“Docket No. 79-7193 SECRETARY OF LABOR,Complainant, v.A.R.A. MANUFACTURING CO.,Respondent,ALLIED INDUSTRIAL WORKERS OF AMERICA, LOCAL UNION 300, Authorized Employee Representative.OSHRC Docket No. 79-7193DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:This case involves a single-item citation issued by the Secretary of Labor(the Secretary) alleging that A.R.A. Manufacturing Co. (\”ARA\”) committed aserious violation of the standard at 29 C.F.R. ? 1910.94(d)(9)(vi).[[1]]\u00a0 TheSecretary contends ARA violated the standard by failing to provide approved respiratorsfor emergency use near degreasing machines containing 1,1,1 tri-chloroethane(\”TCE\”)[[2]] where the possibility of accidental release of hazardousconcentrations of TCE existed.\u00a0 Administrative Law Judge Dee C. Blythe affirmed thecitation, downgraded its severity to nonserious, and assessed a $100penalty.\u00a0 We affirm the judge.IThe Occupational Safety and Health Administration (OSHA) conducted an inspectionof ARA’s Grand Prairie, Texas worksite on October 21, 1979, as a result of a complaintabout a TCE spill that had occurred there on September 14, 1979.\u00a0 Two employees hadbeen attempting to connect a pipeline from an \”enclosed degreaser\” (a degreasingmachine with a top on it) to a TCE storage tank located outside ARA’s plant when the spilloccurred.\u00a0 About 50 gallons of TCE spilled on the floor in a 15-20 minute period. Thetwo employees worked without respirators while attempting to stop the spill and wereoccasionally forced by TCE fumes to interrupt their efforts and go outside for fresh air.\u00a0The enclosed degreaser was located in a large room measuring 200 by 300 feet, butwas just 15-20 feet from another degreaser, an \”open surface degreaser\” (adegreasing machine that is open at the top) which also used TCE as a cleaning agent.The citation issued by the Secretary after the inspection read:29 CFR 1910.94(d)(9)(vi):\u00a0 Approved respirators for emergency use inopen surface tank areas were not provided in marked, quickly accessible storagecompartments, where the possibility existed of accidental release of hazardousconcentrations of air contaminants:Approved respirators for emergency use, selected based on the potentialconcentration released, were not provided where possibility existed of accidental releaseof hazardous concentrations of air contaminant-Phase 1, 1, 1, 1 Trichlorethane degreasers,east side of department; 1, 1, 1 TrichlorethaneA $490 penalty was proposed.\u00a0 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 stop theTCE leak, testified that the fumes from the spill made his eyes get watery and blurry andmade his skin feel crawly.\u00a0 He also testified that he felt light-headed and that hislegs got wobbly. Hathaway did not subsequently, however, feel any ill effects from thefumes.Hawpe, the other employee that had been involved in trying to stop the TCEleak, testified that his eyes and lungs had been irritated by the TCE fumes, and that hehad subsequently been hospitalized for about a week with what he stated was diagnosed as\”chemical pneumonia.\”\u00a0 Although there was contradictory testimony aboutwhether or not he had filed a workmen’s compensation claim against ARA, Hawpe testifiedthat he was still under a doctor’s care at the time of hearing.OSHA industrial hygienist McDaniel testified that the respirators ARA hadavailable were not supplied air respirators appropriate for use during the TCE leakinvolved here and were not immediately available.[[3]]\u00a0 He also testified that eyeirritation and nervous-system related symptoms like weakness in the limbs occur at TCEconcentrations of about 1000 parts per million (ppm) and that lung irritation can occur at2000 ppm.\u00a0 McDaniel stated that he thought employees Hathaway and Hawpe had beenexposed to 1000 to 2000 ppm of TCE for about five minutes, taking into account that theyhad periodically left the area for fresh air.\u00a0 He testified that exposure to high TCEconcentrations for even a short period of time can cause irregular heartbeat orfibrillation of the heart, but he did not specify the amounts of exposure he believedmight cause those conditions.\u00a0 He further testified that if a person lostconsciousness as a result of overexposure to TCE fumes, the person could die if he werenot removed from the area by others.OSHA Compliance Officer Hartman testified that death is a\”conceivable\” result of overexposure to TCE \”depending upon the amountreleased.\”\u00a0 She was 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 other occasions and thatemployees had been evacuated from the plant after the spills.\u00a0 The spills hadoccurred at both the enclosed and open surface degreasers.\u00a0 However, there was noevidence about the nature – size or vapor concentration level – of these other spills,other than that they had not been as large as the spill in this case.IIARA argued before the judge that the cited standard is applicable only to open surfacetanks and is not therefore applicable to the closed surface degreaser involved in the TCEspill here.\u00a0 ARA also argued that, if any violation did occur, the violation wasnonserious.Judge Blythe agreed with ARA that the cited standard pertains exclusively toopen surface tanks.\u00a0 His conclusion was based primarily on the numerous referencesmade to open surface tanks in paragraph (d) of section 1910.94.\u00a0 Although heconcluded that the standard did not apply to the degreaser involved in the accident, whichwas of the closed type, the judge noted that there was an open surface degreaser just 15or 20 feet away from the closed surface degreaser and that the open surface degreaser hadalso been included in the inspection.\u00a0 He found that the cited standard wasapplicable to the open surface degreaser regardless of whether the standard was applicableto the closed surface degreaser and noted that the evidence demonstrated there had beenseveral spills of TCE, some of which had occurred at the open surface degreaser.\u00a0 Thejudge therefore affirmed the citation because employees had an emergency need forrespirators in the immediate vicinity of the open surface tank and because the opensurface tank had been the site of other TCE spills.With respect to the severity of the violation, the judge stated that TCE isnot as toxic as many other air contaminants.\u00a0 Table Z-1 of section 1910.1000(a)specifies a permissible time-weighted average exposure to TCE of 350 ppm in an 8-hour workshift of a 40-hour work week; by comparison, the table limits exposure to carbon monoxideto 50 ppm and exposure to many other substances to less than 1 ppm.\u00a0 Acknowledgingthat OSHA industrial hygienist McDaniel had testified that TCE inhalation could causenarcosis, arrhythmia, and even death, the judge stated there was no evidence that any ofthe TCE spills at ARA produced vapor concentrations strong enough to cause death orserious physical harm.\u00a0 The judge further stated that while employee Hawpe testifiedhe had been hospitalized with \”chemical pneumonia,\” there was no expert evidenceattributing Hawpe’s chemical pneumonia to the TCE exposure or even confirming thediagnosis of chemical pneumonia.\u00a0 In the light of TCE’s low toxicity and the lowlikelihood of a TCE spill causing harmful concentrations in the large work area involved,Judge Blythe concluded that ARA’s failure to provide quickly accessible, approvedrespirators to protect against accidental release of TCE in the area of the open surfacedegreaser did not create a substantial probability of death or serious physical harm.\u00a0The judge assessed a $100 penalty after finding that the gravity of the violationwas low and that ARA had demonstrated good faith.IIIThe Secretary petitioned for review and review was granted on whether therequirements of cited section 1910.94(d)(9)(vi) applied to ARA’s closed surface degreaserand whether the judge erred in concluding that the violation was other than serious.\u00a0 ARA did not take exception to the judge’s decision finding that the standard wasviolated based on its applicability to open surface tanks, and we do not review thatissue.The Commission agrees with the judge’s conclusion that cited section1910.94(d)(9)(vi) applies only to open surface tanks.\u00a0 The heading of section1910.94(d), \”Open surface tanks,\” supports that result.\u00a0 Further, the citedstandard specifically refers to employees working in \”areas where [the]concentrations of air contaminants are greater than the limit set by paragraph(d)(2)(iii)\” of section 1910.94.\u00a0 Paragraph (d)(2) is headed\”Classification of open-surface tank operations\”; paragraph (d)(2)(i)specifically refers to open-surface tank operations and divides such tanks into sixteenseparate classifications.\u00a0 It thus appears that the areas of high area contaminantconcentrations referred to in cited section 1910.94(d)(9)(vi) are areas where there areopen surface tanks.\u00a0 Finally, we also note, in support of our conclusion that thecited standard is applicable only to open surface tanks, that two other paragraphs, (d)(5) and (d) (9) (ii), in section 1910.94 refer specifically to open surface tanks.We also find that the judge properly determined the violation should becharacterized as nonserious.\u00a0 The record shows that exposure to TCE at someunspecified, elevated level can be fatal.\u00a0 However, there is no evidence that theconcentrations of TCE that resulted from the spillage of that chemical could haveapproached such a high level.\u00a0 The evidence shows that the negative effects of theTCE fumes on employees Hathaway and Hawpe were moderate and included eye and lungirritation and lightheadedness.\u00a0 Hathaway felt no after effects.\u00a0 Hawpe gavehearsay testimony that he contracted chemical pneumonia as a result, but the Secretary didnot offer any expert evidence to corroborate the hearsay.\u00a0 The judge was unwilling tocredit the testimony, and we are similarly unwilling to do so.\u00a0 The testimony was notsimply uncorroborated hearsay, but hearsay relating to the diagnosis of a medical expertwho was not present at the hearing to testify about either the accuracy of the diagnosisor the nature of the diagnosed disease.\u00a0 Consequently, we find the violation to benonserious; the Secretary failed to establish that the TCE spills at ARA’s worksite hadresulted in or could have resulted in vapor concentrations high enough to cause death orserious physical harm.\u00a0 We further find that the judge properly determined $100 to bean appropriate penalty.\u00a0 Accordingly, we affirm a nonserious violation of section1910.94(d)(9)(vi) and assess a $100 penalty.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 MAR 16 1984A.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) appliesonly to open surface tanks.\u00a0 I would, however, find that the violation of thatstandard was serious.When a violation involves exposure to toxic chemicals, we must determineseriousness by looking to \”the harm the regulation was intended to prevent, and ifthat harm is death or serious physical injury, a violation of the regulation is seriousper se.\”\u00a0 Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237 (9th Cir.1984).\u00a0 TCE vapors can cause pronounced loss of concentration, pronounced loss ofconcentration, pronounced loss of equilibrium, and even death.\u00a0 2B PATTY’s INDUSTRIALHYGIENE AND TOXICOLOGY 3502-10 (3rd ed. 1981).\u00a0 This is sufficient to establish thatfailure to provide respirators where exposure to high levels of TCE can occur is a seriousviolation.In this case, however, it is not necessary to apply a per se rule ofseriousness, inasmuch as the record establishes that serious injury did actually resultfrom the cited incident.\u00a0 Hathaway testified that inhaling TCE vapors made himlight-headed and that he felt his legs would fall out from under him if he did not quicklyget to a source of fresh air.\u00a0 Hathaway, therefore, along with Hawpe, intermittentlybroke away from his work efforts to rush sixty feet out the nearest door and breathe freshair.\u00a0 After the leak was stopped, both employees had to sit for about 45 minutes in acool place to get rid of their lightheadedness.It should further be noted that Hawpe testified he went to a doctor on theday following the spill, after his lungs had become irritated from breathing in the TCEfumes.\u00a0 Hawpe stated that the doctor told him he had chemical pneumonia and,subsequently, Hawpe was hospitalized for a week.\u00a0 Although the majority does notcredit Hawpe’s hearsay testimony about have chemical pneumonia, I would credit thetestimony because I find it reliable and probative evidence.\u00a0 See HurlockRoofing Co., 79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1979 CCH OSHD ? 24,006 (No. 14907,1979).\u00a0 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 OSHC1803, (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 chemical agents.\”\u00a0 TheAmerican Heritage Dictionary of the English Language, New College Ed., 1976.\u00a0 Thetestimony of industrial hygienist McDaniel was that lung irritation would result from theamount of TCE exposure experienced by Hawpe.\u00a0 This testimony corroborates Hawpe’stestimony about his lungs getting irritated by the TCE fumes and also corroborates,therefore, Hawpe’s testimony about contracting chemical pneumonia, a disease that may becaused by a chemical agent which has irritated the lungs and caused them to swell.[[1]]\u00a0Accordingly, because both Hathaway and Hawpe were exposed to the possibility ofdeath as a result of their overexposure to TCE and because Hawpe actually contractedchemical pneumonia and was hospitalized for a week as a result, I would find that theviolation of section 1910.94(d)(9)(vi) was serious.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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) of this section,workers must be in areas where concentrations of air contaminants are greater than thelimit set by paragraph (d)(2)(iii) of this section, or oxygen concentrations are less than19.5 percent, they shall be required to wear respirators adequate to reduce their exposureto a level below these limits, or to provide adequate oxygen.\u00a0 Such respirators shallalso be provided in marked, quickly accessible storage compartments built for the purpose,when there exists the possibility of accidental release of hazardous concentrations of aircontaminants.\u00a0 Respirators shall be approved by the U.S. Bureau of Mines, U.S.Department of the Interior and shall be selected by a competent industrial hygienist orother technically qualified source.\u00a0 Respirators shall be used in accordance with ?1910.134, and persons who may require them 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 respirators located about 200 feetfrom the degreasers.\u00a0 The respirators were kept in a locked, unmarked cabinet whichalso contained tools.[[1]] I would not require corroboration of Hawpe’s testimony that he was diagnosed ashaving chemical pneumonia.\u00a0 However, even if the record did not establish the precisediagnosis of Hawpe’s ailment, the fact that he was hospitalized for a week after his lungsbecame irritated from overexposure to TCE is sufficient evidence of the seriousness of theTCE hazard.”