“SECRETARY OF LABOR,Complainant,v.UNION CARBIDE CORPORATION, LINDEDIVISION,Respondent.OSHRC DOCKET NO. 86-0740_ORDER_The Secretary’s notice to withdraw citation is construed as a motion towithdraw the citation. Respondent’s response is construed as consent toan order granting the Secretary’s motion. Accordingly, the Secretary’smotion is granted and the citation is hereby vacated.This order is issued pursuant to a delegation of authority to theExecutive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg.7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: October 28, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.UNION CARBIDE CORPORATION,LINDE DIVISION,Respondent.OSHRC Docket No. 86-0740APPEARANCES:Mary Anne Garvey, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainantDonald R. Crowell, II, Esquire, Danbury, Connecticut, on behalfof respondent_DECISION AND ORDER_Burroughs, Judge: Union Carbide Corporation, Linde Division (\”Carbide\”)contests an alleged violation of 29 C.F.R. ? 1910.1200(f)(1)(ii) forallegedly failing to include \”appropriate hazard warnings\” on labelsaffixed to containers of acetylene for out-of-plant shipment to, and useby, manufacturing sector customers. The alleged violation was set forthas subitem e of item 1b set forth in an \”other\” citation issued toCarbide on May 2, 1986.[[1\/]] Carbide further contests item 1a of the\”other\” citation, alleging a violation of 29 C.F.R. ? 1910.1200(d)(6),for failing to furnish written procedures used to determine the hazardsof a chemical._Alleged Violation of 29 C.F.R. ? 1910.1200(f)(1)_The issues in dispute involve provisions of the Hazard CommunicationStandard (\”HCS\”) 29 C.F.R. ? 1910.1200, which was published in the_Federal Register_ on November 25, 1983. 48 Fed. Reg. 53,280. Thestandard requires that chemical manufacturers or importers conduct ahazard evaluation of the chemicals being produced in their workplace orimported by them to determine if they are hazardous. 29 C.F.R. ?1910.1200(a). Once a chemical has been evaluated and the hazardsdetermined, the chemical manufacturer or importer must transmit thisinformation to the manufacturing employer. This is accomplished, inpart, by means of label on each container of hazardous chemicals leavingthe workplace. Section 1910.1200(f)(1)[[2\/]] sets forth theinformation necessary for inclusion on the label. The controversy inthis case centers on what \”appropriate hazard warnings\” should haveappeared on the labels affixed to containers of acetylene shipped toout-of-plant customers.The HCS is applicable to all employers in Standard IndustrialClassification Codes 20-39. It is designed to enhance employer andemployee awareness of the safety and health hazards associated withemployee exposure to chemicals. This objective is achieved through anintegrated three component hazard communication program. The hazardcommunication program includes labels on containers, material safetydata sheets (\”MSDS\”), information and training. 29 C.F.R. ?1910.1200(e). The HCS applies to hazardous chemicals, which are definedby 29 C.F.R. ? 1910.1200(c) as \”any chemical which is a physical hazardor a health hazard.\” The standard establishes a \”floor\” of substanceswhich must be treated as hazardous in any occupational setting. 29C.F.R. ? 1910.1200(d)(3). There is no dispute in this case over thefact that acetylene is a hazardous chemical.During the inspection conducted in this case on December 4, 1985,Industrial Hygienist Kenneth Gilbert concluded that Carbide’s label foracetylene was deficient because it provided no warning for the hazard ofasphyxiation. There is no dispute over the fact that acetylene is asimple asphyxiant. The material safety data sheet and evidence offeredby both parties confirm this fact.While Carbide does not dispute the determination that acetylene is ahazardous chemical, it does not concur in the determination that thewords \”simple asphyxiant\” should be included on the label. The wordshave been included on the MSDS. The standard, ? 1910.1200(f)(1)(ii),requires the label to include \”appropriate hazard warnings.\” Theparties disagree over the question of whether a \”simple asphyxiant\”warning is appropriate for the label. Carbide argues that \”the risk ofsimple asphyxiation is not sufficiently plausible, significant, orforeseeable so that its inclusion on acetylene’s label would provide anyeffective or useful hazard information\” (Brief, p. 12).OSHA Instruction CPL 2-2.38 was issued by the OSHA Office of HealthCompliance Assistance on August 5, 1985. [[3\/]] The instruction,according to its stated purpose, was issued for the purpose ofestablishing policies and providing clarifications to ensure uniformenforcement of the HCS. Appendix A of the instruction offers someclarification of what is appropriate. Page A-6 of the appendix statesas follows (Ex. 6):It will not necessarily be \”appropriate\” to warn on the label aboutevery hazard listed in the MSDS. The data sheet is to addressessentially everything that is known about the chemical–determinationof the hazards to be highlighted on the label will involve someassessment of the weight of the evidence regarding each hazard reportedon the data sheet. However, this does not mean that only acute hazardsare to be covered on the label, or that well-substantiated hazards canbe left off the label because they appear on the data sheet.The CPL requires well-substantiated hazards to be included on thelabel. The Secretary contends that the scientific evidence issubstantially well established that acetylene can displace oxygen andcause suffocation.In making the determination that acetylene is a simple asphyxiant, theSecretary referred to the Material Safety Data Sheet, _Patty’s__Industrial Hygiene and Toxicology_, and a NIOSH document entitled\”Occupational Diseases, A Guide to Their Recognition.\” Reference wasalso made to Appendix E of the American Conference of GovernmentalIndustrial Hygienist TLV book. All of these sources reflect thatacetylene is a simple asphyxiant (Exs. 2, 3, 5; Tr. 14-17, 29-32). Additional scientific references placed into evidence by Carbide alsoreflect that acetylene is a simple asphyxiant (Exs. B, C, D).Carbide directed considerable evidence toward establishing thatasphyxiation was too remote of a possibility to require reference to iton the label. It argues that \”the possibility of asphyxiation fromexposure to acetylene is not only remote, but is virtually impossible tooccur\” (Brief, p. 9). In its view there is no significant risk ofasphyxiation in the use of acetylene. Assuming the presence of anignition source, it argues that \”the gas would ignite long before itreached a degree of concentration necessary to suffocate a human\”(Brief, p. 11).Thomas Willoughby, the former associate director for regulatory affairsfor Carbide, testified that he coordinated the development of the labelaffixed to containers of acetylene (Tr. 88). Carbide’s toxicologistsdid not believe asphyxiation was an appropriate warning (Tr. 93). Heconcurred in the decision of Carbide that there should be noasphyxiation hazard on the warning label. His concurrence was based onthe fact that in his 39 years of experience with acetylene, he knew ofno worker ever having been asphyxiated (Tr. 89).Acetylene is well recognized as a simple asphyxiant. Carbide recognizesthis fact by including the statement that it is a simple asphyxiant onthe MSDS. It is so recognized by several authoritative scientificstudies placed in evidence by both parties (See Exs. 2, 3, 5, B, C, D). The NIOSH criteria document for a recommended standard for acetylene[[4\/]] recognizes a potential hazard exists whenever acetylene isinadvertently allowed to enter a confined space. One of therecommendations of the document is as follows (p. 10):(4) Confined spaces shall be ventilated while work is in progress tokeep the acetylene concentration and concentrations of combustiblebyproducts below acceptable limits and to prevent oxygen deficiency.This recommendation tacitly recognizes that there can be a problem ofoxygen deficiency in confined spaces where acetylene is used.Carbide points out that \”unrebutted evidence establishes that labelingacetylene as anything other than a ‘flammable’ gas would be misleading,contrary to the standard’s stated purpose of only including significantrisks on the label and, ultimately, result in an increased hazard toRespondent’s employees\” (Brief, p. 2). According to Frederick Kitson,flammability of acetylene is the principal hazard of the gas (Tr.126-127). There is no dispute over this fact. Kitson expressed theview that an employee might ignore the flammability warning and utilizeprecautionary procedures suited to an asphyxiation situation if a\”simple asphyxiant\” warning is placed on the label (Tr. 126-127,132-133). Dr. Christine F. Chaisson agreed that it is well establishedthat acetylene is a simple asphyxiant (Tr. 147). She does not concurthat the label for acetylene should contain a \”simple asphyxiant\”warning (Tr. 179). She, like Kitson, felt that the inclusion of thewords \”simple asphyxiant\” would diminish the meaning of flammability byconfusing the employee (Tr. 193, 198). There is no evidence to supportthe views of Kitson and Chaisson. Their opinions are simply expressionof personal views. The opinions are not based on any studies. In viewof the large red diamond on the label with the word \”flammable\” acrossit in white capital letters, it is highly unlikely that the flammabilitywarning would be overlooked or ignored.The principal thrust of Carbide’s argument, is based on its assumptionas to how the acetylene will be used by its customers. Acetylene is usedin a wide variety of industrial operations. \”[N]IOSH estimates thatapproximately 1,700,000 workers are potentially exposed to acetylene inthe U.S.\” (See NIOSH Criteria Document for Acetylene, pp. 16-18.)The HCS imposes a duty on the chemical manufacturer to provide thoroughhazard information. Employers must be furnished the information theyneed to properly inform their employees and to design and implementemployee protection programs. In _Hilton-Davis Chemical Co_. (DocketNo. 86-0494, Judge’s Decision issued February 19, 1987), this Judgeconcluded that \”[i]t is not the intent of the standard to allow theupstream chemical manufacturer to limit the known hazards of a substanceby speculating as to its use by a downstream employer.\” The decisionfurther stated:A limited disclosure by the upstream manufacturer would impede thedownstream employer’s ability to adequately evaluate the hazards of thechemical in relation to its anticipated use. It is the downstreamemployer and not the upstream manufacturer that is best able todetermine the normal conditions of use of the product. The downstreamemployers must train their employees regarding the risks involved inparticular exposure situations in their work area and have a need forcomplete and thorough information. To permit the chemical manufacturerto speculate as to the uses of the product by the downstream employerand limit disclosure of hazards based on such speculation would undercutthe fabric of the standard and, in some instances, might lead torepercussions against the manufacturer. The preamble to the standardmakes the following pertinent observation (48 Fed. Reg. 53,295):* * * And since manufacturers or importers cannot know whether therewill be a \”significant risk\” in downstream uses, thorough information onpotential health hazards must be provided.The hazard potential of a substance does not change. The risk ofexperiencing health effects will vary with the type and degree ofexposure. As pointed out by the preamble (48 Fed. Reg. 53,296):* * * The chemical manufacturer or importer, in making hazarddeterminations, _should evaluate and communicate information__concerning all the potential hazards_ associated with a chemical,whereas the employer may supplement this information by instructingemployees on the specific nature and degree of hazard they are likely toencounter in their particular exposure situations. (Underlining added)The intent of the standard is that manufacturers and importers willfurnish thorough information on all potential hazards withoutqualifications as to possible use. They cannot limit disclosure ofpotential hazards by speculating as to how the product will be used.They must provide complete information on all potential hazards.Acetylene is recognized by authoritative scientific sources as a simpleasphyxiant. It is so recognized by Carbide on the MSDS. Whileasphyxiation may be remote, the use of acetylene could result in thispotential hazard. The potential for such a hazard should be disclosedon the label. There are multiple industrial uses for acetylene. Thedecision as to what should be included on the label is not to be made onthe relative risk or potential exposure as determined by themanufacturer. Well-substantiated potential hazards should bedisclosed. Since possible asphyxiation is a well-substantiatedpotential hazard for acetylene, it is concluded that Carbide has failedto furnish thorough information on all potential hazards for acetylene. The alleged violation is affirmed._Alleged Violation of 29 C.F.R.? 1910.1200(d)(6)_Section 1910.1200(d)(6) of the HCS requires chemical manufacturers,importers, or employers evaluating chemicals to describe in writing theprocedures they use to determine the hazards of chemicals they evaluate. The written procedures are to be made available, upon request, toemployees, their designated representatives, and the Assistant Secretaryfor OSHA or his designated representative. Item 1a of the \”other\”citation issued to Carbide alleges that it failed to furnish the writtenprocedures as required by ? 1910.1200(d)(6).At the commencement of the hearing, the parties filed a \”stipulation offacts and law\” resolving this issue in the following manner (Jt. Ex. 1-A):5. Item 1a of the Citation alleges that Respondent violated 29 C.F.R. ?1910.1200(d)(6).6. On December 4, 1985, a designee of the Assistant Secretary requestedthe Respondent’s written procedures utilized for chemical hazardsevaluation.7. The parties agree that the issue presented by Item 1a is whetherprior to May 25, 1986 Respondent was required to make available to theAssistant Secretary a written hazard determination procedure asspecified in 29 CFR 1910.1200(d)(6).8. The issue presented in _Brock v. Katalistiks, Inc_., OSHRC DocketNo. 85-0595, is identical to the issue presented by Item 1a of theCitation at issue in this proceeding.9. The parties agree to be bound by the Commission’s decision in _Brockv. Katalistiks, Inc_., which is asserted by Carbide, is that it was notrequired to make available the written hazard determination procedure asspecified in ? 1910.1200(d)(6) until after May 25, 1986.The defense raised in _Katalistiks, Inc_., which is asserted by Carbide,is that it was not required to make available that written hazarddetermination procedure as specified in ? 1910.1200(d)(6) until afterMay 25, 1986.On February 17, 1987, an order was issued granting the motion of_Katalistiks, Inc_., for summary judgment. The order concluded that thewritten procedures specified by ? 1910.1200(d)(6) were not requiredprior to May 25, 1986, in lieu of November 25, 1985, as advocated by theSecretary. Since the demand and refusal in this case occurred onDecember 4, 1985, there can be no violation of ? 1910.1200(d)(6). Thewritten procedures were not required to be made available prior to May26, 1986. The issue is decided for respondent._Abatement Procedure_Industrial Hygienist Kenneth Gilbert testified that the violation couldbe abated by adding words like \”asphyxiant,\” \”simple asphyxiant\” or\”asphyxiant hazard\” to the warning label (Tr. 19). There is noindication by Carbide that the prescribed abatement procedure would betoo costly or unduly burdensome._FINDINGS OF FACT_1. Union Carbide Corporation, Linde Division (\”Carbide\”), has a placeof business and does business at 797 Marion Road, Columbus, Ohio. It isa major producer of compressed gas (Jt. Ex. 1-A; Tr. 10, 99).2. Kenneth Gilbert is a supervisory industrial hygienist for theOccupational Safety and Health Administration (Tr. 8). On December 4,1985,[[5\/]] he conducted an inspection of Carbide’s Linde Divisionlocated on Marion Road, Columbus, Ohio (Tr. 10-11).3. The warning label for acetylene reflected on the acetylenecompressed gas containers contained the word \”FLAMMABLE\” in whiteletters on a red diamond background. It contained the followingadditional warning (Ex. 1; Tr. 11):DANGER! FLAMMABLE GAS MAY FORM EXPLOSIVE MIXTURES WITH AIR. FUSIBLEPLUGS IN TOP, BOTTOM, OR VALVE MELT AT 212?F. DO NOT DISCHARGE ATPRESSURE ABOVE 15 PSIG. ODOR: GARLIC LIKE.Keep away from heat, flame and sparks. Close valve when not in use andwhen empty. Do not store, carry or use in a confined, unventilatedspace. Use in accord with Linde Form L-4559 (MSDS) and safe practicesbooklets L-2035 and L-3499. Keep out of reach of children.FOR INDUSTRIAL USE ONLY BY PROFESSIONAL CRAFTSMENThere was no warning on the label that addressed the fact that acetyleneis a simple asphyxiant (Ex. 1; Tr. 11).4. Acetylene is a simple asphyxiant (Exs. 2, 4, 5, B, C, D; Tr. 14, 85,100-101, 147, 179).5. A simple asphyxiant is an inert gas or vapor that can reduce theoxygen content of air below an acceptable level that would sustainappropriate bodily functions (Ex. 4, p. 7; Tr. 13, 146).6. Acetylene poses an asphyxiation hazard in any situation where thereis a potential for displacement of oxygen. If present in concentrationshigh enough to deprive the lungs of oxygen, it can cause suffocation(Exs. 5, B, C, D; Tr. 19, 42, 44-45, 134).7. Acetylene is highly flammable (Exs. 2, 5, A, C; Tr. 55). If thereis an ignition source, an explosion will occur before asphyxiation canoccur (Tr. 101-104).8. Acetylene is used for a wide variety of purposes. Approximately1,700,000 workers are potentially exposed to acetylene in the UnitedStates. NIOSH Criteria for a Recommended Standard – Acetylene (pp.16-18, Table XII-4)._CONCLUSIONS OF LAW_1. Carbide, at all times material to this proceeding, was engaged in abusiness within the meaning of section 3(5) of the Act.2. Carbide, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.3. On December 4, 1985, Carbide was not in violation of 29 C.F.R. ?1910.1200 (d)(6) since it was not legally required to make its writtenprocedures used to determine the hazards of a chemical available untilMay 25, 1986.4. On December 4, 1985, Carbide was in violation of 29 C.F.R. ?1910.1200 (f)(1)(ii) for failure to include on the label affixed tocontainers of acetylene the warning that acetylene is a simpleasphyxiant. The violation is \”other than serious.\”_ORDER_Based upon the foregoing findings of fact, conclusions of law and thestipulation of the parties in the record at the commencement of thehearing (Tr. 5-6), it isORDERED: (1) That item 1a of the \”other\” citation issued to Carbide isvacated;(2) That subitems a and e of item 1b of the \”other\” citation issued toCarbide is affirmed; and(3) That subitems b, c and d of item 1b of the \”other\” citation issuedto Carbide are vacated.JAMES D. BURROUGHSJudgeDate: March 30, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.UNION CARBIDE CORPORATION, LINDEDIVISION,Respondent.OSHRC Docket No. 86-0740_DIRECTION FOR REVIEW_The Respondent has filed a Petition for Discretionary Review. Pursuantto 29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), the report of theAdministrative Law Judge is directed for review. Based on a preliminaryexamination of the record and the report, the issues to be considered are:(1) Whether the Administrative Law Judge erred in affirming a citationsubitem alleging a violation of 29 C.F.R. ? 1910.1200(f)(1)(ii) forfailure to label containers of acetylene as required by the cited standard;(2) Specifically, whether the Administrative Law Judge erred inconcluding that the hazard of \”simple asphyxiation\” should have beenincluded among the \”[a]ppropriate hazard warnings\” on the container labels;(3) Whether the Administrative Law Judge erred in concluding that, sincesimple asphyxiation is a known, recognized, and well-substantiatedhazard, it must be stated on the container labels as well as in thematerial data safety sheets and that chemical manufacturers cannot omitsuch a hazard from labels on the basis of improbability of the hazardoccurring;(4) And if so, whether the administrative law judge erred in weighingthe chemical manufacturer’s expert testimony regarding the relativesignificance of risk of exposure to a hazard and the appropriateness oflabeling to warn of asphyxiation.The briefing order may designate additional issues.E. ROSS BUCKLEYCHAIRMANDATED: April 29, 1987 SECRETARY OF LABOR,Complainant,v.UNION CARBIDE CORPORATION,LINDE DIVISION,Respondent.OSHRC Docket No. 86-0740_DIRECTION FOR REVIEW_Pursuant to 29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), Respondent’spetition for discretionary review is GRANTED.John R. WallCommissionerDATED: April 24, 1987————————————————————————WILLIAM E. BROCK, SECRETARY OFLABOR, UNITED STATES DEPARTMENTOF LABOR,Complainant,v.UNION CARBIDE CORPORATION, LINDEDIVISION, and its successors,Respondent.OSHRC Docket No. 86-0740Region V_RESPONDENT’S PETITION FOR DISCRETIONARY REVIEW_Pursuant to Rule 91(b) of the Rules of Procedure of the OccupationalSafety and Health Review Commission (\”the Commission\”), 29 C.F.R. ?2200.91(b), Respondent Union Carbide Corporation, Linde Division(\”Respondent\” or \”Linde\”), hereby petitions the Commission to exerciseits discretion to review the decision entered by Administrative LawJudge James D. Burroughs (\”the Administrative Law Judge\”) in theabove-captioned action._BACKGROUND AND ISSUES PRESENTED FOR REVIEW_On May 2, 1986, a Citation and Notification of Proposed Penalty wasissued, alleging that Respondent committed five \”other than serious\”violations of the Hazard Communication Standard, 29 C.F.R. ? 1910.1200(\”the standard\” or \”HCS\”), at its Columbus, Ohio acetylene manufacturingfacility. Soon after the Citation’s issuance, the parties reached anagreement as to four of the cited conditions.[[1\/]]On October 22, 1986, the remaining sub-item of the Citation was triedbefore the Administrative Law Judge. That item alleged that the labelson Respondent’s acetylene cylinders did not warn of acetylene’spotential as a simple asphyxiant. In his decision dated March 10, 1987,the Administrative Law Judge sustained the Complainant’s position. Heheld that, because several standard reference texts document acetylene’scapability of causing simply asphyxiation,[[2\/]] a hazard warning forthat property–irrespective of how remote it might be–should beincluded on the labels affixed to acetylene cylinders. (Order at 13-14.)The Commission should grant review of this decision for three reasons. First, as one of the first decisions addressing the labelingrequirements of the Standard, the decision is of major importance tochemical manufacturers generally and to the compressed gas industry inparticular. _See_, _e.g_., _Secretary of Labor v. The BOC Group, Inc.,Airco Welding Products_, OSHRC Docket No. 86-1757 (filed February 10,1987); _Secretary of Labor v. Middletown Oxygen Co,. Inc_., OSHRC DocketNos. 87-0131 and 87-0132. The function of a label is to communicate theactual risks posed by the material, not to convey theoretical andunlikely risks from remote hazards. The latter is the function thematerial safety data sheet, and Review Commission guidance is criticalto clarify these respective requirements under the Standard. Secondly,the Administrative Law Judge’s decision is directly contrary to theterms and the policy of the Standard. Finally, in rendering hisdecision, the Administrative Law Judge’s treatment of the testimony ofRespondent’s expert witnesses constituted prejudicial error that,standing alone, warrants reversal of the decision.The specific issues presented for review are the following:(1) Whether the Administrative Law Judge’s conclusion that the labelmust include the hazard of simple asphyxiation is contrary to the termsand purpose of the Standard inasmuch as it disregards the integratedfunctions of the three components of the required hazard communicationprogram by failing to recognize the distinction between a label and amaterial safety data sheet;(2) Whether the Administrative Law Judge’s determination that simpleasphyxiation is an \”appropriate hazard warning\” required to be includedon acetylene labels failed to accord the deference to Respondent’sprofessional judgment required by the Standard; and(3) Whether the Administrative Law Judge acted contrary to applicablelaw and practice by disregarding the uncontradicted testimony ofRespondent’s expert witnesses and substituting his own judgment on thematters as to which Respondent’s experts testified._ARGUMENT_A. _Requiring Labels to Carry Warnings For \”All Hazards\”__Is ClearlyContrary to the Standard._Throughout his opinion, the Administrative Law Judge emphasized that\”[a]cetylene is well recognized as a simple asphyxiant.\” (Order at 5, 6,9.) However, the fact that \”authoritative scientific sources,\” (_id_.at 9), recognize that acetylene may be a \”simple asphyxiant\” underessentially implausible circumstances by no means compels — or evensuggests — the conclusion that \”the potential for such a hazard shouldbe disclosed on the label.\” (_Id_. at 9.)In his decision, the Administrative Law Judge seemingly relied on theproposition that an employer is obligated to \”furnish thoroughinformation on all potential hazards\” posed by its shipped hazardouschemicals. (_See_ _id_. at 9.) (emphasis added.) In so doing, theAdministrative Law Judge applied the rationale of another of hisdecisions rendered after the instant case had been tried and fullybriefed. That is, \”[i]t is not the intent of the standard to allow theupstream chemical manufacturer to limit the known hazards of a substanceby speculating as to its use by a downstream employer.\” (_Id_. at 8,citing _Hilton-Davis Chemical Co._, OSHRC Docket No. 86-0494 (issuedFeb. 10, 1987).) However, unlike _Hilton-Davis_, this is not a casewhere an employer has attempted to limit its hazard communications. Onthe contrary, as the record clearly reflects, Respondent includedinformation as to the potential for simple asphyxiation in its materialsafety data sheet on acetylene, (_id_. at 9), and in its employeeinformation and training programs. Rather, the issue here is whether allinformation on potential hazards contained in a material safety datasheet must be included on a label without regard to the probability ofthe particular hazard actually occurring.The Administrative Law Judge’s summary dismissal of the material safetydata sheet as an appropriate supplementary source of hazard informationdemonstrates his fundamental misapplication of the purpose underlyingthe tripartite hazard communication program. (_See_ Respondent’sPost-Hearing Brief at 12-19.) As the preamble to the Standard states:Under the provisions of this final standard, each employee who isexposed to hazardous chemicals will receive information about themthrough a comprehensive hazard communication program. Chemicalmanufacturers and importers will be required to evaluate the hazards ofthe chemicals they produce or import, and to transmit this informationto downstream employers by means of _labels_ _on containers and materialsafety data sheets._(48 Fed. Reg. 53281.) (emphasis added.) It further clarifies:Under the proposed [and final] provisions, the labels were not intendedto be either the sole, or the most complete source of informationregarding the nature or identity of hazardous chemicals in the workplace.* * *The identity on the label is keyed to the material safety data sheet forthe chemical, which will contain more extensive information. . . . [T]heemployee will be provided with extensive information on each chemicalthrough the integrated elements of the comprehensive hazardcommunication program.(_Id_.)To be sure, the OSHA instruction relied upon by the Administrative LawJudge advises that the implementation of a multi-part program does notnecessarily mean that \”well-substantiated hazards\” may be left off thelabel simply because they appear on the material safety data sheet. (OSHA Instruction CPL 2-2.3A (App. A).) However, explicit in thisinstruction and implicit throughout the preamble to the Standard is therecognition that the label’s warnings should be determined through anassessment of the relative risks of the chemical’s potential hazards. (_See_ Respondent’s Post-Hearing Brief at 22-25). This HCS-requiredassessment is designed to assure that the label will contain onlysignificant information that should be immediately and visuallytransmitted to users in an emergency situation.[[3\/]] (_See_ 48 _Fed_._Reg_. 53301, C.3.)The Administrative Law Judge’s decision makes the label equivalent infunction to the material safety data sheet, _i.e_., to serve as the\”primary vehicle for transmitting detailed hazard information to bothdownstream employers and employees.\” (_Id_. at 53305, C.3.) In sodoing, it fails to recognize the very different purposes of these twocomponents of the required hazard communication program. [[4\/]] Accordingly, given the purpose for the label as stated in the preamble– namely, to provide an immediate visual warning of the significant orforeseeable risks of the chemical — the Administrative Law Judge’sconclusion that acetylene’s \”potential for [simple asphyxiation] shouldbe disclosed on the label\” is, based on the record evidence in thiscase, a plainly incorrect application of the terms and policy of theStandard.[[5\/]]B. The Administrative Law Judge Acted Contrary to Law in Ignoring theEmployer’s Role and Responsibility in the Determination of \”AppropriateHazard Warnings.\”At page 9 of his Order, the Administrative Law Judge concluded that\”[t]he decision as to what should be included on the label is not to bemade on the relative risk or potential exposure as determined by theemployer.\” Not only is that statement an erroneous interpretation ofthe Standard and its underlying policy, but it directly contradicts arecent labeling decision rendered by the same administrative law judge. (_See_ _Hilton-Davis Chemical Co_., _supra_.)The preamble to the Standard expressly recognizes that labeling is aperformance-oriented obligation. (48 _Fed_. _Reg_. 53301, C.1; _see__also_ Respondent’s Post-Hearing Brief at 22-25.) Accordingly, \”theemployer is responsible for selecting the message and insuring that itis effective for the purpose involved.\” (48 _Fed_. _Reg_. 53306, C.3 -53307, C.2.) In _Hilton-Davis_, the Administrative Law Judge correctlyinterpreted this performance standard, stating:No effort was made by OSHA to impose a standardized labeling system. The preamble makes it clear that OSHA recognized that the selection ofhazards to be highlighted on the label involved the use of professionaljudgment to determine what information is to be looked at and whatconclusions to be drawn from it. 48 _Fed_. _Reg_. 53,298.The Administrative Law Judge’s reversal of positions in this actioncompels a result at odds with the Standard.C. The Dismissal of the Uncontradicted Testimony of Respondent’s ExpertWitnesses Is Contrary to Federal Practice and Procedure and, In and ofItself, Constitutes Reversable Error.A key element of Respondent’s argument below was that the hazard warningsuggested by the Complainant would be \”misleading, contrary to theStandard’s stated purpose of including only significant risks on thelabel and, ultimately, result in an increased hazard to Respondent’semployees.\” (Respondent’s Post-Hearing Brief at 2.) In support ofthis position, Respondent offered the testimony of Dr. ChristineChaisson and Mr. Frederick Kitson. Both of these witnesses werequalified — without objection — as experts in the fields of toxicologyand compressed gas, respectively. Their uncontradicted testimonyestablished that the inclusion of an asphyxiation warning could diminish– with potentially fatal results — the value of the traditionalflammability warning. (Transcript at 126-127; 177; 193.)The Administrative Law Judge summarily dismissed the expert testimony ofthese individuals on the ground that they were \”simply expression[s] ofpersonal views.\” (Order at 7.) In their place, he relied exclusivelyon his personal view — unsupported by the record evidence — that,\”[i]n view of the large red diamond on the label with the word\”flammable\” across it in white capital letters, it is highly unlikelythat the flammability warning would be overlooked or ignored.\” (_Id_.)In replacing uncontradicted expert testimony with his own unqualifiedopinion, the Administrative Law Judge acted contrary to well-establishedfederal and administrative practice and procedure. (_See_ _Gober v.Matthews_, 574 F.2d 772, 777 (3d Cir. 1978) (\”While an administrativelaw judge is free to resolve issues of credibility as to lay testimonyor to choose between properly submitted [expert] opinions, he is notfree to set his own expertise against that of [an expert] who testifiedbefore him.\”).) His dismissal of Respondent’s expert testimony was notbased upon expressed doubts as to the witnesses’ credentials or theircredibility. Rather, he rejected these opinions–the only, andnecessarily unrebutted, record evidence on this issue–simply anderroneously because he disagreed with them.WHEREFORE, Respondent requests that its Petition for DiscretionaryReview be granted.Respectfully submitted,UNION CARBIDE CORPORATION,LINDE DIVISIONBy:Donald R. Crowell IIts AttorneyOf Counsel:Willis J. GoldsmithJulia M. BroasJONES, DAY, REAVIS & POGUEDated: April 21, 1987FOOTNOTES:[[1\/]] Item 1b of the citation, alleging a violation of 29 C.F.R. ?1910.1200(f)(1), contained subitems a, b, c, and d, leaving only subiteme for decision (Tr. 5). The terms of settlement have been included inthe order issued in this case.[[2\/]] Section 1910.1200(f)(1) provides:(1) The chemical manufacturer, importer, or distributor shall ensurethat each container of hazardous chemicals leaving the workplace islabeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s);(ii) Appropriate hazard warnings; and(iii) Name and address of the chemical manufacturer, importer, or otherresponsible party.[[3\/]] On May 16, 1986, OSHA Instruction CPL 2-2.38A was issued and CPL2-2.38 issued on August 5, 1985, was cancelled. On July 18, 1986,change one was issued to CPL 2-2.38A. CPL 2-2.38 issued on August 5,1985, was in effect at the time the citation was issued. In_Hilton-Davis Chemical Company_, Docket No. 86-0494, issued on February19, 1987, this Judge concluded that OSHA Instruction 2-2.38 isinterpretative, and deference to the Secretary’s construction is inorder if his interpretation is reasonable.[[4\/]] At the request of counsel for Carbide, judicial notice was takenof this document (Tr. 119-120).[[5\/]] The citation erroneously refers to the inspection date asDecember 4, 1986.[[1\/]] A Stipulation reflecting that agreement was entered into at thehearing in this matter.[[2\/]] Simple asphyxiation occurs when a material displaces theavailable oxygen in the atmosphere to the extent that it causes asignificant reduction in the availability of usable oxygen to the body. (Transcript at 146.) Of course, any material of a sufficient weight andconcentration can displace oxygen so as to pose an asphyxiation hazard. (_Id_. at 9.) Therefore, a decision requiring a hazard warning forsimple asphyxiation solely asphyxiation has implications for a widerange of chemicals, not just acetylene.[[3\/]] In light of the Standard’s express recognition of the need for anassessment of a chemical’s potential hazards, the Administrative LawJudge’s previously noted conclusion that \”all\” potential hazards foracetylene should be included on the label is unsupported. The soledocument relied upon by the parties containing an explicit labelrecommendation the NIOSH Criteria document for acetylene that wasjudicially noted at the hearing–describes a label warning only of theflammability hazard, the same warning on the label at issue in this case.[[4\/]] Moreover, in relying upon the Instruction to mandate a labelwarning in all circumstances where there exists information that achemical has potentially hazardous properties, we submit that thedecision effects an unlawful modification of the Standard by anadministrative interpretation.[5\/] _See_ 48 _Fed_. _Reg_. 53301, C.1. This decision contravenesanother stated purpose of the Standard as well: to ensure uniformrequirements for hazard communication within the industry. (_Id_. at53281, C-2.) As Respondent’s expert witness, Dr. Christine Chaisson,testified, labeling acetylene as a simple asphyxiant would be\”prohibited\” under analogous federal regulatory criteria. (_See_Respondent’s Post-Hearing Brief at 18.) As Linde argued below, theinconsistency among federal labeling requirements of different federalagencies created by the Administrative Law Judge’s decision could wellcreate havoc on an industry-wide basis. (_Id_. at 19.) “