“SECRETARY OF LABOR,Complainantv.PRATT & WHITNEY AIRCRAFT GROUP, INC.,RespondentOSHRC Docket Nos. 85-0558 & 85-0598APPEARANCES:For Complainant:John Casler, Esq., and Kevin Sullivan, Esq.U. S. Department of LaborFor Respondent:W. Scott Railton, Esq., and John M. Wood, Esq.Reed, Smith, Shaw & McClayFor Employees:Rudy Buck, President, and John BilodeauIndustrial Aircraft Lodge No. 1746 I.A.M.A.W.andPaul Schmelke, President, andWilliam L. CormierInt’l. Assoc. of Machinists and Aerospace Workers_DECISION AND ORDER_These cases arose under 29 U.S.C. section 651 et seq. of theOccupational Safety and Health Act of 1970 (the Act). As a result of aninspection by the Occupational Safety and Health Administration (OSHA)of the Respondent’s premises on or about March 18 – April 26, 1985 [for#0558] and April 3 – May 6, 1985 [for #0598], Citation #1 was issued onor about April 29, 1985, for #0558 and Citation #1 for #0598 was issuedon or about May 7, 1985, each charging that the Respondent violatedsection 5(a)(2) of the Act by the serious violation of the standard at29 C.F.R. 1910.132(a) in that protective equipment was not used byemployees who were exposed to oils containing elevated concentrations ofpoly- chlorinated biphenyl’s [PCB’s].On or about May 23, 1985, the Respondent filed Notice of Contest toCitation #1 of case #0558 and the penalty proposed therefor, and on orabout May 30, 1985, filed Notice of Contest to Citation #1 of case #0598and the penalty proposed therefor.The pertinent sections of the Act and the standard are appended to thisdecision under appropriate titles._THE ISSUES_(1) Was the presence of PCB’s in the oil hazardous to employees?(2) If so, did the Respondent require employees to use personalprotective equipment?_Representatives of Employees_Appearing as representatives of employees were Rudy Buck and JeanBilodeau [Local 1746, East Hartford]; and Paul Schmelke and WilliamCormier [Local 700, Middletown]. All four attended conscientiously and,as apparent from the Transcript, they participated competently in theproceedings.While working on machines in the Respondent’s plants in East Hartfordand Middletown, Connecticut, employees came in contact with oil used onthe machines. Some of the oil was contaminated by PCB’s.The testimony of several of the employees was consistent with or tendedto establish the contact with oil as a cause of rashes or skindisorders. For example, instances were determined where rashes appearedin places where oil had touched the employee’s person, or a rash haddisappeared when the employee was shifted to an area where there was nooil leakage from the machinery. However, those witnesses were all laypersons and often their testimony was weakened by other evidence, suchas testimony from medical personnel, or the unexplained absence ofrashes in the presence of oil, or the appearance of skin disorders evenwhere there was no oil. For example, one employee [Cormier] testified hehad rashes but didn’t know what caused them . . . Tr. 73. Anotheremployee [Graham] testified he had a rash but his physician didn’t knowwhat caused it . . Tr. 185. Another employee [Booker] testified insubstance that from 1978 to 1982 she had had several skin disorders butno one could say exactly what caused them, and no one even mentioned oilas a possible cause. She said that three or four doctors weredermatologists who gave her their opinion that the condition was anallergic response to grinding dust . . . Tr. 203-210._Personal Protective Equipment_It was clearly established that employees who worked on the machines inquestion were exposed to oil that was a part of the machine’s normaloperation or constituted leakage. Several employees gave directtestimony to that effect. Most of the witnesses also testified that theydid not wear any kind of personal protective equipment and that theRespondent did not require them to use any. . . Tr. 27, 62, 122-142,149, 163, 183, 184, 341-343, 410, 418, 526, 559, 836.I find that most employees who were exposed to oil contaminated by PCB’sdid not wear protective equipment and the Respondent did not requirethem to use any_PCB’s a Hazard?_As was pointed out in the cases of Secretary of Labor v. AnoplateCorporation, 12 OSHC 1678, Industrial Union Dept., AFL-C10 v. AmericanPetroleum Institute, 448 U.S. 607, and Secretary of Labor v. Kastalon,Inc., and Conap, Inc., 12 OSHC 1928, to prove a hazard, the Complainantmust show that the amount of poison to which the Respondent’s employeesare exposed presents a significant risk of harm; a significant risk atany level of exposure cannot be presumed simply because a \”safe\” levelof exposure cannot be established; and the mere fact that the chemicalis a suspect human carcinogen does not establish that a hazard exists.In the instant case, the basic issue seems to be: assuming employeeswere exposed to oil contaminated by PCB’s, did that constitute a hazard,as alleged? While the major witnesses on that question were the medicalexperts [Doctors Emmett, Sorenson, and O’Brien] the witnesses Boycenshi,Citroni, Owen, Gower, and Chamberlain also testified on it.The testimony of Boycenshi, the OSHA industrial hygienist, tended toestablish that, while he believed PCB’s were harmful, he would have torely on the opinion of medical experts . . . Tr. 620-621. Citroni, anenvironmental engineer, testified there was no hazard to employees fromPCB’s . . . Tr. 774. Owen, an industrial hygienist and safetyprofessional, said the PCB’s did not present a health hazard to theemployees . . . Tr. 765. Gower, an engineer and safety professional,said there was no hazard to employees in the way they could potentiallycome in contact with PCB’s . . . Tr. 883. Chamberlain, a safetyengineer, said the hazard was \”little to none\” . . . Tr. 854-855._Medical Testimony_Whether the presence of PCB’s constituted a hazard really is a medicalquestion that would be best decided on the testimony of the three expertwitnesses, Doctors Emmett, Sorenson, and O’Brien.Dr. Emmett’s testimony tended to establish that there are 209 differentkinds of PCB’s; that they can enter the body in various ways includinginhalation, skin absorption, and ingestion, with the major route beingabsorption of PCB’s through the skin; that everyone has positive lowlevels of PCB’s in the blood; that the hazards of exposure to PCB’s arechloracne, liver damage, neurological damage, production of toxicity tothe immune system; and PCB’s are carcinogenic to animals…Tr. 234-248, 263.However, Dr. Emmett also testified in substance that there is really noprecise knowledge about chloracne; that there is very little knowledgeabout liver damage; that just what happens to the immune system is notclear; that little is known about neurological damage, and most of thestudies have been of monkeys; and there is not enough knowledge aboutthe carcinogenic effects of PCB’s on animals…Tr. 234-239, 263.In answer to the question: \”…you do not have any good information onthe effect of PCB exposures on existing diseases in people?\” Dr. Emmettsaid: \”Yes, I think that is probably correct…\”Dr. Emmett was also asked: \”And you have no information or no goodinformation…with respect to the amount of PCB’s that are needed tocause liver damage, correct?\” His answer: \”That would be correct. Weknow that it can cause liver damage but we don’t have–we can’t, withany accuracy, say at what level that occurs\”…Tr. 280-290, 301.Dr. Emmett was also asked if he knew of any studies that have been doneon exposure of people to hydraulic oils for periods of time, such as aneight hourshift. He answered that he had \”not seen any studies of such work \”…Tr. 301. He also said that he had no idea of the types of PCB’s thatwere found at the Respondent’s plant … Tr.296.Dr. Sorenson testified that the rashes sustained by employees were notdue to PCB’s, and these was no hazard . . . Tr. 917-924, 947, 948.Dr. O’Brien testified that he would not expect any PCB-related diseasefrom the levels described in the case; and that the rashes sustained byemployees were not due to oil contaminated by PCB’s . . . Tr. 964-969.In my opinion, all three were excellent witnesses who werewell-qualified and honest. I do not give more weight to the testimony ofany one of the three than to the others. In my opinion, an analysis oftheir testimony clearly indicates that there is not enough knowledgeabout PCB’s to justify any finding based on their presence at any of thelevels described in the case. The \”proof\” does not rise abovespeculation or conjecture; and any conclusions to be drawn amount atmost to possibilities rather than probabilities._Section 4(b)(1)_Although the Respondent pleaded section 4(b)(1) as one of its defenses,no evidence was presented at the hearing to sustain it. In any event, 15U.S.C.A. 2608 says that for purposes of section 653(b)(1), theEnvironmental Protection Agency is not deemed to be exercising anystatutory authority to prescribe or enforce standards or regulationsaffecting occupational safety and health. I find that section 4(b)(1) isnot available to the Respondent as a defense._Proposed Findings of Fact and Conclusions of Law_Except as found in other places in this decision, the Respondent’sProposed Findings of Fact and Conclusions of Law have not been found orconcluded._FINDINGS OF FACT_Having heard the testimony, observed the witnesses, and examined theexhibits, the following Findings of Fact are made:1. At all times concerned, the respondent regularly received, handled orworked with goods which had moved across state lines.2. As concerns Citation #1 of #0558 and Citation #1 of #0598, employeeswere exposed to oil that was contaminated by PCB’s but there was noproof that those conditions exposed the Respondent’s employees tosustaining harm because of PCB’s in the oil; and there was no proof thatthose conditions exposed the Respondent’s employees to sustainingserious or fatal harm because of PCB’s in the oil.3. Employees of the Respondent who were exposed to oil contaminated byPCB’s were not required to wear personal protective equipment.4. One or more officers or supervisory personnel of the Respondent knewof the conditions described herein and knew that employees who wereexposed to oil contaminated by PCB’s were not wearing personalprotection equipment._CONCLUSIONS OF LAW_1. At all times concerned, the Respondent was an employer engaged in abusiness affecting commerce within the meaning of the Act; and theOccupational Safety and Health Review Commission has jurisdiction overthe subject matter and parties.2. At all times concerned, the Respondent knew, or with the exercise ofdue diligence should have known, of the conditions that constituted thealleged violation.3. The Complainant has not sustained the burden of proving theRespondent violated section 5(a)(2) of the Act (section 654)._ORDER_The whole record having been considered, and due consideration havingbeen given to 29 U.S.C. section 666(j), it is ordered: (1) Citation #1of case #0558 is vacated, together with the penalty assessed therefor,(2) Citation #1 of case #0598 is vacated, together with the penaltyassessed therefor.It is ORDERED.FOSTER FURCOLOJudge, OSHRCDated: January 2, 1987Boston, Massachusetts___ __APPENDIXTHE ACT__Section 654_ [section 5 (a)(2)] Employer\” …shall comply withoccupational safety and health standards…\”_Section 666_ [section 17(b) ]\”…employer who has received a citationfor a serious violation … of this Act … shall be assessed a civilpenalty of up to $1,000 for each such violation.\”_Section 666 _(section. 17(c)] \”…employer who has received a citationfor a violation of … this Act … specifically determined not to be aserious nature, may be assessed a civil penalty of up to $1,000 for eachsuch violation.\”_Section 666_ [section 17(j)] \”…assess all civil penalties …givingdue consideration to…the size of the business… gravity of theviolation, the good faith of the employer, and the history of previousviolations.\”_Section 666_ [section 17(k)] \”…a serious violation shall be deemed toexist… if there is a substantial probability that death or seriousphysical harm could result… unless the employer did not, and couldnot… know of the presence of the violation.\”_The Standard_29 C.F.R. ? 1910.132(a): \”Protective equipment, including personalprotective equipment for eyes, face, head, and extremities . . . shallbe provided, used, and maintained . . . whenever it is necessary byreason of hazards of processes or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a mannercapable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact.\”————————————————————————SECRETARY OF LABOR,Complainant,v.PRATT & WHITNEY AIRCRAFT GROUP, INC.,Respondent.OSHRC Docket Nos. 85-0558 & 85- 0598_ORDER_The Commission grants the Secretary’s motion to withdraw his citation. FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: May 28, 1987″