PPG INDUSTRIES (CARIBE) a Corporation

OSHRC Docket No. 77-2235

Occupational Safety and Health Review Commission

August 20, 1980

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Before: CLEARY, Chairman: BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Mary Z. Azzeo, Associate Regional Solicitor, U.S. Department of Labor

Hugh M. Finneran, Labor Counsel, PPG Industries, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Charles K. Chaplin is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.   Judge Chaplin vacated two items of a citation alleging serious violations of 29 C.F.R. § §   1910.1000(b)(1) and 1910.1000(e) and affirmed a de minimis violation of the Act based on Respondent's noncompliance with 29 C.F.R. §   1910.134(e)(5)(i).

Commissioner Cottine sua sponte directed the case for review. * The Secretary of Labor filed a letter indicating that he did not wish to pursue the case and requesting that the Commission affirm the judge's decision.   Respondent, PPG Industries, has filed a brief that urges the Commission to affirm the judge's disposition of the two vacated items but also requests that we reverse the judge's finding of a de minimis violation [*2]   and vacate that item.

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* In his direction, Commissioner Cottine specified the following issues:

(1) Whether the Administrative Law Judge erred in vacating the alleged violation of 29 C.F.R. §   1910.1000(b)(1) on the ground that the Secretary failed to establish the feasibility of administrative or engineering controls under 29 C.F.R. §   1910.1000(e);

(2) Whether the Administrative Law Judge erred in vacating the alleged violation of 29 C.F.R. §   1910.1000(e) on the ground that no technologically feasible engineering controls exist to reduce the level of mercury vapor;

(3) Whether the Administrative Law Judge erred in interpreting 29 C.F.R. §   1910.1000(e) as requiring only the implementation of those administrative or engineering controls that are economically feasible; or

(4) Whether the Administrative Law Judge erred in finding that the alleged violation of 29 C.F.R. §   1910.134(e)(5)(1) was de minimis and, if so, whether the violation was properly cited as serious.

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Because the judge found Respondent's violation [*3]   to be de minimis, Respondent is not a party aggrieved by the judge's disposition.   Westburne Drilling, Inc., 77 OSAHRC 79/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD P21,814 (No. 15631, 1979).   Therefore, there is no expression of interest in Commission review by an aggrieved party. Moreover, the judge's decision raises no issue of compelling public interest. Accordingly, the case will not be reviewed and the judge's decision is affirmed.   See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   The decision is accorded the precedential value of an unreviewed judge's decision.   See Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, (No. 76-4070) (2nd Cir., May 17, 1976).   SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The direction for review in this case raises several important issues concerning the respiratory protection required by §   1910.134. n1 Rather than resolve these issues for the parties and the public, my colleagues summarily dispose of this case, concluding that there is neither any interest by an aggrieved party nor any [*4]   compelling public interest present.   They disregard the Respondent's specific interest in Commission reversal of the judge's determination that its respirators lacked a proper seal under §   1910.134(e)(5)(1).   In addition, the majority concludes that the proper use of respirators, including proper fit and seal, is not an issue of compelling public interest. This conclusion ignores the reality of industrial hygiene practice in that respirators are often the employees' only protection against highly toxic air contaminants such as the mercury vapors involved in this case. n2 Moreover, the Commission has yet to provide guidance on the interpretation of the respiratory protection standard.   Under these circumstances, I dissent from the summary action taken by the majority.

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n1 The issues directed for review are set out in the footnote to the majority opinion.

n2 Mercury is a systemic poison.   1 Patty's Industrial Hygiene and Toxicology §   2.3.4 at 139 (3d rev. ed. 1978).   It is a common air contaminant which after absorption circulates in the blood and is stored in the liver, kidneys, spleen, and bone.   In industrial poisoning, its chief effects are on the central nervous system and the mouth and gums.   Colitis has also been reported as a frequent effect.   The classic signs of industrial poisoning are stomatitis, tremors and psychic disturbances.   In the more severe cases there may be convulsions or shaking movements.   In addition, fatal poisoning has occurred due to exposure to alkyl mercurials and permanent damage to the brain has been reported.   N. Sax, Dangerous Properties of Industrial Materials 798 (5th ed. 1979).

The biggest user of mercury in the United States is the chlor-alkali industry.   In the chlor-alkali process, mercury is used for the cathode in the electrochemical decomposition of aqueous sodium chloride.   During this complex process, there is a loss of up to 250 grams of mercury per ton of chlorine produced.   See generally M. Sienko and R. Plane, Chemical Principles and Properties 553-555 (2d ed. 1974).

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The respondent has demonstrated party interest in this case.   PPG filed a comprehensive 32-page brief on review pursuant to a Commission order inviting briefs.   PPG's brief included a detailed explanation of its reasons for urging dismissal of the item classified as de minimis by the judge.   Clearly, Respondent has expressed party interest in a decision on that item.   Nonetheless, the majority uses a purely procedural device to avoid a decision.   They rely on Westburne Drilling, Inc. 77 OSAHRC 79/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD P21,814 (No. 15631, 1977), as authority for their summary action.   However, Westburne is distinguishable because there is no indication in that decision that the party found in de minimis violation had any interest in Commission review.   Accordingly, I would not extend Westburne to defeat Respondent's party interest in this case.

Respiratory protection is also an issue of compelling public interest meriting a substantive decision by the Commission in this case.   The respiratory protection standard plays a central role in removing workers from [*6]   the serious risks of occupational disease. Where engineering and administrative controls are infeasible, respirators provide an essential means of protection from excessive levels of air contaminants. n3 Moreover, while feasible engineering or administrative controls are being implemented, respirators provide interim protection from toxic air contaminants.

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n3 See, e.g., Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD P20,588 (No. 6286, 1976) (engineering and administrative controls to reduce noise levels found to be infeasible).

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The magnitude of the health hazards caused by air contaminants can be estimated, at least in part, from a recent report by the Bureau of Labor Statistics.   Of the 143,500 occupational illnesses reported for 1978, 13,600 were classified as respiratory conditions caused by toxic agents and another 1600 were classified as dust diseases of the lung. n4 Bureau of Labor Statistics, U.S. Dep't of Labor, Report 586, Occupational Injuries and Illnesses in 1978: Summary [*7]   24, Tables 7 & 8 (1980).   Thus, respiratory illnesses alone contributed about 10.6% of the new occupational diseases reported in 1978.   However, these statistics do not indicate fully the effects of air contaminants in the workplace. Disorders due to physical agents accounted for another 11.6% of occupational illnesses in 1978, and poisoning accounted for another 3.9%.   Air contaminants play a significant role in the incidence of occupationally related cancers and various disorders other than respiratory diseases. See generally Occupational Safety and Health Administration, U.S. Dep't of Labor, Identification, Classification and Regulation of Potential Occupational Carcinogens, 45 Fed.Reg. 5002, 5033-35 (1980) (trends in the incidence of occupationally related lung cancer and other cancers).

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n4 The respiratory system is an important route of entry for toxic air contaminants including gases, vapors, mists and particulates.   Casarett, Toxicology of the Respiratory System in Toxicology: The Basic Science of Poisons 201 (1975) There are numerous forms of respiratory disease including acute conditions such as trache-o bronchitis, and chronic conditions such as pneumoconioses e.g. silicosis, and various carcinomas of the lung.   Id. at 201-224; N. Proctor & J. Hughes, Chemical Hazards of the Workplace 41, 44, 66-75 (1978).   See generally Nat'l Inst. for Occupational Safety and Health, U.S. Dep't HEW, Occupational Diseases: A Guide to Their Recognition 11-16, 102-121 (rev. ed. 1977).

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The effectiveness of any respiratory protection program is dependent on the proper fit and seal of the respirator. However, the Commission has not interpreted §   1910.134 with respect to the quality of the fit or seal required for each employee issued a respirator. Nor has the Commission provided interpretative guidance on the overall requirements of the standard and its interrelation with the permissible exposure levels established by §   1910.1000. n5 These issues are squarely presented in this case and they concern a matter of compelling public interest -- the effective protection of employees from toxic air contaminants.

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n5 Section 1910.1000 sets exposure limitations to various air contaminants, requires the use of feasible engineering and administrative controls, and provides that the use of respirators shall comply with §   1910.134.

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Finally, section 12(j) of the Act reserves to each Commissioner the authority to independently evaluate [*9]   the issues raised by a record and to exercise his individual discretion to direct review of a case.   Keco Industries, Inc., 78 OSAHRC 105/D9, 7 BNA OSHC 2048, 1979 CCH OSHD P24,117 (No. 78-661, 1979) (Cottine, Commissioner, dissenting).   Any reconsideration of whether the case continues to present issues of compelling public interest must be made by a Commission majority that includes the Commissioner who directed the case for review.   Keco Industries, Inc., 7 BNA OSHC at 2052 & n. 14, 1979 CCH OSHD at p. 29,310 & n. 14. My colleagues' action constitutes an attempt to deny one Commissioner his statutory right to specifically direct cases for Commission review.   Furthermore, it is not simply the Commission's option but its obligation to decide cases of compelling public interest. The summary disposition of this case cannot be reconciled with the Commission's responsibility to develop a national body of occupational safety and health law.   See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 [*10]   (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir., June 7, 1979).