“Docket No. 82-1195 SECRETARY OF LABOR,Complainant,v.PPG INDUSTRIES, INC., INDUSTRIALCHEMICAL DIVISION,Respondent.INTERNATIONAL CHEMICAL WORKERS UNION AND ITS LOCAL 45,Authorized EmployeeRepresentative.OSHRC Docket No. 82-1195DECISION Before: BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).As a result of an inspection of a plant in Natrium, West Virginia, by an OSHA industrialhygienist, two citations were issued to PPG Industries, Inc., Industrial Chemical Division(\”PPG\”). This review concerns only one item in one citation. That item allegedthat. PPG committed a serious violation of 29 C.F.R. ? 1910.134(f)(2)(ii)[[1]] by failingto fully charge the air cylinders of six self-contained breathing apparatuses(\”SCBA’s\”) In four different departments in the plant. A combined penalty of$420 was proposed for that item and another item.The six SCBA’s at issue, which were kept in fiberglass boxes that were mounted on walls,were intended for use only by designated employees for shutdown and repair operations inthe event of a chemical leak or spill or other emergency. Those designated employees weretrained in the use of 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 square inch) while one wasfilled to 1850 psi. According to the. manufacturer’s instructions, the cylinder on eachSCBA should be fully charged at 2015 psi plus 10 percent overcharge, which would supplyapproximately 30 minutes of air under ideal conditions. However, users could get as littleas 15 minutes of breathing air from a fully charged cylinder because the time depends on anumber of factors, such as the exertion required to perform the work and the physicalcondition of the employee. Each SCBA was equipped with an alarm that would ring when fiveminutes of air remained in the cylinder. Each SCBA also had two pressure gauges, one ofwhich, when worn, would be on the employee’s chest and could be observed by the employee.PPG had a policy that a particular employee in each department must check SCBA’s in thedepartment each month for such factors as sufficient pressure. If it was determined as aresult of the inspection that repair or recharging of the cylinder was necessary, thatwork was accomplished by employees called safety cleaners. The safety cleaners alsoinspected, serviced, and cleaned the SCBA’s every six months. Records were kept of boththe monthly and six-month inspections.In his decision, Administrative Law Judge Edwin G. Salyers concluded that PPG had violatedsection 1910.134(f)(2)(ii), but he characterized the violation as de minimis rather thanserious. Based on the evidence showing that the SCBA’s at issue were below the full chargelevel, the judge concluded that PPG had violated the cited standard. However, the judgeconcluded that the potential hazard of running out of air while in a contaminatedatmosphere would be eliminated by the chest gauge and the five-minute alarm bell. Hestated that the alarm would sound when five minutes of air remained, which would allowenough time to evacuate the building, no matter whether the SCBA was fully charged or not.The judge therefore reduced the charge from serious to de minimis and assessed no penalty.The Commission is divided on whether the judge erred in concluding that the violation wasde minimis.[[2]] Chairman Buckley would affirm Judge Salyers’ decision that the violationwas de minimis. [[3]] He notes that, under any circumstances, a fully charged SCBAprovides a limited amount 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 donot remain in a contaminated atmosphere in reliance on any specific amount of breathingtime from an SCBA. The only reliable means of assuring that an employee does not run outof air are the Audi-Larm, which sounds when five minutes of air remain, and the chestgauge, which indicates when the air supply is getting low. Chairman Buckley further notesthat the relatively slight amount by which the cited SCBA’s were undercharged would notsubstantially reduce the amount of breathing time available and would have no effect onthe time available after the Audi- Larm sounded. He therefore concludes that the violationbears only a negligible relationship to employee safety and health and is properlyclassified as de minimis. See, e.g., Keco Industries, Inc., 84 OSAHRC 7\/A2, 11 BNA OSHC1832, 1984 CCH OSHD ? 26,810 (No. 81-1976, 1984).Commissioner Cleary would affirm the item as a serious violation. The cited SCBA’s wereintended for use under emergency conditions in atmospheres incapable of supporting humanlife. Because of the emergency conditions under which the respirators would be used, it isimportant that the respirators be as fully charged as possible because unforeseeableconditions, such as an employee becoming trapped or attempting to rescue another employee,may endanger an employee who prematurely runs out of oxygen. Devices that warn theemployee that he is 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 standard which requires thatthe SCBA’s contain a full supply of air. However, Commissioner Cleary would asses aminimal penalty. He notes that PPG provided adequate emergency respirators and had aprogram of inspection, repair, and recharging of SCBA’s,.Moreover, all of the SCBA’schecked by the industrial hygienist, the percentage of insufficiently charged ones wasvery small.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members. The two Commission membersare divided on whether the judge erred in his disposition in this case. To resolve thisimpasse and to permit this case to proceed to a final resolution, the members have agreedto affirm the judge’s decision but accord it the precedential value of an unreviewedjudge’s decision. See Life Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053,1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991(4th Cir. 1979).FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY DATED: FEB 27 1985 FOOTNOTES: [[1]]The cited standard reads as follows:Self-contained breathing apparatus shall be inspected monthly. Air and oxygen cylindersshall be fully charged according to the manufacturer’s instructions. It shall bedetermined that the regulator and warning devices function properly.[[2]]As established by the Act, the Commission is composed of three members. Section12(a), 29 U.S.C. ? 661(a). Because of a vacancy, the Commission is currently composed oftwo members.[[3]] Chairman Buckley notes that no party has taken issue with the judge’sconclusion that the standard was violated. He therefore does not address that question.”