E. I. DU PONT DE NEMOURS & CO., INC.

OSHRC Docket No. 76-2400

Occupational Safety and Health Review Commission

January 29, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Sol., U.S. Department of Labor

John C. Heavey, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge Joseph Chodes is before the Commission for review under section 12(j) of the Act, 29 U.S.C. 661(i). In his decision, Judge Chodes affirmed items 18 and 21 in a citation issued by the Secretary of Labor ("the Secretary") alleging other-than-serious violations of the Act. n1 The two items charged noncompliance with the standards at, respectively, 29 C.F.R. 1910.94(c)(2) and 29 C.F.R. 1910.151(c). Former Commissioner Barnako directed review of this case on the issues raised in the petition for discretionary review filed by Respondent, E.I. du Pont de Nemours & Co., Inc. The issues before us on review are:

(1) Whether the judge erred in affirming the item alleging noncompliance with section 1910.94(c)(2) n2 in the Pump Shop. More particularly, whether Respondent's spray painting operation was performed in a "spray room." [*2] n3

(2) Whether the judge erred in affirming the item alleging noncompliance with section 1910.151(c) n4 in the Analyzer Room. More specifically, whether the standard safety shower provided by Respondent was "suitable" for quickly flushing the eyes.

For the reasons stated below, we remand item 18 to a judge to determine whether the spray painting was done in a "spray room," and we vacate item 21 due to the Secretary's failure to prove that the shower provided was not suitable.

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n1 Respondent was issued a total of 15 citations for alleged violations at its Chambers Works facility in Deepwater, New Jersey. The only issues on review concern two of the 35 items in citation 1.

n2 The standard provides in pertinent part:

Subpart G - Occupational Health and Environmental Control

1910.94 Ventilation.

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(c) Spray finishing operations -

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(2) Location and application. Spray booths or spray rooms are to be used to enclose or confine all operations.

n3 29 C.F.R. 1910.94(c)(1)(iii) defines a "spray room" as follows:

A spray room is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas.

n4 The standard reads as follows:

Subpart K - Medical and First Aid

1910.151 Medical services and first aid.

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(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

[*3]

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I

A

Item 18 alleges noncompliance with section 1910.94(c)(2) in the Pump Shop, one of the buildings in the Central Crafts area of Respondent's Chambers Works facility, which was inspected by compliance officer Albert Smith of the Occupational Safety and Health Administration ("OSHA"). The shop was approximately 30 feet wide, 100 feet long, and 16 feet high, with fully enclosed offices and a lunchroom, which were only 8 feet high, at one end of the building. The rest of the building was the "work area," which was approximately 70 feet in length.

In the work area, nine of Respondent's employees reconditioned and repaired pumps, n5 which were generally 2 feet by 3 feet in size. The regular work procedure for each of these nine employees, except when they were working on "submerged" pumps, was to recondition and repair a pump at the employee's individual work bench, then clean it in a caustic bath, and finally hang it on a chain hoist and spray it with a can of aerosol paint. The spray painting was done at or near the double door located midway along the 30-foot wide front of the building. At least [*4] one employee put his back to the door and sprayed towards the rest of the room. Each of the nine employees sprayed an average of two to five pumps a day for five days a week, with each pump taking two to five minutes to paint. At least two to three 13-ounce cans of spray paint were used in the Pump Shop each day. Usually, only one employee would be spray painting a pump at any given time, while the other eight would be repairing other pumps. The nearest bench where employees were repairing pumps was 20 to 30 feet from the spray painting operations. However, repair work on "submerged" pumps was performed at a distance of 10 feet or less from the spray painting area. One to five of these pumps were assigned to each of the nine employees every week. "Submerged" pumps were not sprayed.

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n5 A tenth employee who worked in the room only tested pumps. No further testimony concerning this employee's job was given.

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The Pump Shop had a fan, which was located in the upper corner of one side of the building above the enclosed [*5] rooms and about 80 feet from the spray painting operations. On the day of the inspection, the fan was not in operation, and the windows along one side of the building and the double door at the front of the building were all closed. The fan was rarely used in the winter and was used only intermittently at other times. The doors and windows were not opened when the weather was cold. n6

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n6 Respondent's supervisor of the Pump Shop ambiguously testified, "There is a small fan also located inbetween (sic) two louvers on the south end of the shop, but, those louvers are blocked off so you do have that additional exhaust."

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During his inspection of the Pump Shop, compliance officer Smith observed Gary Novotny, one of Respondent's Pump Shop mechanics, spray painting a pump that was hanging from a chain hoist in the work area near the front door. Smith smelled "pungent" vapors emanating from the paint, but he did not perform any test to determine the paint's toxicity. Respondent's employee Novotny testified that, when [*6] he repaired pumps at his work bench some 60 feet from the painting area while another employee was spray painting, he could taste the paint and smell its "nasty odor." He stated that the vapors from the paint got stronger as one walked toward the painting operation. Novotny testified that he was told by his foreman that a spray booth with its own exhaust fan had been provided at one time for the pump spraying operation, but it had been removed before Novotny began working in the Pump Shop.

Compliance officer Smith testified that a spray booth or spray room, where there is adequate mechanical or natural ventilation, should have been used to protect employees from the paint's toxic and flammable vapors. He testified that a fan should have been located close to the point of the spray painting operation to prevent the vapors from reaching employees working at the nearby benches.

A penalty of $80 was proposed for the violation alleged in item 18, and Respondent's counsel stipulated that it was an appropriate amount if the violation were affirmed.

B

In his decision, Judge Chodes concluded that Respondent failed to comply with section 1910.94(c)(2) in that its pump painting operation [*7] was not enclosed or confined in a "spray booth," as defined in 29 C.F.R. 1910.107(a)(3), n7 nor in a "spray room," as defined in section 1910.94(c)(1)(iii). See note 3 supra. He determined that the "fairly large" work area in Respondent's Pump Shop, with its only powered ventilation being 80 feet from the painting operation, was not a "spray booth." He further concluded that the work area was not a "spray room" because the spray painting operation was not separated from the other pump repair activities that were being performed in the Pump Shop. The judge rejected Respondent's contention that, in accordance with Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD P20,782 (No. 7176, 1976) ("Bethlehem Fabricators"), the Secretary failed to prove a violation in that he did not sustain his burden of establishing that the vapors or other emissions from the spray paint were dangerous. Judge Chodes noted that in Bethlehem Fabricators an expert called by the employer testified that the paint vapors did not present a health hazard to employees. He distinguished the instant case on the basis that here no such rebuttal evidence was introduced. [*8] Moreover, the judge made a specific finding that the nine employees of Respondent "were exposed to dangerous quantities of flammable vapors and combustible residues." He based this finding on what he deemed to be reasonable inferences drawn from the testimony of compliance officer Smith and Respondent's employee Novotny. He thus affirmed item 18 and assessed the stipulated penalty of $80, which he found to be appropriate.

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n7 The applicable standard provides in pertinent part:

Subpart G - Occupational Health and Environmental Control

1910.94 Ventilation.

* * *

(c) Spray finishing operations - (1) Definitions applicable to this paragraph -

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(ii) Spray booth. Spray booths are defined and described in 1910.107(a).

Section 1910.107(a)(3) defines a "spray booth" as follows:

A power-ventilated structure provided to enclose or accommodate a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely conduct or direct them to an exhaust system.

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C [*9]

In its initial arguments on review, Respondent contended that the judge erred in finding that the nine employees were exposed to dangerous amounts of flammable emissions from the paint and in thus affirming item 18. Respondent maintained that the Secretary failed to meet his burden of proof under Bethlehem Fabricators in that he did not test for toxicity or flammability of the paint emissions. In response, the Secretary argued that Judge Chodes was correct in distinguishing Bethlehem Fabricators from the instant case and in thus affirming item 18.

However, in a supplemental memorandum filed while this case was pending on review, Respondent acknowledged that, after it filed its brief on review, the Commission issued its decision in Westinghouse Electric Corp., 79 OSAHRC 28/B8, 7 BNA OSHC 1318, 1979 CCH OSHD P23,542 (No. 13955, 1979), rev'd and remanded, 617 F.2d 497 (7th Cir. 1980) ("Westinghouse"). In that case, the Commission held that section 1910.94(c)(2) requires that all spray finishing operations within its scope be enclosed or confined by spray booths or spray rooms without regard to whether emissions are present in dangerous amounts. Noting that in [*10] Westinghouse the Commission expressly overruled that portion of Bethlehem Fabricators upon which Respondent had relied in its initial arguments on review, Respondent set forth other contentions in support of its continuing argument that Judge Chodes' decision should be reversed. Accordingly, we conclude that the following contentions are the issues now before us on review.

Respondent asserts that the spraying area in its Pump Shop conformed to the definition of "spray room" in section 1910.94(c)(1)(iii) because the spray painting of the pumps was "performed separately from other areas," i.e., it was done 20 to 30 feet from the area where employees were repairing pumps and even further from the lunchroom and offices, which were completely enclosed by 8-foot high walls and a ceiling. Respondent notes that section 1910.94(c)(1)(iii) does not specify a minimum distance of separation, and it asserts that the Secretary failed to prove that the spray painting was not "performed separately from other areas" within the meaning of that definition. According to Respondent, because each of the nine employees who were repairing pumps also spray painted pumps at some time each day, [*11] those employees were not unnecessarily exposed to emissions to which they otherwise would not have been subjected. Respondent further contends that the Secretary did not offer any proof that Respondent had not complied with the design or mechanical specifications for spray rooms, e.g., section 1910.94(c)(4)(iii), which requires the air in the breathing zone of the operator to be maintained at a certain level. Noting that no penalty was imposed by the Commission in Westinghouse, Respondent additionally argues that, if the Commission "retroactively applies" Westinghouse and finds a violation in the instant case, it should not assess any penalty due to the lack of proof that Respondent's employees were exposed to dangerous quantities of flammable vapors and combustible residues.

D

As stated by Respondent in its supplemental memorandum, the Commission concluded in Westinghouse, supra, that section 1910.94(c)(2) requires that all spray finishing operations within its scope be enclosed or confined by spray booths or spray rooms without regard to whether emissions are present in dangerous amounts. n8 In that case, the Commission noted that the room in which the spray [*12] painting was done measured approximately 200 feet long, 80 feet wide, and 100 feet high and that there was no physical separation of the spray finishing area from other production activities, which were performed as close a 5 feet from the spray finishing operation. The Commission noted that a spray room is a room where spray painting is done "with adequate physical separation from other areas," and that the requirement in 29 C.F.R. 1910.107(b)(8) that spray booths be removed at least 3 feet from other operations "does not indicate that spray rooms may be separated from other areas by as little as 3 feet." Westinghouse, supra, 7 BNA OSHC at 1323 n.14, 1979 CCH OSHD at p. 28,521 n.14. Based on the facts above, the Commission concluded that Westinghouse's spray finishing operation was not enclosed or confined by a spray room.

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n8 Accordingly, we need not determine in this case whether the judge erred in finding that the employees were exposed to "dangerous quantities" of flammable vapors and combustible residues. The finding is set aside because it is immaterial to the alleged violation.

[*13]

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On appeal from this decision, the United States Court of Appeals for the Seventh Circuit concluded that section 1910.94(c)(2) does not necessarily require a physical barrier between spray painting operations and other activities but rather, by using the term "room," the standard "suggests that activities other than spray painting may be in the same general room provided the spray painting is sufficiently separated from any other activities so that the spray painting causes no interference." Westinghouse Electric Corp. v. OSHRC, 617 F.2d 497, 502 (7th Cir. 1980). The court stated, "The record was not developed for the purpose and is not sufficient to support a determination of whether or not the location of the Westinghouse spray painting is sufficiently separated from other activities in the particular circumstances so as to qualify as being conducted in a spray room." 617 F.2d at 503 [footnote omitted]. Therefore, the court vacated the Commission's order and remanded the case for a determination of whether the spray painting was performed in a "spray room."

Noting that the court's decision required [*14] that the parties be afforded the opportunity to present further evidence on the separation of Respondent's spray finishing operations from other activities, the Commission, on remand from the court, further remanded the case to the judge who had initially heard the case to determine whether the spray painting was performed in a "spray room." Westinghouse Electric Corp., 80 OSAHRC 120/G1, 9 BNA OSHC 1183, 1981 CCH OSHD P25,004 (No. 13955, 1980).

As in Westinghouse, the record in the instant case was not developed for the purpose of determining whether the spatial separation between Respondent's spray painting operations and other activities in the Pump Shop was sufficient to meet Respondent's duty to provide a "spray room." Indeed, because this case was tried before the various decisions in Westinghouse were issued, the parties were not clearly on notice that the absence of a physical barrier is not determinative on this issue. We therefore must give the parties the opportunity to introduce evidence relevant to the spatial or physical separation of Respondent's spray finishing from other activities. Accordingly, we remand this case to the Chief Administrative Law Judge [*15] for assignment to an administrative law judge n9 for the purpose of conducting further proceedings consistent with this decision, including providing the parties an opportunity to present additional evidence as to whether Respondent's spray painting was performed in a "spray room" within the meaning of section 1910.94(c)(1)(iii) and entering a finding on this issue.

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n9 Administrative Law Judge Joseph Chodes, who initially decided this case, has since retired.

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II

A

Item 21 relates to conditions observed by OSHA compliance officer Vincent Gallagher during an inspection of the Analyzer Room in the Chemical Building of Respondent's Chambers Works facility. The room was a laboratory measuring 17 feet by 30 feet in which employees analyzed the industrial waste water generated by the plant to determine if it had been treated properly before its release into the Delaware River. Analysis of the waste water involved the use of various corrosive chemicals, including sulfuric acid. The corrosive chemicals, which were stored [*16] in bottles and then placed in secondary containers, were used continually every day, but only in small quantities. At least one employee was in the room when the inspection was conducted. A "standard safety shower" n10 was the only means provided in that room for drenching the body and flushing the eyes. An employee in that room would always be no further than 30 feet away from that shower. When the handle of the standard safety shower was pulled down completely, the shower operated at a pressure of 35 pounds per square inch at its head, with the flow pressure being somewhat less on the user's face. In item 21, the Secretary alleged that an eyewash fountain was required under section 1910.151(c), but not provided, and proposed a penalty of $135.

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n10 This "standard safety shower" was an overhead, full-body shower operated by pulling a handle to start the flow of water from the shower head.

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At the hearing, compliance officer Gallagher testified that he and Harry Allendorf, the OSHA Area Director, both interpreted [*17] the cited standard to require an eyewash fountain because, in their view, the standard shower was not a "suitable facility" for flushing eyes. Gallagher noted that no directives concerning the interpretation of section 1910.151(c) had been issued by the Secretary. However, Gallagher expressed his opinion, concerning flushing corrosive chemicals from the eyes, that "[i]t's normal first-aid emergency procedure to wash the eye for fifteen minutes with a gentle flow of water." Gallagher testified that he believed an eyewash fountain in the Analyzer Room was necessary because, with only the full body shower immediately available, if a small quantity of acid got into an employee's eyes, flushing it out would involve holding the "head in an upright position for fifteen minutes" while standing under the shower. Gallagher pointed out several drawbacks to such flushing methods. He stated that employees, besides probably being reluctant to get themselves completely drenched just to wash out their eyes, would have difficulty breathing with their heads held "in an upright position for fifteen minutes" under the shower. According to Gallagher, employees not wishing to get entirely wet "may [*18] elect to go into the men's room or other source of water" where they would not be able to get the required quantity of water from the basins or spigots to adequately flush their affected corneas.

In response, James Bowman, Senior Safety Supervisor for the Chambers Works plant, testified that employees working in the laboratory are required to wear "standard side shield safety glasses" that are issued to them by Respondent. He stated that, in addition to such glasses, employees are required to wear "slash proof goggles or face shields" when working with corrosive materials. Nevertheless, he noted that Respondent recognizes the possibility of some chemical getting into a person's eyes even while that person is wearing the eye protection. Bowman expressed his opinion and Respondent's position that the shower provided is a suitable facility for the quick flushing of eyes. With regard to how an employee could flush the eyes with the shower, Bowman testified, "The shower would be operated by pulling the waiting handle . . . . The water would run down his face and run through his eyes. He could tilt his head back and the water would go through his eyes or he could cup his hands and [*19] flush the water up into his face." He further stated that the flow of the shower was a maximum of 35 pounds per square inch. He also noted his company's policy that any employee who gets corrosive material on himself or herself should be transported to the medical division as soon as possible. Bowman testified that Respondent has no history of eye injuries in the Analyzer Room.

B

Judge Chodes concluded in his decision that, by not providing an eyewash fountain in the Analyzer Room, Respondent did not comply with section 1910.151(c). He noted that the cited standard refers separately to the eyes and body, and that "the eyes need special consideration due to their vulnerability to injury, and the dire consequences which could result from contact with corrosive material." He determined that the standard full-body shower was not a "suitable facility" under section 1910.151(c) for "immediate emergency use" for "quick drenching or flushing" of the eyes because it did not permit the application for water directly to the eyes, but rather supplied only diffused water. The judge noted several unreviewed judges' decisions that Respondent cited in its post-hearing brief for the propositions [*20] that an eyewash fountain is not required under the standard and that other methods of supplying water are suitable. However, he distinguished the instant case from those cases on the ground that in each of those cases the water supplied for flushing the eyes was not diffused. Judge Chodes thus affirmed item 21 and assessed the proposed penalty of $135.

Respondent argues on review that the shower provided in the Analyzer Room was a "suitable" facility for flushing the eyes. For support, Respondent cites Gibson Discount Center, Store No. 15, 78 OSAHRC 30/C1, 6 BNA OSHC 1526, 1978 CCH OSHD P22,669 (No. 14657, 1978), and Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977), as well as numerous unreviewed judge's decisions determining whether certain sources of water were "suitable facilities" under section 1910.151(c). It asserts that the shower it provided is just as "suitable" as an eyewash fountain. Respondent also cites to the evidence in the record concerning the alternative precautions it took to protect the eyes of its employees. Respondent further contends that the term "suitable" in section 1910.151(c) is so vague as to render [*21] the standard unenforceable and invalid. The Secretary contends on review that, for the reasons stated by the compliance officer at the hearing and by Judge Chodes in his decision, the shower provided in the Analyzer Room was not a suitable facility for quick drenching of the eyes within the meaning of section 1910.151(c).

C

In Gibson Discount Center, supra, and Gulf Oil Co., supra, the Commission determined that the issue of whether facilities are "suitable" under section 1910.151(c) depends on the particular circumstances of the case, including such factors as the nature and amount of the material to which the eyes are exposed and the distance between the work area and the washing facility. Therefore, we agree with Respondent that more than one type of eyewash facility may be suitable. The issue before us is not whether Respondent is required to provide an eyewash fountain but rather whether the shower provided is suitable under the circumstances.

We conclude, on the basis of the record before us, that the Secretary has failed to meet his burden of proving that the shower provided by Respondent was not suitable. n11 The only evidence regarding the configuration [*22] and operation of the shower put forth by compliance officer Gallagher was his testimony that the shower flowed from overhead and that employees would have to hold their heads "in an upright position for fifteen minutes" to use it to flush out their eyes. Gallagher testified that he did not remember what the Analyzer Room looked like nor where the shower was located in the room. Moreover, he testified on cross-examination that the safety shower would be "one of the methods that an employee may use to get a corrosive out of his eyes" and that the shower was there to provide water for quick drenching as a first aid measure. He further stated, "I don't think there would be anything to prevent an employee from drenching his eyes with that shower." Gallagher also testified that he made no effort to determine at what pressure the shower flowed. Consequently, the Secretary offered no evidence that the flow of the shower could not be moderated to produce a gentle stream. In addition, the Secretary does not contend that the shower was so located that employees could not reach it without unreasonable delay even if they were working at the maximum distance of 30 feet from the shower.

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n11 In light of this disposition, we need not rule upon Respondent's contention that the standard is unenforceably vague.

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It was Respondent's witness Bowman who testified that, according to his measurement, the shower flowed at a maximum pressure of 35 pounds per square inch. However, Bowman did not testify concerning the full range of the shower's flow rate. Bowman's testimony provided the only further description of the shower -- that it was operated by pulling a handle.

Accordingly, we conclude that the judge erred in affirming item 21. n12 We hold that the Secretary failed to prove that the shower provided by Respondent was not suitable, and that the Secretary therefore did not establish that Respondent failed to comply with section 1910.151(c). For this reason, we vacate item 21.

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n12 In affirming the item, the judge relied primarily on the fact that the shower supplied only diffused water. However, there is no foundation in the record for a finding that a facility cannot be suitable if it supplies diffused water.

[*24]

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III

Accordingly, we remand this case to the Chief Administrative Law Judge for assignment to an administrative law judge for the limited purpose of conducting further proceedings on item 18, which alleges noncompliance with section 1910.94(c)(2), including entering findings of fact and conclusions of law consistent with this opinion. We vacate item 21, which alleges noncompliance with section 1910.151(c), as well as the penalty proposed therefor.

IT IS SO ORDERED.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, concurring in part and dissenting in part:

I join in Part I of the lead decision, remanding item 18 for a determination of whether Respondent's spray painting operation was performed in a "spray room." However, I dissent from the majority's decision to vacate item 21. I conclude that the standard safety shower provided by Respondent was not a suitable facility for use by employees to wash corrosive chemicals out of their eyes and that Respondent therefore failed to comply with 29 C.F.R. 1910.151(c). n13

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n13 I reject Respondent's contention that 1910.151(c) is unenforceably vague. Section 1910.151(c) is not vague on its face because, given the wide variety of situations in which the eyes or a part of the body may come into contact with various corrosive materials, the standard was drafted "with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury." See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 at 233 (5th Cir. 1974).

Furthermore, the standard is not vague as applied to the facts of this case. In mentioning the "eyes" separately from the rest of the "body" in two instances, section 1910.151(c) gives notice that facilities that are suitable for drenching the body may not be suitable for flushing the eyes. In addition, it is a matter of common understanding that, as stated by Judge Chodes, "the eyes need special consideration due to their vulnerability to injury, and the dire consequences which could result from contact with corrosive material." I therefore conclude that the standard provides "a reasonable warning of the proscribed conduct in light of common understanding and practices." See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d at 233; see also Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869 (10th Cir. 1974). In fact, as the Secretary correctly notes, Respondent provided eyewash fountains in some of its other chemical-manufacturing facilities, thereby indicating recognition on its part that such facilities are suitable for protection of employees working with corrosive chemicals.

[*26]

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As noted by the majority, both the compliance officer and the area director testified that an eyewash fountain should have been provided because the standard safety shower was not "suitable" for flushing corrosive chemicals from the eyes. In support of his opinion, compliance officer Gallagher gave unrebutted testimony that "[i]t's normal first-aid emergency procedure to wash the eye for fifteen minutes with a gentle flow of water." In contract, the standard safety shower provided by Respondent operated at a maximum force of 35 pounds per square inch, considerably more pressure than a gentle flow. Nor is there anything in the record to indicate that employees with corrosive chemicals in their eyes could reduce this to a gentle flow. Employees seeking to use the shower to flush corrosive chemicals out of their eyes would suffer discomfort, if not harm, from the considerable pressure of the water flowing onto their eyes. In fact, it seems doubtful that employees could hold their eyes open for the 15 minutes required to adequately flush their eyes, considering the force of the shower. Employees cupping [*27] their hands for water to rinse their eyes, to avoid the force of the water from the shower head onto their eyes, would probably be unable to create a constant flow of water over their eyes. The record does not clearly establish that employees could rinse their eyes by cupping their hands, because it does not disclose whether the shower remains in operation if the handle is released. Moreover, employees using these facilities would get their whole bodies wet from the overhead shower. Not wishing to get entirely wet just to flush their eyes, employees could lose valuable time seeking other sources of water and would find those alternative sources inadequate for flushing their eyes. In my view, Respondent essentially admitted that the shower was not suitable when it stated in its submissions on review: "Indeed, common sense dictates that an adult who stands under a shower which provides 35 pounds of pressure at the head, would be subjected to a rather forceful and concentrated rush of water in the area of his eyes."

I agree with Judge Chodes that the unreviewed judge's decisions cited by Respondent are not controlling in this case, see Leone Construction Co., 76 OSAHRC 12/E6, [*28] 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), and that the cases are distinguishable on the ground that they did not involve facilities providing diffused water. I also agree with the judge that a facility supplying only diffused water is not a suitable facility for quickly flushing the eyes, an operation requiring a "flow of water" rather than a spray of water in order to successfully wash out any corrosive chemical.

Accordingly, I dissent from the majority's refusal to affirm item 21.