“Docket No. 76-5014 SECRETARY OF LABOR, Complainant, v.GULF OIL CORPORATION, Respondent.OSHRC Docket No. 76-5014DECISION\u00a0 Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners BY 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 Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 With respect to the firstitem of the citation, Administrative Law Judge Harold O. Bullis found that Gulf did notviolate the Act by failing to comply with the standard at 29 C.F.R. ?1910.22(b)(l).[[1\/]] The judge also denied the Secretary’s motion to amend this item toallege a violation of the standard at 29 C.F.R. ? 1910.22 (a)(1).[[2\/]]\u00a0 Withrespect to the second item, the judge found that Gulf failed to comply with 29 C.F.R.1910.134(b)(3).[[3\/]]\u00a0 The judge classified this violation as other than serious andassessed a penalty of $300.\u00a0 Both the Secretary and Gulf filed petitions for reviewof the judge’s decision.\u00a0 For the reasons that follow, we vacate both items of thecitation.I.During his inspection of a fluid catalyst cracking unit area at Gulf’s Port Arthur, Texasrefinery, an Occupational Safety and Health Administration (\”OSHA\”) industrialhygienist observed a walkway protected by wooden guardrails that was twenty feet above theground and extended around three sides of a precipitator.\u00a0 The walkway was obstructedby pipes, boards, and other items that previously had been used for scaffolding, and therewas a six-inch-wide hole in the floor of the walkway.\u00a0 An assistant operator for Gulfwas observed working in the area, and two employees on each of three shifts normallyworked near the walkway.\u00a0 The obstructed walkway was cited as constituting aviolation of 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 29 C.F.R. ? 1910.22(b)(1) isapplicable only to aisles and passageways where employees operate mechanical handlingequipment.\u00a0 Judge Bullis, noting that the Secretary showed only that obstructions inthe walkway posed a tripping hazard, vacated the alleged section 1910.22(b)(1) citation,citing Love Box Co. as precedent.\u00a0 The judge also denied the motion in theSecretary’s reply brief to amend the citation to allege a violation of the standard at 29C.F.R. ? 1910.22 (a)(1).\u00a0 The judge pointed out that Gulf at the hearing relied onthe Secretary’s failure to prove the violation as alleged in the complaint and did not puton a defense.\u00a0 The judge concluded that it would be unjust to require Gulf to defendagainst the amended charge in an additional hearing, which would be necessary if theamendment were allowed.The Secretary on review contends that an amendment to section 1910.22(a)(1)should be allowed and Gulf should be found in violation of that standard. [[4\/]]\u00a0 TheSecretary argues that both parties tried the issue of whether there was dismantledscaffolding on the walkway and whether the scaffolding constituted a hazard.\u00a0 Sincein his view Gulf consented to trial of all issues relevant to the amended standard, theSecretary maintains that Gulf would not be prejudiced by an amendment.\u00a0 Gulf,however, asserts that it would have introduced evidence concerning this item if theamendment had been proposed before or during trial [[5\/]] Therefore, Gulf claims it wouldbe 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), governsamendments of pleadings to conform to the evidence.\u00a0 Under Rule 15(b), amendment ofthe pleadings to conform to the evidence is permissible when the parties have expressly orimplicitly consented to the trial of the unpleaded issue. Rodney E. Fossett, 79 OSAHRC92\/D2, 7 BNA OSHC 1915, 1979 CCH OSHD ? 23,989 (No. 76-3944, 1979).\u00a0 In this case,we conclude that Gulf did not expressly or implicitly consent to try an alleged violationof 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 were trying an unpleadedissue.\u00a0 Farmers Cooperative Grain & Supply Co., 82 OSAHRC ____, 10 BNA OSHC 2086,1982 CCH OSHD ? 26,301 (No. 79-1177, 1982).\u00a0 He notes that the Commission issued itsdecision in Love Box Co., holding that section 1910.22 (b)(1) was applicable to aisles andpassageways where employees operate mechanical handling equipment, fifteen months beforethe hearing was held.\u00a0 Hence, the Secretary was on notice of the applicability ofsection 1910.22(b)(1).\u00a0 However, the Secretary did not seek an amendment in this caseuntil he filed his posthearing reply brief, even though it was evident at the hearing thathazards to employees operating mechanical handling equipment was not in issue. \u00a0Moreover, the evidence adduced at the hearing, including whether there was scaffolding onthe walkway and whether the scaffolding constituted a hazard, whether the party opposingamendment had a fair opportunity to prepare and present its case on the merits, includingwhether additional evidence could be offered if the case were tried on a differenttheory.\u00a0 Morgan & Culpepper, Inc., 81 OSAHRC 26\/A2, 9 BNA OSHC 1533, 1981 CCHOSHD ? 25,293 (No. 9850, 1981), aff’d, 676 F.2d 1065 (5th Cir. 1982).The parties dispute whether the Respondent would be prejudiced by theproposed amendment in this case.\u00a0 Judge Bullis apparently concluded that theRespondent would be prejudiced, stating that \”[i]f the amendment were allowed,fairness would require an additional hearing giving Gulf an opportunity to defend againstthe amended charge.\”[[6\/]]The evidence presented by the Secretary in support of his prima facie case onthe pleaded charge is also relevant to the unpleaded charge.\u00a0 However, because theevidence introduced was relevant to both pleaded and unpleaded legal issues, it cannot beconcluded that the Respondent’s failure to object to its introduction constituted consentto trial of the unpleaded issue.\u00a0 Accordingly, in Commissioner Cottine’s view, thequestion is whether the Respondent was prejudiced by a lack of opportunity to introduceadditional evidence or present alternative defenses had the amendment been made before orduring the hearing.\u00a0 See Usery v. Marquette Cement Mfg. Co., supra; Rodney E.Fossett, d\/b\/a Southern 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 months before thecitation was issued, and a full fifteen months before the hearing was held. \u00a0Nevertheless, it was not until after the hearing was complete that the Secretary attemptedto amend the charge.\u00a0 The Respondent relied solely on a valid legal defense, based onCommission precedent, that the cited standard was not applicable to the cited conditionsand did not present evidence in rebuttal to the Secretary’s prima facie case or toestablish defenses that may otherwise be relevant to the unpleaded issue. \u00a0 See note5 supra.\u00a0 Commissioner Cottine cannot conclude that the defenses the Respondent wouldbe precluded from pursuing, particularly those raising matters relevant to employeeexposure and alternative protective measures, are totally without merit. \u00a0 See Morgan& Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). \u00a0 Accordingly,Commissioner Cottine concludes that the judge did not err in denying the amendment. II.A. During the inspection, Gulf assistant operators Long, Hayes, and Touche wereobserved using half-mask respirators while emptying precipitator hoppers, unloadingcatalyst cars, and checking for leaks in the fluid catalyst cracking unit at the refinery.\u00a0 Three days before the inspection employees had been instructed to check outhalf-mask respirators from the storehouse and to wear them when emptying the precipitatorsor unloading the \”cat cars\” underneath the \”cat bin.\”\u00a0 Thesetasks took thirty to forty minutes to complete and employees performed them twice a day.\u00a0 The half-mask respirators were to protect against flue gases and catalyst dustpresent in these areas.\u00a0 Gulf also had full-face respirators available in the eventof an emergency.\u00a0 Prior to the provision of half-mask respirators, Gulf had madeavailable at the worksite a respirator with an attached oxygen tank, and before thatanother type of \”canister\” respirator had been made available.\u00a0 There weresigns over the precipitators warning about flue gases and \”carbon monoxidepotential.\”Long and Hayes had not been instructed by Gulf in the use, care, or limitations of thehalf-mask respirator, but Hayes had received about one-half hour training concerning useof a full-face respirator.\u00a0 Touche had received training concerning the half-maskrespirator.\u00a0 The chairman of the union’s safety committee, a boilermaker, testifiedthat sometime within the nine months prior to the inspection one of Gulf’s senior safetyinstructors had been assigned to set up a program to train all operators in the use of alltypes of respirators.OSHA industrial hygienist Nickey Lee Nicholas postulated that the flue gasesmight contain carbon monoxide, sulfur dioxide, or hydrogen sulfides.\u00a0 However, shedid not test for these gases, and Gulf declined to supply her with its own monitoringresults. Nicholas obtained samples of the catalyst dust, which was found to contain from2.4 to 7.3 per cent quartz, but not to contain cristobalite, tridymite, or arsenic.\u00a0 The amount of respirable catalyst dust in the samples was within the limits set byOSHA, according to Nicholas.\u00a0 She stated that the direction of the wind affected thetest results, since on the day of the inspection the employees stood upwind and receivedless exposure to catalyst dust.Nicholas testified that chronic exposure of employees to quartz present incatalytic dust could result in silicosis and that the complications from silicosis couldbe fatal.\u00a0 She also stated that if an employee entered an atmosphere without checkingthe respirator or with improper training, the employee could have a false sense ofsecurity.\u00a0 Nicholas had heard of cases where improper training concerning respiratorshad resulted in fatalities.\u00a0 Nicholas also stated that training concerning afull-mask respirator would not necessarily make an individual competent to use a half-maskrespirator, 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, testified that flue gases atone time were so bad that it was necessary to obtain respirators.\u00a0 He also statedthat at one time a few employees at the unit had been exposed to gas because the outsideplate on the carbon monoxide boiler was in disrepair, and he thought that one employee haddied.\u00a0 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 respirator training program, since atthe time of the inspection two assistant operators had not received any training in thetype of respirators they were using.\u00a0 Judge Bullis also rejected Gulf’s argument thatthe alleged section 1910.134(b)(3) violation should be vacated because the Secretary hadnot proved the existence of a hazard requiring the use of respirators.\u00a0 The judgeconcluded that Gulf’s posting of signs warning of the danger of carbon monoxide and fluegases and its requirement that employees use respirators when emptying precipitators orunloading cat cars showed that Gulf recognized the existence of a hazard to its employees.\u00a0 The judge also referred to Hayes’ testimony that he had been choked by flue gases.\u00a0 Judge Bullis concluded that Gulf would not have taken the steps it did to protectits employees if no hazard existed.\u00a0 The judge classified the violation as other thanserious and assessed 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 its employees were exposedto any hazard contemplated by that standard.\u00a0 Gulf argues that a violation cannot bebased on employee exposure to catalyst dust, since tests conducted by OSHA showed thatatmospheric quartz levels were within permissible limits.\u00a0 Further, Gulf maintainsthat the Secretary’s failure to offer objective proof of the composition and degree ofdanger posed by flue gases prevented the finding of a violation based on the presence ofthose gases.\u00a0 Gulf also argues that its posting of warning signs cannot be relied onas proof that the hazards actually existed.The Secretary contends that he need not show through accurate objectivemeasurements that air contaminant concentrations exceed permissible limits.\u00a0 In hisview, the requirements of 29 C.F.R. ? 1910.134(b)(3) are triggered by a \”recognizednexus between respirators and employee health\” rather than by excessive employeeexposure to a toxic substance.\u00a0 The Secretary maintains that Gulf recognized a healthhazard requiring respirators when it posted warning signs and required employees to wearrespirators in the areas in question.\u00a0 The Secretary therefore asserts that Gulfshould be found in violation of the cited standard because it failed to institute aneffective respirator training program.C. We agree with the parties’ logical inference that the standard does notrequire training concerning respirators absent employee exposure to hazardous aircontaminants.\u00a0 Therefore, we hold that a hazard requiring the use of respirators mustbe shown before an employer is obligated to provide respirator training.[[7\/]] The Secretary contends that the testimony regarding the presence of catalystdust, coupled with testimony that employees exposed to catalyst dust could contractsilicosis and other respiratory diseases, is sufficient to establish the presence of ahealth hazard. However, the Secretary’s tests showed that the concentration of quartz inthe catalyst dust in the area where the employees worked was within permissible limits andthe catalyst dust contained no cristobalite, tridymite, or arsenic.[[8\/]]\u00a0 There wasno showing that exposure to catalyst dust at monitored levels is hazardous to employees,or that employees became ill as a result of exposure to catalyst dust.\u00a0 Cf. MahoneGrain Corp., 81 OSAHRC 108\/B8, 10 BNA OSHC 1275, 1982 CCH OSHD ? 32,316 (No. 77-3041,1981) (serious violation of ? 1910.134 established where employees exposed to grain dustcontracted histoplasmosis) (lead and dissenting opinions).[[9\/]]\u00a0 Further, there isno evidence of a possible emergency situation occurring as a result of a sudden excursionabove a TLV.\u00a0 See Snyder Well Servicing, Inc. (lead and dissenting opinions).\u00a0 We therefore find that the Secretary failed to establish the existence of a healthhazard due to catalyst dust at Gulf’s worksite. We also conclude that the Secretary failed to show that concentrations offlue gases at Gulf’s worksite constituted a hazard.\u00a0 The Secretary did not test thesegases or offer evidence regarding their composition.\u00a0 Although two employeestestified that they had experienced difficulty breathing as a result of exposure to fluegases, their testimony was not adequate to draw any inferences regarding the hazard.\u00a0 Therefore, the evidence fails to establish by a preponderance that exposure ofemployees to flue gases at Respondent’s worksite presented a health hazard requiring theuse of respirators.Finally, we decline to infer that a health hazard requiring respirators waspresent based upon Gulf’s posting of warning signs concerning flue gases and carbonmonoxide, and Gulf’s requirement that employees wear respirators when performing certainjob functions.\u00a0 An employer’s voluntary safety measures may be relevant to determinean employer’s awareness of a hazard at its worksite.\u00a0 However, Chairman Rowlandconcludes that an employer’s own safety precautions, absent other evidence, do notestablish that the employer believed that such precautions were necessary in order tocomply with a particular standard.\u00a0 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 (1st Cir. 1975);Ulysses Irrigation Pipe Co., No. 78-799 (Mar. 24, 1983) (dissenting opinion).\u00a0 In hisview, a prudent employer might supply respirators to employees even though it does notbelieve that a health hazard is present.\u00a0 In Commissioner Cottine’s view, absent someprobative evidence regarding actual or potential employee exposure to dangerous levels oftoxic substances, see Con-Agra, Inc., supra, Gulf’s warning signs and respiratorrequirement alone do not establish the existence of the hazard.Because we conclude that the Secretary has failed to prove a health hazardrequiring the use of respirators, we reverse the disposition of Judge Bullis and vacatethe item of the citation alleging a violation of section 1910.34(b)(3).III.Accordingly, we affirm Judge Bullis’s decision with respect to item one of the citationand order that the alleged violation of 29 C.F.R. ? 1910.22(b)(1) be vacated and theproposed amendment to 29 C.F.R. ? 1910.22(a)(1) be denied.\u00a0 The judge’s dispositionof item two of the citation 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 Secretary DATED: APR 27 1983CLEARY, Commissioner, concurring in part and dissenting in part:I concur with the majority’s affirmance of the judge’s vacation of the itemalleging noncompliance with ? 1910.22(b)(1).\u00a0 As does the majority, I conclude thatGulf did not expressly or implicitly consent to try an alleged violation of ?1910.22(a)(1).\u00a0 In fact, Gulf expressly objected to trying the ? 1910.22(a)(1) issueby moving to vacate at the end of the Secretary’s case on the basis that the citedstandard was inapplicable.I dissent from the majority action vacating the item alleging a failure tocomply with ? 1910.134(b)(3).\u00a0 In general, the majority concludes that training inthe use of respirators is not required, absent some probative evidence regarding actual orpotential employee exposure to dangerous levels of toxic substances, and that anemployer’s own safety precautions, absent other evidence, do not establish thatrespirators were necessary.\u00a0 The majority concludes that the Secretary failed,therefore, to prove a health hazard requiring the use of respirators, and thus trainingunder ? 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, and that the Secretaryfailed to determine either the level or the composition of the flue gases.\u00a0 Respondent has been charged, however, not with a failure to comply with theprovisions of ? 1910.1000, but rather with noncompliance with ? 1910.134(b)(3).\u00a0 Aviolation of ? 1910.134(b)(3) can exist without evidence of an excursion of levels abovethose prescribed in ? 1910.1000.\u00a0 For example, respirators may be required on entryof employees into an oxygen deficient atmosphere.\u00a0 Under ? 1910.134(a)(2) (whichpredicates the requirements of the cited standard), respirators must be provided whenevernecessary to protect the health of employees regardless of whether a TLV set forth in ?1910.1000 is exceeded.\u00a0 Snyder Well Servicing, Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC1371, 1982 CCH OSHD ? 25,943 (No. 77-1334, 1982).\u00a0 Section 1910.134, as does ?1910.1000, favors accepted engineering control measures in preference to respirators (?1910.134(a)(1)), but in my opinion the requirements of ? 1910.134(a)(2) are independentof ? 1910.1000, and are superseded by that standard only when TLVs are exceeded.\u00a0 Under somewhat analogous circumstances this Commission has found a violation ofsection 5(a)(1) of the Act where an employer has failed to test for toxic substances.\u00a0 Con Agra, Inc., 83 OSAHRC 5\/C7, 11 BNA OSHC 1141, 1983 CCH OSHD ? 26,420 (No.79-1146, 1983).\u00a0 We said, \”The failure to test in a confined atmosphere beforepossible exposure of employees to toxic substances is a violation distinct from acontinued exposure to known quantities of substances listed in section 1910.1000.\”\u00a0 11 BNA OSHC at 1145, 1983 CCH OSHD ? 26,420 at p. 33,527.\u00a0 Similarly, arequirement for respirators in an atmosphere with potential exposure to toxic substancescan exist independently of a violation of ? 1910.1000.The preceding, of course, does not answer the majority position that theremust be evidence of potential employee exposure to dangerous levels of toxic substances.\u00a0 But there are several salient items of evidence in this case which, in my view,dictate that respirators should have been provided and required.\u00a0 It follows fromthis that training should also have been required.\u00a0 The first such evidence is thatone of Respondent’s employees, Elton Hayes, Jr., testified that he had occasionally beenchoked by the flue fumes.\u00a0 Hayes wore a half-mask respirator, but received notraining in its proper use.\u00a0 Another employee also testified that he experienceddifficulty breathing as a result of exposure to flue gases.\u00a0 Further, Respondentprovided respirators and required their use.Based on the testimony of the two employees alone, I would find that respirators wererequired to protect the health of employees independently of testing, or indications oftoxic levels above those prescribed in ? 1910.1000.\u00a0 Moreover, Respondent providedrespirators and required that they be used.\u00a0 While this could be construed as aprecautionary measure against the contingency of the presence of toxic gases, if thecontingency were realized, the use of respirators without proper training could beuseless, or worse than useless, if employees were deluded into thinking they wereprotected whereas, in fact, they were not.\u00a0 In the recent case of Blocksom & Co.,83 OSAHRC 10\/A2, 11 BNA OSHC 1255, 1983 CCH OSHD ? 26,452 (No. 76-1897, 1983), we vacateda citation which alleged a violation for failing to train employees in the proper use ofrespirators.\u00a0 We held that the mere presence of respirators on a job site does nottrigger the training requirement, and at the time of the alleged violation, Blocksom nolonger intended that the respirators be used, but had a policy to evacuate the plant inthe event of a fire beyond immediate control.\u00a0 Since the respirators were essentiallynot available to employees for use, it was concluded that training was not required.\u00a0 In the instant case, the opposite is true.\u00a0 The respirators are available andtheir use is required, and I conclude that under these circumstances, training is alsorequired.I agree that the Secretary might have made a stronger case had he tested forcarbon monoxide, sulfur dioxide, or hydrogen sulfides.\u00a0 However, the testimony of thetwo employees is probative evidence which, in my opinion, established a prima facie case.Based on this record, I would find a violation of the citation as alleged.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\/]] The standard provides:? 1910.22 General requirements.(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficientsafe clearances shall be allowed for aisles, at loading docks, through doorways andwherever turns or passage must be made.\u00a0 Aisles and passageways shall be kept clearand in good repairs, with no obstruction across or in aisles that could create a hazard.[[2\/]] The standard provides:? 1910.22 General requirements.* * *(a) Housekeeping.\u00a0 (1) All places of employment, passageways, storerooms, and servicerooms shall be kept clean and orderly and in a sanitary 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 of respirators and theirlimitations.[[4\/]] The Secretary also urges the Commission to overrule its holding inLove Box Co. and find Gulf in violation of ? 1910.22(b)(1).\u00a0 The Secretary maintainsthat the reference to \”mechanical handling equipment\” applies only to the firstsentence of ? 1910.22(b)(1) and that the second sentence of that standard applies toemployees in general.\u00a0 We adhere to our holding in Love Box Co.\u00a0 See Pratt &Whitney Aircraft, 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:\u00a0 (1)alternative routes to avoid tripping hazards; (2) the dimensions of the scaffoldingalleged to be obstructive; (3) accident history in the particular place; and (4) otherprotective measures to prevent tripping and 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 be merely duplicative ofa separate ? 1910.22(a)(1) violation that was not contested.[[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.\u00a0Section 1910.134(a)(2) requires respirators to be provided \”when such equipmentis necessary to protect the health of the employee.\”\u00a0 Since the cited standard,29 C.F.R. ? 1910.134(b)(3), applies to the use of respirators, Chairman Rowland concludesit does not apply unless it is shown that respirators are necessary to protect the healthof the employee.\u00a0 In order to show such equipment is necessary, the Secretary mustshow whether a reasonable person familiar with the circumstances surrounding an allegedlyhazardous condition, including any facts unique to a particular industry, would recognizea hazard warranting the use of protective equipment. \u00a0Snyder Well Servicing, Inc., 82OSAHRC 10\/C5, 10 BNA OSHC 1371, 1982 CCH OSHD ? 25,943 (No. 77-1334, 1982) (dissentingopinion).\u00a0 For the reasons given in the text, infra, Chairman Rowland concludes areasonable person would not recognize the existence of a hazard.[[8\/]] Exposure limits for quartz, cristobalite, tridymite, and arsenic arecontained in the air contaminants standard at 29 C.F.R. ? 1910.1000.[[9\/]] Commissioner Cottine also notes that, unlike the record in Con Agra,Inc., 83 OSAHRC____, 11 BNA OSHC 1141, 1983 CCH OSHD ? 26,420 (No. 79-1146, 1983), thereis no evidence in this case of potential employee exposure to dangerous quantities oftoxic substances.\u00a0″