UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-4674
WITCO CHEMICAL CORPORATION,
Respondent.

November 20, 1979

ORDER

Since the Secretary requests to ‘withdraw’ his petition for Discretionary Review and Respondent and the union assent, and this case presents no issue of compelling public interest, The Commission affirms the Administrative Law Judge’s decision and accords it the precedential value of an unreviewed Judge’s decision. See Potlatch Corporation, —— OSAHRC ——, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No. 77–3589, 1979).

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: NOV 20, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-4674
WITCO CHEMICAL CORPORATION,
Respondent.

June 11, 1979

APPEARANCES:

Agnes M. Johnson-Wilson, Esq. For Complainant

William Prickett, Esq. For Respondent

Ted Duer, President Local 8–898, Oil, Chemical and Atomic Workers International Union For Employees

DECISION AND ORDER

Chalk, Judge

The inspection of Respondent’s New Castle, Delaware, plant, conducted in stages between April 7, 1978 and August 25, 1978, resulted in the issuance of the following alleged serious violations of 29 U.S.C. 654(a)(2):

1a 29 CFR 1910.134(a)(2): Respirators were not provided by the employer when such equipment was necessary to protect the health of the employee(s):

a) D–104 reactor, operator exposed to TDI, 6/1/78

b) D–107 reactor, operator exposed to TDI, 6/1/78

1b 29 CFR 1910.1000(a)(1): Employee(s) were exposed to material(s) in excess of the ceiling value(s) listed for the particular material(s) in table Z–1 of subpart Z of 29 CFR part 1910:

a) Toluene-2, 4-Diisocyanate, D–104 reactor operator, 6/1/78

b) Toluene-2, 4-Diisocyanate, D–107 reactor operator, 6/1/78

1c 29 CFR 1910.1000(e): Feasible administrative or engineering controls were not determined and implemented to reduce employee exposure(s):

a) D–104 reactor operator, 6/1/78, exposed to TDI

b) D–107 reactor operator, 6/1/78, exposed to TDI

*Step 1—Effective respiratory protection shall be provided and used by employee(s) as an interim protective measure.

*Step 2—A written detailed plan of abatement leading to the complete abatement of this item shall be submitted to the Area Director. Such a plan shall: a) employ the use of qualified engineering personnel; b) include detailed engineering studies and their results; c) outline the ordering of equipment and materials and completion of the design phase; and d) outline dates for the anticipated implementation of the plan.

*Step 3—Feasible engineering controls and/or administrative controls shall be determined.

*Step 4—Abatement shall be completed by implementation of feasible engineering and/or administrative controls and its effectiveness at achieving compliance verified. 90-day progress letters are requested during the abatement period.

A penalty of $400 was proposed for this charge.

The standards involved respectively provide:

29 C.F.R. 1910.134(a)(2)

Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.[1]

29 C.F.R. 1910.1000(a)(1)

Materials with names preceded by ‘C’—Ceiling Values. An employee’s exposure to any material in table Z–1, the name of which is preceded by a ‘C’ (e.g., C Boron trifluoride), shall at no time exceed the ceiling value given for that material in the table.[2]

29 C.F.R. 1910.1000(e)

To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1910.134.

I

Respondent, according to the compliance officer, Maria Shanahan, manufactures ‘components of isocyanate systems, and these components are packaged and sold to foam manufacturers who mix the two components together to produce a foam’ (Tr. 10). One of the components of foam systems is toluene diisocyanate (TDI) which, according to one of Respondent’s witnesses, is used by Respondent about ‘three-fourths of the time’ in its production process (Tr. 145).

The Co started her inspection on April 7, 1978 and returned on April 14, 1978 to review Respondent’s records. As Respondent had monitored TDI levels in the past, and its records indicated ‘a few’ levels that exceeded the ceiling value, although most were ‘of a low level,’ she decided to return on another occasion and take her own readings (Tr. 13).[3] Because of other commitments, she was unable to return until June 1, 1978, after ascertaining from an official of the company that TDI would be used in the production process that day.

The two employees whose work areas she monitored were involved in what was called a drumming process. They accomplished this task in separate booths,[4] each of which contained a spigot from a separate reactor nearby in which the compounds were ‘cooked’ (Exhs. J–1. J–2; Tr. 168). In the top of each booth was a hood with an exhaust fan that was designed to draw away any harmful material from the employee’s breathing zone. Drums were wheeled into each booth and the employee’s exposure, if any, occurred when they opened the spigots from the reactors and filled the drums. Neither of the employees was wearing a respirator when the CO monitored their areas, nor had they worn respirators in the past.

The monitoring device employed by the CO, conceded by Respondent to be ‘a standard testing unit,’ was affixed to the person of each of the two employees (Tr. 22).[5] She took five samples on each employee, each sample lasting about 15 minutes. When these samples were analyzed by a qualified chemist, it was found that three samples on each employee exceeded the ceiling limit of the standard (Exh. C–1). The specific results, received by her in July, 1978, were as follows:

Standford Downward—0.4, 0.5, 0.3 milligrams of TDI per cubic meter of air,

Paul Robert—0.16, 0.2, 0.18 milligrams of TDI per cubic meter of air.

At the time, she informed two company officials—William J. Neary and Phillip Stitzer—that the ‘levels had come back high and that they should begin to investigate possible engineering controls and also respiratory protection as soon as possible’ (Tr. 74).

On the day the CO took the samples, she took velometer readings in both hoods because she noted ‘that the hoods were not particularly effective in that they seemed to create a good deal of turbulence’ (Tr. 35). She further explained:

The idea[l] situation would be to have the air drawn away from the employees’ breathing zone. This was the case in some situations, but in certain areas along the face of the hood at the top of the hood, where the employee stood, the air was actually being forced back out towards the employee (Tr. 35).

The problem existed in both booths and she informed Mr. Stitzer who said that it would be ‘look[ed] into’ (Tr. 35). Her velometer readings, apparently taken after she talked to Stitzer, were identical for both booths and reflected a range from plus 150 feet of air per minute on the left side of each hood to minus 100 feet of air per minute on the right side of each hood, with the turning point from plus to minus at about the mid-point of the hood. The minus readings meant that air was being forced in by the fan rather than drawn out of the hood, as indicated by the plus readings.

The CO conducted her closing conference about August 25, 1978 with Neary, the plant manager, Stitzer, the safety director, and two union representatives. Respondent indicated that it was aware that it had a problem with the ventilators and stated that it would be corrected. In her opinion, Respondent could have ‘engineer[ed] out the existing problems’ by additional ‘localized ventilation’ and by improving the hood design (Tr. 159).

Doctor John Peters, a medical doctor who also had a Masters degree in Public Health and the degree of Doctor of Science and Occupational Health, testified that he was a Professor of Occupational Medicine at the Harvard School of Public Health and was that school’s Director of its Occupational Health Program. His duties included teaching and research in occupational medicine, and lung diseases were his specialty. He had done extensive research in connection with exposure to TDI, which he referred to as ‘a strong irritant,’ and had published papers on the subject (Tr. 113).

Doctor Peters first stated that certain individuals, about five percent of the population, are sensitized to TDI, or are allergic to it, and cannot tolerate any exposure to TDI. He then proceeded to detail possible acute effects that may lead to chronic effects of TDI exposure on the balance of the population, stressing his view that these effects can occur at levels below the standard’s ceiling level and his opinion that a safe level in certain cases was about one-sixth less than the ceiling level. Much of his testimony on acute effects seemed to be addressed to a situation where workers were exposed to TDI ‘day in and day out’ over a period ‘of one, two three, or four years’ (Tr. 115). According to him, they might develop chronic pneumonia, or more commonly, sustain loss of lung capacity. Loss of lung capacity, moreover, normally occurs in the aging process and is known to occur more rapidly among smokers. They might also develop chronic bronchitis or chronic obstructive lung disease, both of which are serious chronic respiratory diseases.

It appeared to be Doctor Peter’s view that diminished lung capacity was the most common result from TDI exposure. On this subject, he stated:

A. The acute reaction seems to predict the chronic reaction. That is, if we were measure [sic] anybody [sic] in this room exposed to TDI, those of us who had the biggest change over a days [sic] shift are going to be the ones that have the biggest change over two, or three, or four years. So, in that sense, it predicts a serious effect, but by itself it may not be a serious effect. That is, if we worked in the TDI plant one day and never worked there again, there may be no other effect other than what happened on just that one day.

Q. If an employee works for a period of, say, three years, would you classify the effect as a serious health hazard?

A. I prefer to talk about groups of employees, because they don’t all react the same way, as you might think. Not all cigarette smokers get lung cancer, and not all workers exposed to asbestos get lung cancer. It is the same in this instance, but there would be some people who would have serious effects during that three years [sic] period of time, if we had 100 people, let’s say. (Tr. 117, 118)

When asked if ‘the exposure’ in this case, ‘in and of itself,’ constituted a hazard to these individuals, he replied in the negative (Tr. 125). He also stated that the diminished lung capacity effect could be serious ‘over a period of time’ (Tr. 127). Finally, although stating that one exposure of the types involved herein would not ‘likely’ be serious, he stated that the contrary would be true if the exposures occurred two or three times a week for two or three hours each. When asked to relate this last statement to a specific period of time, he never responded, although it became clear that he had directed his comments to the sensitized type of person who was representative of five percent of the population.

The two exposed employees testified that they occasionally experienced tightness in their chests and sore throats, like cold symptoms, that lasted about 24 hours. Downward, who had been with Respondent 13 years, only worked with TDI 10 or 15 times a year when he substituted for absent employees. He thought that what he experienced was ‘probably’ attributable to TDI (Tr. 136). Although he was ill for two months the prior year with an upper respiratory infection, he ‘[could not] say it was from TDI’ (Tr. 138). Roberts, who had worked continually with TDI for one year, testified that he experienced these symptoms only ‘one in a while’ and that he never noticed any other effects (Tr. 144). Roberts also stated that the employees had been wearing respirators since September 1978 and that he never noticed any difference in air flow across the face of the hood.

The plant manager, Neary, Respondent’s only witness, was a mechanical engineer who had designed one of the ventilation systems involved in the case, although both were the same. According to him, Respondent’s monitoring device, ‘the recommended unit for sensing TDI,’ had been used almost daily when first purchased, but it had not been so used for ‘a couple of years’ because Respondent believed it had detected all problems and corrected them (Tr. 163, 179). He stated that Respondent was protective of the health of its employees involved with TDI, as they were given complete physicals every year. He also stated:

We have a doctor employed on a one hour a week basis at the plant with a medical doctor who would use the Professional Health Services van out of Philadelphia to do pulmonary function and chest X-rays. (Tr. 166)

Although Respondent had on occasion hired individuals whom it soon found to be ‘within the five percent group of hypersensitive people,’ Respondent ‘[got] rid of them just as quickly as [it] could get them out of the plant’ (Tr. 166). Respondent had never had a workman’s compensation case involving respiratory problems attributable to TDI.

Neary testified that the fans in the hoods were designed to exhaust 150 feet of air per minute. Not knowing that the CO had conducted velocity tests, he did so in October 1978 and determined that, with some minor variations, the fans were functioning at that level (Exh. R–1). His tests produced no minus readings. In any event, the wearing of respirators was made mandatory when the citation was received, the ventilation systems were redesigned, bids on the fans were requested, and the new ventilation systems should be in place by mid-June 1979.

A union witness testified that on several occasions in late 1977 and early 1978, the union complained to Respondent that the ventilation in the hoods of the reactors needed improvement, (Exhs. U–1, U–2, U–3). On these occasions, Respondent normally employed its monitoring device to test the TDI levels, although the witness believed that on several of these occasions Respondent did not use it with dispatch. The witness also testified that the monitor was used rather steadily the first 6 months after its acquisition, but afterwards, it was only used when someone complained about the ventilation. Respondent’s employees had been unionized only since the middle of 1977. Since that time, no ‘grievance problem’ had been raised in connection with the ventilation (Tr. 196).

II

Starting with an unadjusted penalty of $800, the CO gave Respondent a 20 percent reduction for size and a 30 percent reduction for good faith.[6] Thus, the proposed penalty was $400.

The CO testified that Complainant’s Field Operations Manual mandated that this type of charge be characterized as serious and that thus, she had no choice in the matter.

III

Respondent’s counsel objected, both at the hearing and in his posthearing brief, to the admissibility of Exhibit C–1,[7] the document that reflects the chemist’s results of the tests he performed on the samples forwarded to the lab by the CO. In the main, relying upon 29 C.F.R. 1905.23, counsel objected because he was informed by Complainant’s counsel at a prehearing conference that she would offer no documents as evidence at the hearing, and he never was informed of the existence of the exhibit until the hearing was convened.

Counsel did not avail himself of my offer at the hearing to move for a continuance of the hearing if he believed that my acceptance of the document over his objection occassioned further preparation of Respondent’s defense. I shall first address his objection on the ground he raises, assuming that what he was told at the conference amounted to misinformation.

29 C.F.R. 1905.23, the regulation counsel claims Complainant violated, is not applicable to the situation he complains about, as it deals with conferences convened and attended by the administrative law judge, whereas the parties in this instance, pursuant to my prehearing order, met by agreement without my presence. However, I perceive little if any distinction between the two situations, as the crux of the matter is whether an employer is misinformed of a fact that could affect the preparation of its defense. Conceivably, in some cases where the information is furnished either by design or innocently,[8] the receipt of the document over objection might require dismissal of the charge because the leads to a viable defense no longer exist as a result of the passage of time. In other cases, on the other hand, the acceptance of the document in evidence will not prejudice the employer so long as the employer is furnished adequate additional time to prepare. This case falls into the latter category.

The information contained in the exhibit could not have come as a surprise to Respondent, as it reflected specific tests results in excess of the standard’s ceiling of 0.14 milligrams per cubic meter of air. This was information conveyed to Respondent by the citation itself—exposure in excess of the ceiling—less the specific levels. Thus, from the moment it received the citation, Respondent knew it had to defend against alleged exposures of employees to levels in excess of ceiling; and the specific levels to which they were exposed, the only additional matter provided by the exhibit, would not have anything to do with the preparation of Respondent’s defense. This may well have been the reason why counsel did not seek additional time, when offered the opportunity at the hearing. In any event, counsel’s failure to do so invoked the waiver doctrine and foreclosed Respondent’s right to pursue the matter further at this time.

There is, however, an entirely different reason why there is no sound foundation for Respondent’s objection, one that leads me to conclude that Complainant’s counsel did not err in making the statement she made at the prehearing conference.[9] It is common practice, known to all practitioners at the bar, that a potential witness often makes notes of matters as they occur or are observed and that these notes may be used by the individual on the witness stand to refresh his recollection, or may be received in evidence as recollection past recorded, when his recollection is not refreshed, thus becoming nothing more than an extension of the witness’ testimony. This is especially true in the case of experts, particularly chemists in working on one case among many that involves numerous samples with identifying numbers or codes. Clearly, the exhibit in this case could have been used in that manner and counsel would have had no valid ground upon which to complain, as he was informed in writing prior to the hearing that the chemist would appear as a witness and testify about the tests he performed and the results reached.

Respondent’s objection was properly overruled at the hearing and its assignment of error lacks merit.

IV

The remainder of Respondent’s arguments go to the merits of the case, as it asserts that there was insufficient evidence to establish that serious violations occurred, that the validity of the test results was questionable, and that there was lack of proof of knowledge to sustain the serious allegation. In sum, Respondent seeks ‘dismiss[al]’ of the charges or ‘at the very least,’ a reduction of the charges to other than serious.

Although it is true, as Respondent asserts, that the chemist corrected one test result shown on Exhibit C–1 from a finding of TDI in one sample at a level above the ceiling to a negative finding, I do not agree that this fact, with or without any other fact surrounding the taking and testing of the samples, serves to impeach the remainder of the test results. On the contrary, I find them valid and compelling. However, I do not agree with Respondent’s implication that an other than serious violation does not involve the element of knowledge. Nevertheless, I find the evidence insufficient to establish that the violations were serious, and will accordingly affirm them as other than serious violations.

Knowledge is an element of nonserious violations (Secretary v. Scheel Construction, Inc., 76 OSAHRC 138/B6; Secretary of Labor v. Rockwell International et al., 540 F.2d 1283 (6th Cir., 1976)). As in the case of serious violations, it may be actual or constructive. Constructive knowledge exists when the circumstances are such that through the exercise of reasonable diligence, an employer should have known of the hazard (Secretary v. Borg-Warner Corp., 78 OSAHRC 18/A2).

Knowledge in this case must be imputed to Respondent, for it knew that it was using a harmful compound in its manufacturing process, it had in the past periodically tested for its presence in areas where the employees worked and found excessive levels, it admitted that it had stopped routinely testing the same areas a substantial period of time before the inspection, and it failed to exercise reasonable diligence by maintaining a continual detection program under circumstances where it had to rely on ventilation systems that could have failed or become less efficient at any time (Secretary v. Borg-Warner, supra).

As indicated above, however, I conclude that Complainant has not carried his burden of establishing that these violations were serious because he has shown only brief exposures of the two employees in excess of the standard on June 1, 1978, he has not shown that they were similarly exposed before or after that time, and his expert witness’ testimony, considered as a whole, does not convince me that such brief exposures could result in serious bodily harm or death (see Secretary v. Hermitage Concrete Pipe Co., 76 OSAHRC 2/C1, and Secretary of Labor v. Hermitage Concrete Pipe Co. et al., 584 F.2d 127 (6th Cir. 1978)).

V

It appears from the record that Respondent was fully cooperative with the CO throughout the investigation and took appropriate measures by requiring the employees to wear respirators when it learned the results of the monitoring, and by designing new ventilating systems that should eliminate the hazard. Accordingly, and in consideration of the fact that Respondent was given no credit for prior history, a penalty of $50 appears appropriate and will be assessed.

VI

Findings of Fact

1. At the time and place alleged, during the course of drumming activities, Respondent’s two employees were briefly exposed to various levels of TDI above the ceiling permitted by the standard,

2. The two employees were not wearing respirators at the time,

3. There was no evidence tending to establish that these two employees or any other employee were so exposed to excessive levels of TDI before or after that time,

4. The evidence indicates that the ventilating systems on each of the two reactors may have been malfunctioning and thereby caused these exposures, and

5. The evidence was insufficient to establish the probability that the exposures of these two employees at the time in question could have resulted in serious injury or death.

Conclusions of Law

1. The Commission has jurisdiction over the proceedings, and

2. That Respondent violated 29 U.S.C. 654(a)(2) by not complying with 29 C.F.R. 1910.134(a)(2), 29 C.F.R. 1910.1000(a)(1), and 29 C.F.R. 1910.1000(e), but that such violations were other than serious.

VII

Citation number 1 for serious violations, modified to allege other than serious violations, is affirmed and a penalty of $50 is assessed therefor.

So ORDERED.

JOSEPH L. CHALK

Judge, OSHRC

Dated: June 11, 1979

Hyattsville, Maryland

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[1] The provisions of 29 C.F.R. 1910.134(b) are not relevant to these proceedings.

[2] TDI (toluene diisocyanate) is so listed and its ceiling value is shown as 0.14 milligrams of particulate per cubic meter of air.

[3] The records did not reflect any monitoring by Respondent after August 1977.

[4] The booths were described as resembling closets without doors.

[5] Respondent’s monitoring device was described by the CO as a large unit on a 5 or 6 foot high stand with wheels that took area samples.

[6] Although she assigned no reason, the CO testified that she gave Respondent no credit for prior history.

[7] The chemist testified that he recorded the results of his tests in his notebook and that the exhibit was a Xeroxed copy of the appropriate page of the notebook that he himself made. Respondent raised no objection to the exhibit on this basis.

[8] I find no reason to reject Complainant’s counsel’s representation at the hearing that she never knew of the existence of the exhibit until it was presented to her by the chemist-witness from Salt Lake City, Utah, the morning of the hearing.

[9] At the hearing, I construed the exhibit as a report prepared by the chemist reflecting the results of his tests.