“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-4674 WITCO CHEMICAL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 November 20, 1979ORDER??????????? Sincethe Secretary requests to ?withdraw? his petition for Discretionary Review andRespondent and the union assent, and this case presents no issue of compellingpublic interest, The Commission affirms the Administrative Law Judge?s decisionand accords it the precedential value of an unreviewed Judge?s decision. See PotlatchCorporation, ?? OSAHRC ??, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No.77?3589, 1979).?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: NOV 20, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-4674 WITCO CHEMICAL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June 11, 1979APPEARANCES:Agnes M. Johnson-Wilson, Esq. ForComplainant\u00a0William Prickett, Esq. For Respondent\u00a0Ted Duer, President Local 8?898, Oil,Chemical and Atomic Workers International Union For Employees?DECISION AND ORDERChalk, Judge??????????? Theinspection of Respondent?s New Castle, Delaware, plant, conducted in stagesbetween April 7, 1978 and August 25, 1978, resulted in the issuance of thefollowing alleged serious violations of 29 U.S.C. 654(a)(2):1a 29 CFR 1910.134(a)(2): Respirators werenot provided by the employer when such equipment was necessary to protect thehealth of the employee(s):a) D?104 reactor, operator exposed to TDI,6\/1\/78?b) D?107 reactor, operator exposed to TDI,6\/1\/78\u00a01b 29 CFR 1910.1000(a)(1): Employee(s)were exposed to material(s) in excess of the ceiling value(s) listed for theparticular material(s) in table Z?1 of subpart Z of 29 CFR part 1910:a) Toluene-2, 4-Diisocyanate, D?104reactor operator, 6\/1\/78?b) Toluene-2, 4-Diisocyanate, D?107reactor operator, 6\/1\/78?1c 29 CFR 1910.1000(e): Feasibleadministrative or engineering controls were not determined and implemented toreduce employee exposure(s):a) D?104 reactor operator, 6\/1\/78, exposedto TDI?b) D?107 reactor operator, 6\/1\/78, exposedto TDI\u00a0*Step 1?Effective respiratory protectionshall be provided and used by employee(s) as an interim protective measure.?*Step 2?A written detailed plan ofabatement leading to the complete abatement of this item shall be submitted tothe Area Director. Such a plan shall: a) employ the use of qualifiedengineering personnel; b) include detailed engineering studies and their results;c) outline the ordering of equipment and materials and completion of the designphase; and d) outline dates for the anticipated implementation of the plan.?*Step 3?Feasible engineering controlsand\/or administrative controls shall be determined.?*Step 4?Abatement shall be completed byimplementation of feasible engineering and\/or administrative controls and itseffectiveness at achieving compliance verified. 90-day progress letters arerequested during the abatement period.\u00a0??????????? Apenalty of $400 was proposed for this charge.??????????? Thestandards involved respectively provide:29 C.F.R. 1910.134(a)(2)Respirators shall be provided by theemployer when such equipment is necessary to protect the health of theemployee. The employer shall provide the respirators which are applicable andsuitable for the purpose intended. The employer shall be responsible for theestablishment and maintenance of a respiratory protective program which shallinclude the requirements outlined in paragraph (b) of this section.[1]?29 C.F.R. 1910.1000(a)(1)Materials with names preceded by?C??Ceiling Values. An employee?s exposure to any material in table Z?1, thename of which is preceded by a ?C? (e.g., C Boron trifluoride), shall at notime exceed the ceiling value given for that material in the table.[2]? 29 C.F.R. 1910.1000(e)To achieve compliance with paragraph (a)through (d) of this section, administrative or engineering controls must firstbe determined and implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to air contaminantswithin the limits prescribed in this section. Any equipment and\/or technicalmeasures used for this purpose must be approved for each particular use by acompetent industrial hygienist or other technically qualified person. Wheneverrespirators are used, their use shall comply with 1910.134.?I??????????? Respondent,according to the compliance officer, Maria Shanahan, manufactures ?componentsof isocyanate systems, and these components are packaged and sold to foammanufacturers who mix the two components together to produce a foam? (Tr. 10).One of the components of foam systems is toluene diisocyanate (TDI) which,according to one of Respondent?s witnesses, is used by Respondent about?three-fourths of the time? in its production process (Tr. 145).??????????? TheCo started her inspection on April 7, 1978 and returned on April 14, 1978 toreview Respondent?s records. As Respondent had monitored TDI levels in thepast, and its records indicated ?a few? levels that exceeded the ceiling value,although most were ?of a low level,? she decided to return on another occasionand take her own readings (Tr. 13).[3] Because of other commitments,she was unable to return until June 1, 1978, after ascertaining from anofficial of the company that TDI would be used in the production process thatday.??????????? Thetwo employees whose work areas she monitored were involved in what was called adrumming process. They accomplished this task in separate booths,[4] each of which contained aspigot from a separate reactor nearby in which the compounds were ?cooked?(Exhs. J?1. J?2; Tr. 168). In the top of each booth was a hood with an exhaustfan that was designed to draw away any harmful material from the employee?sbreathing zone. Drums were wheeled into each booth and the employee?s exposure,if any, occurred when they opened the spigots from the reactors and filled thedrums. Neither of the employees was wearing a respirator when the CO monitoredtheir areas, nor had they worn respirators in the past.??????????? Themonitoring device employed by the CO, conceded by Respondent to be ?a standardtesting unit,? was affixed to the person of each of the two employees (Tr. 22).[5] She took five samples oneach employee, each sample lasting about 15 minutes. When these samples wereanalyzed by a qualified chemist, it was found that three samples on eachemployee exceeded the ceiling limit of the standard (Exh. C?1). The specificresults, received by her in July, 1978, were as follows:Standford Downward?0.4, 0.5, 0.3milligrams of TDI per cubic meter of air,?Paul Robert?0.16, 0.2, 0.18 milligrams ofTDI per cubic meter of air.???????????? Atthe time, she informed two company officials?William J. Neary and PhillipStitzer?that the ?levels had come back high and that they should begin toinvestigate possible engineering controls and also respiratory protection assoon as possible? (Tr. 74).??????????? Onthe day the CO took the samples, she took velometer readings in both hoodsbecause she noted ?that the hoods were not particularly effective in that theyseemed to create a good deal of turbulence? (Tr. 35). She further explained:The idea[l] situation would be to have theair drawn away from the employees? breathing zone. This was the case in somesituations, but in certain areas along the face of the hood at the top of thehood, where the employee stood, the air was actually being forced back outtowards the employee (Tr. 35).?The problem existed in both booths and she informedMr. Stitzer who said that it would be ?look[ed] into? (Tr. 35). Her velometerreadings, apparently taken after she talked to Stitzer, were identical for bothbooths and reflected a range from plus 150 feet of air per minute on the leftside of each hood to minus 100 feet of air per minute on the right side of eachhood, with the turning point from plus to minus at about the mid-point of thehood. The minus readings meant that air was being forced in by the fan rather thandrawn out of the hood, as indicated by the plus readings.??????????? TheCO conducted her closing conference about August 25, 1978 with Neary, the plantmanager, Stitzer, the safety director, and two union representatives.Respondent indicated that it was aware that it had a problem with the ventilatorsand stated that it would be corrected. In her opinion, Respondent could have?engineer[ed] out the existing problems? by additional ?localized ventilation?and by improving the hood design (Tr. 159).??????????? DoctorJohn Peters, a medical doctor who also had a Masters degree in Public Healthand the degree of Doctor of Science and Occupational Health, testified that hewas a Professor of Occupational Medicine at the Harvard School of Public Healthand was that school?s Director of its Occupational Health Program. His dutiesincluded teaching and research in occupational medicine, and lung diseases werehis specialty. He had done extensive research in connection with exposure toTDI, which he referred to as ?a strong irritant,? and had published papers onthe subject (Tr. 113).??????????? DoctorPeters first stated that certain individuals, about five percent of thepopulation, are sensitized to TDI, or are allergic to it, and cannot tolerateany exposure to TDI. He then proceeded to detail possible acute effects thatmay lead to chronic effects of TDI exposure on the balance of the population,stressing his view that these effects can occur at levels below the standard?sceiling level and his opinion that a safe level in certain cases was aboutone-sixth less than the ceiling level. Much of his testimony on acute effectsseemed to be addressed to a situation where workers were exposed to TDI ?day inand day out? over a period ?of one, two three, or four years? (Tr. 115).According to him, they might develop chronic pneumonia, or more commonly,sustain loss of lung capacity. Loss of lung capacity, moreover, normally occursin the aging process and is known to occur more rapidly among smokers. Theymight also develop chronic bronchitis or chronic obstructive lung disease, bothof which are serious chronic respiratory diseases.??????????? Itappeared to be Doctor Peter?s view that diminished lung capacity was the mostcommon result from TDI exposure. On this subject, he stated:A. The acute reaction seems to predict thechronic reaction. That is, if we were measure [sic] anybody [sic] in this roomexposed to TDI, those of us who had the biggest change over a days [sic] shiftare going to be the ones that have the biggest change over two, or three, or fouryears. So, in that sense, it predicts a serious effect, but by itself it maynot be a serious effect. That is, if we worked in the TDI plant one day andnever worked there again, there may be no other effect other than what happenedon just that one day.?Q. If an employee works for a period of,say, three years, would you classify the effect as a serious health hazard??A. I prefer to talk about groups ofemployees, because they don?t all react the same way, as you might think. Notall cigarette smokers get lung cancer, and not all workers exposed to asbestosget lung cancer. It is the same in this instance, but there would be somepeople who would have serious effects during that three years [sic] period oftime, if we had 100 people, let?s say. (Tr. 117, 118)???????????? Whenasked if ?the exposure? in this case, ?in and of itself,? constituted a hazardto these individuals, he replied in the negative (Tr. 125). He also stated thatthe diminished lung capacity effect could be serious ?over a period of time? (Tr.127). Finally, although stating that one exposure of the types involved hereinwould not ?likely? be serious, he stated that the contrary would be true if theexposures occurred two or three times a week for two or three hours each. Whenasked to relate this last statement to a specific period of time, he neverresponded, although it became clear that he had directed his comments to thesensitized type of person who was representative of five percent of thepopulation.??????????? Thetwo exposed employees testified that they occasionally experienced tightness intheir chests and sore throats, like cold symptoms, that lasted about 24 hours.Downward, who had been with Respondent 13 years, only worked with TDI 10 or 15times a year when he substituted for absent employees. He thought that what heexperienced was ?probably? attributable to TDI (Tr. 136). Although he was illfor two months the prior year with an upper respiratory infection, he ?[couldnot] say it was from TDI? (Tr. 138). Roberts, who had worked continually withTDI for one year, testified that he experienced these symptoms only ?one in awhile? and that he never noticed any other effects (Tr. 144). Roberts alsostated that the employees had been wearing respirators since September 1978 andthat he never noticed any difference in air flow across the face of the hood.??????????? Theplant manager, Neary, Respondent?s only witness, was a mechanical engineer whohad designed one of the ventilation systems involved in the case, although bothwere the same. According to him, Respondent?s monitoring device, ?therecommended unit for sensing TDI,? had been used almost daily when firstpurchased, but it had not been so used for ?a couple of years? becauseRespondent believed it had detected all problems and corrected them (Tr. 163,179). He stated that Respondent was protective of the health of its employeesinvolved with TDI, as they were given complete physicals every year. He alsostated:We have a doctor employed on a one hour aweek basis at the plant with a medical doctor who would use the ProfessionalHealth Services van out of Philadelphia to do pulmonary function and chestX-rays. (Tr. 166)???????????? AlthoughRespondent had on occasion hired individuals whom it soon found to be ?withinthe five percent group of hypersensitive people,? Respondent ?[got] rid of themjust as quickly as [it] could get them out of the plant? (Tr. 166). Respondenthad never had a workman?s compensation case involving respiratory problemsattributable to TDI.??????????? Nearytestified that the fans in the hoods were designed to exhaust 150 feet of airper minute. Not knowing that the CO had conducted velocity tests, he did so inOctober 1978 and determined that, with some minor variations, the fans werefunctioning at that level (Exh. R?1). His tests produced no minus readings. Inany event, the wearing of respirators was made mandatory when the citation wasreceived, the ventilation systems were redesigned, bids on the fans wererequested, and the new ventilation systems should be in place by mid-June 1979.??????????? Aunion witness testified that on several occasions in late 1977 and early 1978,the union complained to Respondent that the ventilation in the hoods of thereactors needed improvement, (Exhs. U?1, U?2, U?3). On these occasions,Respondent normally employed its monitoring device to test the TDI levels,although the witness believed that on several of these occasions Respondent didnot use it with dispatch. The witness also testified that the monitor was usedrather steadily the first 6 months after its acquisition, but afterwards, itwas only used when someone complained about the ventilation. Respondent?semployees had been unionized only since the middle of 1977. Since that time, no?grievance problem? had been raised in connection with the ventilation (Tr.196).II??????????? Startingwith an unadjusted penalty of $800, the CO gave Respondent a 20 percentreduction for size and a 30 percent reduction for good faith.[6] Thus, the proposed penaltywas $400.??????????? TheCO testified that Complainant?s Field Operations Manual mandated that this typeof charge be characterized as serious and that thus, she had no choice in thematter.III??????????? Respondent?scounsel objected, both at the hearing and in his posthearing brief, to theadmissibility of Exhibit C?1,[7] the document that reflectsthe chemist?s results of the tests he performed on the samples forwarded to thelab by the CO. In the main, relying upon 29 C.F.R. 1905.23, counsel objectedbecause he was informed by Complainant?s counsel at a prehearing conferencethat she would offer no documents as evidence at the hearing, and he never wasinformed of the existence of the exhibit until the hearing was convened.??????????? Counseldid not avail himself of my offer at the hearing to move for a continuance ofthe hearing if he believed that my acceptance of the document over hisobjection occassioned further preparation of Respondent?s defense. I shallfirst address his objection on the ground he raises, assuming that what he wastold at the conference amounted to misinformation.??????????? 29C.F.R. 1905.23, the regulation counsel claims Complainant violated, is notapplicable to the situation he complains about, as it deals with conferencesconvened and attended by the administrative law judge, whereas the parties inthis instance, pursuant to my prehearing order, met by agreement without mypresence. However, I perceive little if any distinction between the twosituations, as the crux of the matter is whether an employer is misinformed ofa fact that could affect the preparation of its defense. Conceivably, in somecases where the information is furnished either by design or innocently,[8] the receipt of thedocument over objection might require dismissal of the charge because the leadsto a viable defense no longer exist as a result of the passage of time. Inother cases, on the other hand, the acceptance of the document in evidence willnot prejudice the employer so long as the employer is furnished adequateadditional time to prepare. This case falls into the latter category.??????????? Theinformation contained in the exhibit could not have come as a surprise toRespondent, as it reflected specific tests results in excess of the standard?sceiling of 0.14 milligrams per cubic meter of air. This was informationconveyed to Respondent by the citation itself?exposure in excess of theceiling?less the specific levels. Thus, from the moment it received thecitation, Respondent knew it had to defend against alleged exposures ofemployees to levels in excess of ceiling; and the specific levels to which theywere exposed, the only additional matter provided by the exhibit, would nothave anything to do with the preparation of Respondent?s defense. This may wellhave been the reason why counsel did not seek additional time, when offered theopportunity at the hearing. In any event, counsel?s failure to do so invokedthe waiver doctrine and foreclosed Respondent?s right to pursue the matterfurther at this time.??????????? Thereis, however, an entirely different reason why there is no sound foundation forRespondent?s objection, one that leads me to conclude that Complainant?scounsel did not err in making the statement she made at the prehearingconference.[9]It is common practice, known to all practitioners at the bar, that a potentialwitness often makes notes of matters as they occur or are observed and thatthese notes may be used by the individual on the witness stand to refresh hisrecollection, or may be received in evidence as recollection past recorded,when his recollection is not refreshed, thus becoming nothing more than an extensionof the witness? testimony. This is especially true in the case of experts,particularly chemists in working on one case among many that involves numeroussamples with identifying numbers or codes. Clearly, the exhibit in this casecould have been used in that manner and counsel would have had no valid groundupon which to complain, as he was informed in writing prior to the hearing thatthe chemist would appear as a witness and testify about the tests he performedand the results reached.??????????? Respondent?sobjection was properly overruled at the hearing and its assignment of errorlacks merit.IV??????????? Theremainder of Respondent?s arguments go to the merits of the case, as it assertsthat there was insufficient evidence to establish that serious violations occurred,that the validity of the test results was questionable, and that there was lackof proof of knowledge to sustain the serious allegation. In sum, Respondentseeks ?dismiss[al]? of the charges or ?at the very least,? a reduction of thecharges to other than serious.??????????? Althoughit is true, as Respondent asserts, that the chemist corrected one test resultshown on Exhibit C?1 from a finding of TDI in one sample at a level above theceiling to a negative finding, I do not agree that this fact, with or withoutany other fact surrounding the taking and testing of the samples, serves toimpeach the remainder of the test results. On the contrary, I find them validand compelling. However, I do not agree with Respondent?s implication that another than serious violation does not involve the element of knowledge.Nevertheless, I find the evidence insufficient to establish that the violationswere serious, and will accordingly affirm them as other than seriousviolations.??????????? Knowledgeis an element of nonserious violations (Secretary v. Scheel Construction,Inc., 76 OSAHRC 138\/B6; Secretary of Labor v. Rockwell International etal., 540 F.2d 1283 (6th Cir., 1976)). As in the case of serious violations,it may be actual or constructive. Constructive knowledge exists when thecircumstances are such that through the exercise of reasonable diligence, anemployer should have known of the hazard (Secretary v. Borg-Warner Corp.,78 OSAHRC 18\/A2).??????????? Knowledgein this case must be imputed to Respondent, for it knew that it was using aharmful compound in its manufacturing process, it had in the past periodicallytested for its presence in areas where the employees worked and found excessivelevels, it admitted that it had stopped routinely testing the same areas asubstantial period of time before the inspection, and it failed to exercisereasonable diligence by maintaining a continual detection program undercircumstances where it had to rely on ventilation systems that could havefailed or become less efficient at any time (Secretary v. Borg-Warner,supra).??????????? Asindicated above, however, I conclude that Complainant has not carried hisburden of establishing that these violations were serious because he has shownonly brief exposures of the two employees in excess of the standard on June 1,1978, he has not shown that they were similarly exposed before or after thattime, and his expert witness? testimony, considered as a whole, does notconvince me that such brief exposures could result in serious bodily harm ordeath (see Secretary v. Hermitage Concrete Pipe Co., 76 OSAHRC 2\/C1, andSecretary of Labor v. Hermitage Concrete Pipe Co. et al., 584 F.2d 127(6th Cir. 1978)).V??????????? Itappears from the record that Respondent was fully cooperative with the COthroughout the investigation and took appropriate measures by requiring theemployees to wear respirators when it learned the results of the monitoring,and by designing new ventilating systems that should eliminate the hazard.Accordingly, and in consideration of the fact that Respondent was given nocredit for prior history, a penalty of $50 appears appropriate and will beassessed.VIFindings of Fact??????????? 1. Atthe time and place alleged, during the course of drumming activities,Respondent?s two employees were briefly exposed to various levels of TDI abovethe ceiling permitted by the standard,??????????? 2.The two employees were not wearing respirators at the time,??????????? 3.There was no evidence tending to establish that these two employees or anyother employee were so exposed to excessive levels of TDI before or after thattime,??????????? 4.The evidence indicates that the ventilating systems on each of the two reactorsmay have been malfunctioning and thereby caused these exposures, and??????????? 5.The evidence was insufficient to establish the probability that the exposuresof these two employees at the time in question could have resulted in seriousinjury or death.Conclusions of Law??????????? 1.The Commission has jurisdiction over the proceedings, and??????????? 2.That Respondent violated 29 U.S.C. 654(a)(2) by not complying with 29 C.F.R.1910.134(a)(2), 29 C.F.R. 1910.1000(a)(1), and 29 C.F.R. 1910.1000(e), but thatsuch violations were other than serious.VII??????????? Citationnumber 1 for serious violations, modified to allege other than seriousviolations, is affirmed and a penalty of $50 is assessed therefor.?So ORDERED.?JOSEPH L. CHALKJudge, OSHRCDated: June 11, 1979Hyattsville, Maryland[1] The provisions of29 C.F.R. 1910.134(b) are not relevant to these proceedings.[2] TDI (toluenediisocyanate) is so listed and its ceiling value is shown as 0.14 milligrams ofparticulate per cubic meter of air.[3] The records didnot reflect any monitoring by Respondent after August 1977.[4] The booths weredescribed as resembling closets without doors.[5] Respondent?smonitoring device was described by the CO as a large unit on a 5 or 6 foot highstand with wheels that took area samples.[6] Although sheassigned no reason, the CO testified that she gave Respondent no credit forprior history.[7] The chemisttestified that he recorded the results of his tests in his notebook and thatthe exhibit was a Xeroxed copy of the appropriate page of the notebook that hehimself made. Respondent raised no objection to the exhibit on this basis.[8] I find no reasonto reject Complainant?s counsel?s representation at the hearing that she neverknew of the existence of the exhibit until it was presented to her by thechemist-witness from Salt Lake City, Utah, the morning of the hearing.[9] At the hearing, Iconstrued the exhibit as a report prepared by the chemist reflecting theresults of his tests.”