“Docket No. 86-0391 SECRETARY Of LABOR, Complainant, v. MONSANTO COMPANY, Respondent, and INTERNATIONAL CHEMICAL WORKERS UNION AND ITS LOCAL 561, Authorized Employee Representative.OSHRC Docket No. 86-0391ORDERThe Parties’ Stipulation and Settlement Agreement isapproved. This order 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 COMMISSION Ray H. Darling, Jr.Executive Secretary Dated: December 4, 1987WILLIAM E. BROCK, SECRETARY OF LABOR, Complainant, v. MONSANTO COMPANY, Respondent, and INTERNATIONAL CHEMICAL WORKERS UNION AND ITS LOCAL 561, Authorized Employee Representative.OSHRC DOCKET NO. 86-0391STIPULATION AND SETTLEMENT AGREEMENT IThe parties have reached agreement on a full andcomplete settlement of the instant case which is currently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health ReviewCommission (hereinafter \”the Commission\”) has jurisdiction of this matterpursuant to Section 10(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 corporationwith a place of business and a plant facility located in Addyston, Ohio. Respondent’sprincipal place of business is located in St. Louis, Missouri. It is engaged in thebusiness of manufacturing chemicals and during the course of its business its employeesperform various tasks in the nature of producing chemicals. During the course of itsbusiness, respondent uses materials and equipment which it receives from places locatedoutside Addyston, Ohio. Respondent, as a result of the aforesaid activities, is anemployer engaged in a business affecting commerce as defined by sections 3(3) and 3(5) ofthe Act, and has employees as defined by Section 3(6) of the Act, and is subject to therequirements of the Act.(c) As a result of an inspection conducted onNovember 26, 1985 at Monsanto’s Port Plastics workplace at River Road, Addyston, Ohio, acitation alleging two other-than-serious violations of the Hazard Communication Standardsat 29 CFR 1910.1200(f)(1)(ii) and 1910.1200(g)(2)(vi), with no proposed penalty, wasissued to Respondent on March 11, 1986, pursuant to Section 9(a) of the Act, all of whichwas attached to the Complaint in OSHRC Docket No. 86-0391.(d) Respondent timely contested the citation as toall items in the citation. The Secretary agreed to vacate certain items in the citationprior to hearing, but not other items. On April 3, 1987, the Commission Administrative LawJudge James D. Burroughs issued his Decision and Order on the amended citation in which heaffirmed the alleged violation of 1910.1200(f)(1)(ii) [items 1 and 4 of item 1b(a)], whichis the subject of the instant Stipulation and Settlement Agreement. The judge alsoaffirmed the alleged violation of 1910.1200(g)(2)(vi), and stated in his decision thoseitems of the citation previously vacated. Thereafter, respondent filed a timely Petitionfor Discretionary Review which was granted by the Commission on May 26, 1987. TheCommission issued a Briefing Notice on June 5, 1987.IIINow the Secretary of Labor and Monsanto Company, inorder to conclude this matter without the necessity of further litigation, stipulate andagree as follows:(a) Respondent hereby states that it promptly willabate the alleged violation of 1910.1200(f)(1)(ii) by including, until such time as mayotherwise be required or be permitted by law, the following words on the label Respondentprepares for its chemical product styrene monomer, inhibited:1. Excessive overexposure can cause central nervoussystem effects.2. An irritant to the respiratory tract.(b) The Secretary hereby withdraws its citation foralleged violation of 1910.1200(f)(1)(ii), with prejudice, issued to Respondent on March11, 1986. The Secretary believes that the judge’s decision was correctly decided. However,in view of Respondent’s existing comprehensive hazard communication program and itsrepresentation contained herein, the Secretary has determined that further litigation ofthis case is not merited.(c) Respondent and Complainant agree that each partyshall bear its own fees, costs and other expenses incurred by such party in connectionwith any stage of this proceeding.(d) Nothing is this Stipulation and SettlementAgreement constitutes any admission by the Respondent of any violation of the OccupationalSafety and Health Act or regulations and standards promulgated thereunder. Further,nothing in this Settlement Agreement, nor any order of the Commission entered pursuant tothis Stipulation and Settlement Agreement, nor any documents gathered or prepared inconnection with this matter constitute, or shall be construed by any person, or federal orstate court or agency to constitute, any wrongdoing either civilly, criminally, at commonlaw, or under any state or federal statute or regulations promulgated thereunder. Further,neither this Stipulation and Settlement Agreement nor any order of the Commission enteredpursuant to this Stipulation and Settlement Agreement, nor any documents gathered orprepared in connection with this matter shall be offered, disclosed, used or admitted inevidence in any other proceeding or litigation, whether state or federal, or whethercivil, criminal or administrative, except for subsequent proceedings pursuant to theOccupational Safety and Health Act involving Respondent. By entering into this agreement,the Respondent does not admit to the truth of any alleged facts contained in the citation,as amended, to any of the characterizations of the Respondent’s alleged conduct byComplainant, or to any of the conclusions set forth in the citation, as amended, in thismatter.Respondent specifically denies and disclaims anyviolation of the Occupational Safety and Health Act or regulations and standardspromulgated thereunder, believes the judge’s decision was incorrectly decided, and statesthat it is entering into this Stipulation and Settlement Agreement solely for the purposesof compromising and settling this matter economically and amicably and avoiding the costand expanse which would otherwise be associated with the further litigation of the issuesraised by the citation, as amended.IV Respondent agrees to post this Stipulation andSettlement Agreement in accordance with the Commission Rules 2200.7 and 2200.100.WHEREFORE, the parties request that this Stipulationand Settlement Agreement be approved by the Commission.ORLANDO J. PANNOCHIA\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0MICHAEL S. GLASSMANAttorney for the Secretary of Labor \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Attorney for Monsanto Company\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. MONSANTO COMPANY, Respondent, and INTERNATIONAL CHEMICAL WORKERS UNION and its LOCAL 561, Authorized Employee Representative.OSHRC Docket No. 86-0391APPEARANCES: Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department of Labor,Cleveland, Ohio, on behalf of complainant Michael S. Glassman, Esquire, Cincinnati, Ohio, on behalf of respondentMr. William Wegman, President, International Chemical Workers Union, Local 561, onbehalf of authorized employee representativeDECISION AND ORDERBurroughs, Judge: Monsanto Company(\”Monsanto\”) contests alleged violations of 29 C.F.R. ? 1910.1200(f)(1)(ii),for failure to include appropriate hazard warnings on labels for styrene monomer,inhibited and 29 C.F.R. ? 1910.1200(g)(2)(vi), for allegedly failing to list the OSHA 200ppm ceiling PEL for styrene and the OSHA 600 ppm peak PEL for styrene on the materialsafety data sheet (\”MSDS\”).On November 26, 1985, Compliance Officer Jim Washamconducted an inspection at Monsanto’s Port Plastics plant located in Addyston, Ohio. Theinspection was conducted as part of the Occupational Safety and Health Administration’s(\”OSHA\”) special emphasis program for enforcing the newly enacted HazardCommunication Standard (\”HCS\”). As a result of the inspection, an\”other\” citation was issued to Monsanto on March 11, 1986. On October 20, 1986,a Motion to Amend Citation was received from the Secretary. A Supplemental Motion to AmendCitation was received from the Secretary on November 3, 1986. The motions dismissed item1a of the citation, deleted warning number three listed under item 1b, dismissed item two,dismissed subitem (a) of item three and amended the description of the alleged violationset forth as subitem (b) of item three. The motions were granted by order dated November4, 1986. At the commencement of the hearing, the Secretary withdrew item 1c of thecitation (Tr. 4). Remaining for decision are the alleged violations set forth as items 1b,alleged violation of 29 C.F.R. ? 1910.1200(f)(1)(ii), and subitem (b) of item three ofthe amended citation, alleged violation of 29 C.F.R. ? 1910.1200(g)(2)(vi).Styrene monomer, inhibited is produced by Monsantofor out-of-plant shipment to, and use by, manufacturing sector customers (Tr. 6). Thelabel on containers leaving the plant and the MSDS for that substance were obtained by theSecretary’s representative during the inspection of Monsanto’s plant facility on November26, 1985 (Exs. 1, 2; Tr. 12-14). In recommending that a citation be issued, IndustrialHygienist James Sweeney, who reviewed the data collected by Washam, referred to provisionsof 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 itsfinal form. 48 Fed. Reg. 53,280 (1983). Its purpose is to provide for uniform requirementsin the manufacturing sector concerning information made available to workers regardingtoxic and hazardous substances in the workplace. The standard recognized the need forapprising workers of the hazards of chemicals handled in the workplace. 48 Fed. Reg.53,281 (1983). The first substantive provision of the HCS requires chemical manufacturersand importers to evaluate the chemicals produced in their workplace or imported by them todetermine if they are hazardous. 29 C.F.R. ? 1910.1200(d)(1).The standard combines an evaluation approach with alist incorporation approach. 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 designated lists must be evaluated to determineif they are hazardous by reference to \”available scientific evidence.\” 29 C.F.R.? 1910.1200(d)(2). \”[E]vidence which is statistically significant and which is basedon at least one positive study conducted in accordance with established scientificprinciples is considered to be sufficient to establish a hazardous effect if the resultsof the study meet the definitions of health hazards in this section.\” 29 C.F.R.1910.1200(d)(2).The first list incorporated in the standard is OSHA’sown toxic and hazardous substance section.[[1\/]] The second list incorporated is thelatest edition of Threshold Limit Values for Chemical Substances and Physical Agent inthe Work Environment, a work by the American Conference of Governmental IndustrialHygienists. The standard incorporates three lists to establish chemicals as carcinogens orpotential carcinogens.[[2\/]] The standard further provides for the treatment of chemicalmixtures. 29 C.F.R. ? 1910.1200(d)(5). If the mixture in question has been tested as awhole to determine its hazards, the results must be used to determine whether the mixtureis hazardous. If the mixture has not been tested as a whole, it is presumed to present thesame health hazard as the components which comprise one percent or greater of the mixture.The standard provides for dissemination ofinformation by three methods. First, it requires labeling of all hazardous substances thatleave the workplace 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 thisprovision chemical manufacturers, importers, and distributors are to ensure that eachcontainer of hazardous chemicals leaving the workplace is labeled, tagged or marked with(i) the identity of the hazardous chemical; (ii) appropriate hazard warnings; and (iii)the name and address of the chemical manufacturer, importer or other responsibleparty.[[3\/]]The HCS also requires chemical manufacturers andimporters to obtain or develop a MSDS for each hazardous chemical they produce or import.Employers are required to have a MSDS available for each hazardous chemical which theyuse. 29 C.F.R. ? 1910.1200(g)(1). The MSDS provides technical information for a givenchemical. Extensive information is required to be included on the MSDS. The MSDS must beprovided to each employer in the manufacturing sector (SIC Codes 20-39) purchasing ahazardous chemical. Copies of the MSDS are required for each hazardous chemical in theworkplace and must be readily accessible during each work shift to employees when they arein their work areas. 29 C.F.R. ? 1910.1200(g)(8).A third requirement is imposed on employers by ?1910.1200(h) and requires then to provide employees with information and training.Training must be provided at initial assignment and when any new hazard is introduced inthe work area. Employees are to be informed of the requirements of the standard, ofoperations in their work area where hazardous chemicals are present, and of theavailability of additional information. The training itself is to include methods todetect the presence or release of a hazardous chemical in the workplace, the physical andhealth hazards of the chemicals, protective measures, and explanations of the requiredlabels and material safety data sheets.Aside from the merits of the factual informationconcerning each of the alleged violations, Monsanto raises two legal arguments that mustbe considered. It contends that portions of the standard at issue in this case are invalidbecause OSHA had no authority to promulgate those requirements and that the standard doesnot require target organ effects to be included on the label. Monsanto submits that therequirement for target 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 ProvisionsMonsanto contends that \”OSHA’s promulgation andenforcement of the Hazard Communication Standard, to the extent that it requiresmanufacturers to conform to standards for the benefit of downstream third-party employees,is beyond the scope of authority granted to it in the Occupational Safety and HealthAct\” (Brief, p. 13). It is argued that the Act does not give the Secretary authorityto promulgate and enforce any standard that reaches beyond the workplace of theemployer-employee relationship. This argument is aimed at those provisions of the HCSwhich impose the duty of hazard evaluation on the manufacturers who produce hazardouschemicals for distribution in commerce. While the HCS requires the manufacturer todisclose hazardous information to its employees, it also requires disclosure by the labeland the MSDS to employers to whom the chemical is shipped. It is this last requirementwhich Monsanto believes exceeds the scope of authority granted in the Act.In American Petroleum Institute v. OSHA, 581F.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 was vacated with the rest ofthe standard, the court addressed the jurisdictional attack on requiring labels to beaffixed to all containers of benzene and benzene containing products since it was certainthe labeling or some similar requirement would be considered by OSHA on remand. In thepreamble to the standard, OSHA cited the American Petroleum Institute case insupport of its authority to require labels and MSDS for downstream employers. 48 Fed. Reg.53,322. Monsanto contends that the Act gave OSHA the authority to regulate workplaces, notproducts, and that American Petroleum was dicta and not controlling on the issue.In commenting on the issue, the court stated (581 F.2d at 510):Placing the responsibility to warn downstream employees of concealed hazards on thoseupstream employers who create the hazards and know of the hazard is consistent with theremedial purpose of the Act and is within OSHA’s broad authority to prescribe warninglabels. If on remand OSHA decides to promulgate a new benzene standard which includeswarning labels, OSHA may require an employer in the chain of distribution of thoseproducts to assure that such warning labels remain affixed when the product leaves theemployer’s workplace, provided, of course, the labeling requirement as a whole is shown tobe reasonably necessary to provide safe workplaces.The court expressly approves the label requirementwhere it \”is shown to be reasonably necessary to provide safe workplaces.\” 581F.2d at 510.Monsanto argues that the dicta in American Petroleum Institute was rejected by thefifth circuit in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981), a negligence action concerning a third party’s failure to follow OSHA regulations.The court rejected the argument that the failure of a third party that was not theplaintiff’s employer to follow OSHA regulations establishes that third party’s negligence.The court was concerned over the fact of whether the plaintiff was a member of the classthat OSHA regulations were intended to protect. The court concluded that \”OSHAregulations protect only an employer’s own employees.\” 659 F.2d at 712. Monsantoargues that the dicta in American Petroleum Institute was openly criticized andrejected by the fifth circuit in Melerine and that OSHA \”plainly lacks theauthority to promulgate or enforce the Hazard Communication Standard as it relates to anemployer’s duties to downstream employees\” (Brief, p. 17).The Occupational Safety and Health Act(\”Act\”), 29 U.S.C. ? 651-678, was passed in 1970 to assure safe and healthfulworking conditions for the nation’s work force and to preserve the nation’s humanresources. 29 U.S.C. ? 651 (1976). To achieve that goal, the Act allows the Secretary ofLabor, after public notice and opportunity for comment by interested persons, topromulgate rules and standards for occupational safety and health. 29 U.S.C. ? 655(b).Section 6(b)(7), in particular, provides, in part:Any standard . . . shall prescribe the use of labelsor other appropriate forms of warning as are necessary to insure that employees areapprised of all hazards to which they are exposed, relevant symptoms and appropriateemergency treatment, and proper conditions and precautions of safe use or exposure.The quoted provision authorizes the Secretary toprescribe the use of labels or other appropriate forms of warning. The authority isspecific in this regard. The court in United Steelworkers of America v. Auchter,763 F.2d 728 (3d Cir. 1985), concluded that the HCS was a standard promulgated undersection 6 of the OSH Act. In making reference to section 6(b)(7), the court stated that\”[t]he Secretary has given reasons why the labeling, MSDS, and instructionrequirements comply with section 6(c)(7) [sic] for employees in the manufacturingsector . . . .\” 763 F.2d at 738. The court’s decision implicitly recognizes theauthority of the Secretary to require the manufacturer or importer to label hazardouschemicals and to furnish a MSDS to downstream employers.A manufacturer is not being held accountable forviolations of the HCS by employees of downstream employers. All employers in SIC Codes20-39 have the duty of providing information to their employees about the hazardouschemicals to which they are exposed. 29 C.F.R. ? 1910.1200(b)(1). This duty is imposed onmanufacturers and importers for the benefit of their own employees. In carrying out thisduty, chemical manufacturers and importers are required to assess the hazards of thechemicals which they produce or import in order to comply with the HCS with respect totheir own employees. The only additional affirmative act required by the manufacturers andimporters is that they transmit the information previously ascertained by them todownstream employers.The HCS directs the manufacturer or importer todisclose hazardous information to their own employees and to employers to whom thechemicals are shipped by means of the label and MSDS. The manufacturer or importer isrequired to enforce the HCS with respect to its own employees. It is not accountable forlack of enforcement by a downstream employer. In a technical sense, the requirementimposed on the manufacturer or importer does not violate the fifth circuit’s adherence tothe policy that \”OSHA regulations protect only an employer’s own employees.\” 659F.2d at 712. The HCS creates no duty on behalf of the manufacturer or importer to see thatdownstream employers enforce the requirements of the standard.As the court noted in American Petroleum Institute,supra, the manufacturer is in a far better position to warn downstream employees inoperations using their product. A heavy regulatory burden is not being imposed on themanufacturer solely for the benefit of the employees of another. The court observed that\”the regulation [labeling requirement] says no more than that an upstream employermay not take affirmative steps to withdraw from downstream employees a protection that hemust furnish to his own employees.\” 581 F.2d at 510. OSHA’s promulgation of thestandard is not beyond the scope of authority granted to it under section 6(b)(7) of theAct. 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 ValidThe parties disagree as to whether target organeffects must be included on the label. Monsanto argues that \”[t]he very firstindication of OSHA’s position that ‘appropriate hazard warnings’ required ‘targetorgan effects’ labeling came about only when OSHA issued Instruction CPL 2- 2.38\”(Brief, p. 8). It contends that OSHA Instruction CPL 2-2.38 issued by the OSHA Office ofHealth Compliance Assistance on August 5, 1985, is a modification of the HCS \”in thatit, for the first time, requires target organ labeling when such was not previouslyrequired by the Standard and differentiates between the labels OSHA claims are requiredfor in-plant and shipped containers\” (Brief, p. 19). It argues that CPL 2-2.38 was asubstantive modification to the HCS and was void for failure to follow the notice andcomment procedures required by the Administrative Procedure Act. 5 U.S.C. ? 553.For the reasons stated in this Judge’s decision inHilton-Davis Chemical Company (Docket No. 86-494, February 19, 1987), Monsanto’sargument is rejected. The purpose of CPL 2-2.38 was to establish policies and provideclarifications of the HCS. It simply interpreted the HCS as a whole in advising theregulated persons as to how to proceed under the HCS. It did not create new requirements.It simply clarified existing requirements. Instruction CPL 2-2.38 is interpretative andwas exempt from the rule-making requirements of 5 U.S.C. ? 553(b) and (c). The standardand not CPL 2-2.38 requires target organ effects labeling. CPL 2-2.38 merely interpretsthe HCS and provides guidance as to how the duty imposed by the HCS should be fulfilled.The words \”appropriate hazard warnings\” require that target organ effects beincluded on the label. Hilton-Davis Chemical Company, supra.Styrene Monomer, Inhibited is a Hazardous ChemicalIn determining whether the HCS is applicable, styrenemonomer, inhibited must be found to be a hazardous chemical. The standard defines \”hazardous chemical\” as any chemical which is a physical or health hazard. ?1910.1200(c). Pursuant to ? 1910.1200(d)(3),[[4\/]] certain chemicals must be treated ashazardous. This includes chemicals listed in 29 C.F.R. Part 1910, Subpart Z, and those forwhich threshold limit values have been established by the American Conference ofGovernmental Industrial Hygienists. Styrene meets both criteria of ? 1910.1200(d)(3). Forpurposes of ? 1910.1200(f)(1), the record clearly establishes that styrene monomer,inhibited is a \”hazardous chemical.\” Monsanto does not dispute this fact.Alleged Violation of 29 C.F.R. ?1910.1200(g)(2)(vi)Subitem (b) of item three of the citation alleges aviolation of 29 C.F.R. ? 1910.1200(g)(2)(vi). The description of the alleged violationwas amended to read as follows:The Material Safety Data Sheets for \”StyreneMonomer, Inhibited\” did not list the OSHA 200 ppm ceiling PEL for styrene and theOSHA 600 ppm peak PEL for styrene.The MSDS lists only one of three OSHA PELs which havebeen established for styrene; namely, 100 ppm for an eight-hour time-weighted average. TheSecretary contends that the MSDS must contain all OSHA PELs.The provision in controversy, ? 1910.1200(g)(2)(vi),requires each MSDS to contain the following information:(vi) The OSHA permissible exposure limit, ACGIHThreshold Limit Value, and any other exposure limit used or recommended by the chemicalmanufacturer, importer, or employer preparing the material safety data sheet, whereavailable.Monsanto argues that the plain meaning of the citedrequirement does not require 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, Monsanto contends it was in compliancewith the provisions of 1910.1200(g)(2)(vi).Table Z-2 of ? 1910.1000 establishes exposure limitsfor styrene based on an eight-hour time-weighted average, an acceptable ceilingconcentration and an acceptable maximum peak exposure. During an eight-hour shift anemployee may be exposed to a concentration of styrene above 200 ppm (but never above 600ppm) only for a maximum period of five minutes in any three hours. Such exposure must becompensated by exposures to concentrations less than 100 ppm so that the cumulativeexposure for the entire eight-hour shift does not exceed a weighted average of 100ppm.[[5\/]]The three different exposure limits established byOSHA are important in educating employers and employees as to potential exposure. It isimportant that they be aware of the acceptable ceiling concentration and the acceptablemaximum peak concentration in making certain that the eight-hour exposure limit is notexceeded. It is also important that they know that no exposure is ever allowed above 600ppm and that anything in excess of 200 ppm cannot exceed five minutes in three hours.Interpreting the provision of ? 1910.1200(g)(2)(vi) to require the manufacturer toinclude only one PEL would permit the manufacturer to selectively choose which PEL itwanted to include. Downstream employers and employees, as well as the manufacturer’s ownemployees, would be denied important information as to the use of the hazardous substance.The intent of the standard is that thorough information will be furnished to downstreamemployers.Industrial Hygienist James Sweeney testified that inhis experience it is 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 wasimportant that downstream employers and employees know the permissible exposure limitsapplicable to the product. Such information is necessary because exceeding the ceiling orpeak PEL would be 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 undercutby construing ? 1910.1200(g)(2)(vi) in the manner suggested by Monsanto. There is noindication that the standard intended to limit the requirement to any specific OSHApermissible exposure by the use of the word \”limit.\” The \”OSHA permissibleexposure limit\” is construed to refer to all OSHA PELs in a collective sense. Theword \”limit\” in the case of styrene refers to three different exposure levels. Amanufacturer must include all permissible exposure levels listed by OSHA for a hazardoussubstance. The violation has been established.While Monsanto argues that exposure limitrefers to the OSHA PEL in the singular, it did include the ACGIH TLV\/TWA and the ACGIHTLV\/STEL even though the standard refers to the \”ACGIH Threshold Limit Value.\”Monsanto did not construe \”Limit Value\” to mean that it had to choose betweenthe two and determine which one must be included on the MSDS. There is no explanation asto why Monsanto construed the two requirements 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 minimisviolation because the OSHA ceiling and peak PELs are less protective than the ACGIH STEL.It relies on a letter dated August 18, 1986, which is executed by John B. Miles, Jr., whowas director of field operations at the time he executed the letter. The letter states, inpart (Ex. 7):From a compliance standpoint the material safety datasheet must contain the OSHA permissible exposure limit (PEL), and any more protectiveexposure limit, if one or more exists. Failure to include a less protective exposurelimit, other than the OSHA PEL, will be considered a de minimis violation and will notresult in the issuance of a citation.The letter clearly requires the listing of the OSHAPEL. The quote allows a de minimis classification where the PEL is \”otherthan the OSHA PEL.\” The OSHA PEL is required even if it is less restrictive thanany other applicable PEL. The de minimis argument is without merit. It isquestionable whether the OSHA ceiling and peak PELs are less protective than the ACGIHSTEL since they pertain to different time periods. An employee, in the case of a seriousleak, could still be exposed 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 aviolation 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 styrene monomer,inhibited (Tr. 23):1. A central nervous system depressant2. May cause dryness and blistering of the skin 3. An irritant to the respiratory tractThe Secretary contends that labels for hazardoussubstances shipped out of the manufacturer’s plant must list \”target organeffects.\” He argues that the labels for styrene monomer, inhibited should haveincluded the three listed hazard warnings. In determining that the label was not incompliance with the standard, the Secretary relies on information contained in the MSDSand in the NIOSH\/OSHA Occupational Health Guidelines for Chemical Hazards (Tr. 44).The MSDS sets forth a section referred to as \”Warning Statements\” and containsthe following:Causes Irritation to Eyes and Skin Vapor Irritating to Respiratory TractUnder the \”Physiological Effects Summary\”section of the MSDS is the warning that \”[e]xposure to 375 ppm for 1 hour causescentral nervous system depression.\” Reference is also made to the fact that\”[v]apor concentrations of 200-400 ppm may cause eye and respiratory tractirritation.\” The NIOSH\/OSHA Occupational Health Guidelines for Chemical Hazards(Ex. 6) makes reference to irritation of the eyes, nose, throat and skin and centralnervous system depression.Monsanto does not argue that the hazards referred toby the Secretary do not exist. It has in fact included them in the MSDS. According toMonsanto, it \”assessed the weight of the evidence regarding each of the hazards andfound that the evidence did not warrant listing the warning on both the label and theMaterial Safety Data Sheet\” (Brief, p. 29). It then correctly states that \”themere fact that a hazard is identified on the MSDS does not automatically require itsinclusion on the label\” (Brief, p. 29).Monsanto submits that professional judgment isessential in determining which hazards recognized on a MSDS are appropriate for inclusionon the label (Tr. 100). Unquestionably, professional judgment is involved in thepreparation of the label. However, as exercised by Monsanto, the professional judgmentfactor is misguided. Dr. Michael W. Stevens testified (Tr. 100):Q. Does it involve some exercise of professionaljudgment as to what would or would not be appropriate to include on the label?A. Yes. We would certainly look at it with a risksituation. The hazard is simply present with the material. We identify that and say thatunder some conditions, that may occur. But, we try then to look at the kinds of conditionsthat we would expect to occur and adjust our labeling according to those kinds ofconditions.In preparing the label, Monsanto has substituted itsjudgment for that of the downstream employer in determining the type of workplaceconditions that might arise.The limiting of information on a label that is basedon the manufacturer’s speculation as to downstream uses is unwarranted. This approach by amanufacturer was discussed in Hilton-Davis Chemical Company, supra, andrejected. In Hilton-Davis, it was concluded:* * * The intent of the standard is thatmanufacturers and importers will furnish thorough information on all potential hazardswithout qualifications as to possible use. They cannot limit disclosure of potentialhazards by speculating as to how the product will be used.Where a manufacturer is aware that whether the hazardarises is dependent on such factors as the concentration and exposure levels in theworkplace, as in this case, it cannot limit information on the label on the basis of whatit assumes will be the concentration levels and that an employee will not be overexposed.Monsanto argues that \”the MSDS and not thelabel is the document on which ‘health hazards’ found to exist as a result, in part,of the Appendix A analysis, must be reported\” (Brief, p. 7). The standard is muchmore specific with respect to the information that must be included on the MSDS. Monsantopoints to ? 1910.1200(g)(2)(iv) in support of its position that the health hazards foundto exist must be included on the MSDS. This provision states that the MSDS must containthe following:(iv) The health hazards of the hazardous chemical,including signs and symptoms 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 comparedwith the requirement of ? 1910.1200(f)(1)(ii) to include \”appropriate hazardwarnings\” on the label. The fact that the requirements for the MSDS are more specificthan ? 1910.1200(f)(1)(ii) does not mean target organ effects should not be included onthe label. Likewise, Monsanto is correct in concluding that the standard does not\”require that a ‘health hazard’ identified on the MSDS be set forth in like fashionon the container label\” (Brief, p. 8).Where the hazardous substance is known to affect oneof the target organs listed in Appendix A, reference to that target organ must be includedon the label. Whatever affects the target organs could conceivably cause serious physicalcomplications to the employee. He should be aware of those risks when he handles thehazardous substance. In determining what information to include on the label, one mustkeep in mind that the basic purpose of the label is to serve as an immediate warning toall persons handling the substance. This purpose must be construed in connection with theprimary goal of the HCS; namely, to provide in a useable and readily accessible forminformation to employees concerning the hazards in their workplaces. The ultimate goal ofthe HCS is to reduce the incidence of chemical source illnesses and injuries in themanufacturing sector by providing employees with information they need to help protectthemselves.Central Nervous System DepressantDr. Michel W. Stevens, Monsanto’s manager oftoxicology projects,[[6\/]] testified that the statement, \”a central nervous systemdepressant,\” was not included on the label because it was concluded that such ahazard \”could only occur in a situation which would be outside the normalcontrols\” (Tr. 98). Monsanto representatives did not feel that an appropriate hazardwarning was \”necessary for an effect which would not occur in the normal workplacesituation\” (Tr. 98). This was especially true since they \”felt it wasappropriately accounted for in the MSDS\” (Tr. 99). However, Stevens acknowledged thatthe potential for this hazard to occur was present (Tr. 98). He testified that certainwords on the label helped prevent the hazard (Tr. 99):A. Certainly, on the label, we caution theindividuals that they should avoid breathing the vapor but we also caution that it shouldbe used with adequate ventilation. The concern we have is a concentration type effect, ifanything, and so with the appropriate ventilation and appropriate precautions for inhalingthe material, then the hazard would not occur.Stevens acknowledged that whether styrene acts as acentral nervous system depressant is dependent on such factors as the concentration in theparticular environment and how long the individual is exposed (Tr. 101). He alluded toprecautionary information on the label which advised employees to avoid breathing thevapor and to use it with adequate ventilation. He acknowledged that Monsanto had someconcern about the concentration levels. The precautionary language was included or thelabel to prevent high concentration levels from occurring (Tr. 99).Sweeney concluded that the label should include thephrase, \”a central nervous system depressant,\” because the nervous system islisted as a target organ in Appendix A to the standard (Tr. 66-68). There is no disputethat styrene can act as a depressant to the central nervous system. The MSDS states that\”[E]xposure to 375 ppm for 1 hour causes central nervous system depression\” (Ex.2; Tr. 67). Sweeney concluded that where the hazard affects a target organ listed in thestandard, that adverse effect should be included on the label (Tr. 72).Where the MSDS identifies or references a hazardinvolving an organ of the body and that adverse effect relates to one of the healthhazards set forth in the standard’s definition of a \”health hazard,\” referenceto the target organ must be set forth on the label. While the MSDS made reference todepression of the central nervous system, reference should also have been made to thisfact on the label. The violation has been established.Irritant to the Respiratory TractSweeney concluded the label should contain a warningthat styrene is \”an irritant to the respiratory tract\” because the MSDS and NIOSH\/OSHAOccupational Health Guidelines for Chemical Hazards indicates a respiratory tractirritation can occur. Appendix A to the standard includes an irritant as a health hazard,and damage or irritation to the pulmonary tissue is listed as a target organ (Tr. 75-76).The MSDS states that \”[v]apor concentrations of200-400 ppm may cause eye 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 National Standards Institutestandard ANSI Z129.1-1982 as a guide or basis for the preparation of the label (Tr. 107).The label used the words \”vapor irritating\” (Ex. 1). Section 4.7 of ANSIZ129.1-1982 uses similar language. Stevens stated that the respiratory tract was notspecifically identified 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 asystem of precautionary labeling of hazardous chemicals used in industrial operations. Itsgoal is different from that sought to be obtained by the HCS. Since ANSI Z129.1- 1982 doesnot require warnings in terms of target organ effects, compliance with the standard, ?1910.1200(f)(1)(ii), is not achieved by relying on the labeling requirements of the ANSIstandard. ANSI Z129.1-1982 is directed toward the use of precautionary labeling and fallsshort of advising the employer or employee of target organ effects. It fails to advise orwarn of the consequences of overexposure. It primarily advises the employee to reduce,minimize or, if possible, eliminate exposure.Where the substance is in a vapor form, Stevensacknowledges that respiratory exposure would occur (Tr. 108). The use of the words\”vapor irritating\” does not identify the affected target organ. The definitionof health hazard is defined to include irritants and lists the organs of the lungs andmucous membranes on which the irritant might act. Target organ effects listed in AppendixA refer to agents which damage or irritate the pulmonary tissue. The use of the words\”vapor irritating\” is a precautionary warning and does not set forth an\”appropriate hazard warning\” as required by ? 1910.1200(f)(1)(ii). Theviolation has been established.Dryness and Blistering of SkinSweeney concluded the label should contain a warningthat styrene \”may cause dryness and blistering of the skin\” because the MSDS andthe NIOSH\/OSHA Occupational Health Guidelines for Chemical Hazards (Ex. 6)indicated the chemical could cause an irritation of the skin and that skin irritation wasone of the hazards referred to in Appendix A of the standard (Tr. 73-74). Stevenstestified that this warning was not included on the label because blistering would ariseonly after a prolonged exposure to the substance and that the substance was not anirritant as defined by the standard (Tr. 103). Appendix A of the standard defines a skinirritant as follows:A chemical, which is not corrosive, but which causesa reversible inflammatory effect on living tissue by chemical action at the site ofcontact. A chemical is a skin irritant if, when tested on the intact skin of albinorabbits by the methods of 16 CFR 1500.41 for four hours exposure or by other appropriatetechniques, it results in an empirical score of five or more . . . . (Underlining added)The \”Animal Data\” section of the MSDS showstests for skin irritation on rabbits resulted in a score of 2.4, on a scale of 8.0. whichis only slightly irritating (Ex. 2; Tr. 104-105). The Secretary argues that this shouldnot be the deciding factor since the MSDS states under the \”Human Experience\”heading that \”[s]tyrene monomer is a more severe irritant to human skin and eyes thanis indicated by experimental animal data.\”The definition of \”health hazard\” includesirritants. ? 1910.1200(c). Appendix A to the standard defines a skin\”irritant.\” The evidence in this case, which is not disputed by the Secretary,reflects that styrene monomer is not a skin irritant that is deemed a health hazard underthe definition 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 ascore of five or more is required to satisfy the criteria established for a skin irritant.The fact that the MSDS points out that styrene monomer is more of a skin irritant thanindicated by experimental animal data does not change the test results. The Secretary hasnot challenged the test results of 2.4. The MSDS reflects such a score as being onlyslightly irritating. Since the irritation level is insufficient to qualify the substanceas a skin irritant under Appendix A, no reference to target organ effects of the skin hasto be included on the label. The requirement alleged by the Secretary is vacated.AbatementSweeney testified that he recommended an abatementperiod of one month, which he felt was adequate to add the missing information to thelabel and MSDS (Tr. 33-34). Monsanto makes no argument that it cannot comply with theabatement procedures within the specified time period. The abatement date is reasonable.FINDINGS OF FACT1. Monsanto Company (\”Monsanto\”) isinvolved in the manufacturing of resins, polymers, plastics and other specialty chemicalsat its Addyston, Ohio. plant (Tr. 14-15).2. On November 26, 1985, Compliance Officer JimWasham conducted an inspection at Monsanto’s Addyston, Ohio, plant (Tr. 12, 13). Theinspection was part of OSHA’s special emphasis program for the newly enacted HCS (Tr.12-13).3. Industrial Hygienist James Sweeney, HCScoordinator for OSHA’s Cincinnati Area Office, reviewed the material safety data sheetsand container labels for styrene monomer, inhibited, obtained by Washam, to determine ifthey were in compliance with the HCS (Tr. 11, 14-15). As a result of Washam’s inspectionand Sweeney’s review, an \”other\” citation was issued to Monsanto on March 11,1986 (Tr. 15-16).4. In determining whether to issue a citation,Sweeney referred to OSHA Instruction CPL 2-2.38 issued August 5, 1985 (Tr. 17-18). Thestated purpose for CPL 2-2.38 is to establish policies and provide clarification to ensureuniform enforcement of the HCS (Ex. 3; Tr. 17-18).5. Styrene monomer, inhibited is produced by Monsantofor shipment to customers in the manufacturing sector (Tr. 6-7). It is a hazardouschemical (Exs. 4, 5; Tr. 20).6. The material safety data sheet for styrenemonomer, inhibited reflects 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 ceilingconcentration of 200 ppm or 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 1910lists three permissible exposure limits for styrene (Ex. 2; Tr. 79).8. Styrene is reflected in Table Z-2 of Subpart Z of29 C.F.R. Part 1910 with an eight-hour, time-weighted average of 100 ppm, an acceptableceiling concentration of 200 ppm, and an acceptable peak ceiling concentration of 600 ppmfor five minutes in any three-hour period (Ex. 4; Tr. 20-21, 30).9. The Threshold Limit Values for ChemicalSubstances and Physical Agents in the Work Environment adopted by the AmericanConference of Governmental Industrial Hygienists reflects an eight-hour TLV for styrene of50 ppm and the short-term TLV for styrene of 100 ppm (Ex. 5; Tr. 21).10. The label for styrene monomer, inhibitedcontained the following warnings (Ex. 1):EXCESSIVE HEAT WILL SPOIL THIS MATERIALMust be stored in coolest place available. ____________________________________________WARNING!FLAMMABLE CAUSES 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 of water for atleast 15 minutes. Call a physician.In case of:FIRE, use water spray, foam, dry chemical or CO2. 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 skin 3. An irritant to the respiratory tract11. The physiological effects summary of the MSDSstates as follows (Ex. 2; Tr. 23-24):Human ExperienceStyrene Monomer is primarily toxic by the route ofvapor absorption through the lungs; however, liquid absorption through the skin may alsooccur. Vapor concentrations of 200-400 ppm may cause eye and respiratory tract irritation.Exposure to 375 ppm for 1 hour causes central nervous system depression. 10,000 ppm may behazardous to life within 30-60 minutes. 2,500 ppm may be dangerous to life in 8 hrs. Dueto the odor and irritant effects exposure greater than 800 ppm is objectionable to humans.Styrene monomer is a more severe irritant to humanskin and eyes than is indicated by experimental animal data. Prolonged skin contact, suchas from contaminated clothing, may cause skin blistering. Repeated skin contact may causedryness. Liquid styrene monomer may produce severe eye irritation.12. The section of the NIOSH\/OSHA OccupationalHealth Guidelines for Chemical Hazards pertaining to styrene contains the followingunder the heading, \”Health Hazard Information\” (Ex. 6; Tr. 25):1. Short-term exposure: Styrene may irritatethe eyes, nose, throat and skin * * *2. Long-term exposure: Repeated skin contactwith styrene may produce a skin rash.* * *– Central nervous system disorders: Since exposure to styrene vapor or liquid on the skinhas been observed to result in central nervous system depression * * ** * *– Skin disease: Styrene is a defatting agent and can cause dermatitis on prolongedexposure * * *CONCLUSIONS OF LAW1. Monsanto, at all times material to thisproceeding, was engaged in a business within the meaning of section 3(5) of the Act.2. Monsanto, at all times material to thisproceeding, was subject to the requirements of the Act and the standards promulgatedthereunder. 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) for failure to list the following hazard warnings on the label forstyrene monomer, inhibited:\u00a0\u00a0\u00a0 1. A central nervous system depressant \u00a0\u00a0\u00a0 2. An irritant to the respiratorytract4. Monsanto was not in violation of 29 C.F.R. ?1910.1200(f)(1)(ii) for failure 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) for failure to list the OSHA 200 ppm ceiling PEL for styrene and theOSHA 600 ppm peak PEL for styrene on the MSDS.ORDERBased upon the foregoing findings of fact andconclusions of law, and concessions by the Secretary, it is ORDERED: (1) That items 1a, 1c, 2 and subitem (a) ofitem three of the \”other\” citation issued to Monsanto on March 11, 1986, arevacated;(2) That items 2 and 3 of subitem (a) of item 1b ofthe \”other\” citation issued to Monsanto on March 11, 1986, are vacated and thatitems 1 and 4 are affirmed; and(3) That subitem (b) of Item 3, as amended, of the\”other\” citation issued to Monsanto on March 11, 1986, is affirmed.JAMES D. BURROUGHSJudgeDate: April 23, 1987\u00a0\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. MONSANTO COMPANY, Respondent.OSHRC Docket No. 86-0391DIRECTION FOR REVIEWThe Respondent has filed a Petition for DiscretionaryReview. Pursuant to 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 preliminary examination of therecord and the report, the issues to be considered are:(1) Whether the Administrative Law Judge erred inconcluding that the Secretary has authority under the Occupational Safety and Health Actof 1970 to require manufacturers of chemicals to conform to standards for hazardscommunication for the protection of employees of distributors and industrial users of thechemicals;(2) If so, whether the Judge erred in concluding that? 1910.1200(f) and (g)(6) do not violate the legal principle that \”OSHA regulationsprotect only an employer’s own employees\” because the label and Material Safety DataSheet were required primarily for the protection of the manufacturer’s own employees;(3) Whether the judge erred in concluding that theOccupational Safety and Health Administration (OSHA) Instruction CPL 2-2.38 merelyinterpreted the hazards communication standards, did not create any new, substantiverequirements, and therefore was properly promulgated pursuant to the requirements of theAdministrative Procedure Act, for interpretative rules;(4) Whether an employer may be required to observethe requirements of Instruction CPL 2-2.38 without its being published in the FederalRegister. See 5 U.S.C. 552(a)(1) and Phoenix Forging Company, 12 BNA OSHC 1317,1984-85 CCH OSHD ? 27,256 (No. 82-398, 1985). If not, whether this employer had actualand timely notice of the requirements of the Instruction?(5) Whether the judge erred in concluding that theSecretary’s hazards communication 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 thisemployer violated 29 C.F.R. ? 1910.1200(f)(1)(ii) by excluding reference on labels to ahealth hazard based on an evaluation of the improbability that the concentration andexposure in a typical user’s workplace would pose a hazard.E. ROSS BUCKLEY CHAIRMANDATED: May 26, 1987\u00a0\u00a0\u00a0SECRETARY OF LABOR, Complainant, vs.MONSANTO COMPANY, Respondent, and INTERNATIONAL CHEMICAL WORKERS LOCAL 561 AUTHORIZED EMPLOYEE REPRESENTATIVE.OSHRC DOCKET NO.: 86-0391 RESPONDENT, MONSANTO COMPANY’S PETITION FORDISCRETIONARY REVIEWOn April 3, 1987, Administrative Law Judge (ALJ)James Burroughs issued a Decision and Order affirming a citation issued to Respondent onMarch 11, 1986, for allegedly not specifying certain \”target organ effects\” onthe labels for one of its products.Respondent, Monsanto Company, hereby petitions theOccupational Safety and Health Review Commission (\”Review Commission\”) fordiscretionary review of the April 3, 1987, Decision and Order (hereinafter the\”Decision\”) to be submitted to the Commission’s Executive Secretary on April 23,1987 in the above captioned case.Pursuant to Review Commission Rule 91, Respondenttakes exception to the following portions of that Decision and seeks discretionary reviewthereof: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 thoseportions of the Decision and Order which otherwise address the findings of fact andconclusions of law which served as a basis for those portions of the Decision to whichRespondent objects. I. INTRODUCTIONReview should be granted and the ALJ’s Decisionreversed. The issues presented by this case relating to so-called \”target organeffect\” labeling under the Hazard Communication Standard (HCS) are truly of majorimportance. The \”target organ effect\” labeling requirement, the ALJ found toexist, affects manufacturers and importers nationwide. Moreover, the ALJ’s Decisionaddresses critical questions of law that have not been previously presented to the ReviewCommission and which are critical to the overall enforcement of the HCS.Respondent submits review should be granted toconsider these important issues and to correct the ALJ’s conclusions that OSHA hasjurisdiction over manufacturers and importers vis a vis persons otherthan its own employees, and that Respondent’s label violated the HCS because it did notinclude two specific phrases constituting so-called \”target organ effect\”labeling held to be required under the HCS. II. THE ALJ’S CONCLUSION THAT OSHA HAS JURISDICTIONTO PROMULGATE AND TO ENFORCE THOSE PORTIONS OF THE HCS WHICH IMPOSE DUTIES ON ANEMPLOYER VIS A VIS PERSONS OTHER THAN ITS OWN EMPLOYEES WAS ERRONEOUS.The issue of OSHA’s authority to promulgate thesections of the HCS that require manufacturers and importers to provide labels and MSDSsto downstream\/third party employees never has reached the Review Commission. It is anissue whose resolution is critical in defining the extent to which OSHA properly mayenforce such portions of the HCS. Respondent’s position before the ALJ was that OSHAlacked authority to promulgate and to enforce the HCS as it relates to the imposition ofduties on manufacturers\/employers vis a vis downstream\/third party persons not its ownemployees. (Br. 13-17)[[1\/]] The ALJ, however, held that OSHA did not lack authority topromulgate and enforce the label and MSDS provisions of the HCS (29 C.F.R. 1910.1200) asthey relate to a manufacturer’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’sjurisdiction to promulgate standards concerning labeling to ones affecting an employer visa vis its own employees. Section 6(b)(7) of the OSH Act provides that:\”Any standard promulgated under this subsectionshall prescribe the use of labels or other appropriate forms of warnings as are necessaryto ensure that EMPLOYEES are apprised . . . .\”(Emphasis added) 29 U.S.C ? 655(b)(7) (1985).The term \”employee\” is specifically definedin the OSH Act as: \”an employee of an employer who is employed in a business OF HIS EMPLOYER.. . . \”The above quoted statutory provisions read togetherdemonstrate that the ALJ erred by finding OSHA had jurisdiction to promulgate the HCSinsofar as it created obligations on Respondent vis a vis persons whoare not even Respondent’s employees.Second, judicial authority, consistent with the OSHAct, 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. Ohio1981), appeal dismissed, 705 F.2d 451, 454 (6th Cir. 1982); Gazdar v. KoppersCo., 524 F.Supp. 1194 (D.C. Ohio 1981), appeal dismissed, 705 F.2d 451, 454(6th Cir. 1982). Nevertheless, the ALJ brushed this authority aside, and instead relied onAmerican Petroleum Institute v. OSHA, 581 F.2d 493 (5th Cir. 1978), aff’d othergrounds sub nom., Industrial Union Dept. AFL-CIO v. American Petroleum Institute,448 U.S. 607 (1980), despite the fact that American Petroleum Institute was openlycriticized and rejected in Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5thCir. 1981). In this respect, the ALJ also erred.The ALJ’s recitation of a series of assertions aspurported justification for finding OSHA has jurisdiction to impose obligations on anemployer vis a vis persons other than its own employees are alsounavailing. For example, the ALJ concluded that \”[t]he only additional affirmativeact required by the manufacturer and importer is that they transmit the informationpreviously ascertained by them to downstream employers.\” (Dec. 11) \”The HCScreates no duty on behalf of the manufacturer or importer to see that downstream employersenforce the requirements of the standard.\” (Id.) \”A heavy regulatoryburden is not being imposed on the manufacturer solely for the benefit of the employees ofanother.\” (Id.) These assertions, however, are completely unresponsive to thebasic tenet that OSHA simply lacks authority to regulate an employer vis a visdownstream\/third party persons not its own employees.III. THE ALJ’S CONCLUSION THAT \”TARGET ORGANEFFECT\” LABELING IS REQUIRED UNDER THE HCS WAS ERRONEOUS.The ALJ decided that \”target organ effect\”labeling is required by the HCS, and that the Respondent’s label at issue herein wasdeficient because 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 thatthe HCS nowhere dictates the precise text that must appear on the label of anyhazardous chemical. 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 combinationthereof appearing on a label or other appropriate form of warning which convey the hazardsof the chemical(s) in the container(s).\” (Emphasis added)Thus, insofar as an \”appropriate hazardwarning\” is concerned, the HCS only requires that the \”hazards of thechemical(s)\” be on a label. The HCS plainly does not specify that such warning mustinclude so-called \”target organ effects.\”In fact, the HCS nowhere even defines the phrases\”hazards of the chemical(s),\” \”target organ,\” or \”target organeffect.\” Absent any definition in the HCS, the phrases \”appropriate hazardwarning\” and \”hazards of the chemicals,\” standing alone, are far too vaguefor the ALJ 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, are alsoequally vague. A standard is unenforceably vague if it does not provide \”fairwarning\” as to what is required or prohibited.[[3]]It was unchallenged that Respondent’s styrene monomerinhibited label complied with the ANSI consensus labeling systems expressly sanctioned bythe HCS and its Preamble. The label stated:EXCESSIVE HEAT WILL SPOIL THIS MATERIALMust be stored in coolest place available. ________________________________________________WARNING!FLAMMABLE CAUSES 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, immediately flush eyes with plenty of water for at least 15 minutes. Call a physician.In case of:FIRE, use water spray, foam, dry chemical or CO2.SPILL or LEAK, flush area with water spray.Respondent submits that such label does, in fact,convey the \”hazards of the chemical,\” and, therefore, was an \”appropriatehazard warning\” under the terms of the HCS.OSHA’s position, upheld by the ALJ, that a label, ineffect, must further state every possible result of misuse or overexposure in languagedictated by OSHA has no support in the HCS or its Preamble. That position is at total oddswith the performance-oriented nature of the labeling requirements under the HCS placingdiscretion in the employer 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 employees about chemicals with which they work.In fact, the HCS Preamble acknowledged that the purpose of the label, within the contextof the comprehensive hazard communication program, is only to:serv(e) as an immediate warning and as a reminder ofthe more detailed information provided in other forums, . . . (t)he identity on the labelis keyed to the Material Safety Data Sheet for the chemical, which will contain moreextensive information. The training program will explain to employees both the labelingsystem and the Material Safety Data Sheet, so the employee will be provided with extensiveinformation on each chemical through the integrated elements of the comprehensive hazardcommunication program.(T)he labels were not intended to be either the sole,or the most complete source of information regarding the nature or identity of hazardouschemicals in the workplace. . . 48 Fed. Reg. 53, 301.The Preamble to the HCS further discussed the HCS’slabeling requirements by stating that:. . . the PROVISIONS WERE WRITTEN IN BROAD,PERFORMANCE-ORIENTED LANGUAGE SO THAT MANY OF THE EXISTING LABELING SYSTEMS COULD CONTINUETO BE USED. This did not mean that labels of any type could continue to be used in allcases–the performance-orientation meant that those labels would have met the minimalinformation requirements established, regardless of the format it was presented in, couldcontinue to be used. Thus, for example, LABELS IN ACCORDANCE WITH . . . THE GUIDELINESIN THE AMERICAN NATIONAL STANDARDS INSTITUTE VOLUNTARY CONSENSUS STANDARD ON LABELING[would be acceptable].48 Fed. Reg. 53, 301 (emphasis added).The ALJ’s Decision, if allowed to stand, effectivelyvitiates the broad performance-oriented language of the HCS, and erroneously prohibits anyexercise of professional judgment by a responsible chemical manufacturer. Also, contraryto the language and intent of the HCS, OSHA’s position upheld by the ALJ, will forcechemical manufacturers to include on labels all inclusive information from the MSDS. Thisvery well could have the unintended effect of changing the entire scope, tenor, andeffectiveness of the HCS.IV. OSHA’S CPL 2-2.38 WHICH WAS THE FIRST INDICATION THAT CHEMICAL LABELS HAD TOSPECIFY \”TARGET ORGAN EFFECTS\” CONSTITUTED IMPROPER SUBSTANTIVE RULEMAKING.As set forth above, the HCS does not specify thatlabels, must include any target organ effects.\” The HCS was promulgated in November,1983 with an effective date two years hence so as to allow chemical manufacturers toundertake the enormous task of complying therewith. Then, in August, 1985, just threemonths before the HCS was to take effect, the very first indication of OSHA’s positionthat labels have to state \”target organ effects\” came about when OSHA issuedInstruction CPL 2-2.38. OSHA Instruction CPL 2-2.38 clearly was a substantive modificationof the HCS in that it, for the first time, required target organ labeling when such wasnot previously required by the HCS. As a substantive modification to the HCS, CPL 2-2.38was put in place without following 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 notimpermissibly implemented, citing only his own unreviewed earlier decision in Hilton-DavisChemical 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 isinvalid for failure to follow the Administrative Procedures Act, the ALJ erroneouslyupheld the validity of CPL 2-2.38. The ALJ either misapplied certain factors or ignoredothers altogether. In discussing certain factors, the ALJ stated that the purpose of CPL2-2.38 \”did not create new requirements,\” but merely was intended to\”provide clarifications of the HCS.\” Simply, not so.As set forth in Section III, above, the HCS, itself,contains no mandatory specifications whatsoever as to any precise wording or to beincluded on any label. It was CPL 2-2.38 which substantively altered the HCS by mandatingin precise fashion exactly what had to be included on the label.The validity of CPL 2-2.38 has been erroneouslydecided and, therefore, should come before the Review Commission for consideration andcorrection.CONCLUSIONBased on the foregoing, Respondent requests that theReview Commission grant discretionary review of the Decision and Order in the abovecaptioned case. The erroneously decided issues involving so-called \”target organeffect\” labeling which Respondent urges the Review Commission to consider are ones offirst impression, critical to the application and enforcement of the Hazard CommunicationStandard, and ones which affect many employers and their employees nationwide.Should the petition be granted, Respondent reservesthe right to file supplemental brief(s) in support of its position and as the OSHRC maydirect. This petition for discretionary review was intended merely to summarize theimportant and critical issues raised herein and to explain briefly why said review iswarranted.Respectfully submitted,Michael S. GlassmanPhilip J. Schworer Dinsmore & Shohl Attorneys for Respondent Monsanto CompanyFOOTNOTES: [[1\/]] Section 1910.1200(d)(3) provides:The chemical manufacturer, importer or employer evaluating chemicals shall treat thefollowing sources as establishing that the chemicals listed in them are hazardous:(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety andHealth Administration (OSHA); or,(ii) Threshold Limit Values for Chemical Substances and Physical Agents in the WorkEnvironment, American Conference of Governmental Industrial Hygienists (ACGIH) (latestedition).The chemical manufacturer, importer, or employer is still responsible for evaluating thehazards associated with the chemicals in these source lists in accordance with therequirements of the standard.[[2\/]] Section 1910.1200(d)(4) states:(4) Chemical manufacturers, importers and employers evaluating chemicals shall treatthe following sources as establishing that a chemical is a carcinogen or potentialcarcinogen for hazard communication purposes:(i) National Toxicology Program (NTP), Annual Report on Carcinogens (latestedition);(ii) International Agency for Research on Cancer (IARC) Monographs (latesteditions); or(iii) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety andHealth Administration.[[3\/]] Section 1910.1200(f)(1) provides:(1) The chemical manufacturer, importer, or distributor shall ensure that eachcontainer of hazardous chemicals leaving the workplace is labeled, tagged or marked withthe following information:(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.[[4\/]] Section 1910.1200(d)(3) provides as follows:(3) The chemical manufacturer, importer or employer evaluating chemicals shall treatthe following sources as establishing that the chemicals listed in them are hazardous:(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances, Occupational Safety andHealth Administration (OSHA); or(ii) Threshold Limit Values for Chemical Substances and Physical Agents in the WorkEnvironment, American Conference of Governmental Industrial Hygienists (ACGIH) (latestedition).[[5\/]] See ? 1910.1000(b)(2) and example set forthat ? 1910.1000(b)(3) explaining the meaning of the PELs set forth in Table Z-2.[[6\/]] As manager of toxicology projects, Dr. Stevensoversees and supervises activities that are involved in the preparation of the MSDS andlabels for company products (Tr. 94).[[1\/]] Respondent’s post-hearing brief cited as \”Br. __\”.[[2\/]] Administrative Law Judge Burrough’s Decisioncited as \”Dec. ___\”.[[3\/]] For example, Kropp Forge Co. v. Secretaryof Labor, 657 F.2d 119 (7th Cir. 1981), where the pre-1981 OSHA noise standard wasfound void for vagueness. The pre-1981 noise standard required only that \”acontinuous effective hearing conservation program shall be administered.\” Id.at 122. The employer was cited by OSHA for failure to have a hearing conservation programthat included six specific elements, such as audiometric testing and training in use ofhearing protectors. The court, citing United States v. L. Cohen Grocery Co., 255U.S. 81 (1921), which held that a standard not providing \”fair warning\” of whatis required or prohibited is unenforceably vague, found the pre-1981 OSHA noise standardvague because \”the standard does not give any warning to employers that theirconservation programs must contain those six elements.\” Id. at 112.”