“Docket No. 88-2021 SECRETARY OF LABOR,Complainant,v.LOUISIANA-PACIFIC CORPORATION,Respondent.OSHRC Docket No. 88-2021ORDER This case was directed for review before the OccupationalSafety and Health Review Commission by Former Acting Chairman Linda L. Arey on October 10,1989 from a decision by Administrative Law Judge James A. Cronin dated August 29, 1989.The Secretary has filed a Notice to Withdraw Item 1b of Citation 2 pursuant to CommissionRule 102, 29 C.F.R. ? 2200.102.Having reviewed the official record in this case, theCommission construes the Secretary’s Notice to Withdraw as a Motion to Withdraw Item 1b ofCitation 2 and grants the motion. In addition, the Commission sets aside the Judge’sdecision to the extent that it rules on Item 1b of Citation 2, the withdrawn citation.Judge Cronin’s Decision and Order now becomes a final order to the extent that it rules onItems 1a and 1c of Citation 2.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. Wiseman CommissionerDated: May 24, 1990ELIZABETH DOLE, SECRETARY OF LABOR,Complainant,v.LOUISIANA-PACIFIC CORPORATION,Respondent.OSHRC Docket No. 88-2021Secretary’s Notice to Withdraw CitationIn a decision dated August 8,1989, Administrative Law JudgeJames Cronin, Jr. vacated a citation for serious violations of 29 C.F.R.1910.1200(f)(1)(ii), 1910.1200 (f)(5)(ii) and 1910.1200(g)(6) which had been issued torespondent by the Secretary on August 2, 1988 (items 1a, 1b, and 1c of serious Citation2). The Secretary’s subsequent petition for discretionary review of the judge’s decisionwas granted by the Commission on October 10, 1989. The Commission’s Direction for Reviewwas limited to item 1b of serious Citation 2; the 1910-1200(f)(5)(ii) violation.After extensive review of the record evidence, the Secretaryhas determined that further litigation of this case is not merited.WHEREFORE, the Secretary hereby withdraws the citation for violation of 29 C.F.R.1910.1200 (f)(5)(ii) issued to respondent on August 2, 1988.Respectfully submitted,ROBERT P. DAVIS.SolicitorCYNTHIA L. ATTWOOD Associate Director for Occupational Safety and Health DANIEL J. MICKCounsel for RegionalTrial LitigationORLANDO J. PANNOCHIA AttorneySECRETARY OF LABOR,Complainant,v.LOUISIANA-PACIFIC CORPORATION,Respondent.APPEARANCES:For the Complainant:Mary D. Wright, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, MO For the Respondent:Larry Jones, Esq., Missoula, MT,Bert P. Krages, II, Esq., Louisiana-PacificCorporation, Portland, ORDECISION AND ORDERCronin, Judge:This proceeding arises under the Occupational Safety and HealthAct of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the\”Act\”).Following an inspection of respondent’s manufacturing plant atMissoula, Montana, on April 20 and 21, 1988, the Secretary of Labor issued to respondent,Louisiana-Pacific Corporation, a \”serious\” citation alleging three violations ofthe Hazard Communications Standard (29 C.F.R. ? 1910.1200 et seq.). A totalpenalty of $1,000.00 was proposed for the alleged violations. A hearing was held atMissoula, Montana, on April 18, 1989, and both parties have filed comprehensive briefs.This case is now ready for decision.Issues1. Whether the HCS applies to respondent’s manufacturedparticleboard?2. Whether ? 1910.1200 (f)(1)(ii) requires respondent toaddress the carcinogenic hazard of formaldehyde on the shipping labels for itsparticleboard?3. Whether respondent is required by ? 1910.1200(g)(6) toprovide either a material safety data sheet (MSDS) relating to its particleboard orseparate MSDS relating to formaldehyde and wood dust to distributors and employers to whomrespondent directly ships its particleboard?4. Whether ? 1910.1200 (f)(5)(ii) requires respondent toaddress the carcinogenic hazard of formaldehyde on its stationary tanks containingformaldehyde?5. Whether respondent established its \”greaterhazard\” defense?6. Whether the HCS is invalid as applied to respondent?A. Applicability of the HCS to Respondent’s ParticleboardBy order dated March 29, 1989, a partial summary adjudicationwas issued deciding that the HCS is not inapplicable to respondent’s particleboard byreason of the wood or wood products exclusion in ?1910.1200(b)(6)(iii). The parties,however, were alerted by the later order of April 12, 1989, that this partial summaryadjudication was subject to change, modification, and even reversal by this Judge’s finaldecision in this proceeding. Both parties have addressed the applicability issue in theirbriefs.Section 1910.1200 (b)(6)(iii) declares that the HCS at ?1910.1200 et seq. does not apply to \”Wood or wood products.\” TheSecretary at the hearing stipulated that particleboard is a \”wood product\” andthat wood dust, a component of respondent’s particleboard, is \”made out of wood\”(Stipulation Nos. 19, 20, Tr. 19). The Secretary, however, claims that the HCS was neverintended by the Secretary not to apply to particleboard. In support, she points to theSecretary’s interpretation of the applicability of the HCS to wood or wood products foundin the preamble to the HCS’s final rule published in the Federal Register on November 25,1983, 48 Fed. Reg. 53,280 et seq. and in the Secretary’s comments to theproposed and final rules governing occupational exposure to formaldehyde 50 Fed. Reg.50,412 (Dec. 10, 1985); 52 Fed. Reg. 46,168 (Dec. 4, 1987).The Secretary’s comments in the HCS preamble specificallydiscussed the wood and wood products exclusion from the HCS explaining that:\”while both kinds of materials are no doubt flammable and maypose other hazards as well under some circumstances, their identity within theworkplace is unmistakable and their characteristic hazards should be well known to theworkers involved. Accordingly, their exclusion from this standard is appropriate (emphasisprovided) . . . \”The preamble goes on to indicate that wood and wood productsalso were excluded from application of the HCS because some of the chemicals with whichsome such products are frequently impregnated are subject to a labeling exclusion providedin the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for regulatedinsecticides. Finally, the preamble states that \”it should be noted again that, aswith the other exclusions, nonexcluded chemicals which are used in conjunction withtobacco and wood products, or are known to be present as impurities in those materials arecovered by this standard.\” 48 Fed. Reg. 53,289 (Nov. 25, 1983)Subsequently, the secretary specifically addressed the issue ofwhether wood products which contain formaldehyde were exempt under the HCS in the commentsto the proposed rule governing exposure to formaldehyde and stated that \”woodproducts which use formaldehyde would not be exempt from the requirements of the HazardCommunication Standard since the use of formaldehyde, in this instance, is not forpesticidal purposes. Therefore, the intention of the hazard communication standard was tocover wood products treated with a non-excluded chemical such as formaldehyde.\” 50Fed. Reg. 50,483-84, (Dec. 10, 1985)Later, the Secretary reiterated this position in the preambleto the final rule of the formaldehyde standard stating that, \”wood products that arecapable of emitting formaldehyde are not exempted from the standards of the HazardCommunication Standard since such uses of formaldehyde are not pesticidal.\” 52 Fed.Reg. 46,284 (Dec. 4, 1987)\”Wood dust,\” was never referenced or mentioned in thepreamble to the HCS in November 1983. But some 45 months later on August 24, 1987, thepreamble to an expanded HCS commented that, \”OSHA never intended, however, that wooddust be excluded from the standard’s coverage under the wood and wood products exemption.Wood dust is not generally a wood ‘product,’ but is created as a by-product duringmanufacturing operations involving sawing, sanding or shaping of wood. Wood dust does notshare solid wood products \”self-evident hazard characteristics that supported theexemption of wood products from the HCS coverage.\” 52 Fed. Reg. 31,863 (Aug. 24,1987)Respondent, on the other hand, argues with some persuasion thatthe Secretary is bound by the plain meaning of the language of ? 1910.1200(b)(6)(iii) andby her stipulations that respondent’s particleboard is a \”wood product\” and thatwood dust \”is made of wood.\” According to respondent, the Secretary’sinterpretation of ? 1910.1200 (b)(6)(iii) is inconsistent with the plain meaning of thewords used in (b)(6) and its adoption or acceptance by this Commission, therefore, wouldbe contrary to law.The exclusion or applicability question posed by this case is adifficult one. But further review of the case law tends to support respondent’s positionrather than the Secretary’s.When dealing with an administrative regulation or standard that provides penal sanctionsfor noncompliance, as we do here, the coverage or application of the standard is nobroader than what is encompassed by its terms. Dravo Corp. v OSHRC, 613 F.2d 1227(3d Cir. 1980)On its face, the language of 1200 (b)(6)(iii), which appearsunder the \”scope and application\” section of the HCS, expressly excludes fromcoverage \”wood or wood products\” without any exceptions. Because the Secretarystipulates that respondent’s particleboard is a \”wood product,\” the plain andordinary meaning of 1200.(b)(6)(iii) excludes respondent’s particleboard from theapplication of the HCS.Citing Church of Scientology v. U.S. Dept. of Justice,612 F.2d 417 (9th Cir. 1979) in support, the Secretary forcefully argues that theCommission should not rely solely on the so-called \”plain meaning\” rule ininterpreting the wood products exclusion because such reliance would ignore theSecretary’s avowed intent and would expose countless employees to the hazardous chemicalsformaldehyde and wood dust.The interpretation of an administrative standard by thepromulgating agency is entitled to \”great deference\” but not if thisinterpretation is \”clearly erroneous or inconsistent with the regulationitself.\” See Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215 (1945)and Udall v Tallman, 330 U.S. 1 at 16, 87 S.Ct. 792, at 801 (1965). As the courtshave held, a promulgated standard under the Act cannot be construed to mean what theSecretary intended but did not adequately express. See Diamond Roofing Co. v.OSHRC, 528 F.2d 645, 649-650 (5th Cir. 1976); Usery v Kennecott Corporation,577 F.2d 1113 (10th Cir. 1977)In this Judge’s view, the coverage of the HCS cannot bebroadened to apply to some wood products when the HCS excludes all wood products withoutexception. Cf. Dravo Corp v OSHRC, supra, where a standard was held inapplicable tocertain work places because the standard’s language did not include them.Moreover, the Act grants to the Secretary, and not to thisjudge or Commission, the means and responsibility to amend ? 1910.1200(b)(6)(iii) toexpress what was intended by the Secretary but not stated in the standard. The Secretarymay be right to be concerned that respondent’s particleboard is not subject to the HCS butshe needs only to amend ? 1910.1200(b)(6)(iii) to eliminate that concern.This Judge expressly overrules his partial summary adjudicationwhich held that the HCS is not inapplicable to respondent’s particleboard by reason of1200.(b)(6)(iii). But to obviate the need for a remand should the Commission or areviewing court decide that the HCS applies to respondent’s particleboard, items 1a and 1cof the citation will be decided as if the HCS is applicable to respondent’s particleboard.In its answer, respondent also raised the affirmative defensethat the HCS was inapplicable to respondent’s particle-boards because they are\”articles,\” which are expressly excluded from the HCS by ? 1910.1200(b)(6)(iv).Although this defense was not addressed by respondent in its brief and apparently has beenabandoned, a brief discussion of the issue appears in order.\”Article\” is defined at ? 1200(c) as \”. . . a manufactured item:(i) which is formed to a specific shape or design during manufacture, (ii) which has enduse function(s) dependent in whole or in part upon its shape or design during end use; and(iii) which does not release, or otherwise result in exposure to a hazardous chemicalunder normal conditions of use.\”Exposure exists under ?1910.1200 (c) when\”an employee is subjected to a hazardous chemical in thecourse of employment through any route of entry (inhalation, ingestion, skin contact orabsorption; etc.) and includes potential (e.g. accidental or possible) exposure.\”Respondent’s particleboard clearly fails to satisfy the thirddefinitional criterion of \”article\” because the record establishes thatrespondent’s particleboard releases the hazardous chemicals formaldehyde and wood dustunder normal conditions of use by downstream employees and that these employees areexposed to formaldehyde and wood dust through inhalation. Respondent’s particleboards,therefore, are not \”articles\” and not excluded from application of the HCS byreason of ? 1910.1200(b)(6)(iv).B. Item 1a – Alleged Violation of ? 1910.1200(f)(1)(ii)The Secretary has charged respondent with the failure of itsshipping labels that are attached to the units of its particleboard to address thecarcinogenic hazard of the formaldehyde contained in the particleboard (Ex. C-3).? 1910.1200(f) provides in pertinent part:Labels and other forms of warning. (1) The chemicalmanufacturer, importer, or distributor shall ensure that each container of hazardouschemicals leaving the workplace is labeled, tagged or marked with the followinginformation:(i) Identity of the hazardous chemical(s); (ii) Appropriate hazard warnings; and(iii) name and address of the chemical manufacturer, importer or other responsible party.Most of the facts are undisputed and many of them werestipulated by the parties.Respondent is an employer engaged in a business which affectscommerce and is listed within the SIC codes 20 through 39.Respondent manufactures particleboard, a material formed bybinding small particles of wood and wood dust with urea formaldehyde resin. Theformaldehyde content of this manufactured particleboard varies from .007 to .021 percent.The particleboard also contains more than 1% of soft wood dust.The HCS defines a chemical manufacturer as \”an employerwith a workplace where chemicals are produced for use or distribution. See ?1910.1200(c).A \”chemical\” is broadly defined in 1200(c) as\”any element, chemical compound or mixture of elements and\/or compounds.\” Theterm \”hazardous chemical\” is defined as \”any chemical which is a physicalhazard or a health hazard.\” \”Health hazard\” also is defined in section1200(c) and means a chemical for which there is statistically significant evidence basedon at least one study conducted in accordance with established scientific principles thatacute or chronic health effects may occur in exposed employees. The parties stipulatedthat formaldehyde has been the subject of at least one such study and was found to be acarcinogen. Therefore, formaldehyde is a \”health hazard\” and a \”hazardouschemical.\”The HCS also establishes a \”floor\” of hazardoussubstances which chemical manufacturers are required to treat as hazardous chemicals orcarcinogens. See 1910.1200(d)(3) and (4).Both formaldehyde and wood dust are listed in the ThresholdLimit Values for Chemical Substances in the Work Environment, American Conference ofGovernmental Industrial Hygienists (ACGIH). Formaldehyde also is regulated under SubpartZ. of 29 C.F.R. Part 1910 at ? 1910.1048. Formaldehyde additionally is listed by both theInternational Agency for Research on Cancer (IARC) Monographs (latest editions) andby the National Toxicology Program (NTP), Annual Report on Carcinogens (latest edition) asa carcinogen. Both formaldehyde and wood dust, therefore, must be treated as\”hazardous chemicals,\” and formaldehyde additionally treated as a\”carcinogen,\” for purposes of the HCS.Particleboard is not the result of a chemical reaction and,therefore, is a \”mixture\” of chemicals as that term is defined under ? 1200(c).Because wood dust, a hazardous chemical, comprises more than 1% of the mixtureconstituting the particleboard, the particleboard itself also must be treated andconsidered as a \”hazardous chemical.\” See 1200 (d)(5)(ii).Respondent is found to be a chemical manufacturer and its particleboard a\”hazardous\” chemical subject to the labeling requirements of the HCS under ?1200.(f)(1)(ii).Respondent, however, was not charged with the failure of itsshipping label to address the hazards generally associated with wood dust, but only withthe failure to address the carcinogenicity of formaldehyde. Respondent initially arguesthat a label referencing the carcinogenic hazard of formaldehyde is not appropriate andnot required given the insignificant emission levels of formaldehyde from itsparticleboard. This Judge agrees that this record does not establish that respondent’sshipping label is required to reference the potential cancer risk of formaldehyde but forsomewhat different reasons.? 1200(f)(1)(ii) requires \”appropriate hazardwarnings\” on the label of a hazardous chemical mixture. The HCS also requires achemical manufacturer to determine the hazards of any chemical mixture that he produces.He may test the mixture \”as a whole\” to determine its hazards or assume that themixture presents the same hazards as posed by the individual components of the mixture.In effect, the HCS also creates a presumption that acarcinogenic component that comprises less than .1% of the mixture poses no cancer hazard.The HCS, of course, also presumes that a carcinogenic component comprising more than .1%of the mixture poses a cancer hazard.Because of this presumption, no cancer warning on a container label of a hazardouschemical mixture is required if the carcinogenic component comprises less than .1% of thechemical mixture.A chemical manufacturer, who does not test the mixture as awhole to determine its hazards, is entitled to rely on this presumption unless he hasreason to believe that the emissions of the carcinogenic component will exceed the OSHAPEL or an ACGIH Threshold Limit Value for that chemical. See ? 1910.1200(d)(ii)and (iv).In this case, formaldehyde comprises less than .1% of theparticleboard, a hazardous chemical, and there is no evidence that respondent had reasonto believe that formaldehyde could be released at a concentration exceeding the OSHA PELof one part formaldehyde per million parts of air (1 ppm) as a 8-hour time weightedaverage (TWA) concentration under normal conditions of use. Indeed, the respondent’s andSecretary’s tests demonstrate that formaldehyde emissions from the particleboard do notexceed, the OSFA PEL.There also is no evidence that respondent had reason to believethat its particleboard under normal conditions of use could emit formaldehyde inconcentrations that could cause cancer.Respondent’s expert, who was not a respondent employee, agreedthat employee exposure to formaldehyde below 1 ppm poses a potential risk of cancer. Butthat evidence is insufficient to prove that respondent has reason to believe that theemission level of formaldehyde from its particleboard could cause cancer.Because no test for wood dust apparently was performed,respondent did not test the particleboard as a whole to determine its hazards. Therefore,respondent was entitled to rely on the presumption that, formaldehyde posed no cancerhazard because it comprises less than .1% of the particleboard, and conclude that nocancer hazard warning on its container labels for formaldehyde was required.Moreover, even assuming that respondent’s testing of itsparticleboard for formaldehyde emissions constituted a test of the particleboard \”asa whole,\” the test results were not indicative of a cancer hazard. Thus, no cancerhazard warning on the container shipping label for formaldehyde was required. Item 1c -Alleged Violation of ? 1910.1200(g)(6)The Secretary alleges that respondent failed to providedownstream employers and distributors with material safety data sheets (MSDS) for thehazardous chemicals formaldehyde and wood dust contained in its particleboard.? 1910.1200(g)(6) provides:(6) Chemical manufacturers or importers shall ensure thatdistributors and employers are provided an appropriate material safety data sheet withtheir initial shipment, and with the first shipment after a material safety data sheet isupdated. The chemical manufacturer or importer shall either provide material safety datasheets with the shipped containers or send them to the employer prior to or at the time ofthe shipment. If the material safety data sheet is not provided with a shipment that hasbeen labeled as a hazardous chemical, the employer shall obtain one from the chemicalmanufacturer, importer, or distributor as soon as possible.Respondent stipulated that it did not provide MSDS relating toits particleboard or to the hazardous chemicals formaldehyde and wood dust contained inits particleboard to \”all\” downstream distributors or employers to whom itdirectly shipped its particleboard (Tr. 18). The compliance officer further testified thathe was told by respondent’s plant manager that MSDS were not being sent with the shippedparticleboard (Tr. 48). By failing to provide a MSDS for its particleboard which containsmore than 1% wood dust, and, therefore, is a hazardous chemical or an MSDS for wood dust,respondent failed to comply with ? 1910.1200(g)(6).For reasons similar to those previously discussed concerningthe alleged violation of ? 1200(f)(1)(ii), however, respondent was not required toprovide a MSDS for formaldehyde or reference formaldehyde in an MSDS for theparticleboard. An MSDS need not list the carcinogenic component of a hazardous chemicalmixture if the carcinogenic component does not comprise more than .1% of the mixture andif there is no evidence that the component could be released in concentrations exceedingthe OSHA PEL or could present a cancer hazard to employees. See 1200.(g)(2)(c)(1), (2) and(3).As previously discussed, formaldehyde did not comprise morethan 0.1% of the particleboard’s hazardous chemical mixture. The Secretary also failed toestablish by a preponderance of the evidence that respondent had reason to believe thatformaldehyde could be released in concentrations exceeding the OSHA PEL for formaldehydeof 1 ppm or that the concentrations of formaldehyde released could present a cancer hazardto downstream employees under normal conditions of use. See 48 Fed. Reg. 53,292.D. Item 1b-Alleged Violation of ?1910.1200(f)(5)(ii)The Secretary alleges a violation of ? 1200(f)(5)(ii) due torespondent’s failure to label its stationary urea formaldehyde tanks with informationrelating to the carcinogenicity of formaldehyde.? 1910.1200(f)(5)(ii) provides:(f) Labels and other forms of warning.(5) Except as provided in paragraphs (f)(6) and (f)(7) the employer shall ensure that eachcontainer of hazardous chemicals in the workplace is labeled, tagged or marked with thefollowing information:(ii) Appropriate hazard warnings.Respondent appears to argue that it was not required to addressthe carcinogenicity of formaldehyde on the labels of its tanks because it made availableto its employees MSDS which did address the carcinogenicity of formaldehyde.The parties stipulated that the labels affixed to respondent’stanks identified the tanks as containing formaldehyde and that MSDS for formaldehyde wereavailable to all employees (Tr. 17-18). These labels were provided by the formaldehydemanufacturer, Borden Chemical (Tr. 39), The MSDS for formaldehyde contain informationregarding the carcinogenicity of formaldehyde (Ex. C-1, C-2).The standard at issue requires that each container of hazardouschemical must be labeled, tagged, or marked with the identity of the hazardous chemical(s)contained therein and \”appropriate hazard warnings.\” The HCS at ?1910.1200(f)(6), however, allows an employer to use \”signs, placards, process sheets,batch tickets, operating procedures, or other such written materials in lieu of affixinglabels to individual stationary process containers, as long as the alternative methodidentifies the containers to which it is applicable and conveys the information requiredby paragraph (f)(5) of this section to be on the label.\”The Secretary’s brief argues that the alternative method in(f)(6) is available only with respect to \”individual stationary processcontainers\” and that respondent’s tanks are not \”process containers.\”The compliance officer testified that in his opinion the term\”process container\” under the HCS is limited to containers in which some kind ofa chemical reaction takes place. This Judge disagrees.In referring to the exemption in ? 1200(f)(6) for an inplantcontainer labeling requirement, the preamble in the HCS indicates that this exemption wasintended to apply \”[W]here stationary containers in a work area had similar contentsand hazards . . . \” 48 Fed. Reg. 53,280. Moreover, if the Secretary had actuallyintended to restrict the meaning of \”process container\” only to a chemicalreaction vessel, the Secretary would have simply used the term \”reactionvessel,\” which already is referenced under the definition of \”container,\”See ? 1910.1200(c).Contrary to the Secretary’s contention, the terms \”processcontainer\” and \”reaction vessel\” are not synonymous. \”Processcontainer\” is a much broader term and covers stationary tanks like respondent’s whichare an integral part of a manufacturing process and contain \”similar contents andhazards.\”Pointing to the phrase \” in lieu of \” theSecretary also argues that if an employer chooses to use any form of label on itscontainers, it cannot use the alternative method provided by (f)(6). But this alternativemethod requires no labels on stationary process tanks. Therefore, an employer should notbe precluded from using this alternative method simply because it chooses to additionallylabel its tanks with the identity of the contents.Another issue raised is whether the availability of MSDS forformaldehyde is sufficient to constitute compliance with (f)(6) and (f)(5)(ii) .There appears to be nothing in the HCS to prevent an employerfrom using MSDS forms in lieu of affixing labels to individual stationary processcontainers. The provision at (f)(6) allows employers to use among other things \”. . .operating procedures or other such written materials\” instead of labels. Certainly,\”other such written materials\” is sufficiently broad to cover MSDS forms. Infact, MSDS can be in the form of \”operating procedures.\” See 1200(g)(iv)MSDS or \”other such written materials,\” however,cannot be used unless they identify the containers to which they are applicable, identifythe contents of those containers, and contain the appropriate warning informationapplicable to the contents involved.Although respondent’s MSDS for formaldehyde do not identify thecontainers to which they are applicable, the labels on the containers fulfilled thatrequirement by identifying the contents as formaldehyde. The MSDS which are available torespondent’s employees also address the carcinogenic hazard of formaldehyde. In thisJudge’s view, respondent is in substantial compliance with ? 1910.1200 (f)(6). It alsoshould be noted that there is no evidence in the record that respondent employees areactually or potentially exposed to the formaldehyde in the tanks.E. The Alleged Invalidity of the HCSCiting the Supreme Court’s decision in Industrial UnionDepartment, AFL-CIO v American Petroleum Institute, 448 U.S. 607F 100 S.Ct. 2844(1980), the respondent contends that the HCS is invalid as applied to it because theSecretary failed to provide sufficient conclusive evidence in both the rulemaking andhearing records to support a finding that the HCS labeling requirement is reasonablynecessary and appropriate to remedy a significant risk of material health impairment.This Commission has long acknowledged and held that it lacked the statutory authority toquestion the wisdom of the Secretary’s standards or review the Secretary’squasi-legislative determination that the requirements or prohibitions of a standard are\”reasonably necessary or appropriate\” means of eliminating oz reducing workplacehazards. See Cornish Dress Mfg, Co., 3 BNA OSHC 1850 (No. 6765, 1975), VanRaalte Co., 4 BNA OSHC 1151 (No. 5007, 1976, and Austin Bridge Company, 7 BNAOSHC 1761 (No. 76-93, 1979).According to the Commission, the determinations made by theSecretary when promulgating a standard that a hazard exists and that the standard willeliminate or reduce that hazard are both quasi-legislative and adjudicative resolutions ofdisputed facts. See Austin Bridge Co., supra, at n.10.In promulgating the HCS, the Secretary found that employees aremore likely to be harmed handling hazardous chemicals if they are ignorant of the natureof those chemicals. The Secretary found that inadequate communication is itself a hazardwhich the HCS can eliminate or mitigate. 48 Fed. Reg. 53,321 (1983). Because theseparticular findings by the Secretary constitute in part quasi-legislative determinationswhich the Commission lacks statutory authority to review, respondent’s invaliditychallenge to the HCS must await review by a Circuit Court of Appeals or possibly by theSupreme Court.The HCS is predicated on the existence of a hazard if its termsare not met. Therefore, at an enforcement hearing concerning the HCS the Secretary is notrequired to prove either that noncompliance with a particular section creates a hazard orthat compliance with the standard would have eliminated or reduced a significant risk ofharm. The Secretary in this hearing only had to prove that respondent failed to complywith the cited requirements of the HCS.F. Greater Hazard DefenseRespondent raised the so-called \”greater hazard\”defense in its answer. According to respondent, it is inappropriate to risk causingstress-related illnesses in employees by placing a cancer warning on labels when the riskof cancer is insignificant.Because of the determination above that the Secretary failed toprove that respondent was required to put a cancer warning on its particleboard shippinglabel, it becomes unnecessary to address respondent’s greater hazard defense.Findings of FactAll findings of fact relevant and necessary to a determinationof the contested issues have been found specially and appear above in the decision. SeeRule 52(a) of the Federal Rules of Civil Procedure. Any proposed findings of fact andconclusions of law that are inconsistent with this decision are denied.Conclusions of Law1. Respondent’s particleboard is a \”wood product\” as that term is used in ?1910.1200(b)(6)(iii).2. The language of ? 1910.1200(b)(6)(iii) excludesrespondent’s particleboard from application of the HCS.3. Respondent’s particleboards are not \”articles\” andnot excluded from application of the HCS by reason of ? 1910.1200(b)(6)(iv).4. Respondent’s tanks that contain formaldehyde are\”stationary process containers\” that are subject either to the labelingrequirements of 1910.1200(f)(5)(ii) or ? 1910.1200(f)(6).5. Respondent was in substantial compliance with the inplantlabeling requirements of ?1910.1200(f)(6) and ? 1910.1200(f)(5).ORDER Based on the findings of fact, conclusions of law, and theentire record, it is ORDERED:1. Citation No. 1 issued August 2, 1988, and the proposedpenalty of $1,000.00, are VACATED.James A. Cronin, Jr.Judge, OSHRCDated: August 29, 1989″