“SECRETARY Of LABOR,Complainant,v.MONSANTO COMPANY,Respondent,andINTERNATIONAL CHEMICAL WORKERSUNION AND ITS LOCAL 561,Authorized Employee Representative.OSHRC Docket No. 86-0391_ORDER_The Parties’ Stipulation and Settlement Agreement is approved. Thisorder is issued pursuant to a delegation of authority to the ExecutiveSecretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: _December 4, 1987_————————————————————————WILLIAM E. BROCK,SECRETARY OF LABOR,Complainant,v.MONSANTO COMPANY,Respondent,andINTERNATIONAL CHEMICAL WORKERSUNION AND ITS LOCAL 561,Authorized Employee Representative.OSHRC DOCKET NO. 86-0391_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement ofthe instant case which is currently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to Section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590,29 U.S.C. ? 651 _et_ _seq_.) (hereinafter \”the Act\”).(b) Respondent, Monsanto Company, is a corporation with a place ofbusiness and a plant facility located in Addyston, Ohio. Respondent’sprincipal place of business is located in St. Louis, Missouri. It isengaged in the business of manufacturing chemicals and during the courseof its business its employees perform various tasks in the nature ofproducing chemicals. During the course of its business, respondent usesmaterials and equipment which it receives from places located outsideAddyston, Ohio. Respondent, as a result of the aforesaid activities, isan employer engaged in a business affecting commerce as defined bysections 3(3) and 3(5) of the Act, and has employees as defined bySection 3(6) of the Act, and is subject to the requirements of the Act.(c) As a result of an inspection conducted on November 26, 1985 atMonsanto’s Port Plastics workplace at River Road, Addyston, Ohio, acitation alleging two other-than-serious violations of the HazardCommunication Standards at 29 CFR 1910.1200(f)(1)(ii) and1910.1200(g)(2)(vi), with no proposed penalty, was issued to Respondenton March 11, 1986, pursuant to Section 9(a) of the Act, all of which wasattached to the Complaint in OSHRC Docket No. 86-0391.(d) Respondent timely contested the citation as to all items in thecitation. The Secretary agreed to vacate certain items in the citationprior to hearing, but not other items. On April 3, 1987, the CommissionAdministrative Law Judge James D. Burroughs issued his Decision andOrder on the amended citation in which he affirmed the alleged violationof 1910.1200(f)(1)(ii) [items 1 and 4 of item 1b(a)], which is thesubject of the instant Stipulation and Settlement Agreement. The judgealso affirmed the alleged violation of 1910.1200(g)(2)(vi), and statedin his decision those items of the citation previously vacated.Thereafter, respondent filed a timely Petition for Discretionary Reviewwhich was granted by the Commission on May 26, 1987. The Commissionissued a Briefing Notice on June 5, 1987.IIINow the Secretary of Labor and Monsanto Company, in order to concludethis matter without the necessity of further litigation, stipulate andagree as follows:(a) Respondent hereby states that it promptly will abate the allegedviolation of 1910.1200(f)(1)(ii) by including, until such time as mayotherwise be required or be permitted by law, the following words on thelabel Respondent prepares for its chemical product styrene monomer,inhibited:1. Excessive overexposure can cause central nervous system effects.2. An irritant to the respiratory tract.(b) The Secretary hereby withdraws its citation for alleged violation of1910.1200(f)(1)(ii), with prejudice, issued to Respondent on March 11,1986. The Secretary believes that the judge’s decision was correctlydecided. However, in view of Respondent’s existing comprehensive hazardcommunication program and its representation contained herein, theSecretary has determined that further litigation of this case is notmerited.(c) Respondent and Complainant agree that each party shall bear its ownfees, costs and other expenses incurred by such party in connection withany stage of this proceeding.(d) Nothing is this Stipulation and Settlement Agreement constitutes anyadmission by the Respondent of any violation of the Occupational Safetyand Health Act or regulations and standards promulgated thereunder.Further, nothing in this Settlement Agreement, nor any order of theCommission entered pursuant to this Stipulation and SettlementAgreement, nor any documents gathered or prepared in connection withthis matter constitute, or shall be construed by any person, or federalor state court or agency to constitute, any wrongdoing either civilly,criminally, at common law, or under any state or federal statute orregulations promulgated thereunder. Further, neither this Stipulationand Settlement Agreement nor any order of the Commission enteredpursuant to this Stipulation and Settlement Agreement, nor any documentsgathered or prepared in connection with this matter shall be offered,disclosed, used or admitted in evidence in any other proceeding orlitigation, whether state or federal, or whether civil, criminal oradministrative, except for subsequent proceedings pursuant to theOccupational Safety and Health Act involving Respondent. By enteringinto this agreement, the Respondent does not admit to the truth of anyalleged facts contained in the citation, as amended, to any of thecharacterizations of the Respondent’s alleged conduct by Complainant, orto any of the conclusions set forth in the citation, as amended, in thismatter.Respondent specifically denies and disclaims any violation of theOccupational Safety and Health Act or regulations and standardspromulgated thereunder, believes the judge’s decision was incorrectlydecided, and states that it is entering into this Stipulation andSettlement Agreement solely for the purposes of compromising andsettling this matter economically and amicably and avoiding the cost andexpanse which would otherwise be associated with the further litigationof the issues raised by the citation, as amended.IVRespondent agrees to post this Stipulation and Settlement Agreement inaccordance with the Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that this Stipulation and SettlementAgreement be approved by the Commission.ORLANDO J. PANNOCHIA MICHAEL S. GLASSMANAttorney for the Secretary of Labor Attorney for Monsanto Company SECRETARY OF LABOR,Complainant,v.MONSANTO COMPANY,Respondent,andINTERNATIONAL CHEMICAL WORKERSUNION and its LOCAL 561,Authorized Employee Representative.OSHRC Docket No. 86-0391APPEARANCES:Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainantMichael S. Glassman, Esquire, Cincinnati, Ohio, on behalf of respondentMr. William Wegman, President, International Chemical Workers Union,Local 561, on behalf of authorized employee representative_DECISION AND ORDER_Burroughs, Judge: Monsanto Company (\”Monsanto\”) contests allegedviolations of 29 C.F.R. ? 1910.1200(f)(1)(ii), for failure to includeappropriate hazard warnings on labels for styrene monomer, inhibited and29 C.F.R. ? 1910.1200(g)(2)(vi), for allegedly failing to list the OSHA200 ppm ceiling PEL for styrene and the OSHA 600 ppm peak PEL forstyrene on the material safety data sheet (\”MSDS\”).On November 26, 1985, Compliance Officer Jim Washam conducted aninspection at Monsanto’s Port Plastics plant located in Addyston, Ohio.The inspection was conducted as part of the Occupational Safety andHealth Administration’s (\”OSHA\”) special emphasis program for enforcingthe newly enacted Hazard Communication Standard (\”HCS\”). As a result ofthe inspection, an \”other\” citation was issued to Monsanto on March 11,1986. On October 20, 1986, a Motion to Amend Citation was received fromthe Secretary. A Supplemental Motion to Amend Citation was received fromthe Secretary on November 3, 1986. The motions dismissed item 1a of thecitation, deleted warning number three listed under item 1b, dismisseditem two, dismissed subitem (a) of item three and amended thedescription of the alleged violation set forth as subitem (b) of itemthree. The motions were granted by order dated November 4, 1986. At thecommencement of the hearing, the Secretary withdrew item 1c of thecitation (Tr. 4). Remaining for decision are the alleged violations setforth as items 1b, alleged violation of 29 C.F.R. ? 1910.1200(f)(1)(ii),and subitem (b) of item three of the amended citation, alleged violationof 29 C.F.R. ? 1910.1200(g)(2)(vi).Styrene monomer, inhibited is produced by Monsanto for out-of-plantshipment to, and use by, manufacturing sector customers (Tr. 6). Thelabel on containers leaving the plant and the MSDS for that substancewere obtained by the Secretary’s representative during the inspection ofMonsanto’s plant facility on November 26, 1985 (Exs. 1, 2; Tr. 12-14).In recommending that a citation be issued, Industrial Hygienist JamesSweeney, who reviewed the data collected by Washam, referred toprovisions of the HCS and to OSHA Instruction CPL 2-2.38 dated August 5,1985 (Ex. 3; Tr. 17-18).On November 25, 1983, OSHA promulgated the HCS in its final form. 48Fed. Reg. 53,280 (1983). Its purpose is to provide for uniformrequirements in the manufacturing sector concerning information madeavailable to workers regarding toxic and hazardous substances in theworkplace. The standard recognized the need for apprising workers of thehazards of chemicals handled in the workplace. 48 Fed. Reg. 53,281(1983). The first substantive provision of the HCS requires chemicalmanufacturers and importers to evaluate the chemicals produced in theirworkplace or imported by them to determine if they are hazardous. 29C.F.R. ? 1910.1200(d)(1).The standard combines an evaluation approach with a list incorporationapproach. It refers to several lists that establish substances whichchemical manufacturers or importers must treat as hazardous. 29 C.F.R. ?1910.1200(d)(3) and (d)(4). Chemicals not included in the designatedlists must be evaluated to determine if they are hazardous by referenceto \”available scientific evidence.\” 29 C.F.R. ? 1910.1200(d)(2).\”[E]vidence which is statistically significant and which is based on atleast one positive study conducted in accordance with establishedscientific principles is considered to be sufficient to establish ahazardous effect if the results of the study meet the definitions ofhealth hazards in this section.\” 29 C.F.R. 1910.1200(d)(2).The first list incorporated in the standard is OSHA’s own toxic andhazardous substance section.[[1\/]] The second list incorporated is thelatest edition of _Threshold Limit Values for Chemical Substances andPhysical Agent in the Work Environment_, a work by the AmericanConference of Governmental Industrial Hygienists. The standardincorporates three lists to establish chemicals as carcinogens orpotential carcinogens.[[2\/]] The standard further provides for thetreatment of chemical mixtures. 29 C.F.R. ? 1910.1200(d)(5). If themixture in question has been tested as a whole to determine its hazards,the results must be used to determine whether the mixture is hazardous.If the mixture has not been tested as a whole, it is presumed to presentthe same health hazard as the components which comprise one percent orgreater of the mixture.The standard provides for dissemination of information by three methods.First, it requires labeling of all hazardous substances that leave theworkplace of the manufacturer, importer or distributor. 29 C.F.R. ?1910.1200(f). This is one of the most important provisions of the HCS.Under this provision chemical manufacturers, importers, and distributorsare to ensure that each container of hazardous chemicals leaving theworkplace is labeled, tagged or marked with (i) the identity of thehazardous chemical; (ii) appropriate hazard warnings; and (iii) the nameand address of the chemical manufacturer, importer or other responsibleparty.[[3\/]]The HCS also requires chemical manufacturers and importers to obtain ordevelop a MSDS for each hazardous chemical they produce or import.Employers are required to have a MSDS available for each hazardouschemical which they use. 29 C.F.R. ? 1910.1200(g)(1). The MSDS providestechnical information for a given chemical. Extensive information isrequired to be included on the MSDS. The MSDS must be provided to eachemployer in the manufacturing sector (SIC Codes 20-39) purchasing ahazardous chemical. Copies of the MSDS are required for each hazardouschemical in the workplace and must be readily accessible during eachwork shift to employees when they are in their work areas. 29 C.F.R. ?1910.1200(g)(8).A third requirement is imposed on employers by ? 1910.1200(h) andrequires then to provide employees with information and training.Training must be provided at initial assignment and when any new hazardis introduced in the work area. Employees are to be informed of therequirements of the standard, of operations in their work area wherehazardous chemicals are present, and of the availability of additionalinformation. The training itself is to include methods to detect thepresence or release of a hazardous chemical in the workplace, thephysical and health hazards of the chemicals, protective measures, andexplanations of the required labels and material safety data sheets.Aside from the merits of the factual information concerning each of thealleged violations, Monsanto raises two legal arguments that must beconsidered. It contends that portions of the standard at issue in thiscase are invalid because OSHA had no authority to promulgate thoserequirements and that the standard does not require target organ effectsto be included on the label. Monsanto submits that the requirement fortarget organ effects emanates from OSHA Instruction CPL 2-2.38 and notfrom the standard. It contends that OSHA Instruction 2-2.38 is invalid._OSHA Did Not Lack Authority toPromulgate the Label and MSDS Provisions_Monsanto contends that \”OSHA’s promulgation and enforcement of theHazard Communication Standard, to the extent that it requiresmanufacturers to conform to standards for the benefit of downstreamthird-party employees, is beyond the scope of authority granted to it inthe Occupational Safety and Health Act\” (Brief, p. 13). It is arguedthat the Act does not give the Secretary authority to promulgate andenforce any standard that reaches beyond the workplace of theemployer-employee relationship. This argument is aimed at thoseprovisions of the HCS which impose the duty of hazard evaluation on themanufacturers who produce hazardous chemicals for distribution incommerce. While the HCS requires the manufacturer to disclose hazardousinformation to its employees, it also requires disclosure by the labeland the MSDS to employers to whom the chemical is shipped. It is thislast requirement which Monsanto believes exceeds the scope of authoritygranted in the Act.In _American Petroleum Institute v. OSHA_, 581 F.2d 493 (5th Cir. 1978)._aff’d other grounds sub nom._, _Industrial Union Dept. AFL-CIO v.American Petroleum Institute_, 448 U. S. 607 (1980), the circuit courtvacated the benzene standard. Although the labeling provision wasvacated with the rest of the standard, the court addressed thejurisdictional attack on requiring labels to be affixed to allcontainers of benzene and benzene containing products since it wascertain the labeling or some similar requirement would be considered byOSHA on remand. In the preamble to the standard, OSHA cited the_American Petroleum Institute_ case in support of its authority torequire labels and MSDS for downstream employers. 48 Fed. Reg. 53,322.Monsanto contends that the Act gave OSHA the authority to regulateworkplaces, not products, and that _American Petroleum_ was dicta andnot controlling on the issue. In commenting on the issue, the courtstated (581 F.2d at 510):Placing the responsibility to warn downstream employees of concealedhazards on those upstream employers who create the hazards and know ofthe hazard is consistent with the remedial purpose of the Act and iswithin OSHA’s broad authority to prescribe warning labels. If on remandOSHA decides to promulgate a new benzene standard which includes warninglabels, OSHA may require an employer in the chain of distribution ofthose products to assure that such warning labels remain affixed whenthe product leaves the employer’s workplace, provided, of course, thelabeling requirement as a whole is shown to be reasonably necessary toprovide safe workplaces.The court expressly approves the label requirement where it \”is shown tobe reasonably necessary to provide safe workplaces.\” 581 F.2d at 510.Monsanto argues that the dicta in _American Petroleum Institute_ wasrejected by the fifth circuit in _Melerine v. Avondale Shipyards, Inc._,659 F.2d 706 (5th Cir. 1981), a negligence action concerning a thirdparty’s failure to follow OSHA regulations. The court rejected theargument that the failure of a third party that was not the plaintiff’semployer to follow OSHA regulations establishes that third party’snegligence. The court was concerned over the fact of whether theplaintiff was a member of the class that OSHA regulations were intendedto protect. The court concluded that \”OSHA regulations protect only anemployer’s own employees.\” 659 F.2d at 712. Monsanto argues that thedicta in _American Petroleum Institute_ was openly criticized andrejected by the fifth circuit in _Melerine_ and that OSHA \”plainly lacksthe authority to promulgate or enforce the Hazard Communication Standardas it relates to an employer’s duties to downstream employees\” (Brief,p. 17).The Occupational Safety and Health Act (\”Act\”), 29 U.S.C. ? 651-678, waspassed in 1970 to assure safe and healthful working conditions for thenation’s work force and to preserve the nation’s human resources. 29U.S.C. ? 651 (1976). To achieve that goal, the Act allows the Secretaryof Labor, after public notice and opportunity for comment by interestedpersons, to promulgate rules and standards for occupational safety andhealth. 29 U.S.C. ? 655(b). Section 6(b)(7), in particular, provides, inpart:Any standard . . . shall prescribe the use of labels or otherappropriate forms of warning as are necessary to insure that employeesare apprised of all hazards to which they are exposed, relevant symptomsand appropriate emergency treatment, and proper conditions andprecautions of safe use or exposure.The quoted provision authorizes the Secretary to prescribe the use oflabels or other appropriate forms of warning. The authority is specificin this regard. The court in _United Steelworkers of America v.Auchter_, 763 F.2d 728 (3d Cir. 1985), concluded that the HCS was astandard promulgated under section 6 of the OSH Act. In making referenceto section 6(b)(7), the court stated that \”[t]he Secretary has givenreasons why the labeling, MSDS, and instruction requirements comply withsection 6(c)(7) [_sic_] for employees in the manufacturing sector . . ..\” 763 F.2d at 738. The court’s decision implicitly recognizes theauthority of the Secretary to require the manufacturer or importer tolabel hazardous chemicals and to furnish a MSDS to downstream employers.A manufacturer is not being held accountable for violations of the HCSby employees of downstream employers. All employers in SIC Codes 20-39have the duty of providing information to their employees about thehazardous chemicals to which they are exposed. 29 C.F.R. ?1910.1200(b)(1). This duty is imposed on manufacturers and importers forthe benefit of their own employees. In carrying out this duty, chemicalmanufacturers and importers are required to assess the hazards of thechemicals which they produce or import in order to comply with the HCSwith respect to their own employees. The only additional affirmative actrequired by the manufacturers and importers is that they transmit theinformation previously ascertained by them to downstream employers.The HCS directs the manufacturer or importer to disclose hazardousinformation to their own employees and to employers to whom thechemicals are shipped by means of the label and MSDS. The manufactureror importer is required to enforce the HCS with respect to its ownemployees. It is not accountable for lack of enforcement by a downstreamemployer. In a technical sense, the requirement imposed on themanufacturer or importer does not violate the fifth circuit’s adherenceto the policy that \”OSHA regulations protect only an employer’s ownemployees.\” 659 F.2d at 712. The HCS creates no duty on behalf of themanufacturer or importer to see that downstream employers enforce therequirements of the standard.As the court noted in _American Petroleum Institute_, _supra_, themanufacturer is in a far better position to warn downstream employees inoperations using their product. A heavy regulatory burden is not beingimposed on the manufacturer solely for the benefit of the employees ofanother. The court observed that \”the regulation [labeling requirement]says no more than that an upstream employer may not take affirmativesteps to withdraw from downstream employees a protection that he mustfurnish to his own employees.\” 581 F.2d at 510. OSHA’s promulgation ofthe standard is not beyond the scope of authority granted to it undersection 6(b)(7) of the Act. _See_ _United Steelworkers of America v.Auchter_, 763 F.2d 728 (3d Cir. 1985)._Target Organ Effects Required on LabelsOSHA Instruction CPL 2-2.38 Is Valid_The parties disagree as to whether target organ effects must be includedon the label. Monsanto argues that \”[t]he very first indication ofOSHA’s position that ‘appropriate hazard warnings’ _required_ ‘targetorgan effects’ labeling came about only when OSHA issued Instruction CPL2- 2.38\” (Brief, p. 8). It contends that OSHA Instruction CPL 2-2.38issued by the OSHA Office of Health Compliance Assistance on August 5,1985, is a modification of the HCS \”in that it, for the first time,requires target organ labeling when such was not previously required bythe Standard and differentiates between the labels OSHA claims arerequired for in-plant and shipped containers\” (Brief, p. 19). It arguesthat CPL 2-2.38 was a substantive modification to the HCS and was voidfor failure to follow the notice and comment procedures required by theAdministrative Procedure Act. 5 U.S.C. ? 553.For the reasons stated in this Judge’s decision in_Hilton-Davis ChemicalCompany_ (Docket No. 86-494, February 19, 1987), Monsanto’s argument isrejected. The purpose of CPL 2-2.38 was to establish policies andprovide clarifications of the HCS. It simply interpreted the HCS as awhole in advising the regulated persons as to how to proceed under theHCS. It did not create new requirements. It simply clarified existingrequirements. Instruction CPL 2-2.38 is interpretative and was exemptfrom the rule-making requirements of 5 U.S.C. ? 553(b) and (c). Thestandard and not CPL 2-2.38 requires target organ effects labeling. CPL2-2.38 merely interprets the HCS and provides guidance as to how theduty imposed by the HCS should be fulfilled. The words \”appropriatehazard warnings\” require that target organ effects be included on thelabel. Hilton-Davis Chemical Company, supra._Styrene Monomer, Inhibited is a Hazardous Chemical_In determining whether the HCS is applicable, styrene monomer, inhibitedmust be found to be a hazardous chemical. The standard defines \”hazardous chemical\” as any chemical which is a physical or healthhazard. ? 1910.1200(c). Pursuant to ? 1910.1200(d)(3),[[4\/]] certainchemicals must be treated as hazardous. This includes chemicals listedin 29 C.F.R. Part 1910, Subpart Z, and those for which threshold limitvalues have been established by the American Conference of GovernmentalIndustrial Hygienists. Styrene meets both criteria of ? 1910.1200(d)(3).For purposes of ? 1910.1200(f)(1), the record clearly establishes thatstyrene monomer, inhibited is a \”hazardous chemical.\” Monsanto does notdispute this fact._Alleged Violation of 29 C.F.R. ? 1910.1200(g)(2)(vi)_Subitem (b) of item three of the citation alleges a violation of 29C.F.R. ? 1910.1200(g)(2)(vi). The description of the alleged violationwas amended to read as follows:The Material Safety Data Sheets for \”Styrene Monomer, Inhibited\” did notlist the OSHA 200 ppm ceiling PEL for styrene and the OSHA 600 ppm peakPEL for styrene.The MSDS lists only one of three OSHA PELs which have been establishedfor styrene; namely, 100 ppm for an eight-hour time-weighted average.The Secretary contends that the MSDS must contain all OSHA PELs.The provision in controversy, ? 1910.1200(g)(2)(vi), requires each MSDSto contain the following information:(vi) The OSHA permissible exposure limit, ACGIH Threshold Limit Value,and any other exposure limit used or recommended by the chemicalmanufacturer, importer, or employer preparing the material safety datasheet, where available.Monsanto argues that the plain meaning of the cited requirement does notrequire listing all three PELs on the MSDS. It submits that \”thestandard requires only ‘the OSHA permissible exposure limit’ (singular)\”(Brief, p. 34). Since the MSDS listed the eight-hour OSHA PEL, Monsantocontends it was in compliance with the provisions of 1910.1200(g)(2)(vi).Table Z-2 of ? 1910.1000 establishes exposure limits for styrene basedon an eight-hour time-weighted average, an acceptable ceilingconcentration and an acceptable maximum peak exposure. During aneight-hour shift an employee may be exposed to a concentration ofstyrene above 200 ppm (but never above 600 ppm) only for a maximumperiod of five minutes in any three hours. Such exposure must becompensated by exposures to concentrations less than 100 ppm so that thecumulative exposure for the entire eight-hour shift does not exceed aweighted average of 100 ppm.[[5\/]]The three different exposure limits established by OSHA are important ineducating employers and employees as to potential exposure. It isimportant that they be aware of the acceptable ceiling concentration andthe acceptable maximum peak concentration in making certain that theeight-hour exposure limit is not exceeded. It is also important thatthey know that no exposure is ever allowed above 600 ppm and thatanything in excess of 200 ppm cannot exceed five minutes in three hours.Interpreting the provision of ? 1910.1200(g)(2)(vi) to require themanufacturer to include only one PEL would permit the manufacturer toselectively choose which PEL it wanted to include. Downstream employersand employees, as well as the manufacturer’s own employees, would bedenied important information as to the use of the hazardous substance.The intent of the standard is that thorough information will befurnished to downstream employers.Industrial Hygienist James Sweeney testified that in his experience itis a more frequent occurrence that an employee is overexposed to theceiling or peak PEL for styrene than to the eight-hour limit (Tr. 31).He felt it was important that downstream employers and employees knowthe permissible exposure limits applicable to the product. Suchinformation is necessary because exceeding the ceiling or peak PEL wouldbe extremely obnoxious and unbearable to employees. It would also beessential in bringing about improvement in engineering controls (Tr. 31-32).The clear purpose of the standard would be undercut by construing ?1910.1200(g)(2)(vi) in the manner suggested by Monsanto. There is noindication that the standard intended to limit the requirement to anyspecific OSHA permissible exposure by the use of the word \”limit.\” The\”OSHA permissible exposure limit\” is construed to refer to all OSHA PELsin a collective sense. The word \”limit\” in the case of styrene refers tothree different exposure levels. A manufacturer must include allpermissible exposure levels listed by OSHA for a hazardous substance.The violation has been established.While Monsanto argues that _exposure limit_ refers to the OSHA PEL inthe singular, it did include the ACGIH TLV\/TWA and the ACGIH TLV\/STELeven though the standard refers to the \”ACGIH Threshold Limit Value.\”Monsanto did not construe \”Limit Value\” to mean that it had to choosebetween the two and determine which one must be included on the MSDS.There is no explanation as to why Monsanto construed the tworequirements in a different manner.Monsanto argues that any violation of 29 C.F.R. 1910.1200(g)(2)(vi)determined in this case must be deemed to be a _de_ _minimis_ violationbecause the OSHA ceiling and peak PELs are less protective than theACGIH STEL. It relies on a letter dated August 18, 1986, which isexecuted by John B. Miles, Jr., who was director of field operations atthe time he executed the letter. The letter states, in part (Ex. 7):From a compliance standpoint the material safety data sheet must containthe OSHA permissible exposure limit (PEL), and any more protectiveexposure limit, if one or more exists. Failure to include a lessprotective exposure limit, other than the OSHA PEL, will be considered ade minimis violation and will not result in the issuance of a citation.The letter clearly requires the listing of the OSHA PEL. The quoteallows a _de_ _minimis_ classification where the PEL is \”_other than theOSHA PEL_.\” The OSHA PEL is required even if it is less restrictive thanany other applicable PEL. The _de_ _minimis_ argument is without merit.It is questionable whether the OSHA ceiling and peak PELs are lessprotective than the ACGIH STEL since they pertain to different timeperiods. An employee, in the case of a serious leak, could still beexposed to concentrations in excess of the OSHA ceiling and peak PELsand still not be in violation of the ACGIH STEL._Alleged Violation of 29 C.F.R. ? 1910.1200(f)(1)(ii)_Item 1b of the citation, as amended, alleges a violation of 29 C.F.R. ?1910.1200(f)(1)(ii) for failure to include the following alleged\”appropriate hazard warnings\” on the container labels for styrenemonomer, inhibited (Tr. 23):1. A central nervous system depressant2. May cause dryness and blistering of the skin3. An irritant to the respiratory tractThe Secretary contends that labels for hazardous substances shipped outof the manufacturer’s plant must list \”target organ effects.\” He arguesthat the labels for styrene monomer, inhibited should have included thethree listed hazard warnings. In determining that the label was not incompliance with the standard, the Secretary relies on informationcontained in the MSDS and in the _NIOSH\/OSHA Occupational HealthGuidelines for Chemical Hazards_ (Tr. 44). The MSDS sets forth a sectionreferred to as \”Warning Statements\” and contains the following:Causes Irritation to Eyes and SkinVapor Irritating to Respiratory TractUnder the \”Physiological Effects Summary\” section of the MSDS is thewarning that \”[e]xposure to 375 ppm for 1 hour causes central nervoussystem depression.\” Reference is also made to the fact that \”[v]aporconcentrations of 200-400 ppm may cause eye and respiratory tractirritation.\” The _NIOSH\/OSHA Occupational Health Guidelines for ChemicalHazards_ (Ex. 6) makes reference to irritation of the eyes, nose, throatand skin and central nervous system depression.Monsanto does not argue that the hazards referred to by the Secretary donot exist. It has in fact included them in the MSDS. According toMonsanto, it \”assessed the weight of the evidence regarding each of thehazards and found that the evidence did not warrant listing the warningon both the label and the Material Safety Data Sheet\” (Brief, p. 29). Itthen correctly states that \”the mere fact that a hazard is identified onthe MSDS does not automatically require its inclusion on the label\”(Brief, p. 29).Monsanto submits that professional judgment is essential in determiningwhich hazards recognized on a MSDS are appropriate for inclusion on thelabel (Tr. 100). Unquestionably, professional judgment is involved inthe preparation of the label. However, as exercised by Monsanto, theprofessional judgment factor is misguided. Dr. Michael W. Stevenstestified (Tr. 100):Q. Does it involve some exercise of professional judgment as to whatwould or would not be appropriate to include on the label?A. Yes. We would certainly look at it with a risk situation. The hazardis simply present with the material. We identify that and say that undersome conditions, that may occur. But, we try then to look at the kindsof conditions that we would expect to occur and adjust our labelingaccording to those kinds of conditions.In preparing the label, Monsanto has substituted its judgment for thatof the downstream employer in determining the type of workplaceconditions that might arise.The limiting of information on a label that is based on themanufacturer’s speculation as to downstream uses is unwarranted. Thisapproach by a manufacturer was discussed in _Hilton-Davis ChemicalCompany_, _supra_, and rejected. In _Hilton-Davis_, it was concluded:* * * The intent of the standard is that manufacturers and importerswill furnish thorough information on all potential hazards withoutqualifications as to possible use. They cannot limit disclosure ofpotential hazards by speculating as to how the product will be used.Where a manufacturer is aware that whether the hazard arises isdependent on such factors as the concentration and exposure levels inthe workplace, as in this case, it cannot limit information on the labelon the basis of what it assumes will be the concentration levels andthat an employee will not be overexposed.Monsanto argues that \”the MSDS _and not the label_ is the document onwhich ‘health hazards’ found to exist as a result, in part, of theAppendix A analysis, must be reported\” (Brief, p. 7). The standard ismuch more specific with respect to the information that must be includedon the MSDS. Monsanto points to ? 1910.1200(g)(2)(iv) in support of itsposition that the health hazards found to exist must be included on theMSDS. This provision states that the MSDS must contain the following:(iv) The health hazards of the hazardous chemical, including signs andsymptoms of exposure, and any medical conditions which are generallyrecognized as being aggravated by exposure to the chemical;The specificity of ? 1910.1200(g)(2)(iv) is compared with therequirement of ? 1910.1200(f)(1)(ii) to include \”appropriate hazardwarnings\” on the label. The fact that the requirements for the MSDS aremore specific than ? 1910.1200(f)(1)(ii) does not mean target organeffects should not be included on the label. Likewise, Monsanto iscorrect in concluding that the standard does not \”require that a ‘healthhazard’ identified on the MSDS be set forth in like fashion on thecontainer label\” (Brief, p. 8).Where the hazardous substance is known to affect one of the targetorgans listed in Appendix A, reference to that target organ must beincluded on the label. Whatever affects the target organs couldconceivably cause serious physical complications to the employee. Heshould be aware of those risks when he handles the hazardous substance.In determining what information to include on the label, one must keepin mind that the basic purpose of the label is to serve as an immediatewarning to all persons handling the substance. This purpose must beconstrued in connection with the primary goal of the HCS; namely, toprovide in a useable and readily accessible form information toemployees concerning the hazards in their workplaces. The ultimate goalof the HCS is to reduce the incidence of chemical source illnesses andinjuries in the manufacturing sector by providing employees withinformation they need to help protect themselves._Central Nervous System Depressant_Dr. Michel W. Stevens, Monsanto’s manager of toxicology projects,[[6\/]]testified that the statement, \”a central nervous system depressant,\” wasnot included on the label because it was concluded that such a hazard\”could only occur in a situation which would be outside the normalcontrols\” (Tr. 98). Monsanto representatives did not feel that anappropriate hazard warning was \”necessary for an effect which would notoccur in the normal workplace situation\” (Tr. 98). This was especiallytrue since they \”felt it was appropriately accounted for in the MSDS\”(Tr. 99). However, Stevens acknowledged that the potential for thishazard to occur was present (Tr. 98). He testified that certain words onthe label helped prevent the hazard (Tr. 99):A. Certainly, on the label, we caution the individuals that they shouldavoid breathing the vapor but we also caution that it should be usedwith adequate ventilation. The concern we have is a concentration typeeffect, if anything, and so with the appropriate ventilation andappropriate precautions for inhaling the material, then the hazard wouldnot occur.Stevens acknowledged that whether styrene acts as a central nervoussystem depressant is dependent on such factors as the concentration inthe particular environment and how long the individual is exposed (Tr.101). He alluded to precautionary information on the label which advisedemployees to avoid breathing the vapor and to use it with adequateventilation. He acknowledged that Monsanto had some concern about theconcentration levels. The precautionary language was included or thelabel to prevent high concentration levels from occurring (Tr. 99).Sweeney concluded that the label should include the phrase, \”a centralnervous system depressant,\” because the nervous system is listed as atarget organ in Appendix A to the standard (Tr. 66-68). There is nodispute that styrene can act as a depressant to the central nervoussystem. The MSDS states that \”[E]xposure to 375 ppm for 1 hour causescentral nervous system depression\” (Ex. 2; Tr. 67). Sweeney concludedthat where the hazard affects a target organ listed in the standard,that adverse effect should be included on the label (Tr. 72).Where the MSDS identifies or references a hazard involving an organ ofthe body and that adverse effect relates to one of the health hazardsset forth in the standard’s definition of a \”health hazard,\” referenceto the target organ must be set forth on the label. While the MSDS madereference to depression of the central nervous system, reference shouldalso have been made to this fact on the label. The violation has beenestablished._Irritant to the Respiratory Tract_Sweeney concluded the label should contain a warning that styrene is \”anirritant to the respiratory tract\” because the MSDS and _NIOSH\/OSHAOccupational Health Guidelines for Chemical Hazards_ indicates arespiratory tract irritation can occur. Appendix A to the standardincludes an irritant as a health hazard, and damage or irritation to thepulmonary tissue is listed as a target organ (Tr. 75-76).The MSDS states that \”[v]apor concentrations of 200-400 ppm may causeeye and respiratory tract irritation\” (Ex. 2; Tr. 107). Stevenstestified that the words \”an irritant to the respiratory tract\” were notincluded on the label because the company used the American NationalStandards Institute standard ANSI Z129.1-1982 as a guide or basis forthe preparation of the label (Tr. 107). The label used the words \”vaporirritating\” (Ex. 1). Section 4.7 of ANSI Z129.1-1982 uses similarlanguage. Stevens stated that the respiratory tract was not specificallyidentified but that if the material were in a vapor form, \”one couldcertainly expect to have respiratory exposure\” (Tr. 108).ANSI Z129.1-1982 was designed to fill the need for a system ofprecautionary labeling of hazardous chemicals used in industrialoperations. Its goal is different from that sought to be obtained by theHCS. Since ANSI Z129.1- 1982 does not require warnings in terms oftarget organ effects, compliance with the standard, ?1910.1200(f)(1)(ii), is not achieved by relying on the labelingrequirements of the ANSI standard. ANSI Z129.1-1982 is directed towardthe use of precautionary labeling and falls short of advising theemployer or employee of target organ effects. It fails to advise or warnof the consequences of overexposure. It primarily advises the employeeto reduce, minimize or, if possible, eliminate exposure.Where the substance is in a vapor form, Stevens acknowledges thatrespiratory exposure would occur (Tr. 108). The use of the words \”vaporirritating\” does not identify the affected target organ. The definitionof health hazard is defined to include irritants and lists the organs ofthe lungs and mucous membranes on which the irritant might act. Targetorgan effects listed in Appendix A refer to agents which damage orirritate the pulmonary tissue. The use of the words \”vapor irritating\”is a precautionary warning and does not set forth an \”appropriate hazardwarning\” as required by ? 1910.1200(f)(1)(ii). The violation has beenestablished._Dryness and Blistering of Skin_Sweeney concluded the label should contain a warning that styrene \”maycause dryness and blistering of the skin\” because the MSDS and the_NIOSH\/OSHA Occupational Health Guidelines for Chemical Hazards_ (Ex. 6)indicated the chemical could cause an irritation of the skin and thatskin irritation was one of the hazards referred to in Appendix A of thestandard (Tr. 73-74). Stevens testified that this warning was notincluded on the label because blistering would arise only after aprolonged exposure to the substance and that the substance was not anirritant as defined by the standard (Tr. 103). Appendix A of thestandard defines a skin irritant as follows:A chemical, which is not corrosive, but which causes a reversibleinflammatory effect on living tissue by chemical action at the site ofcontact. _A chemical is a skin irritant if_, when tested on the intactskin of albino rabbits by the methods of 16 CFR 1500.41 for four hoursexposure or by other appropriate techniques, it results in an empiricalscore of five or more . . . . (Underlining added)The \”Animal Data\” section of the MSDS shows tests for skin irritation onrabbits resulted in a score of 2.4, on a scale of 8.0. which is onlyslightly irritating (Ex. 2; Tr. 104-105). The Secretary argues that thisshould not be the deciding factor since the MSDS states under the \”HumanExperience\” heading that \”[s]tyrene monomer is a more severe irritant tohuman skin and eyes than is indicated by experimental animal data.\”The definition of \”health hazard\” includes irritants. ? 1910.1200(c).Appendix A to the standard defines a skin \”irritant.\” The evidence inthis case, which is not disputed by the Secretary, reflects that styrenemonomer is not a skin irritant that is deemed a health hazard under thedefinition of \”health hazard\” in ? 1910.1200(c) and the definition of askin \”irritant\” under Appendix A. The score in this case was 2.4,whereas a score of five or more is required to satisfy the criteriaestablished for a skin irritant. The fact that the MSDS points out thatstyrene monomer is more of a skin irritant than indicated byexperimental animal data does not change the test results. The Secretaryhas not challenged the test results of 2.4. The MSDS reflects such ascore as being only slightly irritating. Since the irritation level isinsufficient to qualify the substance as a skin irritant under AppendixA, no reference to target organ effects of the skin has to be includedon the label. The requirement alleged by the Secretary is vacated._Abatement_Sweeney testified that he recommended an abatement period of one month,which he felt was adequate to add the missing information to the labeland MSDS (Tr. 33-34). Monsanto makes no argument that it cannot complywith the abatement procedures within the specified time period. Theabatement date is reasonable._FINDINGS OF FACT_1. Monsanto Company (\”Monsanto\”) is involved in the manufacturing ofresins, polymers, plastics and other specialty chemicals at itsAddyston, Ohio. plant (Tr. 14-15).2. On November 26, 1985, Compliance Officer Jim Washam conducted aninspection at Monsanto’s Addyston, Ohio, plant (Tr. 12, 13). Theinspection was part of OSHA’s special emphasis program for the newlyenacted HCS (Tr. 12-13).3. Industrial Hygienist James Sweeney, HCS coordinator for OSHA’sCincinnati Area Office, reviewed the material safety data sheets andcontainer labels for styrene monomer, inhibited, obtained by Washam, todetermine if they were in compliance with the HCS (Tr. 11, 14-15). As aresult of Washam’s inspection and Sweeney’s review, an \”other\” citationwas issued to Monsanto on March 11, 1986 (Tr. 15-16).4. In determining whether to issue a citation, Sweeney referred to OSHAInstruction CPL 2-2.38 issued August 5, 1985 (Tr. 17-18). The statedpurpose for CPL 2-2.38 is to establish policies and provideclarification to ensure uniform enforcement of the HCS (Ex. 3; Tr. 17-18).5. Styrene monomer, inhibited is produced by Monsanto for shipment tocustomers in the manufacturing sector (Tr. 6-7). It is a hazardouschemical (Exs. 4, 5; Tr. 20).6. The material safety data sheet for styrene monomer, inhibitedreflects the following for airborne exposure limits (Ex. 2; Tr. 21, 29):ACGIH TLV\/TWA = 50 ppm; STEL = 100 ppmOSHA PEL\/TWA = 100 ppm (Z37.15-1969)The MSDS does not list the acceptable ceiling concentration of 200 ppmor the peak ceiling concentration of 600 ppm (Ex. 2; Tr. 21, 29).7. Table Z-2 of Subpart Z of 29 C.F.R. Part 1910 lists three permissibleexposure limits for styrene (Ex. 2; Tr. 79).8. Styrene is reflected in Table Z-2 of Subpart Z of 29 C.F.R. Part 1910with an eight-hour, time-weighted average of 100 ppm, an acceptableceiling concentration of 200 ppm, and an acceptable peak ceilingconcentration of 600 ppm for five minutes in any three-hour period (Ex.4; Tr. 20-21, 30).9. _The Threshold Limit Values for Chemical Substances and PhysicalAgents in the Work Environment_ adopted by the American Conference ofGovernmental Industrial Hygienists reflects an eight-hour TLV forstyrene of 50 ppm and the short-term TLV for styrene of 100 ppm (Ex. 5;Tr. 21).10. The label for styrene monomer, inhibited contained the followingwarnings (Ex. 1):EXCESSIVE HEAT WILL SPOIL THIS MATERIALMust be stored in coolest place available.____________________________________________WARNING!FLAMMABLECAUSES EYE IRRITATION.VAPOR IRRITATING.____________________________________________Keep away from beat, sparks, and flame.Avoid contact with eyes.Avoid breathing vapor.Avoid prolonged or repeated contact with skin.Use with adequate ventilation.Keep container closed.Wash thoroughly after handling.FIRST AID: In case of contact, immediately flush eyes with plenty ofwater for at least 15 minutes. Call a physician.In case of:FIRE, use water spray, foam, dry chemical or CO_2 .SPILL or LEAK, flush area with water spray.The label does not indicate the following warnings (Ex. 1; Tr. 23, 26):1. A central nervous system depressant2. May cause dryness and blistering of the skin3. An irritant to the respiratory tract11. The physiological effects summary of the MSDS states as follows (Ex.2; Tr. 23-24):_Human Experience_Styrene Monomer is primarily toxic by the route of vapor absorptionthrough the lungs; however, liquid absorption through the skin may alsooccur. Vapor concentrations of 200-400 ppm may cause eye and respiratorytract irritation. Exposure to 375 ppm for 1 hour causes central nervoussystem depression. 10,000 ppm may be hazardous to life within 30-60minutes. 2,500 ppm may be dangerous to life in 8 hrs. Due to the odorand irritant effects exposure greater than 800 ppm is objectionable tohumans.Styrene monomer is a more severe irritant to human skin and eyes than isindicated by experimental animal data. Prolonged skin contact, such asfrom contaminated clothing, may cause skin blistering. Repeated skincontact may cause dryness. Liquid styrene monomer may produce severe eyeirritation.12. The section of the _NIOSH\/OSHA Occupational Health Guidelines forChemical Hazards_ pertaining to styrene contains the following under theheading, \”Health Hazard Information\” (Ex. 6; Tr. 25):1. _Short-term exposure_: Styrene may irritate the eyes, nose, throatand skin * * *2. _Long-term exposure_: Repeated skin contact with styrene may producea skin rash.* * *– Central nervous system disorders: Since exposure to styrene vapor orliquid on the skin has been observed to result in central nervous systemdepression * * ** * *– Skin disease: Styrene is a defatting agent and can cause dermatitison prolonged exposure * * *_CONCLUSIONS OF LAW_1. Monsanto, at all times material to this proceeding, was engaged in abusiness within the meaning of section 3(5) of the Act.2. Monsanto, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and of the subject matter.3. Monsanto was in violation of 29 C.F.R. ? 1910.1200(f)(1)(ii) forfailure to list the following hazard warnings on the label for styrenemonomer, inhibited: 1. A central nervous system depressant 2. An irritant to the respiratory tract4. Monsanto was not in violation of 29 C.F.R. ? 1910.1200(f)(1)(ii) forfailure to list the following hazard warning on the label:May cause dryness and blistering of the skin.5. Monsanto was in violation of 29 C.F.R. ? 1910.1200(g)(2)(vi) forfailure to list the OSHA 200 ppm ceiling PEL for styrene and the OSHA600 ppm peak PEL for styrene on the MSDS._ORDER_Based upon the foregoing findings of fact and conclusions of law, andconcessions by the Secretary, it isORDERED: (1) That items 1a, 1c, 2 and subitem (a) of item three of the\”other\” citation issued to Monsanto on March 11, 1986, are vacated;(2) That items 2 and 3 of subitem (a) of item 1b of the \”other\” citationissued to Monsanto on March 11, 1986, are vacated and that items 1 and 4are affirmed; and(3) That subitem (b) of Item 3, as amended, of the \”other\” citationissued to Monsanto on March 11, 1986, is affirmed.JAMES D. BURROUGHSJudgeDate: April 23, 1987 SECRETARY OF LABOR,Complainant,v.MONSANTO COMPANY,Respondent.OSHRC Docket No. 86-0391_DIRECTION FOR REVIEW_The Respondent has filed a Petition for Discretionary Review. Pursuantto 29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), the report of theAdministrative Law Judge is directed for review. Based on a preliminaryexamination of the record and the report, the issues to be considered are:(1) Whether the Administrative Law Judge erred in concluding that theSecretary has authority under the Occupational Safety and Health Act of1970 to require manufacturers of chemicals to conform to standards forhazards communication for the protection of employees of distributorsand industrial users of the chemicals;(2) If so, whether the Judge erred in concluding that ? 1910.1200(f) and(g)(6) do not violate the legal principle that \”OSHA regulations protectonly an employer’s own employees\” because the label and Material SafetyData Sheet were required primarily for the protection of themanufacturer’s own employees;(3) Whether the judge erred in concluding that the Occupational Safetyand Health Administration (OSHA) Instruction CPL 2-2.38 merelyinterpreted the hazards communication standards, did not create any new,substantive requirements, and therefore was properly promulgatedpursuant to the requirements of the Administrative Procedure Act, forinterpretative rules;(4) Whether an employer may be required to observe the requirements ofInstruction CPL 2-2.38 without its being published in the _FederalRegister_. See 5 U.S.C. 552(a)(1) and _Phoenix Forging Company_, 12 BNAOSHC 1317, 1984-85 CCH OSHD ? 27,256 (No. 82-398, 1985). If not, whetherthis employer had actual and timely notice of the requirements of theInstruction?(5) Whether the judge erred in concluding that the Secretary’s hazardscommunication standards, particularly the cited standard at 29 C.F.R. ?1910.1200(f)(1)(ii), requires labeling as to the target organ effect;(6) Whether the Judge erred in concluding that this employer violated 29C.F.R. ? 1910.1200(f)(1)(ii) by excluding reference on labels to ahealth hazard based on an evaluation of the improbability that theconcentration and exposure in a typical user’s workplace would pose ahazard.E. ROSS BUCKLEYCHAIRMANDATED: May 26, 1987 SECRETARY OF LABOR,Complainant,vs.MONSANTO COMPANY,Respondent,andINTERNATIONAL CHEMICAL WORKERSLOCAL 561 AUTHORIZED EMPLOYEEREPRESENTATIVE.OSHRC DOCKET NO.: 86-0391_RESPONDENT, MONSANTO COMPANY’S PETITION FOR DISCRETIONARY REVIEW_On April 3, 1987, Administrative Law Judge (ALJ) James Burroughs issueda Decision and Order affirming a citation issued to Respondent on March11, 1986, for allegedly not specifying certain \”target organ effects\” onthe labels for one of its products.Respondent, Monsanto Company, hereby petitions the Occupational Safetyand Health Review Commission (\”Review Commission\”) for discretionaryreview of the April 3, 1987, Decision and Order (hereinafter the\”Decision\”) to be submitted to the Commission’s Executive Secretary onApril 23, 1987 in the above captioned case.Pursuant to Review Commission Rule 91, Respondent takes exception to thefollowing portions of that Decision and seeks discretionary review thereof:Conclusions of Law Nos. 2 and 3.Order No. 2, affirming items 1 and 4 of subitem (a) of item 1b of the\”other\” citation issued to Respondent on March 11, 1986.Additionally, Respondent takes exception to all those portions of theDecision and Order which otherwise address the findings of fact andconclusions of law which served as a basis for those portions of theDecision to which Respondent objects.I. _INTRODUCTION_Review should be granted and the ALJ’s Decision reversed. The issuespresented by this case relating to so-called \”target organ effect\”labeling under the Hazard Communication Standard (HCS) are truly ofmajor importance. The \”target organ effect\” labeling requirement, theALJ found to exist, affects manufacturers and importers nationwide.Moreover, the ALJ’s Decision addresses critical questions of law thathave not been previously presented to the Review Commission and whichare critical to the overall enforcement of the HCS.Respondent submits review should be granted to consider these importantissues and to correct the ALJ’s conclusions that OSHA has jurisdictionover manufacturers and importers _vis_ _a_ _vis_ persons other than itsown employees, and that Respondent’s label violated the HCS because itdid not include two specific phrases constituting so-called \”targetorgan effect\” labeling held to be required under the HCS.II. THE ALJ’S CONCLUSION THAT OSHA HAS JURISDICTION TO PROMULGATE AND TOENFORCE THOSE PORTIONS OF THE HCS WHICH IMPOSE _DUTIES ON AN EMPLOYERVIS A VIS PERSONS OTHER THAN ITS OWN EMPLOYEES WAS ERRONEOUS._The issue of OSHA’s authority to promulgate the sections of the HCS thatrequire manufacturers and importers to provide labels and MSDSs todownstream\/third party employees never has reached the ReviewCommission. It is an issue whose resolution is critical in defining theextent to which OSHA properly may enforce such portions of the HCS.Respondent’s position before the ALJ was that OSHA lacked authority topromulgate and to enforce the HCS as it relates to the imposition ofduties on manufacturers\/employers vis a vis downstream\/third partypersons not its own employees. (Br. 13-17)[[1\/]] The ALJ, however, heldthat OSHA did not lack authority to promulgate and enforce the label andMSDS provisions of the HCS (29 C.F.R. 1910.1200) as they relate to amanufacturer’s or importer’s purported duty to a downstream\/third partyemployee. (Dec. 7)[[2\/]]Respondent submits the ALJ’s conclusion is erroneous.First, the OSH Act, itself, limits OSHA’s jurisdiction to promulgatestandards concerning labeling to ones affecting an employer vis a visits own employees. Section 6(b)(7) of the OSH Act provides that:\”Any standard promulgated under this subsection shall prescribe the useof labels or other appropriate forms of warnings as are necessary toensure that _EMPLOYEES_ are apprised . . . .\”(Emphasis added) 29 U.S.C ? 655(b)(7) (1985).The term \”employee\” is specifically defined in the OSH Act as:\”an employee of an employer who is employed in a business _OF_ _HIS__EMPLOYER_. . . . \”The above quoted statutory provisions read together demonstrate that theALJ erred by finding OSHA had jurisdiction to promulgate the HCS insofaras it created obligations on Respondent _vis_ _a_ _vis_ persons who arenot even Respondent’s employees.Second, judicial authority, consistent with the OSH Act, itself,supports Respondent’s position. _Southeast Contractors, Inc. v. Dunlop_,512 F.2d 675 (5th Cir. 1975); _Johnson v. Koppers Co._, 524 F.Supp. 1182(D.C. Ohio 1981), _appeal dismissed_, 705 F.2d 451, 454 (6th Cir. 1982);_Gazdar v. Koppers Co._, 524 F.Supp. 1194 (D.C. Ohio 1981), _appealdismissed_, 705 F.2d 451, 454 (6th Cir. 1982). Nevertheless, the ALJbrushed this authority aside, and instead relied on _American PetroleumInstitute v. OSHA_, 581 F.2d 493 (5th Cir. 1978), _aff’d other groundssub nom._, _Industrial Union Dept. AFL-CIO v. American PetroleumInstitute_, 448 U.S. 607 (1980), despite the fact that _AmericanPetroleum Institute_ was openly criticized and rejected in _Melerine v.Avondale Shipyards, Inc._, 659 F.2d 706 (5th Cir. 1981). In thisrespect, the ALJ also erred.The ALJ’s recitation of a series of assertions as purportedjustification for finding OSHA has jurisdiction to impose obligations onan employer _vis_ _a_ _vis_ persons other than its own employees arealso unavailing. For example, the ALJ concluded that \”[t]he onlyadditional affirmative act required by the manufacturer and importer isthat they transmit the information previously ascertained by them todownstream employers.\” (Dec. 11) \”The HCS creates no duty on behalf ofthe manufacturer or importer to see that downstream employers enforcethe requirements of the standard.\” (_Id_.) \”A heavy regulatory burden isnot being imposed on the manufacturer solely for the benefit of theemployees of another.\” (_Id_.) These assertions, however, are completelyunresponsive to the basic tenet that OSHA simply lacks authority toregulate an employer _vis_ _a_ _vis_ downstream\/third party persons notits own employees._III. THE ALJ’S CONCLUSION THAT \”TARGET ORGAN EFFECT\” LABELING ISREQUIRED UNDER THE HCS WAS ERRONEOUS_.The ALJ decided that \”target organ effect\” labeling is required by theHCS, and that the Respondent’s label at issue herein was deficientbecause it did not contain the precise words \”A central nervous systemdepressant,\” or \”An irritant to the respiratory tract.\”The ALJ’s Decision completely ignores the fact that the HCS _nowhere_dictates the precise text that must appear on the label of any hazardouschemical. The HCS merely requires that a label contain an \”appropriatehazard warning.\” 29 C.F.R. 1910.1200(f)(1). As defined in 29 C.F.R.1910.1200(c) \”hazard warning\” means:\”any words, pictures, symbols or combination thereof appearing on alabel or other appropriate form of warning which convey the _hazards ofthe chemical(s)_ in the container(s).\” (Emphasis added)Thus, insofar as an \”appropriate hazard warning\” is concerned, the HCSonly requires that the \”hazards of the chemical(s)\” be on a label. TheHCS plainly does not specify that such warning _must_ include so-called\”target organ effects.\”In fact, the HCS nowhere even defines the phrases \”hazards of thechemical(s),\” \”target organ,\” or \”target organ effect.\” Absent anydefinition in the HCS, the phrases \”appropriate hazard warning\” and\”hazards of the chemicals,\” standing alone, are far too vague for theALJ to have concluded that \”target organ effects\” are mandated by eitherphrase for inclusion on a label. In fact, the phrases \”target organ\” and\”target organ effect,\” also without definition anywhere in the HCS, arealso equally vague. A standard is unenforceably vague if it does notprovide \”fair warning\” as to what is required or prohibited.[[3]]It was unchallenged that Respondent’s styrene monomer inhibited labelcomplied with the ANSI consensus labeling systems expressly sanctionedby the HCS and its Preamble. The label stated:EXCESSIVE HEAT WILL SPOIL THIS MATERIALMust be stored in coolest place available.________________________________________________WARNING!FLAMMABLECAUSES EYE IRRITATION,VAPOR IRRITATING.________________________________________________Keep away from heat, sparks, and flame.Avoid contact with eyes.Avoid breathing vapor.Avoid prolonged or repeated contact with skin.Use with adequate ventilation.Keep container closed.Wash thoroughly after handling.FIRST AID: In case of contact, immediatelyflush eyes with plenty of water for at least15 minutes. Call a physician.In case of:FIRE, use water spray, foam, dry chemical or CO_2 .SPILL or LEAK, flush area with water spray.Respondent submits that such label does, in fact, convey the \”hazards ofthe chemical,\” and, therefore, was an \”appropriate hazard warning\” underthe terms of the HCS.OSHA’s position, upheld by the ALJ, that a label, in effect, mustfurther state every possible result of misuse or overexposure inlanguage dictated by OSHA has no support in the HCS or its Preamble.That position is at total odds with the performance-oriented nature ofthe labeling requirements under the HCS placing discretion in theemployer as to what to put on the label. It also conflicts with thecomprehensive hazard communication program required by the HCS,consisting of labels, MSDSs, _and_ training, for apprising employeesabout chemicals with which they work. In fact, the HCS Preambleacknowledged that the purpose of the label, within the context of thecomprehensive hazard communication program, is _only_ to:serv(e) as an immediate warning and as a reminder of the more detailedinformation provided in other forums, . . . (t)he identity on the labelis keyed to the Material Safety Data Sheet for the chemical, which willcontain more extensive information. The training program will explain toemployees both the labeling system and the Material Safety Data Sheet,so the employee will be provided with extensive information on eachchemical through the integrated elements of the comprehensive hazardcommunication program.(T)he labels were not intended to be either the sole, or the mostcomplete source of information regarding the nature or identity ofhazardous chemicals in the workplace. . .48 Fed. Reg. 53, 301.The Preamble to the HCS further discussed the HCS’s labelingrequirements by stating that:. . . the _PROVISIONS WERE WRITTEN IN BROAD, PERFORMANCE-ORIENTEDLANGUAGE SO THAT MANY OF THE EXISTING LABELING SYSTEMS COULD CONTINUE TOBE USED_. This did not mean that labels of any type could continue to beused in all cases–the performance-orientation meant that those labelswould have met the minimal information requirements established,regardless of the format it was presented in, could continue to be used.Thus, for example, _LABELS IN ACCORDANCE WITH . . . THE GUIDELINES INTHE AMERICAN NATIONAL STANDARDS INSTITUTE VOLUNTARY CONSENSUS STANDARDON LABELING_ [would be acceptable].48 Fed. Reg. 53, 301 (emphasis added).The ALJ’s Decision, if allowed to stand, effectively vitiates the broadperformance-oriented language of the HCS, and erroneously prohibits_any_ exercise of professional judgment by a responsible chemicalmanufacturer. Also, contrary to the language and intent of the HCS,OSHA’s position upheld by the ALJ, will force chemical manufacturers toinclude on labels all inclusive information from the MSDS. This verywell could have the unintended effect of changing the entire scope,tenor, and effectiveness of the HCS._IV. OSHA’S CPL 2-2.38 WHICH WAS THE FIRST INDICATION THAT CHEMICALLABELS HAD TO SPECIFY \”TARGET ORGAN EFFECTS\” CONSTITUTED IMPROPERSUBSTANTIVE RULEMAKING_.As set forth above, the HCS does not specify that labels, must includeany target organ effects.\” The HCS was promulgated in November, 1983with an effective date two years hence so as to allow chemicalmanufacturers to undertake the enormous task of complying therewith.Then, in August, 1985, just three months before the HCS was to takeeffect, the very first indication of OSHA’s position that labels have tostate \”target organ effects\” came about when OSHA issued Instruction CPL2-2.38. OSHA Instruction CPL 2-2.38 clearly was a substantivemodification of the HCS in that it, for the first time, required targetorgan labeling when such was not previously required by the HCS. As asubstantive modification to the HCS, CPL 2-2.38 was put in place withoutfollowing the notice and comment procedures required by theAdministrative Procedure Act, 5 U.S.C. ? 553.The ALJ, however, found that CPL 2-2.38 was not impermissiblyimplemented, citing only his own unreviewed earlier decision in_Hilton-Davis Chemical Company_ (Docket No. 86-494, February 19, 1987).Under the factors set forth in _Arrow Air, Inc. v. Dole_, 784 F.2d 1118,1122-23 (D.C. Cir. 1986) for determining when an agency rule is invalidfor failure to follow the Administrative Procedures Act, the ALJerroneously upheld the validity of CPL 2-2.38. The ALJ either misappliedcertain factors or ignored others altogether. In discussing certainfactors, the ALJ stated that the purpose of CPL 2-2.38 \”did not createnew requirements,\” but merely was intended to \”provide clarifications ofthe HCS.\” Simply, not so.As set forth in Section III, above, the HCS, itself, contains nomandatory specifications whatsoever as to any precise wording or to beincluded on any label. It was CPL 2-2.38 which substantively altered theHCS by _mandating_ in precise fashion exactly what had to be included onthe label.The validity of CPL 2-2.38 has been erroneously decided and, therefore,should come before the Review Commission for consideration and correction._CONCLUSION_Based on the foregoing, Respondent requests that the Review Commissiongrant discretionary review of the Decision and Order in the abovecaptioned case. The erroneously decided issues involving so-called\”target organ effect\” labeling which Respondent urges the ReviewCommission to consider are ones of first impression, critical to theapplication and enforcement of the Hazard Communication Standard, andones which affect many employers and their employees nationwide.Should the petition be granted, Respondent reserves the right to filesupplemental brief(s) in support of its position and as the OSHRC maydirect. This petition for discretionary review was intended merely tosummarize the important and critical issues raised herein and to explainbriefly why said review is warranted.Respectfully submitted,Michael S. GlassmanPhilip J. SchworerDinsmore & ShohlAttorneys for Respondent Monsanto CompanyFOOTNOTES:[[1\/]] Section 1910.1200(d)(3) provides:The chemical manufacturer, importer or employer evaluating chemicalsshall treat the following sources as establishing that the chemicalslisted in them are hazardous:(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances,Occupational Safety and Health Administration (OSHA); or,(ii) _Threshold Limit Values for Chemical Substances and Physical Agentsin the Work Environment_, American Conference of Governmental IndustrialHygienists (ACGIH) (latest edition).The chemical manufacturer, importer, or employer is still responsiblefor evaluating the hazards associated with the chemicals in these sourcelists in accordance with the requirements of the standard.[[2\/]] Section 1910.1200(d)(4) states:(4) Chemical manufacturers, importers and employers evaluating chemicalsshall treat the following sources as establishing that a chemical is acarcinogen or potential carcinogen for hazard communication purposes:(i) National Toxicology Program (NTP), _Annual Report on Carcinogens_(latest edition);(ii) International Agency for Research on Cancer (IARC) _Monographs_(latest editions); or(iii) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances,Occupational Safety and Health Administration.[[3\/]] Section 1910.1200(f)(1) provides:(1) The chemical manufacturer, importer, or distributor shall ensurethat each container of hazardous chemicals leaving the workplace islabeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s);(ii) Appropriate hazard warnings; and(iii) Name and address of the chemical manufacturer, importer, or otherresponsible party.[[4\/]] Section 1910.1200(d)(3) provides as follows:(3) The chemical manufacturer, importer or employer evaluating chemicalsshall treat the following sources as establishing that the chemicalslisted in them are hazardous:(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances,Occupational Safety and Health Administration (OSHA); or(ii) _Threshold Limit Values for Chemical Substances and Physical Agentsin the Work Environment_, American Conference of Governmental IndustrialHygienists (ACGIH) (latest edition).[[5\/]] See ? 1910.1000(b)(2) and example set forth at ? 1910.1000(b)(3)explaining the meaning of the PELs set forth in Table Z-2.[[6\/]] As manager of toxicology projects, Dr. Stevens oversees andsupervises activities that are involved in the preparation of the MSDSand labels for company products (Tr. 94).[[1\/]] Respondent’s post-hearing brief cited as \”Br. __\”.[[2\/]] Administrative Law Judge Burrough’s Decision cited as \”Dec. ___\”.[[3\/]] For example, _Kropp Forge Co. v. Secretary of Labor_, 657 F.2d119 (7th Cir. 1981), where the pre-1981 OSHA noise standard was foundvoid for vagueness. The pre-1981 noise standard required only that \”acontinuous effective hearing conservation program shall beadministered.\” _Id_. at 122. The employer was cited by OSHA for failureto have a hearing conservation program that included six specificelements, such as audiometric testing and training in use of hearingprotectors. The court, citing _United States v. L. Cohen Grocery Co._,255 U.S. 81 (1921), which held that a standard not providing \”fairwarning\” of what is required or prohibited is unenforceably vague, foundthe pre-1981 OSHA noise standard vague because \”the standard does notgive any warning to employers that their conservation programs mustcontain those six elements.\” _Id_. at 112.”