“SECRETARY OF LABOR,Complainant,v.A.R.A. MANUFACTURING CO.,Respondent,ALLIED INDUSTRIAL WORKERS OFAMERICA, LOCAL UNION 300,Authorized Employee Representative.OSHRC Docket No. 79-7193_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case involves a single-item citation issued by the Secretary ofLabor (the Secretary) alleging that A.R.A. Manufacturing Co. (\”ARA\”)committed a serious violation of the standard at 29 C.F.R. ?1910.94(d)(9)(vi).[[1]] The Secretary contends ARA violated thestandard by failing to provide approved respirators for emergency usenear degreasing machines containing 1,1,1 tri-chloroethane (\”TCE\”)[[2]]where the possibility of accidental release of hazardous concentrationsof TCE existed. Administrative Law Judge Dee C. Blythe affirmed thecitation, downgraded its severity to nonserious, and assessed a $100penalty. We affirm the judge.IThe Occupational Safety and Health Administration (OSHA) conducted aninspection of ARA’s Grand Prairie, Texas worksite on October 21, 1979,as a result of a complaint about a TCE spill that had occurred there onSeptember 14, 1979. Two employees had been attempting to connect apipeline from an \”enclosed degreaser\” (a degreasing machine with a topon it) to a TCE storage tank located outside ARA’s plant when the spilloccurred. About 50 gallons of TCE spilled on the floor in a 15-20minute period. The two employees worked without respirators whileattempting to stop the spill and were occasionally forced by TCE fumesto interrupt their efforts and go outside for fresh air. The encloseddegreaser was located in a large room measuring 200 by 300 feet, but wasjust 15-20 feet from another degreaser, an \”open surface degreaser\” (adegreasing machine that is open at the top) which also used TCE as acleaning agent.The citation issued by the Secretary after the inspection read:29 CFR 1910.94(d)(9)(vi): Approved respirators for emergency use inopen surface tank areas were not provided in marked, quickly accessiblestorage compartments, where the possibility existed of accidentalrelease of hazardous concentrations of air contaminants:Approved respirators for emergency use, selected based on the potentialconcentration released, were not provided where possibility existed ofaccidental release of hazardous concentrations of air contaminant-Phase1, 1, 1, 1 Trichlorethane degreasers, east side of department; 1, 1, 1TrichlorethaneA $490 penalty was proposed. ARA contested the citation, and the AlliedIndustrial Workers of America, Local Union 300 elected party status.Hathaway, one of the employees that had been involved in trying to stopthe TCE leak, testified that the fumes from the spill made his eyes getwatery and blurry and made his skin feel crawly. He also testified thathe felt light-headed and that his legs got wobbly. Hathaway did notsubsequently, however, feel any ill effects from the fumes.Hawpe, the other employee that had been involved in trying to stop theTCE leak, testified that his eyes and lungs had been irritated by theTCE fumes, and that he had subsequently been hospitalized for about aweek with what he stated was diagnosed as \”chemical pneumonia.\” Although there was contradictory testimony about whether or not he hadfiled a workmen’s compensation claim against ARA, Hawpe testified thathe was still under a doctor’s care at the time of hearing.OSHA industrial hygienist McDaniel testified that the respirators ARAhad available were not supplied air respirators appropriate for useduring the TCE leak involved here and were not immediatelyavailable.[[3]] He also testified that eye irritation andnervous-system related symptoms like weakness in the limbs occur at TCEconcentrations of about 1000 parts per million (ppm) and that lungirritation can occur at 2000 ppm. McDaniel stated that he thoughtemployees Hathaway and Hawpe had been exposed to 1000 to 2000 ppm of TCEfor about five minutes, taking into account that they had periodicallyleft the area for fresh air. He testified that exposure to high TCEconcentrations for even a short period of time can cause irregularheartbeat or fibrillation of the heart, but he did not specify theamounts of exposure he believed might cause those conditions. Hefurther testified that if a person lost consciousness as a result ofoverexposure to TCE fumes, the person could die if he were not removedfrom the area by others.OSHA Compliance Officer Hartman testified that death is a \”conceivable\”result of overexposure to TCE \”depending upon the amount released.\” Shewas unable to indicate what that mount might be.ARA Plant Manager Rieke admitted that noxious fumes or vapors had beenreleased into the plant as a result of TCE spills on several otheroccasions and that employees had been evacuated from the plant after thespills. The spills had occurred at both the enclosed and open surfacedegreasers. However, there was no evidence about the nature – size orvapor concentration level – of these other spills, other than that theyhad not been as large as the spill in this case.IIARA argued before the judge that the cited standard is applicable onlyto open surface tanks and is not therefore applicable to the closedsurface degreaser involved in the TCE spill here. ARA also argued that,if any violation did occur, the violation was nonserious.Judge Blythe agreed with ARA that the cited standard pertainsexclusively to open surface tanks. His conclusion was based primarilyon the numerous references made to open surface tanks in paragraph (d)of section 1910.94. Although he concluded that the standard did notapply to the degreaser involved in the accident, which was of the closedtype, the judge noted that there was an open surface degreaser just 15or 20 feet away from the closed surface degreaser and that the opensurface degreaser had also been included in the inspection. He foundthat the cited standard was applicable to the open surface degreaserregardless of whether the standard was applicable to the closed surfacedegreaser and noted that the evidence demonstrated there had beenseveral spills of TCE, some of which had occurred at the open surfacedegreaser. The judge therefore affirmed the citation because employeeshad an emergency need for respirators in the immediate vicinity of theopen surface tank and because the open surface tank had been the site ofother TCE spills.With respect to the severity of the violation, the judge stated that TCEis not as toxic as many other air contaminants. Table Z-1 of section1910.1000(a) specifies a permissible time-weighted average exposure toTCE of 350 ppm in an 8-hour work shift of a 40-hour work week; bycomparison, the table limits exposure to carbon monoxide to 50 ppm andexposure to many other substances to less than 1 ppm. Acknowledgingthat OSHA industrial hygienist McDaniel had testified that TCEinhalation could cause narcosis, arrhythmia, and even death, the judgestated there was no evidence that any of the TCE spills at ARA producedvapor concentrations strong enough to cause death or serious physicalharm. The judge further stated that while employee Hawpe testified hehad been hospitalized with \”chemical pneumonia,\” there was no expertevidence attributing Hawpe’s chemical pneumonia to the TCE exposure oreven confirming the diagnosis of chemical pneumonia. In the light ofTCE’s low toxicity and the low likelihood of a TCE spill causing harmfulconcentrations in the large work area involved, Judge Blythe concludedthat ARA’s failure to provide quickly accessible, approved respiratorsto protect against accidental release of TCE in the area of the opensurface degreaser did not create a substantial probability of death orserious physical harm. The judge assessed a $100 penalty after findingthat the gravity of the violation was low and that ARA had demonstratedgood faith.IIIThe Secretary petitioned for review and review was granted on whetherthe requirements of cited section 1910.94(d)(9)(vi) applied to ARA’sclosed surface degreaser and whether the judge erred in concluding thatthe violation was other than serious. ARA did not take exception tothe judge’s decision finding that the standard was violated based on itsapplicability to open surface tanks, and we do not review that issue.The Commission agrees with the judge’s conclusion that cited section1910.94(d)(9)(vi) applies only to open surface tanks. The heading ofsection 1910.94(d), \”Open surface tanks,\” supports that result. Further, the cited standard specifically refers to employees working in\”areas where [the] concentrations of air contaminants are greater thanthe limit set by paragraph (d)(2)(iii)\” of section 1910.94. Paragraph(d)(2) is headed \”Classification of open-surface tank operations\”;paragraph (d)(2)(i) specifically refers to open-surface tank operationsand divides such tanks into sixteen separate classifications. It thusappears that the areas of high area contaminant concentrations referredto in cited section 1910.94(d)(9)(vi) are areas where there are opensurface tanks. Finally, we also note, in support of our conclusion thatthe cited standard is applicable only to open surface tanks, that twoother paragraphs, (d) (5) and (d) (9) (ii), in section 1910.94 referspecifically to open surface tanks.We also find that the judge properly determined the violation should becharacterized as nonserious. The record shows that exposure to TCE atsome unspecified, elevated level can be fatal. However, there is noevidence that the concentrations of TCE that resulted from the spillageof that chemical could have approached such a high level. The evidenceshows that the negative effects of the TCE fumes on employees Hathawayand Hawpe were moderate and included eye and lung irritation andlightheadedness. Hathaway felt no after effects. Hawpe gave hearsaytestimony that he contracted chemical pneumonia as a result, but theSecretary did not offer any expert evidence to corroborate the hearsay. The judge was unwilling to credit the testimony, and we are similarlyunwilling to do so. The testimony was not simply uncorroboratedhearsay, but hearsay relating to the diagnosis of a medical expert whowas not present at the hearing to testify about either the accuracy ofthe diagnosis or the nature of the diagnosed disease. Consequently, wefind the violation to be nonserious; the Secretary failed to establishthat the TCE spills at ARA’s worksite had resulted in or could haveresulted in vapor concentrations high enough to cause death or seriousphysical harm. We further find that the judge properly determined $100to be an appropriate penalty. Accordingly, we affirm a nonseriousviolation of section 1910.94(d)(9)(vi) and assess a $100 penalty.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 16 1984_A.R.A. Mfg._, #79-7193CLEARY, Commissioner, concurring in part and dissenting in part:I concur in the majority’s finding that section 1910.94(d)(9)(vi)applies only to open surface tanks. I would, however, find that theviolation of that standard was serious.When a violation involves exposure to toxic chemicals, we must determineseriousness by looking to \”the harm the regulation was intended toprevent, and if that harm is death or serious physical injury, aviolation of the regulation is serious per se.\” _Phelps_ _Dodge Corp.v. OSHRC_, 725 F.2d 1237 (9th Cir. 1984). TCE vapors can causepronounced loss of concentration, pronounced loss of concentration,pronounced loss of equilibrium, and even death. 2B PATTY’s INDUSTRIALHYGIENE AND TOXICOLOGY 3502-10 (3rd ed. 1981). This is sufficient toestablish that failure to provide respirators where exposure to highlevels of TCE can occur is a serious violation.In this case, however, it is not necessary to apply a per se rule ofseriousness, inasmuch as the record establishes that serious injury didactually result from the cited incident. Hathaway testified thatinhaling TCE vapors made him light-headed and that he felt his legswould fall out from under him if he did not quickly get to a source offresh air. Hathaway, therefore, along with Hawpe, intermittently brokeaway from his work efforts to rush sixty feet out the nearest door andbreathe fresh air. After the leak was stopped, both employees had tosit for about 45 minutes in a cool place to get rid of theirlightheadedness.It should further be noted that Hawpe testified he went to a doctor onthe day following the spill, after his lungs had become irritated frombreathing in the TCE fumes. Hawpe stated that the doctor told him hehad chemical pneumonia and, subsequently, Hawpe was hospitalized for aweek. Although the majority does not credit Hawpe’s hearsay testimonyabout have chemical pneumonia, I would credit the testimony because Ifind it reliable and probative evidence. _See_ _Hurlock Roofing Co._,79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1979 CCH OSHD ? 24,006 (No. 14907,1979). _Also_ _see_ _R.C. Diving Co._, 81 OSAHRC 15\/F10, 9 BNA OSHC1402 (No. 77-4487, 1981); _York Heel of Maine, Inc_., 81 OSAHRC 40\/B11,9 BNA OSHC 1803, (No. 78-5920, 1981).Pneumonia is \”[a]n acute or chronic disease marked by inflammation ofthe lungs, and caused by viruses, bacteria, and physical and chemicalagents.\” _The American Heritage Dictionary of the English Language_,New College Ed., 1976. The testimony of industrial hygienist McDanielwas that lung irritation would result from the amount of TCE exposureexperienced by Hawpe. This testimony corroborates Hawpe’s testimonyabout his lungs getting irritated by the TCE fumes and alsocorroborates, therefore, Hawpe’s testimony about contracting chemicalpneumonia, a disease that may be caused by a chemical agent which hasirritated the lungs and caused them to swell.[[1]] Accordingly, becauseboth Hathaway and Hawpe were exposed to the possibility of death as aresult of their overexposure to TCE and because Hawpe actuallycontracted chemical pneumonia and was hospitalized for a week as aresult, I would find that the violation of section 1910.94(d)(9)(vi) wasserious.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 1910.94(d)(9)(vi) provides:? 1910.94 _Ventilation_.* * *(d) _Open surface tanks_–* * *(9) _Personal protection_.* * *(vi) When, during emergencies as described in paragraph (d)(11)(v) ofthis section, workers must be in areas where concentrations of aircontaminants are greater than the limit set by paragraph (d)(2)(iii) ofthis section, or oxygen concentrations are less than 19.5 percent, theyshall be required to wear respirators adequate to reduce their exposureto a level below these limits, or to provide adequate oxygen. Suchrespirators shall also be provided in marked, quickly accessible storagecompartments built for the purpose, when there exists the possibility ofaccidental release of hazardous concentrations of air contaminants. Respirators shall be approved by the U.S. Bureau of Mines, U.S.Department of the Interior and shall be selected by a competentindustrial hygienist or other technically qualified source. Respiratorsshall be used in accordance with ? 1910.134, and persons who may requirethem shall be trained in their use.[[2]] The TCE was being used as a solvent to clean manufactured airconditioner parts.[[3]] ARA maintenance supervisors Lee had earlier testified that theavailable respirators were full face, single cartridge respiratorslocated about 200 feet from the degreasers. The respirators were keptin a locked, unmarked cabinet which also contained tools.[[1]] I would not require corroboration of Hawpe’s testimony that he wasdiagnosed as having chemical pneumonia. However, even if the record didnot establish the precise diagnosis of Hawpe’s ailment, the fact that hewas hospitalized for a week after his lungs became irritated fromoverexposure to TCE is sufficient evidence of the seriousness of the TCEhazard.”