label is required to reference the potential cancer risk of formaldehyde but for somewhat different reasons.
§ 1200(f)(1)(ii) requires "appropriate hazard warnings" on the label of a hazardous chemical mixture. The HCS also requires a chemical manufacturer to determine the hazards of any chemical mixture that he produces. He may test the mixture "as a whole" to determine its hazards or assume that the mixture presents the same hazards as posed by the individual components of the mixture.
In effect, the HCS also creates a presumption that a
carcinogenic component that comprises less than .1% of the mixture poses no cancer hazard.
The HCS, of course, also presumes that a carcinogenic component comprising more than .1%
of the mixture poses a cancer hazard.
Because of this presumption, no cancer warning on a container label of a hazardous chemical mixture is required if the carcinogenic component comprises less than .1% of the chemical mixture.
A chemical manufacturer, who does not test the mixture as a whole to determine its hazards, is entitled to rely on this presumption unless he has reason to believe that the emissions of the carcinogenic component will exceed the OSHA PEL or an ACGIH Threshold Limit Value for that chemical. See § 1910.1200(d)(ii) and (iv).
In this case, formaldehyde comprises less than .1% of the particleboard, a hazardous chemical, and there is no evidence that respondent had reason to believe that formaldehyde could be released at a concentration exceeding the OSHA PEL of one part formaldehyde per million parts of air (1 ppm) as a 8-hour time weighted average (TWA) concentration under normal conditions of use. Indeed, the respondent's and Secretary's tests demonstrate that formaldehyde emissions from the particleboard do not exceed, the OSFA PEL.
There also is no evidence that respondent had reason to believe that its particleboard under normal conditions of use could emit formaldehyde in concentrations that could cause cancer.
Respondent's expert, who was not a respondent employee, agreed that employee exposure to formaldehyde below 1 ppm poses a potential risk of cancer. But that evidence is insufficient to prove that respondent has reason to believe that the emission level of formaldehyde from its particleboard could cause cancer.
Because no test for wood dust apparently was performed, respondent did not test the particleboard as a whole to determine its hazards. Therefore, respondent was entitled to rely on the presumption that, formaldehyde posed no cancer hazard because it comprises less than .1% of the particleboard, and conclude that no cancer hazard warning on its container labels for formaldehyde was required.
Moreover, even assuming that respondent's testing of its particleboard for formaldehyde emissions constituted a test of the particleboard "as a whole," the test results were not indicative of a cancer hazard. Thus, no cancer hazard warning on the container shipping label for formaldehyde was required. Item 1c - Alleged Violation of § 1910.1200(g)(6)
The Secretary alleges that respondent failed to provide downstream employers and distributors with material safety data sheets (MSDS) for the hazardous chemicals formaldehyde and wood dust contained in its particleboard.
§ 1910.1200(g)(6) provides:
(6) Chemical manufacturers or importers shall ensure that distributors and employers are provided an appropriate material safety data sheet with their initial shipment, and with the first shipment after a material safety data sheet is updated. The chemical manufacturer or importer shall either provide material safety data sheets with the shipped containers or send them to the employer prior to or at the time of the shipment. If the material safety data sheet is not provided with a shipment that has been labeled as a hazardous chemical, the employer shall obtain one from the chemical manufacturer, importer, or distributor as soon as possible.
Respondent stipulated that it did not provide MSDS relating to its particleboard or to the hazardous chemicals formaldehyde and wood dust contained in its particleboard to "all" downstream distributors or employers to whom it directly shipped its particleboard (Tr. 18). The compliance officer further testified that he was told by respondent's plant manager that MSDS were not being sent with the shipped particleboard (Tr. 48). By failing to provide a MSDS for its particleboard which contains more than 1% wood dust, and, therefore, is a hazardous chemical or an MSDS for wood dust, respondent failed to comply with § 1910.1200(g)(6).
For reasons similar to those previously discussed concerning the alleged violation of § 1200(f)(1)(ii), however, respondent was not required to provide a MSDS for formaldehyde or reference formaldehyde in an MSDS for the particleboard. An MSDS need not list the carcinogenic component of a hazardous chemical mixture if the carcinogenic component does not comprise more than .1% of the mixture and if there is no evidence that the component could be released in concentrations exceeding the OSHA PEL or could present a cancer hazard to employees. See 1200.(g)(2)(c)(1), (2) and (3).
As previously discussed, formaldehyde did not comprise more than 0.1% of the particleboard's hazardous chemical mixture. The Secretary also failed to establish by a preponderance of the evidence that respondent had reason to believe that formaldehyde could be released in concentrations exceeding the OSHA PEL for formaldehyde of 1 ppm or that the concentrations of formaldehyde released could present a cancer hazard to downstream employees under normal conditions of use. See 48 Fed. Reg. 53,292.
D. Item 1b-Alleged Violation of §1910.1200(f)(5)(ii)
The Secretary alleges a violation of § 1200(f)(5)(ii) due to respondent's failure to label its stationary urea formaldehyde tanks with information relating to the carcinogenicity of formaldehyde.
§ 1910.1200(f)(5)(ii) provides:
(f) Labels and other forms of warning.
(5) Except as provided in paragraphs (f)(6) and (f)(7) the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:
(ii) Appropriate hazard warnings.
Respondent appears to argue that it was not required to address the carcinogenicity of formaldehyde on the labels of its tanks because it made available to its employees MSDS which did address the carcinogenicity of formaldehyde.
The parties stipulated that the labels affixed to respondent's tanks identified the tanks as containing formaldehyde and that MSDS for formaldehyde were available to all employees (Tr. 17-18). These labels were provided by the formaldehyde manufacturer, Borden Chemical (Tr. 39), The MSDS for formaldehyde contain information regarding the carcinogenicity of formaldehyde (Ex. C-1, C-2).
The standard at issue requires that each container of hazardous chemical must be labeled, tagged, or marked with the identity of the hazardous chemical(s) contained therein and "appropriate hazard warnings." The HCS at § 1910.1200(f)(6), however, allows an employer to use "signs, placards, process sheets, batch tickets, operating procedures, or other such written materials in lieu of affixing labels to individual stationary process containers, as long as the alternative method identifies the containers to which it is applicable and conveys the information required by paragraph (f)(5) of this section to be on the label."
The Secretary's brief argues that the alternative method in (f)(6) is available only with respect to "individual stationary process containers" and that respondent's tanks are not "process containers."
The compliance officer testified that in his opinion the term "process container" under the HCS is limited to containers in which some kind of a chemical reaction takes place. This Judge disagrees.
In referring to the exemption in § 1200(f)(6) for an inplant container labeling requirement, the preamble in the HCS indicates that this exemption was intended to apply "[W]here stationary containers in a work area had similar contents and hazards . . . " 48 Fed. Reg. 53,280. Moreover, if the Secretary had actually intended to restrict the meaning of "process container" only to a chemical reaction vessel, the Secretary would have simply used the term "reaction vessel," which already is referenced under the definition of "container," See § 1910.1200(c).
Contrary to the Secretary's contention, the terms "process container" and "reaction vessel" are not synonymous. "Process container" is a much broader term and covers stationary tanks like respondent's which are an integral part of a manufacturing process and contain "similar contents and hazards."
Pointing to the phrase " in lieu of " the Secretary also argues that if an employer chooses to use any form of label on its containers, it cannot use the alternative method provided by (f)(6). But this alternative method requires no labels on stationary process tanks. Therefore, an employer should not be precluded from using this alternative method simply because it chooses to additionally label its tanks with the identity of the contents.
Another issue raised is whether the availability of MSDS for formaldehyde is sufficient to constitute compliance with (f)(6) and (f)(5)(ii) .
There appears to be nothing in the HCS to prevent an employer from using MSDS forms in lieu of affixing labels to individual stationary process containers. The provision at (f)(6) allows employers to use among other things ". . . operating procedures or other such written materials" instead of labels. Certainly, "other such written materials" is sufficiently broad to cover MSDS forms. In fact, MSDS can be in the form of "operating procedures." See 1200(g)(iv)
MSDS or "other such written materials," however, cannot be used unless they identify the containers to which they are applicable, identify the contents of those containers, and contain the appropriate warning information applicable to the contents involved.
Although respondent's MSDS for formaldehyde do not identify the containers to which they are applicable, the labels on the containers fulfilled that requirement by identifying the contents as formaldehyde. The MSDS which are available to respondent's employees also address the carcinogenic hazard of formaldehyde. In this Judge's view, respondent is in substantial compliance with § 1910.1200 (f)(6). It also should be noted that there is no evidence in the record that respondent employees are actually or potentially exposed to the formaldehyde in the tanks.
E. The Alleged Invalidity of the HCS
Citing the Supreme Court's decision in Industrial Union
Department, AFL-CIO v American Petroleum Institute, 448 U.S. 607F 100 S.Ct. 2844
(1980), the respondent contends that the HCS is invalid as applied to it because the
Secretary failed to provide sufficient conclusive evidence in both the rulemaking and
hearing records to support a finding that the HCS labeling requirement is reasonably
necessary and appropriate to remedy a significant risk of material health impairment.
This Commission has long acknowledged and held that it lacked the statutory authority to question the wisdom of the Secretary's standards or review the Secretary's quasi-legislative determination that the requirements or prohibitions of a standard are "reasonably necessary or appropriate" means of eliminating oz reducing workplace hazards. See Cornish Dress Mfg, Co., 3 BNA OSHC 1850 (No. 6765, 1975), Van Raalte Co., 4 BNA OSHC 1151 (No. 5007, 1976, and Austin Bridge Company, 7 BNA OSHC 1761 (No. 76-93, 1979).
According to the Commission, the determinations made by the Secretary when promulgating a standard that a hazard exists and that the standard will eliminate or reduce that hazard are both quasi-legislative and adjudicative resolutions of disputed facts. See Austin Bridge Co., supra, at n.10.
In promulgating the HCS, the Secretary found that employees are more likely to be harmed handling hazardous chemicals if they are ignorant of the nature of those chemicals. The Secretary found that inadequate communication is itself a hazard which the HCS can eliminate or mitigate. 48 Fed. Reg. 53,321 (1983). Because these particular findings by the Secretary constitute in part quasi-legislative determinations which the Commission lacks statutory authority to review, respondent's invalidity challenge to the HCS must await review by a Circuit Court of Appeals or possibly by the Supreme Court.
The HCS is predicated on the existence of a hazard if its terms are not met. Therefore, at an enforcement hearing concerning the HCS the Secretary is not required to prove either that noncompliance with a particular section creates a hazard or that compliance with the standard would have eliminated or reduced a significant risk of harm. The Secretary in this hearing only had to prove that respondent failed to comply with the cited requirements of the HCS.
F. Greater Hazard Defense
Respondent raised the so-called "greater hazard" defense in its answer. According to respondent, it is inappropriate to risk causing stress-related illnesses in employees by placing a cancer warning on labels when the risk of cancer is insignificant.
Because of the determination above that the Secretary failed to prove that respondent was required to put a cancer warning on its particleboard shipping label, it becomes unnecessary to address respondent's greater hazard defense.
Findings of Fact
All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear above in the decision. See Rule 52(a) of the Federal Rules of Civil Procedure. Any proposed findings of fact and conclusions of law that are inconsistent with this decision are denied.
Conclusions of Law
1. Respondent's particleboard is a "wood product" as that term is used in § 1910.1200(b)(6)(iii).
2. The language of § 1910.1200(b)(6)(iii) excludes respondent's particleboard from application of the HCS.
3. Respondent's particleboards are not "articles" and not excluded from application of the HCS by reason of § 1910.1200(b)(6)(iv).
4. Respondent's tanks that contain formaldehyde are "stationary process containers" that are subject either to the labeling requirements of 1910.1200(f)(5)(ii) or § 1910.1200(f)(6).
5. Respondent was in substantial compliance with the inplant labeling requirements of §1910.1200(f)(6) and § 1910.1200(f)(5).
Based on the findings of fact, conclusions of law, and the entire record, it is ORDERED:
1. Citation No. 1 issued August 2, 1988, and the proposed penalty of $1,000.00, are VACATED.
James A. Cronin, Jr.
Dated: August 29, 1989