“SECRETARY OF LABOR,Complainant,v.PPG INDUSTRIES, INC., INDUSTRIALCHEMICAL DIVISION,Respondent.INTERNATIONAL CHEMICAL WORKERSUNION AND ITS LOCAL 45,Authorized EmployeeRepresentative.OSHRC Docket No. 82-1195_DECISION _Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).As a result of an inspection of a plant in Natrium, West Virginia, by anOSHA industrial hygienist, two citations were issued to PPG Industries,Inc., Industrial Chemical Division (\”PPG\”). This review concerns onlyone item in one citation. That item alleged that. PPG committed aserious violation of 29 C.F.R. ? 1910.134(f)(2)(ii)[[1]] by failing tofully charge the air cylinders of six self-contained breathingapparatuses (\”SCBA’s\”) In four different departments in the plant. Acombined penalty of $420 was proposed for that item and another item.The six SCBA’s at issue, which were kept in fiberglass boxes that weremounted on walls, were intended for use only by designated employees forshutdown and repair operations in the event of a chemical leak or spillor other emergency. Those designated employees were trained in the useof the SCBA’s. In addition, for escape purposes, each employee had hisor her own respirator and access to gas masks.Five of the cited SCBA’s were charged to 1900 psi (pounds per squareinch) while one was filled to 1850 psi. According to the. manufacturer’sinstructions, the cylinder on each SCBA should be fully charged at 2015psi plus 10 percent overcharge, which would supply approximately 30minutes of air under ideal conditions. However, users could get aslittle as 15 minutes of breathing air from a fully charged cylinderbecause the time depends on a number of factors, such as the exertionrequired to perform the work and the physical condition of the employee.Each SCBA was equipped with an alarm that would ring when five minutesof air remained in the cylinder. Each SCBA also had two pressure gauges,one of which, when worn, would be on the employee’s chest and could beobserved by the employee.PPG had a policy that a particular employee in each department mustcheck SCBA’s in the department each month for such factors as sufficientpressure. If it was determined as a result of the inspection that repairor recharging of the cylinder was necessary, that work was accomplishedby employees called safety cleaners. The safety cleaners also inspected,serviced, and cleaned the SCBA’s every six months. Records were kept ofboth the monthly and six-month inspections.In his decision, Administrative Law Judge Edwin G. Salyers concludedthat PPG had violated section 1910.134(f)(2)(ii), but he characterizedthe violation as de minimis rather than serious. Based on the evidenceshowing that the SCBA’s at issue were below the full charge level, thejudge concluded that PPG had violated the cited standard. However, thejudge concluded that the potential hazard of running out of air while ina contaminated atmosphere would be eliminated by the chest gauge and thefive-minute alarm bell. He stated that the alarm would sound when fiveminutes of air remained, which would allow enough time to evacuate thebuilding, no matter whether the SCBA was fully charged or not. The judgetherefore reduced the charge from serious to de minimis and assessed nopenalty.The Commission is divided on whether the judge erred in concluding thatthe violation was de minimis.[[2]] Chairman Buckley would affirm JudgeSalyers’ decision that the violation was de minimis. [[3]] He notesthat, under any circumstances, a fully charged SCBA provides a limitedamount of breathing time that will vary from 15 to 30 minutes duefactors such as the physical condition of the user and the of the work.Thus, employees do not remain in a contaminated atmosphere in relianceon any specific amount of breathing time from an SCBA. The only reliablemeans of assuring that an employee does not run out of air are theAudi-Larm, which sounds when five minutes of air remain, and the chestgauge, which indicates when the air supply is getting low. ChairmanBuckley further notes that the relatively slight amount by which thecited SCBA’s were undercharged would not substantially reduce the amountof breathing time available and would have no effect on the timeavailable after the Audi- Larm sounded. He therefore concludes that theviolation bears only a negligible relationship to employee safety andhealth and is properly classified as de minimis. See, e.g., KecoIndustries, Inc., 84 OSAHRC 7\/A2, 11 BNA OSHC 1832, 1984 CCH OSHD ?26,810 (No. 81-1976, 1984).Commissioner Cleary would affirm the item as a serious violation. Thecited SCBA’s were intended for use under emergency conditions inatmospheres incapable of supporting human life. Because of the emergencyconditions under which the respirators would be used, it is importantthat the respirators be as fully charged as possible becauseunforeseeable conditions, such as an employee becoming trapped orattempting to rescue another employee, may endanger an employee whoprematurely runs out of oxygen. Devices that warn the employee that heis running out of air are simply another type of gauge which will tellhow much air,remains in the SCBA, but this is unrelated to a standardwhich requires that the SCBA’s contain a full supply of air. However,Commissioner Cleary would asses a minimal penalty. He notes that PPGprovided adequate emergency respirators and had a program of inspection,repair, and recharging of SCBA’s,.Moreover, all of the SCBA’s checked bythe industrial hygienist, the percentage of insufficiently charged oneswas very small.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of at least twomembers. The two Commission members are divided on whether the judgeerred in his disposition in this case. To resolve this impasse and topermit this case to proceed to a final resolution, the members haveagreed to affirm the judge’s decision but accord it the precedentialvalue of an unreviewed judge’s decision. See Life Science Products Co.,77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910,1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 27 1985————————————————————————FOOTNOTES:[[1]]The cited standard reads as follows:Self-contained breathing apparatus shall be inspected monthly. Air andoxygen cylinders shall be fully charged according to the manufacturer’sinstructions. It shall be determined that the regulator and warningdevices function properly.[[2]]As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Because of a vacancy, theCommission is currently composed of two members.[[3]] Chairman Buckley notes that no party has taken issue with thejudge’s conclusion that the standard was violated. He therefore does notaddress that question.”