“Docket No. 82-0367 SECRETARY OF LABOR,Complainant, v.MOBAY CHEMICAL CORPORATION,Respondent. INTERNATIONAL CHEMICAL WORKERS UNION AND ITS LOCAL 566,Authorized EmployeeRepresentative.OSHRC Docket No. 82-0367DECISION Before: BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).Following an OSHA inspection of its plant in Natrium, West Virginia, Mobay ChemicalCorporation (\”Mobay\”), a chemical manufacturer, was issued one citation allegingthat it failed to fully charge the air cylinders of four self-contained breathingapparatuses (\”SCBA’s\”) located in four separate departments in the plant, inserious violation of 29 C.F.R ?1910.134 (f )(2) (ii).[[1]] A penalty of $350 wasproposed.Mobay, which used various highly toxic chemicals, had specific areas, in its plant whereit kept SCBA’s intended for use by its in-house rescue squad and fire brigade. Fullycharged SCBA’s supply about 30 minutes of breathing air under ideal conditions and areequipped with a bell called an \”Audi-Larm\” that sounds when only 5 to 7-1\/2minutes of air remain in the SCBA. Robert Clifford, the industrial hygienist who conductedthe inspection of Mobay’s plant, examined the SCBA’s intended for use by fire and rescueemployees and found that they were fully charged. In addition, each Mobay employee wasprovided a personal canister and mask for escape purposes. The Secretary does not allegeany deficiency in either the SCBA’s provided for fire and rescue purposes or therespiratory devices intended to enable employees to safely escape the plant. This caseconcerns other SCBA’s located in various departments in Mobay’s plant.Clifford testified that he checked about two SCBA’s in each of the 21 departments andfound that four SCBA’s in four different departments were not fully charged in accordancewith the manufacturer’s instructions. Clifford testified that if Mobay had not providedthe four SCBA’s at issue it would not have been cited so long as it had provided otheradequate respiratory protection for escape purposes. According to Clifford, theundercharged SCBA’s presented the hazard of not providing enough air to complete whateveremergency activity may be necessary. He noted that a fully charged SCBA supplies 30minutes of breathing air under ideal conditions, which were seldom present, and the fourundercharged SCBA’s, at issues would provide even less time. Clifford stated that althoughno OSHA standard required Mobay to provide the SCBA’s at issue he recommended that acitation be issued because Mobay, having voluntarily provided them, had to properlymaintain them. He characterized the alleged violation as serious because it reduced theamount of time available to do \”risky\” work. However, Clifford rated Mobay’sSCBA maintenance and other safety programs as very good to excellent. Under Mobay’soverall SCBA maintenance program, the SCBA’s were inspected on time, given the properphysical checks, and properly maintained.Clifford stated that he was told by the two persons who accompanied him during theinspection –Jim Ingram, Mobay’s Safety Supervisor, and James Regiec, President of theUnion Local — and employees who worked in the areas that. the SCBA’s at issue were to beused during, an emergency, such as an explosion, fire, or major chemical leak, primarilyby the rescue squad for rescue work and by employees for the shutting down and repair ofequipment. He later stated that the cited SCBA’s could have been used as backups by therescue unit or by employees who needed to escape and did not have better respiratoryequipment available in the event of a shutdown or other emergency. He noted that the four,SCBA’s were hung, in locations that were easily accessible to those employees.James Gobel, Mobay’s Manager of Personnel and Safety, testified that the four citedSCBA’s,, were not intended for employee escape use, although they could have been used forthat purpose. Instead, he testified, the four SCBA’s were for general use by employeeswhile working in toxic atmospheres, where, according to the manufacturer’s instructions,employees were to leave the area of the toxic air when the Audi-Larm rang.In his decision in this case, Judge Paul L. Brady vacated the citation. For the reasonsset forth below, the two Commissioners are divided on whether the judge erred in hisdisposition.[[2]]Chairman Buckley would affirm the judge. He notes that industrial hygienist Cliffordtestified that there was no specific requirement for the SCBA’s and that Mobay would nothave been cited for violating section 1910.134(f)(2)(ii) if it had not provided the SCBA’sat issue so long as other adequate escape respirators were provided. Clifford admittedthat Mobay did provide its employees with other adequate respiratory equipment for escapepurposes in the form of personal canisters and masks and provided adequate SCBA’s for thefire and rescue brigade. The cited SCBA’s were for general work in toxic atmospheres orfor use as extra protection by the rescue squad or employees performing shut-down work.Indeed, Clifford rated Mobay’s SCBA maintenance and other safety programs as very good toexcellent.To affirm this citation would penalize Mobay for voluntarily providing its employees withadditional safeguards and could result in the elimination of this additional protectionfrom the workplace. Such a ruling would discourage employers from voluntarily providingsafety equipment beyond that required, a result patently at odds with the purpose of theAct — to provide safe and healthy workplaces. See, e.g., Diebold, Inc. v. Marshall, 585F.2d 1327, 1338 (6th Cir. 1978); General Motors Corp., GM Parts Division, 84 OSAHRC _____,11 BNA OSHC 2062, 2066, 1984 CCH OSHD ? 26,961, p. 34,611 (No. 78-1443, 1984). In theinstant case, the cylinders on the SCBA’s at issue were substantially filled. They wouldhave provided a user with air for a significant portion of time and certainly enhancedemployee safety by comparison to the apparently acceptable alternative of not providingthe SCBA’s. The lack of full charging could not be considered to have created a hazard where nonepreviously existed because each SCBA had an alarm that would ring when 5 to 7-1\/2 minutesof air remained. Employees who did use these SCBA’s as backups to their personal canistersand masks would not remain in contaminated air in reliance on a fixed amount of oxygen inthe SCBA, but would remove themselves immediately once the Audi-Larm sounded. In no casewas the charge of a cylinder diminished to a point where less than 5 to 7-1\/2 minutes ofair remained. Thus, employees would have the same amount of time remaining once the alarmsounded warning them to exit. Mobay’s voluntary provision of additional employeesafeguards should be applauded, not discouraged, and certainly not penalized. ChairmanBuckley, therefore, would affirm the judge’s decision vacating the citation.Commissioner Cleary would affirm the citation. Mobay failed to comply with the standard bynot fully charging all or its SCBA’s in accordance with the manufacturer’s instructions.While the testimony of Mr. Gobel seems to be that the SCBA’s were for general use byemployees \”while working in toxic atmospheres,\” it must be presumed thatnormally an employee would not be employed in a toxic atmosphere, and that a toxicsubstance must have escaped to create such conditions. If one were to \”work\” ina toxic atmosphere as a normal condition, it would be manifestly impractical to use asuccession of 30-minute respirators. One must therefore conclude that emergency conditionswould exist before the SCBA’s would be used. But even assuming \”working in toxicatmospheres\” was not an emergency condition, the SCBA’s must have been intended to beused in toxic atmospheres, at least on a contingency basis. Given this, both the standardand logic dictate that the SCBA’s provide the maximum protection that the apparatus iscapable of.It is not sufficient to rely on an alarm to warn when the SCBA’s air supply is low. Thisis simply a gauge, and does not supplant the requirement for a full tank. When\”working\” in toxic atmospheres, the hazard of an insufficient supply of air isvery grave indeed.Moreover, it is no defense that Mobay was not required to supply these particularrespirators. Whether they were provided voluntarily or were required, they were intendedfor use, were used, or were available for use in a toxic atmosphere. It would be nodefense if an employee were killed to maintain that the employer was not responsiblebecause the employee used a SCBA that was voluntarily provided instead of another that wasrequired. It is an exaggeration in this case to characterize these SCBA’s as unsafe.However, by way of illustration, it would not be acceptable to require an employer tosupply SCBA’s that conform to standards, but to permit it to supply unsafe SCBA’s as well,as long as it supplied them voluntarily. One would presume that because the SCBA’S weresupplied, they were intended for use, and, if used, the potential for a tragic accident isobvious.In view of the possibility of death or serious bodily harm, Commissioner Cleary would findthat the violation is properly classified as serious. However, the precedingnotwithstanding, the Secretary’s principal witness indicated that Mobay’s safety programwas good to excellent. The SCBA’s were inspected by Mobay. Only four out of many wereminimally undercharged. Accordingly, he would assess a minimal penalty.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of two members. The two Commission members aredivided on whether the judge erred in his disposition in this case. To resolve thisimpasse and to permit this case to proceed to a final resolution, the members have agreedto affirm the judge’s decision but accord it the precedential value of an unreviewedjudge’s decision. See Life Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053,1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991(4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY DATED: FEB 27 1985 \u00a0FOOTNOTES: [[1]] The standard provides:Self-contained breathing apparatus shall be inspected monthly. Air and oxygen-cylindersshall be fully charged according to, the manufacturer’s instructions. It shall bedetermined that that regulator and warning devices function properly.[[2]] As established by the Act, the Commission is composed of three members.Section 12(a), 29 U.S.C. ? 661(a). Currently, the Commission has two members as a resultof a vacancy.”