“SECRETARY OF LABOR,Complainant,v.GULF OIL CORPORATION,Respondent.OSHRC Docket No. 76-5014_DECISION_ Before: ROWLAND, Chairman; CLEARY and COTTINE, CommissionersBY THE COMMISSION:Before the Commission is a citation issued by the Secretary of Labor(\”Secretary\”) to Respondent, Gulf Oil Corporation (\”Gulf\”), whichalleges that Gulf committed two repeated violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Withrespect to the first item of the citation, Administrative Law JudgeHarold O. Bullis found that Gulf did not violate the Act by failing tocomply with the standard at 29 C.F.R. ? 1910.22(b)(l).[[1\/]] The judgealso denied the Secretary’s motion to amend this item to allege aviolation of the standard at 29 C.F.R. ? 1910.22 (a)(1).[[2\/]] Withrespect to the second item, the judge found that Gulf failed to complywith 29 C.F.R. 1910.134(b)(3).[[3\/]] The judge classified thisviolation as other than serious and assessed a penalty of $300. Boththe Secretary and Gulf filed petitions for review of the judge’sdecision. For the reasons that follow, we vacate both items of thecitation.I.During his inspection of a fluid catalyst cracking unit area at Gulf’sPort Arthur, Texas refinery, an Occupational Safety and HealthAdministration (\”OSHA\”) industrial hygienist observed a walkwayprotected by wooden guardrails that was twenty feet above the ground andextended around three sides of a precipitator. The walkway wasobstructed by pipes, boards, and other items that previously had beenused for scaffolding, and there was a six-inch-wide hole in the floor ofthe walkway. An assistant operator for Gulf was observed working in thearea, and two employees on each of three shifts normally worked near thewalkway. The obstructed walkway was cited as constituting a violationof 29 C.F.R. ? 1910.22(b)(1).In Love Box Co., 76 OSAHRC 45\/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD ?20,588 (No. 6286, 1976), the Commission held that the standard at 29C.F.R. ? 1910.22(b)(1) is applicable only to aisles and passagewayswhere employees operate mechanical handling equipment. Judge Bullis,noting that the Secretary showed only that obstructions in the walkwayposed a tripping hazard, vacated the alleged section 1910.22(b)(1)citation, citing Love Box Co. as precedent. The judge also denied themotion in the Secretary’s reply brief to amend the citation to allege aviolation of the standard at 29 C.F.R. ? 1910.22 (a)(1). The judgepointed out that Gulf at the hearing relied on the Secretary’s failureto prove the violation as alleged in the complaint and did not put on adefense. The judge concluded that it would be unjust to require Gulf todefend against the amended charge in an additional hearing, which wouldbe necessary if the amendment were allowed.The Secretary on review contends that an amendment to section1910.22(a)(1) should be allowed and Gulf should be found in violation ofthat standard. [[4\/]] The Secretary argues that both parties tried theissue of whether there was dismantled scaffolding on the walkway andwhether the scaffolding constituted a hazard. Since in his view Gulfconsented to trial of all issues relevant to the amended standard, theSecretary maintains that Gulf would not be prejudiced by an amendment. Gulf, however, asserts that it would have introduced evidence concerningthis item if the amendment had been proposed before or during trial[[5\/]] Therefore, Gulf claims it would be prejudiced by an amendment.Rule 15(b) of the Federal Rules of Civil Procedure, made applicable toCommission proceedings by section 12(g) of the Act, 29 U.S.C. ? 661(f),governs amendments of pleadings to conform to the evidence. Under Rule15(b), amendment of the pleadings to conform to the evidence ispermissible when the parties have expressly or implicitly consented tothe trial of the unpleaded issue. Rodney E. Fossett, 79 OSAHRC 92\/D2, 7BNA OSHC 1915, 1979 CCH OSHD ? 23,989 (No. 76-3944, 1979). In thiscase, we conclude that Gulf did not expressly or implicitly consent totry an alleged violation of section 1910.22(b)(1).Chairman Rowland would not permit an amendment of the pleadings based onconsent unless the parties squarely recognized at trial that they weretrying an unpleaded issue. Farmers Cooperative Grain & Supply Co., 82OSAHRC ____, 10 BNA OSHC 2086, 1982 CCH OSHD ? 26,301 (No. 79-1177,1982). He notes that the Commission issued its decision in Love BoxCo., holding that section 1910.22 (b)(1) was applicable to aisles andpassageways where employees operate mechanical handling equipment,fifteen months before the hearing was held. Hence, the Secretary was onnotice of the applicability of section 1910.22(b)(1). However, theSecretary did not seek an amendment in this case until he filed hisposthearing reply brief, even though it was evident at the hearing thathazards to employees operating mechanical handling equipment was not inissue. Moreover, the evidence adduced at the hearing, includingwhether there was scaffolding on the walkway and whether the scaffoldingconstituted a hazard, whether the party opposing amendment had a fairopportunity to prepare and present its case on the merits, includingwhether additional evidence could be offered if the case were tried on adifferent theory. Morgan & Culpepper, Inc., 81 OSAHRC 26\/A2, 9 BNA OSHC1533, 1981 CCH OSHD ? 25,293 (No. 9850, 1981), aff’d, 676 F.2d 1065 (5thCir. 1982).The parties dispute whether the Respondent would be prejudiced by theproposed amendment in this case. Judge Bullis apparently concluded thatthe Respondent would be prejudiced, stating that \”[i]f the amendmentwere allowed, fairness would require an additional hearing giving Gulfan opportunity to defend against the amended charge.\”[[6\/]]The evidence presented by the Secretary in support of his prima faciecase on the pleaded charge is also relevant to the unpleaded charge. However, because the evidence introduced was relevant to both pleadedand unpleaded legal issues, it cannot be concluded that the Respondent’sfailure to object to its introduction constituted consent to trial ofthe unpleaded issue. Accordingly, in Commissioner Cottine’s view, thequestion is whether the Respondent was prejudiced by a lack ofopportunity to introduce additional evidence or present alternativedefenses had the amendment been made before or during the hearing. SeeUsery v. Marquette Cement Mfg. Co., supra; Rodney E. Fossett, d\/b\/aSouthern Lightweight & Concrete Co., 7 BNA OSHC at 1917 n.8, 1979 CCHOSHD ? 23,989 at p. 29,117 n.8.The Commission decision in Love Box Co., was issued on April 7, 1975,approximately five months before the inspection in this case, six monthsbefore the citation was issued, and a full fifteen months before thehearing was held. Nevertheless, it was not until after the hearing wascomplete that the Secretary attempted to amend the charge. TheRespondent relied solely on a valid legal defense, based on Commissionprecedent, that the cited standard was not applicable to the citedconditions and did not present evidence in rebuttal to the Secretary’sprima facie case or to establish defenses that may otherwise be relevantto the unpleaded issue. See note 5 supra. Commissioner Cottine cannotconclude that the defenses the Respondent would be precluded frompursuing, particularly those raising matters relevant to employeeexposure and alternative protective measures, are totally without merit. See Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). Accordingly, Commissioner Cottine concludes that the judge did not errin denying the amendment.II.A.During the inspection, Gulf assistant operators Long, Hayes, and Touchewere observed using half-mask respirators while emptying precipitatorhoppers, unloading catalyst cars, and checking for leaks in the fluidcatalyst cracking unit at the refinery. Three days before theinspection employees had been instructed to check out half-maskrespirators from the storehouse and to wear them when emptying theprecipitators or unloading the \”cat cars\” underneath the \”cat bin.\” These tasks took thirty to forty minutes to complete and employeesperformed them twice a day. The half-mask respirators were to protectagainst flue gases and catalyst dust present in these areas. Gulf alsohad full-face respirators available in the event of an emergency. Priorto the provision of half-mask respirators, Gulf had made available atthe worksite a respirator with an attached oxygen tank, and before thatanother type of \”canister\” respirator had been made available. Therewere signs over the precipitators warning about flue gases and \”carbonmonoxide potential.\”Long and Hayes had not been instructed by Gulf in the use, care, orlimitations of the half-mask respirator, but Hayes had received aboutone-half hour training concerning use of a full-face respirator. Touchehad received training concerning the half-mask respirator. The chairmanof the union’s safety committee, a boilermaker, testified that sometimewithin the nine months prior to the inspection one of Gulf’s seniorsafety instructors had been assigned to set up a program to train alloperators in the use of all types of respirators.OSHA industrial hygienist Nickey Lee Nicholas postulated that the fluegases might contain carbon monoxide, sulfur dioxide, or hydrogensulfides. However, she did not test for these gases, and Gulf declinedto supply her with its own monitoring results. Nicholas obtained samplesof the catalyst dust, which was found to contain from 2.4 to 7.3 percent quartz, but not to contain cristobalite, tridymite, or arsenic. The amount of respirable catalyst dust in the samples was within thelimits set by OSHA, according to Nicholas. She stated that thedirection of the wind affected the test results, since on the day of theinspection the employees stood upwind and received less exposure tocatalyst dust.Nicholas testified that chronic exposure of employees to quartz presentin catalytic dust could result in silicosis and that the complicationsfrom silicosis could be fatal. She also stated that if an employeeentered an atmosphere without checking the respirator or with impropertraining, the employee could have a false sense of security. Nicholashad heard of cases where improper training concerning respirators hadresulted in fatalities. Nicholas also stated that training concerning afull-mask respirator would not necessarily make an individual competentto use a half-mask respirator, since there are different flooder valves,different adjustments to be made, and different tests to be performed.Long, who had worked at the refinery for twenty-six years, testifiedthat flue gases at one time were so bad that it was necessary to obtainrespirators. He also stated that at one time a few employees at theunit had been exposed to gas because the outside plate on the carbonmonoxide boiler was in disrepair, and he thought that one employee haddied. Hayes stated that on occasion he had been choked by flue gases.B.Judge Bullis found that Gulf had failed to comply with 29 C.F.R. ?1910.134 (b)(3) in that it had not implemented a sufficient respiratortraining program, since at the time of the inspection two assistantoperators had not received any training in the type of respirators theywere using. Judge Bullis also rejected Gulf’s argument that the allegedsection 1910.134(b)(3) violation should be vacated because the Secretaryhad not proved the existence of a hazard requiring the use ofrespirators. The judge concluded that Gulf’s posting of signs warningof the danger of carbon monoxide and flue gases and its requirement thatemployees use respirators when emptying precipitators or unloading catcars showed that Gulf recognized the existence of a hazard to itsemployees. The judge also referred to Hayes’ testimony that he hadbeen choked by flue gases. Judge Bullis concluded that Gulf would nothave taken the steps it did to protect its employees if no hazardexisted. The judge classified the violation as other than serious andassessed a penalty of $300.On review, Gulf argues that the alleged section 1910.134(b)(3) violationshould be vacated, because the evidence does not establish that itsemployees were exposed to any hazard contemplated by that standard. Gulf argues that a violation cannot be based on employee exposure tocatalyst dust, since tests conducted by OSHA showed that atmosphericquartz levels were within permissible limits. Further, Gulf maintainsthat the Secretary’s failure to offer objective proof of the compositionand degree of danger posed by flue gases prevented the finding of aviolation based on the presence of those gases. Gulf also argues thatits posting of warning signs cannot be relied on as proof that thehazards actually existed.The Secretary contends that he need not show through accurate objectivemeasurements that air contaminant concentrations exceed permissiblelimits. In his view, the requirements of 29 C.F.R. ? 1910.134(b)(3) aretriggered by a \”recognized nexus between respirators and employeehealth\” rather than by excessive employee exposure to a toxicsubstance. The Secretary maintains that Gulf recognized a health hazardrequiring respirators when it posted warning signs and requiredemployees to wear respirators in the areas in question. The Secretarytherefore asserts that Gulf should be found in violation of the citedstandard because it failed to institute an effective respirator trainingprogram.C.We agree with the parties’ logical inference that the standard does notrequire training concerning respirators absent employee exposure tohazardous air contaminants. Therefore, we hold that a hazard requiringthe use of respirators must be shown before an employer is obligated toprovide respirator training.[[7\/]]The Secretary contends that the testimony regarding the presence ofcatalyst dust, coupled with testimony that employees exposed to catalystdust could contract silicosis and other respiratory diseases, issufficient to establish the presence of a health hazard. However, theSecretary’s tests showed that the concentration of quartz in thecatalyst dust in the area where the employees worked was withinpermissible limits and the catalyst dust contained no cristobalite,tridymite, or arsenic.[[8\/]] There was no showing that exposure tocatalyst dust at monitored levels is hazardous to employees, or thatemployees became ill as a result of exposure to catalyst dust. Cf.Mahone Grain Corp., 81 OSAHRC 108\/B8, 10 BNA OSHC 1275, 1982 CCH OSHD ?32,316 (No. 77-3041, 1981) (serious violation of ? 1910.134 establishedwhere employees exposed to grain dust contracted histoplasmosis) (leadand dissenting opinions).[[9\/]] Further, there is no evidence of apossible emergency situation occurring as a result of a sudden excursionabove a TLV. See Snyder Well Servicing, Inc. (lead and dissentingopinions). We therefore find that the Secretary failed to establishthe existence of a health hazard due to catalyst dust at Gulf’s worksite.We also conclude that the Secretary failed to show that concentrationsof flue gases at Gulf’s worksite constituted a hazard. The Secretarydid not test these gases or offer evidence regarding their composition. Although two employees testified that they had experienced difficultybreathing as a result of exposure to flue gases, their testimony was notadequate to draw any inferences regarding the hazard. Therefore, theevidence fails to establish by a preponderance that exposure ofemployees to flue gases at Respondent’s worksite presented a healthhazard requiring the use of respirators.Finally, we decline to infer that a health hazard requiring respiratorswas present based upon Gulf’s posting of warning signs concerning fluegases and carbon monoxide, and Gulf’s requirement that employees wearrespirators when performing certain job functions. An employer’svoluntary safety measures may be relevant to determine an employer’sawareness of a hazard at its worksite. However, Chairman Rowlandconcludes that an employer’s own safety precautions, absent otherevidence, do not establish that the employer believed that suchprecautions were necessary in order to comply with a particularstandard. S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1284(5th Cir. 1981); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6thCir. 1978); Cape & Vineyard Division v. OSHRC, 512 F.2d 1148, 1154 (1stCir. 1975); Ulysses Irrigation Pipe Co., No. 78-799 (Mar. 24, 1983)(dissenting opinion). In his view, a prudent employer might supplyrespirators to employees even though it does not believe that a healthhazard is present. In Commissioner Cottine’s view, absent someprobative evidence regarding actual or potential employee exposure todangerous levels of toxic substances, see Con-Agra, Inc., supra, Gulf’swarning signs and respirator requirement alone do not establish theexistence of the hazard.Because we conclude that the Secretary has failed to prove a healthhazard requiring the use of respirators, we reverse the disposition ofJudge Bullis and vacate the item of the citation alleging a violation ofsection 1910.34(b)(3).III.Accordingly, we affirm Judge Bullis’s decision with respect to item oneof the citation and order that the alleged violation of 29 C.F.R. ?1910.22(b)(1) be vacated and the proposed amendment to 29 C.F.R. ?1910.22(a)(1) be denied. The judge’s disposition of item two of thecitation is reversed, and we order that the alleged violation of 29C.F.R. ? 1910.134(b)(3) be vacated.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983CLEARY, Commissioner, concurring in part and dissenting in part:I concur with the majority’s affirmance of the judge’s vacation of theitem alleging noncompliance with ? 1910.22(b)(1). As does the majority,I conclude that Gulf did not expressly or implicitly consent to try analleged violation of ? 1910.22(a)(1). In fact, Gulf expressly objectedto trying the ? 1910.22(a)(1) issue by moving to vacate at the end ofthe Secretary’s case on the basis that the cited standard was inapplicable.I dissent from the majority action vacating the item alleging a failureto comply with ? 1910.134(b)(3). In general, the majority concludesthat training in the use of respirators is not required, absent someprobative evidence regarding actual or potential employee exposure todangerous levels of toxic substances, and that an employer’s own safetyprecautions, absent other evidence, do not establish that respiratorswere necessary. The majority concludes that the Secretary failed,therefore, to prove a health hazard requiring the use of respirators,and thus training under ? 1910.134(b)(3) was also not required.I agree that the Secretary failed to establish that the respirable dustcontained quartz in excess of the limits permitted by ? 1910.1000, andthat the Secretary failed to determine either the level or thecomposition of the flue gases. Respondent has been charged, however,not with a failure to comply with the provisions of ? 1910.1000, butrather with noncompliance with ? 1910.134(b)(3). A violation of ?1910.134(b)(3) can exist without evidence of an excursion of levelsabove those prescribed in ? 1910.1000. For example, respirators may berequired on entry of employees into an oxygen deficient atmosphere. Under ? 1910.134(a)(2) (which predicates the requirements of the citedstandard), respirators must be provided whenever necessary to protectthe health of employees regardless of whether a TLV set forth in ?1910.1000 is exceeded. Snyder Well Servicing, Inc., 82 OSAHRC 10\/C5, 10BNA OSHC 1371, 1982 CCH OSHD ? 25,943 (No. 77-1334, 1982). Section1910.134, as does ? 1910.1000, favors accepted engineering controlmeasures in preference to respirators (? 1910.134(a)(1)), but in myopinion the requirements of ? 1910.134(a)(2) are independent of ?1910.1000, and are superseded by that standard only when TLVs areexceeded. Under somewhat analogous circumstances this Commission hasfound a violation of section 5(a)(1) of the Act where an employer hasfailed to test for toxic substances. Con Agra, Inc., 83 OSAHRC 5\/C7,11 BNA OSHC 1141, 1983 CCH OSHD ? 26,420 (No. 79-1146, 1983). We said,\”The failure to test in a confined atmosphere before possible exposureof employees to toxic substances is a violation distinct from acontinued exposure to known quantities of substances listed in section1910.1000.\” 11 BNA OSHC at 1145, 1983 CCH OSHD ? 26,420 at p. 33,527. Similarly, a requirement for respirators in an atmosphere with potentialexposure to toxic substances can exist independently of a violation of ?1910.1000.The preceding, of course, does not answer the majority position thatthere must be evidence of potential employee exposure to dangerouslevels of toxic substances. But there are several salient items ofevidence in this case which, in my view, dictate that respirators shouldhave been provided and required. It follows from this that trainingshould also have been required. The first such evidence is that one ofRespondent’s employees, Elton Hayes, Jr., testified that he hadoccasionally been choked by the flue fumes. Hayes wore a half-maskrespirator, but received no training in its proper use. Anotheremployee also testified that he experienced difficulty breathing as aresult of exposure to flue gases. Further, Respondent providedrespirators and required their use.Based on the testimony of the two employees alone, I would find thatrespirators were required to protect the health of employeesindependently of testing, or indications of toxic levels above thoseprescribed in ? 1910.1000. Moreover, Respondent provided respiratorsand required that they be used. While this could be construed as aprecautionary measure against the contingency of the presence of toxicgases, if the contingency were realized, the use of respirators withoutproper training could be useless, or worse than useless, if employeeswere deluded into thinking they were protected whereas, in fact, theywere not. In the recent case of Blocksom & Co., 83 OSAHRC 10\/A2, 11 BNAOSHC 1255, 1983 CCH OSHD ? 26,452 (No. 76-1897, 1983), we vacated acitation which alleged a violation for failing to train employees in theproper use of respirators. We held that the mere presence ofrespirators on a job site does not trigger the training requirement, andat the time of the alleged violation, Blocksom no longer intended thatthe respirators be used, but had a policy to evacuate the plant in theevent of a fire beyond immediate control. Since the respirators wereessentially not available to employees for use, it was concluded thattraining was not required. In the instant case, the opposite is true. The respirators are available and their use is required, and I concludethat under these circumstances, training is also required.I agree that the Secretary might have made a stronger case had he testedfor carbon monoxide, sulfur dioxide, or hydrogen sulfides. However, thetestimony of the two employees is probative evidence which, in myopinion, established a prima facie case. Based on this record, I wouldfind a violation of the citation as alleged.————————————————————————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\/]] The standard provides:? 1910.22 General requirements.(b) Aisles and passageways. (1) Where mechanical handling equipment isused, sufficient safe clearances shall be allowed for aisles, at loadingdocks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with noobstruction across or in aisles that could create a hazard.[[2\/]] The standard provides:? 1910.22 General requirements.* * *(a) Housekeeping. (1) All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in asanitary condition.[[3\/]] The standard provides:? 1910.134 Respiratory protection.* * *(b) Requirements for a minimal acceptable program.* * *(3) The user shall be instructed and trained in the proper use ofrespirators and their limitations.[[4\/]] The Secretary also urges the Commission to overrule its holdingin Love Box Co. and find Gulf in violation of ? 1910.22(b)(1). TheSecretary maintains that the reference to \”mechanical handlingequipment\” applies only to the first sentence of ? 1910.22(b)(1) andthat the second sentence of that standard applies to employees ingeneral. We adhere to our holding in Love Box Co. See Pratt & WhitneyAircraft, 81 OSAHRC 39\/A2, 9 BNA OSHC 1653, 1661-62, 1981 CCH OSHD ?25,359 at p. 31,508-09 (No. 13401, 1981).[[5\/]] Gulf states that it would have produced evidence concerning: (1)alternative routes to avoid tripping hazards; (2) the dimensions of thescaffolding alleged to be obstructive; (3) accident history in theparticular place; and (4) other protective measures to prevent trippingand falls to the ground.[[6\/]] In declining to permit amendment to allege noncompliance with ?1910.22(a)(1), the judge also noted that the amended charge would bemerely duplicative of a separate ? 1910.22(a)(1) violation that was notcontested.[[7\/]] Chairman Rowland notes that 29 C.F.R. ? 1910.134(a)(1) requiresrespirators to be used pursuant to the requirements of 29 C.F.R. ?1910.134. Section 1910.134(a)(2) requires respirators to be provided\”when such equipment is necessary to protect the health of theemployee.\” Since the cited standard, 29 C.F.R. ? 1910.134(b)(3),applies to the use of respirators, Chairman Rowland concludes it doesnot apply unless it is shown that respirators are necessary to protectthe health of the employee. In order to show such equipment isnecessary, the Secretary must show whether a reasonable person familiarwith the circumstances surrounding an allegedly hazardous condition,including any facts unique to a particular industry, would recognize ahazard warranting the use of protective equipment. Snyder WellServicing, Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC 1371, 1982 CCH OSHD ?25,943 (No. 77-1334, 1982) (dissenting opinion). For the reasons givenin the text, infra, Chairman Rowland concludes a reasonable person wouldnot recognize the existence of a hazard.[[8\/]] Exposure limits for quartz, cristobalite, tridymite, and arsenicare contained in the air contaminants standard at 29 C.F.R. ? 1910.1000.[[9\/]] Commissioner Cottine also notes that, unlike the record in ConAgra, Inc., 83 OSAHRC____, 11 BNA OSHC 1141, 1983 CCH OSHD ? 26,420 (No.79-1146, 1983), there is no evidence in this case of potential employeeexposure to dangerous quantities of toxic substances. “