A. SCHONBEK & CO., INC.
NORANDA ALUMINUM, INC.
GENERAL MOTORS CORP., GM ASSEMBLY DIV.
ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
CLEMENT FOOD COMPANY
FWA DRILLING COMPANY, INC.
GENERAL ELECTRIC COMPANY
OSHRC Docket No. 76-2982
Occupational Safety and Health Review Commission
December 30, 1980
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
Baruch A. Fellner, Office of the Solicitor, USDOL
Mr. Albert H. Ross, Regional Solicitor, U.S. Dept. of Labor
Ralph C. Copeland, for the employer
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 Abraham Gold is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). In response to a petition for discretionary review filed by the Secretary of Labor ("the Secretary"), Chairman Cleary directed review of the judge's decision to determine if the judge erred in vacating a citation item alleging an other than serious violation of the Act in that the Respondent, General Electric Company, failed to comply with the standard at 29 C.F.R. § 1910.134(b)(10). We conclude that the judge did not err.
The cited standard provides as follows:
§ 1910.134 Respiratory protection.
* * *
(b) Requirements for a minimal acceptable program.
* * *
(10) Persons should not be assigned to tasks requiring use of respirators unless it has been determined that they are physically [*2] able to perform the work and use the equipment. The local physician shall determine what health and physical conditions are pertinent. The respirator user's medical status should be reviewed periodically (for instance, annually).
(emphasis added). The source of section 1910.134 is identified, at 29 C.F.R. § 1910.139, as ANSI Z88.2-1969, Practices for Respiratory Protection. * Examination of this source standard reveals that the cited subsection, 29 C.F.R. § 1910.134(b)(10), was adopted verbatim from section 3.7 of the source standard. Section 1.3 of the source standard states that "[t]he provisions of this standard are mandatory in nature where the word 'shall' is used and advisory in nature where the word 'should' is used."
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* The source standard was developed by the American National Standards Institute (ANSI).
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The citation item at issue alleged that the Respondent failed to comply with 29 C.F.R. § 1910.134(b)(10) in that the medical status of a respirator user in an abrasive blast-cleaning operation [*3] was not reviewed periodically. Accordingly, it is evident that the Respondent was charged with failing to comply with the provision set forth in the third sentence of the standard. In his decision, the judge reasoned that the provisions of the first and third sentences of the standard are advisory and that the Secretary had failed to establish noncompliance with the provision set forth in the second sentence of the standard, which the judge deemed to be mandatory. He therefore concluded that the Secretary failed to establish a violation of the Act. The Secretary takes exception to this conclusion, arguing that the third sentence of the standard creates a mandatory duty and that the Respondent failed to comply with this requirement.
We reject the Secretary's exception. Standards adopted under section 6(a) of the Act, 29 U.S.C. § 655(a), that are derived from advisory source standards are advisory under the Act. Brown & Root, Power Plant Division, 80 OSAHRC , 9 BNA OSHC 1027, 1029, 1980 CCH OSHD P24,958 at p. 30,795 (No. 76-2938, 1980). For this reason, the judge correctly concluded that the third sentence of the cited standard is advisory. Noncompliance with that provision [*4] therefore cannot be the basis for finding a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2). Id.
The judge's decision is affirmed.