“Docket No. 86-0740 SECRETARY OF LABOR, Complainant, v. UNION CARBIDE CORPORATION, LINDE DIVISION, Respondent.OSHRC DOCKET NO. 86-0740ORDER The Secretary’s notice to withdraw citation isconstrued as a motion to withdraw the citation.\u00a0 Respondent’s response is construedas consent to an order granting the Secretary’s motion.\u00a0 Accordingly, the Secretary’smotion is granted and the citation is hereby vacated.This order is issued pursuant to a delegation ofauthority to the Executive Secretary.\u00a0 41 Fed. Reg. 37173 (1976), amended at 44 Fed.Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDated:\u00a0 October 28, 1987SECRETARY 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 complainant Donald R. Crowell, II, Esquire, Danbury, Connecticut, on behalfof respondentDECISION AND ORDERBurroughs, Judge:\u00a0 Union Carbide Corporation,Linde Division (\”Carbide\”) contests an alleged violation of 29 C.F.R. ?1910.1200(f)(1)(ii) for allegedly failing to include \”appropriate hazardwarnings\” on labels affixed to containers of acetylene for out-of-plant shipment to,and use by, manufacturing sector customers.\u00a0 The alleged violation was set forth assubitem e of item 1b set forth in an \”other\” citation issued to Carbide on May2, 1986.[[1\/]]\u00a0 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 writtenprocedures used to determine the hazards of a chemical.Alleged Violation of 29 C.F.R. ? 1910.1200(f)(1)The issues in dispute involve provisions of theHazard Communication Standard (\”HCS\”) 29 C.F.R. ? 1910.1200, which waspublished in the Federal Register on November 25, 1983.\u00a0 48 Fed. Reg. 53,280.\u00a0 The standard requires that chemical manufacturers or importers conduct a hazardevaluation of the chemicals being produced in their workplace or imported by them todetermine if they are hazardous.\u00a0 29 C.F.R. ? 1910.1200(a).\u00a0 Once a chemicalhas been evaluated and the hazards determined, the chemical manufacturer or importer musttransmit this information to the manufacturing employer.\u00a0 This is accomplished, inpart, by means of label on each container of hazardous chemicals leaving the workplace.\u00a0 Section 1910.1200(f)(1)[[2\/]] sets forth the information necessary for inclusion onthe label.\u00a0 The controversy in this case centers on what \”appropriate hazardwarnings\” should have appeared on the labels affixed to containers of acetyleneshipped to out-of-plant customers.The HCS is applicable to all employers in StandardIndustrial Classification Codes 20-39.\u00a0 It is designed to enhance employer andemployee awareness of the safety and health hazards associated with employee exposure tochemicals.\u00a0 This objective is achieved through an integrated three component hazardcommunication program.\u00a0 The hazard communication program includes labels oncontainers, material safety data sheets (\”MSDS\”), information and training.\u00a0 29 C.F.R. ? 1910.1200(e).\u00a0 The HCS applies to hazardous chemicals, which aredefined by 29 C.F.R. ? 1910.1200(c) as \”any chemical which is a physical hazard or ahealth hazard.\”\u00a0 The standard establishes a \”floor\” of substanceswhich must be treated as hazardous in any occupational setting.\u00a0 29 C.F.R. ?1910.1200(d)(3).\u00a0 There is no dispute in this case over the fact that acetylene is ahazardous chemical.During the inspection conducted in this case onDecember 4, 1985, Industrial Hygienist Kenneth Gilbert concluded that Carbide’s label foracetylene was deficient because it provided no warning for the hazard of asphyxiation.\u00a0 There is no dispute over the fact that acetylene is a simple asphyxiant.\u00a0 Thematerial safety data sheet and evidence offered by both parties confirm this fact.While Carbide does not dispute the determination thatacetylene is a hazardous chemical, it does not concur in the determination that the words\”simple asphyxiant\” should be included on the label.\u00a0 The words have beenincluded on the MSDS.\u00a0 The standard, ? 1910.1200(f)(1)(ii), requires the label toinclude \”appropriate hazard warnings.\”\u00a0 The parties disagree over thequestion of whether a \”simple asphyxiant\” warning is appropriate for the label.\u00a0 Carbide argues that \”the risk of simple asphyxiation is not sufficientlyplausible, significant, or foreseeable so that its inclusion on acetylene’s label wouldprovide any effective or useful hazard information\” (Brief, p. 12).OSHA Instruction CPL 2-2.38 was issued by the OSHAOffice of Health Compliance Assistance on August 5, 1985. [[3\/]]\u00a0 The instruction,according to its stated purpose, was issued for the purpose of establishing policies andproviding clarifications to ensure uniform enforcement of the HCS. \u00a0 Appendix A ofthe instruction offers some clarification of what is appropriate. \u00a0 Page A-6 of theappendix states as follows (Ex. 6):It will not necessarily be \”appropriate\” to warn on the label about every hazardlisted in the MSDS.\u00a0 The data sheet is to address essentially everything that isknown about the chemical–determination of the hazards to be highlighted on the label willinvolve some assessment of the weight of the evidence regarding each hazard reported onthe data sheet.\u00a0 However, this does not mean that only acute hazards are to becovered on the label, or that well-substantiated hazards can be left off the label becausethey appear on the data sheet.The CPL requires well-substantiated hazards to beincluded on the label.\u00a0 The Secretary contends that the scientific evidence issubstantially well established that acetylene can displace oxygen and cause suffocation.In making the determination that acetylene is asimple asphyxiant, the Secretary referred to the Material Safety Data Sheet, Patty’sIndustrial Hygiene and Toxicology, and a NIOSH document entitled \”OccupationalDiseases, A Guide to Their Recognition.\” Reference was also made to Appendix E of theAmerican Conference of Governmental Industrial Hygienist TLV book.\u00a0 All of thesesources reflect that acetylene is a simple asphyxiant (Exs. 2, 3, 5; Tr. 14-17, 29-32).\u00a0 Additional scientific references placed into evidence by Carbide also reflect thatacetylene is a simple asphyxiant (Exs. B, C, D).Carbide directed considerable evidence towardestablishing that asphyxiation was too remote of a possibility to require reference to iton the label.\u00a0 It argues that \”the possibility of asphyxiation from exposure toacetylene is not only remote, but is virtually impossible to occur\” (Brief, p. 9).\u00a0 In its view there is no significant risk of asphyxiation in the use of acetylene.\u00a0 Assuming the presence of an ignition source, it argues that \”the gas wouldignite long before it reached a degree of concentration necessary to suffocate ahuman\” (Brief, p. 11).Thomas Willoughby, the former associate director forregulatory affairs for Carbide, testified that he coordinated the development of the labelaffixed to containers of acetylene (Tr. 88).\u00a0 Carbide’s toxicologists did not believeasphyxiation was an appropriate warning (Tr. 93).\u00a0 He concurred in the decision ofCarbide that there should be no asphyxiation hazard on the warning label. \u00a0 Hisconcurrence was based on the fact that in his 39 years of experience with acetylene, heknew of no worker ever having been asphyxiated (Tr. 89).Acetylene is well recognized as a simpleasphyxiant.\u00a0 Carbide recognizes this fact by including the statement that it is asimple asphyxiant on the MSDS.\u00a0 It is so recognized by several authoritativescientific studies placed in evidence by both parties (See Exs. 2, 3, 5, B, C, D). \u00a0The NIOSH criteria document for a recommended standard for acetylene [[4\/]] recognizes apotential hazard exists whenever acetylene is inadvertently allowed to enter a confinedspace.\u00a0 One of the recommendations of the document is as follows (p. 10):(4) Confined spaces shall be ventilated while work is in progress to keep the acetyleneconcentration and concentrations of combustible byproducts below acceptable limits and toprevent oxygen deficiency.This recommendation tacitly recognizes that there canbe a problem of oxygen deficiency in confined spaces where acetylene is used.Carbide points out that \”unrebutted evidenceestablishes that labeling acetylene as anything other than a ‘flammable’ gas would bemisleading, contrary to the standard’s stated purpose of only including significant riskson the label and, ultimately, result in an increased hazard to Respondent’semployees\” (Brief, p. 2).\u00a0 According to Frederick Kitson, flammability ofacetylene is the principal hazard of the gas (Tr. 126-127).\u00a0 There is no dispute overthis fact.\u00a0 Kitson expressed the view that an employee might ignore the flammabilitywarning and utilize precautionary procedures suited to an asphyxiation situation if a\”simple asphyxiant\” warning is placed on the label (Tr. 126-127, 132-133).\u00a0Dr. Christine F. Chaisson agreed that it is well established that acetylene is a simpleasphyxiant (Tr. 147).\u00a0 She does not concur that the label for acetylene shouldcontain a \”simple asphyxiant\” warning (Tr. 179).\u00a0 She, like Kitson, feltthat the inclusion of the words \”simple asphyxiant\” would diminish the meaningof flammability by confusing the employee (Tr. 193, 198).\u00a0 There is no evidence tosupport the views of Kitson and Chaisson.\u00a0 Their opinions are simply expression ofpersonal views.\u00a0 The opinions are not based on any studies. \u00a0 In view of thelarge red diamond on the label with the word \”flammable\” across it in whitecapital letters, it is highly unlikely that the flammability warning would be overlookedor ignored.The principal thrust of Carbide’s argument, is based on its assumption as to how theacetylene will be used by its customers. Acetylene is used in a wide variety of industrialoperations. \”[N]IOSH estimates that approximately 1,700,000 workers are potentiallyexposed to acetylene in the U.S.\” (See NIOSH Criteria Document for Acetylene, pp.16-18.)The HCS imposes a duty on the chemical manufacturerto provide thorough hazard information.\u00a0 Employers must be furnished the informationthey need to properly inform their employees and to design and implement employeeprotection programs.\u00a0 In Hilton-Davis Chemical Co. (Docket No. 86-0494,Judge’s Decision issued February 19, 1987), this Judge concluded that \”[i]t is notthe intent of the standard to allow the upstream chemical manufacturer to limit the knownhazards of a substance by speculating as to its use by a downstream employer.\” \u00a0The decision further stated:A limited disclosure by the upstream manufacturerwould impede the downstream employer’s ability to adequately evaluate the hazards of thechemical in relation to its anticipated use.\u00a0 It is the downstream employer and notthe upstream manufacturer that is best able to determine the normal conditions of use ofthe product.\u00a0 The downstream employers must train their employees regarding the risksinvolved in particular exposure situations in their work area and have a need for completeand thorough information.\u00a0 To permit the chemical manufacturer to speculate as to theuses of the product by the downstream employer and limit disclosure of hazards based onsuch speculation would undercut the fabric of the standard and, in some instances, mightlead to repercussions against the manufacturer. \u00a0 The preamble to the standard makesthe following pertinent observation (48 Fed. Reg. 53,295):* * * And since manufacturers or importers cannotknow whether there will be a \”significant risk\” in downstream uses, thoroughinformation on potential health hazards must be provided.The hazard potential of a substance does not change.\u00a0 The risk of experiencing healtheffects will vary with the type and degree of exposure.\u00a0 As pointed out by thepreamble (48 Fed. Reg. 53,296):* * * The chemical manufacturer or importer, inmaking hazard determinations, should evaluate and communicate information concerningall the potential hazards associated with a chemical, whereas the employer maysupplement this information by instructing employees on the specific nature and degree ofhazard they are likely to encounter in their particular exposure situations. (Underliningadded)The intent of the standard is that manufacturers andimporters will furnish thorough information on all potential hazards withoutqualifications as to possible use.\u00a0 They cannot limit disclosure of potential hazardsby speculating as to how the product will be used. They must provide complete informationon all potential hazards.Acetylene is recognized by authoritative scientificsources as a simple asphyxiant.\u00a0 It is so recognized by Carbide on the MSDS. Whileasphyxiation may be remote, the use of acetylene could result in this potentialhazard.\u00a0 The potential for such a hazard should be disclosed on the label. \u00a0There are multiple industrial uses for acetylene.\u00a0 The decision as to what should beincluded on the label is not to be made on the relative risk or potential exposure asdetermined by the manufacturer.\u00a0 Well-substantiated potential hazards should bedisclosed.\u00a0 Since possible asphyxiation is a well-substantiated potential hazard foracetylene, it is concluded that Carbide has failed to furnish thorough information on allpotential hazards for acetylene.\u00a0 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 chemicalmanufacturers, importers, or employers evaluating chemicals to describe in writing theprocedures they use to determine the hazards of chemicals they evaluate. \u00a0 Thewritten procedures are to be made available, upon request, to employees, their designatedrepresentatives, and the Assistant Secretary for OSHA or his designatedrepresentative.\u00a0 Item 1a of the \”other\” citation issued to Carbide allegesthat it failed to furnish the written procedures as required by ? 1910.1200(d)(6).At the commencement of the hearing, the parties fileda \”stipulation of facts and law\” resolving this issue in the following manner(Jt. Ex. 1-A):5.\u00a0 Item 1a of the Citation alleges thatRespondent violated 29 C.F.R. ? 1910.1200(d)(6).6.\u00a0 On December 4, 1985, a designee of theAssistant Secretary requested the Respondent’s written procedures utilized for chemicalhazards evaluation.7.\u00a0 The parties agree that the issue presentedby Item 1a is whether prior to May 25, 1986 Respondent was required to make available tothe Assistant Secretary a written hazard determination procedure as specified in 29 CFR1910.1200(d)(6).8.\u00a0 The issue presented in Brock v.Katalistiks, Inc., OSHRC Docket No. 85-0595, is identical to the issue presented byItem 1a of the Citation at issue in this proceeding.9.\u00a0 The parties agree to be bound by theCommission’s decision in Brock v. Katalistiks, Inc., which is asserted by Carbide,is that it was not required to make available the written hazard determination procedureas specified in ? 1910.1200(d)(6) until after May 25, 1986.The defense raised in Katalistiks, Inc., whichis asserted by Carbide, is that it was not required to make available that written hazarddetermination procedure as specified in ? 1910.1200(d)(6) until after May 25, 1986.On February 17, 1987, an order was issued grantingthe motion of Katalistiks, Inc., for summary judgment.\u00a0 The order concludedthat the written procedures specified by ? 1910.1200(d)(6) were not required prior to May25, 1986, in lieu of November 25, 1985, as advocated by the Secretary. \u00a0 Since thedemand and refusal in this case occurred on December 4, 1985, there can be no violation of? 1910.1200(d)(6).\u00a0 The written procedures were not required to be made availableprior to May 26, 1986.\u00a0 The issue is decided for respondent.Abatement ProcedureIndustrial Hygienist Kenneth Gilbert testified thatthe violation could be abated by adding words like \”asphyxiant,\” \”simpleasphyxiant\” or \”asphyxiant hazard\” to the warning label (Tr. 19).\u00a0There is no indication by Carbide that the prescribed abatement procedure would be toocostly or unduly burdensome.FINDINGS OF FACT1.\u00a0 Union Carbide Corporation, Linde Division(\”Carbide\”), has a place of business and does business at 797 Marion Road,Columbus, Ohio.\u00a0 It is a major producer of compressed gas (Jt. Ex. 1-A; Tr. 10, 99).2.\u00a0 Kenneth Gilbert is a supervisory industrialhygienist for the Occupational Safety and Health Administration (Tr. 8). \u00a0 OnDecember 4, 1985,[[5\/]] he conducted an inspection of Carbide’s Linde Division located onMarion Road, Columbus, Ohio (Tr. 10-11).3.\u00a0 The warning label for acetylene reflected onthe acetylene compressed gas containers contained the word \”FLAMMABLE\” in whiteletters on a red diamond background.\u00a0 It contained the following additional warning(Ex. 1; Tr. 11):DANGER!\u00a0 FLAMMABLE GAS MAY FORM EXPLOSIVEMIXTURES WITH AIR.\u00a0 FUSIBLE PLUGS IN TOP, BOTTOM, OR VALVE MELT AT 212?F.\u00a0 DONOT DISCHARGE AT PRESSURE ABOVE 15 PSIG.\u00a0 ODOR:\u00a0 GARLIC LIKE.Keep away from heat, flame and sparks. \u00a0 Closevalve when not in use and when empty.\u00a0 Do not store, carry or use in a confined,unventilated space.\u00a0 Use in accord with Linde Form L-4559 (MSDS) and safe practicesbooklets L-2035 and L-3499.\u00a0 Keep out of reach of children.FOR INDUSTRIAL USE ONLY BY PROFESSIONAL CRAFTSMENThere was no warning on the label that addressed thefact that acetylene is a simple asphyxiant (Ex. 1; Tr. 11).4.\u00a0 Acetylene is a simple asphyxiant (Exs. 2, 4,5, B, C, D; Tr. 14, 85, 100-101, 147, 179).5.\u00a0 A simple asphyxiant is an inert gas or vaporthat can reduce the oxygen content of air below an acceptable level that would sustainappropriate bodily functions (Ex. 4, p. 7; Tr. 13, 146).6.\u00a0 Acetylene poses an asphyxiation hazard in any situation where there is apotential for displacement of oxygen.\u00a0 If present in concentrations high enough todeprive the lungs of oxygen, it can cause suffocation (Exs. 5, B, C, D; Tr. 19, 42, 44-45,134).7.\u00a0 Acetylene is highly flammable (Exs. 2, 5, A,C; Tr. 55).\u00a0 If there is an ignition source, an explosion will occur beforeasphyxiation can occur (Tr. 101-104).8.\u00a0 Acetylene is used for a wide variety ofpurposes.\u00a0 Approximately 1,700,000 workers are potentially exposed to acetylene inthe United States.\u00a0 NIOSH Criteria for a Recommended Standard – Acetylene (pp. 16-18,Table XII-4).CONCLUSIONS OF LAW1.\u00a0 Carbide, at all times material to thisproceeding, was engaged in a business within the meaning of section 3(5) of the Act.2.\u00a0 Carbide, at all times material to thisproceeding, was subject to the requirements of the Act and the standards promulgatedthereunder.\u00a0 The Commission has jurisdiction of the parties and of the subjectmatter.3.\u00a0 On December 4, 1985, Carbide was not inviolation of 29 C.F.R. ? 1910.1200 (d)(6) since it was not legally required to make itswritten procedures used to determine the hazards of a chemical available until May 25,1986.4.\u00a0 On December 4, 1985, Carbide was inviolation of 29 C.F.R. ? 1910.1200 (f)(1)(ii) for failure to include on the label affixedto containers of acetylene the warning that acetylene is a simple asphyxiant.\u00a0 Theviolation is \”other than serious.\”ORDERBased upon the foregoing findings of fact,conclusions of law and the stipulation of the parties in the record at the commencement ofthe hearing (Tr. 5-6), it isORDERED:\u00a0 (1) That item 1a of the\”other\” citation issued to Carbide is vacated;(2) That subitems a and e of item 1b of the\”other\” citation issued to Carbide is affirmed; and(3) That subitems b, c and d of item 1b of the\”other\” citation issued to Carbide are vacated.JAMES D. BURROUGHSJudgeDate:\u00a0 March 30, 1987SECRETARY OF LABOR, Complainant, v. UNION CARBIDE CORPORATION, LINDE DIVISION, Respondent.OSHRC Docket No. 86-0740DIRECTION FOR REVIEWThe Respondent has filed a Petition for DiscretionaryReview.\u00a0 Pursuant to 29 U.S.C. ? 661(j) and 29 C.F.R. ? 2200.92(a), the report ofthe Administrative Law Judge is directed for review.\u00a0 Based on a preliminaryexamination of the record and the report, the issues to be considered are:(1) Whether the Administrative Law Judge erred inaffirming a citation subitem 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 LawJudge erred in concluding that the hazard of \”simple asphyxiation\” should havebeen included among the \”[a]ppropriate hazard warnings\” on the container labels;(3) Whether the Administrative Law Judge erred inconcluding that, since simple asphyxiation is a known, recognized, and well-substantiatedhazard, it must be stated on the container labels as well as in the material data safetysheets and that chemical manufacturers cannot omit such a hazard from labels on the basisof improbability of the hazard occurring;(4) And if so, whether the administrative law judgeerred in weighing the chemical manufacturer’s expert testimony regarding the relativesignificance of risk of exposure to a hazard and the appropriateness of labeling to warnof asphyxiation.The briefing order may designate additional issues.E. ROSS BUCKLEY CHAIRMANDATED:\u00a0 April 29, 1987\u00a0SECRETARY OF LABOR, Complainant, v. UNION CARBIDE CORPORATION, LINDE DIVISION, Respondent.OSHRC Docket No. 86-0740DIRECTION FOR REVIEWPursuant to 29 U.S.C. ? 661(j) and 29 C.F.R. ?2200.92(a), Respondent’s petition for discretionary review is GRANTED.John R. WallCommissionerDATED:\u00a0 April 24, 1987WILLIAM E. BROCK, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant, v. UNION CARBIDE CORPORATION, LINDE DIVISION, and its successors, Respondent.OSHRC Docket No. 86-0740Region VRESPONDENT’S PETITION FOR DISCRETIONARY REVIEWPursuant to Rule 91(b) of the Rules of Procedure ofthe Occupational Safety and Health Review Commission (\”the Commission\”), 29C.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 Law Judge James D.Burroughs (\”the Administrative Law Judge\”) in the above-captioned action.BACKGROUND AND ISSUES PRESENTED FOR REVIEWOn May 2, 1986, a Citation and Notification ofProposed Penalty was issued, alleging that Respondent committed five \”other thanserious\” violations of the Hazard Communication Standard, 29 C.F.R. ? 1910.1200(\”the standard\” or \”HCS\”), at its Columbus, Ohio acetylenemanufacturing facility.\u00a0 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 theCitation was tried before the Administrative Law Judge.\u00a0 That item alleged that thelabels on Respondent’s acetylene cylinders did not warn of acetylene’s potential as asimple asphyxiant.\u00a0 In his decision dated March 10, 1987, the Administrative LawJudge sustained the Complainant’s position.\u00a0 He held that, because several standardreference texts document acetylene’s capability of causing simply asphyxiation,[[2\/]] ahazard warning for that property–irrespective of how remote it might be–should beincluded on the labels affixed to acetylene cylinders.\u00a0 (Order at 13-14.)The Commission should grant review of this decision for three reasons.\u00a0 First, as oneof the first decisions addressing the labeling requirements of the Standard, the decisionis of major importance to chemical manufacturers generally and to the compressed gasindustry in particular.\u00a0 See, e.g., Secretary of Labor v. The BOCGroup, Inc., Airco Welding Products, OSHRC Docket No. 86-1757 (filed February 10,1987); Secretary of Labor v. Middletown Oxygen Co,. Inc., OSHRC Docket Nos. 87-0131and 87-0132.\u00a0 The function of a label is to communicate the actual risks posed by thematerial, not to convey theoretical and unlikely risks from remote hazards.\u00a0 Thelatter is the function the material safety data sheet, and Review Commission guidance iscritical to clarify these respective requirements under the Standard.\u00a0 Secondly, theAdministrative Law Judge’s decision is directly contrary to the terms and the policy ofthe Standard.\u00a0 Finally, in rendering his decision, the Administrative Law Judge’streatment of the testimony of Respondent’s expert witnesses constituted prejudicial errorthat, standing alone, warrants reversal of the decision.The specific issues presented for review are thefollowing:(1) Whether the Administrative Law Judge’s conclusionthat the label must include the hazard of simple asphyxiation is contrary to the terms andpurpose of the Standard inasmuch as it disregards the integrated functions of the threecomponents of the required hazard communication program by failing to recognize thedistinction between a label and a material safety data sheet;(2) Whether the Administrative Law Judge’sdetermination that simple asphyxiation is an \”appropriate hazard warning\”required to be included on acetylene labels failed to accord the deference to Respondent’sprofessional judgment required by the Standard; and(3) Whether the Administrative Law Judge actedcontrary to applicable law and practice by disregarding the uncontradicted testimony ofRespondent’s expert witnesses and substituting his own judgment on the matters as to whichRespondent’s experts testified. ARGUMENTA.\u00a0 Requiring Labels to Carry Warnings For\”All Hazards\” Is Clearly Contrary to the Standard.Throughout his opinion, the Administrative Law Judgeemphasized that \”[a]cetylene is well recognized as a simple asphyxiant.\” (Orderat 5, 6, 9.)\u00a0 However, the fact that \”authoritative scientific sources,\” (id.at 9), recognize that acetylene may be a \”simple asphyxiant\” under essentiallyimplausible circumstances by no means compels — or even suggests — the conclusion that\”the potential for such a hazard should be disclosed on the label.\” (Id.at 9.)In his decision, the Administrative Law Judge seemingly relied on the proposition that anemployer is obligated to \”furnish thorough information on all potential hazards\”posed by its shipped hazardous chemicals.\u00a0 (See id. at 9.) (emphasisadded.)\u00a0 In so doing, the Administrative Law Judge applied the rationale of anotherof his decisions rendered after the instant case had been tried and fully briefed. \u00a0That is, \”[i]t is not the intent of the standard to allow the upstream chemicalmanufacturer to limit the known hazards of a substance by speculating as to its use by adownstream employer.\”\u00a0 (Id. at 8, citing Hilton-Davis Chemical Co.,OSHRC Docket No. 86-0494 (issued Feb. 10, 1987).)\u00a0 However, unlike Hilton-Davis,this is not a case where an employer has attempted to limit its hazard communications.\u00a0 On the contrary, as the record clearly reflects, Respondent included information asto the potential for simple asphyxiation in its material safety data sheet on acetylene, (id.at 9), and in its employee information and training programs. Rather, the issue here iswhether all information on potential hazards contained in a material safety data sheetmust be included on a label without regard to the probability of the particular hazardactually occurring.The Administrative Law Judge’s summary dismissal ofthe material safety data sheet as an appropriate supplementary source of hazardinformation demonstrates his fundamental misapplication of the purpose underlying thetripartite hazard communication program.\u00a0 (See Respondent’s Post-Hearing Briefat 12-19.)\u00a0 As the preamble to the Standard states:Under the provisions of this final standard, eachemployee who is exposed to hazardous chemicals will receive information about them througha comprehensive hazard communication program.\u00a0 Chemical manufacturers and importerswill be required to evaluate the hazards of the chemicals they produce or import, and totransmit this information to downstream employers by means of labels oncontainers and material safety data sheets.(48 Fed. Reg. 53281.) (emphasis added.) It furtherclarifies: Under the proposed [and final] provisions, the labels were not intended to be either thesole, or the most complete source of information regarding the nature or identity ofhazardous chemicals in the workplace.* * *The identity on the label is keyed to the material safety data sheet for the chemical,which will contain more extensive information. . . . [T]he employee will be provided withextensive information on each chemical through the integrated elements of thecomprehensive hazard communication program.(Id.) To be sure, the OSHA instruction relied upon by the Administrative Law Judgeadvises that the implementation of a multi-part program does not necessarily mean that\”well-substantiated hazards\” may be left off the label simply because theyappear on the material safety data sheet.\u00a0 (OSHA Instruction CPL 2-2.3A (App. A).)\u00a0 However, explicit in this instruction and implicit throughout the preamble to theStandard is the recognition that the label’s warnings should be determined through anassessment of the relative risks of the chemical’s potential hazards.\u00a0 (SeeRespondent’s Post-Hearing Brief at 22-25).\u00a0 This HCS-required assessment is designedto assure that the label will contain only significant information that should beimmediately and visually transmitted to users in an emergency situation.[[3\/]]\u00a0 (See48 Fed. Reg. 53301, C.3.)The Administrative Law Judge’s decision makes thelabel equivalent in function to the material safety data sheet, i.e., to serve asthe \”primary vehicle for transmitting detailed hazard information to both downstreamemployers and employees.\”\u00a0 (Id. at 53305, C.3.) In so doing, it fails torecognize the very different purposes of these two components of the required hazardcommunication program. [[4\/]]\u00a0 Accordingly, given the purpose for the label as statedin the preamble — namely, to provide an immediate visual warning of the significant orforeseeable risks of the chemical — the Administrative Law Judge’s conclusion thatacetylene’s \”potential for [simple asphyxiation] should be disclosed on thelabel\” is, based on the record evidence in this case, a plainly incorrect applicationof the terms and policy of the Standard.[[5\/]]B.\u00a0 The Administrative Law Judge Acted Contraryto Law in Ignoring the Employer’s Role and Responsibility in the Determination of\”Appropriate Hazard Warnings.\”At page 9 of his Order, the Administrative Law Judgeconcluded that \”[t]he decision as to what should be included on the label is not tobe made on the relative risk or potential exposure as determined by theemployer.\”\u00a0 Not only is that statement an erroneous interpretation of theStandard and its underlying policy, but it directly contradicts a recent labeling decisionrendered by the same administrative law judge.\u00a0 (See Hilton-Davis ChemicalCo., supra.)The preamble to the Standard expressly recognizesthat labeling is a performance-oriented obligation.\u00a0 (48 Fed. Reg.53301, C.1; see also Respondent’s Post-Hearing Brief at 22-25.) \u00a0Accordingly, \”the employer is responsible for selecting the message and insuring thatit is effective for the purpose involved.\”\u00a0 (48 Fed. Reg. 53306,C.3 – 53307, C.2.)\u00a0 In Hilton-Davis, the Administrative Law Judge correctlyinterpreted this performance standard, stating:No effort was made by OSHA to impose a standardizedlabeling system.\u00a0 The preamble makes it clear that OSHA recognized that the selectionof hazards to be highlighted on the label involved the use of professional judgment todetermine what information is to be looked at and what conclusions to be drawn fromit.\u00a0 48 Fed. Reg. 53,298.The Administrative Law Judge’s reversal of positionsin this action compels a result at odds with the Standard.C.\u00a0 The Dismissal of the UncontradictedTestimony of Respondent’s Expert Witnesses Is Contrary to Federal Practice and Procedureand, In and of Itself, Constitutes Reversable Error.A key element of Respondent’s argument below was thatthe hazard warning suggested by the Complainant would be \”misleading, contrary to theStandard’s stated purpose of including only significant risks on the label and,ultimately, result in an increased hazard to Respondent’s employees.\” \u00a0(Respondent’s Post-Hearing Brief at 2.)\u00a0 In support of this position, Respondentoffered the testimony of Dr. Christine Chaisson and Mr. Frederick Kitson. \u00a0 Both ofthese witnesses were qualified — without objection — as experts in the fields oftoxicology and compressed gas, respectively.\u00a0 Their uncontradicted testimonyestablished that the inclusion of an asphyxiation warning could diminish — withpotentially fatal results — the value of the traditional flammability warning. \u00a0(Transcript at 126-127; 177; 193.)The Administrative Law Judge summarily dismissed theexpert testimony of these individuals on the ground that they were \”simplyexpression[s] of personal views.\”\u00a0 (Order at 7.)\u00a0 In their place, he reliedexclusively on his personal view — unsupported by the record evidence — that, \”[i]nview of the large red diamond on the label with the word \”flammable\” across itin white capital letters, it is highly unlikely that the flammability warning would beoverlooked or ignored.\” (Id.)In replacing uncontradicted expert testimony with hisown unqualified opinion, the Administrative Law Judge acted contrary to well-establishedfederal and administrative practice and procedure.\u00a0 (See Gober v. Matthews,574 F.2d 772, 777 (3d Cir. 1978) (\”While an administrative law judge is free toresolve issues of credibility as to lay testimony or to choose between properly submitted[expert] opinions, he is not free to set his own expertise against that of [an expert] whotestified before him.\”).)\u00a0 His dismissal of Respondent’s expert testimony wasnot based upon expressed doubts as to the witnesses’ credentials or their credibility.Rather, he rejected these opinions–the only, and necessarily unrebutted, record evidenceon this issue–simply and erroneously because he disagreed with them.WHEREFORE, Respondent requests that its Petition forDiscretionary Review be granted.Respectfully submitted,UNION CARBIDE CORPORATION, LINDE DIVISIONBy: Donald R. Crowell IIts AttorneyOf Counsel:Willis J. GoldsmithJulia M. BroasJONES, DAY, REAVIS & POGUEDated:\u00a0 April 21, 1987FOOTNOTES: [[1\/]] Item 1b of the citation, alleging a violationof 29 C.F.R. ? 1910.1200(f)(1), contained subitems a, b, c, and d, leaving only subitem efor decision (Tr. 5).\u00a0 The terms of settlement have been included in the order issuedin this case.[[2\/]] Section 1910.1200(f)(1) provides:(1) The chemical manufacturer, importer, ordistributor shall ensure that each container of hazardous chemicals leaving the workplaceis labeled, 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 other responsible party.[[3\/]] On May 16, 1986, OSHA Instruction CPL 2-2.38Awas issued and CPL 2-2.38 issued on August 5, 1985, was cancelled.\u00a0 On July 18, 1986,change one was issued to CPL 2-2.38A.\u00a0 CPL 2-2.38 issued on August 5, 1985, was ineffect at the time the citation was issued.\u00a0 In Hilton-Davis Chemical Company,Docket No. 86-0494, issued on February 19, 1987, this Judge concluded that OSHAInstruction 2-2.38 is interpretative, 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 taken of this document (Tr. 119-120).[[5\/]] The citation erroneously refers to theinspection date as December 4, 1986.[[1\/]] A Stipulation reflecting that agreement was entered into at the hearing in thismatter.[[2\/]] Simple asphyxiation occurs when a materialdisplaces the available oxygen in the atmosphere to the extent that it causes asignificant reduction in the availability of usable oxygen to the body.\u00a0 (Transcriptat 146.)\u00a0 Of course, any material of a sufficient weight and concentration candisplace oxygen so as to pose an asphyxiation hazard.\u00a0 (Id. at 9.) \u00a0Therefore, a decision requiring a hazard warning for simple asphyxiation solelyasphyxiation has implications for a wide range of chemicals, not just acetylene.[[3\/]] In light of the Standard’s express recognitionof the need for an assessment of a chemical’s potential hazards, the Administrative LawJudge’s previously noted conclusion that \”all\” potential hazards for acetyleneshould be included on the label is unsupported.\u00a0 The sole document relied upon by theparties containing an explicit label recommendation the NIOSH Criteria document foracetylene that was judicially 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 tomandate a label warning in all circumstances where there exists information that achemical has potentially hazardous properties, we submit that the decision effects anunlawful modification of the Standard by an administrative interpretation.[5\/] See 48 Fed. Reg. 53301,C.1.\u00a0 This decision contravenes another stated purpose of the Standard as well:\u00a0to ensure uniform requirements for hazard communication within the industry. \u00a0 (Id.at 53281, C-2.)\u00a0 As Respondent’s expert witness, Dr. Christine Chaisson, testified,labeling acetylene as a simple asphyxiant would be \”prohibited\” under analogousfederal regulatory criteria.\u00a0 (See Respondent’s Post-Hearing Brief at18.)\u00a0 As Linde argued below, the inconsistency among federal labeling requirements ofdifferent federal agencies created by the Administrative Law Judge’s decision could wellcreate havoc on an industry-wide basis. \u00a0 (Id. at 19.)\u00a0″