Kastalon, Inc. and Conap, Inc.

Plain-English summary

Kastalon and Conap used MOCA, a chemical shown to cause cancer in laboratory animals, to manufacture polyurethane products. OSHA alleged general-duty violations at both companies and personal-protective-equipment and respirator violations at Conap. The Commission held that OSHA had to prove a significant risk of harm at the exposure levels actually present, not merely that MOCA was a suspected human carcinogen or detectable in the workplace. It found the animal-to-human quantitative risk assessment too speculative and insufficiently connected to the measured employee exposures. Because OSHA did not prove a hazard requiring the cited protective equipment, the Commission affirmed the judges and vacated all citations, noting that broad exposure limits were better addressed through rulemaking.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) and 29 C.F.R. §§ 1910.132(a) and 1910.134(a)(2)
• Outcome: General-duty, protective-equipment, and respirator citations vacated.
• Key point: For a suspected carcinogen, OSHA must prove a significant risk at the workplace exposure level before enforcing a general hazard-based duty.

Full text (OSHRC public release)

Docket No. 79-3561_79-5543

SECRETARY OF LABOR,

Complainant,

v.

KASTALON, INC.

Respondent.

OSHRC Docket No. 79-3561

SECRETARY OF LABOR,

Complainant,

v.

CONAP, INC.,

Respondent.

OSHRC Docket No. 79-5543

DECISION

Before: BUCKLEY, Chairman, RADER and WALL, Commissioners.

BY THE COMMISSION:

These consolidated cases are before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(j), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act"). The Commission is an adjudicatory
agency, independent of the Department of Labor and the Occupational Safety and Health
Administration. It was established to resolve disputes arising out of enforcement actions
brought by the Secretary of Labor under the Act and has no regulatory functions. See
section 10(c) of the Act, 29 U.S.C. � 659(c).

Kastalon, Inc., and Conap, Inc., manufacture polyurethane products. Among the chemicals
they use in the manufacturing process is 4,4' -Methylene bis (2-chloroaniline), which is
commonly called "MOCA."[[1]] MOCA has been shown to cause cancer in laboratory
animals. The Secretary of Labor contends it must therefore be regarded as a cancer-causing
agent ("carcinogen") in humans and that exposure to it must be strictly
controlled. The Secretary alleges that Kastalon and Conap violated the Act by failing to
take adequate measures to protect their employees from exposure to MOCA. In particular,
the Secretary alleges that the employers violated section 5(a)(1) of the Act, the
so-called "general duty clause."[[2]] The Secretary also alleges that Conap
violated standards governing the provision and use of personal protective equipment. For
the reasons that follow, we conclude that the Secretary did not prove that the employers
violated the Act as alleged.

I

The Act gives the Secretary two tools by which he can seek elimination of workplace
hazards. First, the Secretary can promulgate occupational safety and health standards and
issue citations to employers who fail to comply with those standards. 29 U.S.C. � 655
(authority to promulgate standards); 29 U.S.C. � 654(a)(2) (employers are required to
comply with standards). Second, where no occupational safety or health standard is
applicable, the Secretary can attempt to obtain correction of a workplace hazard through
the general duty clause, which requires that employers provide workplaces free of
recognized hazards that are causing or are likely to cause death or serious physical harm.
The Act's legislative history shows that Congress intended that the Secretary would
primarily rely on specific standards, rather than the broad mandate of the general duty
clause, to seek the correction of workplace hazards. See S. Rept. No. 91-1282, 91st Cong.,
2d Sess. (1970) at 9-10, reprinted in Senate Committee on Labor and Public Welfare, 92
Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970,
at 149-50 (Comm. Print, 1971); remarks of Rep. Steiger on conference bill, Id. at 1217
("general duty requirement should not be used set ad hoc standards."); Brisk
Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1264, 1973-74 CCH OSHD � 16,345, p.
21,261 (No. 1046, 1973). "Reliance upon the general duty clause was discouraged
because to do so would provide little advance warning of what specifically is required in
order that employers could maintain a safe and healthful workplace." Id. Thus, the
Commission has consistently held that the Secretary cannot rely on the general duty clause
when a specific standard applies to the facts. Id.; Daniel International, Inc., 82 OSAHRC
23/D3, 10 BNA OSHC 1556, 1982 CCH OSHD � 26,033 (No. 78-4279, 1982).

No occupational safety or health standard governs MOCA
exposure. In 1974, the Secretary did issue a detailed standard regulating workplace use of
MOCA, but that standard was ruled invalid because the Secretary had not conformed to the
Act's requirements in promulgating it. Synthetic Organic Chemical Manufacturers
Association v. Brennan, 503 F.2d 1155 (3d Cir. 1974), cert. denied, 420 U.S. 973, reh'g
denied, 423 U.S. 886 (1975).[[3]] In early 1975,the Secretary again proposed the same
standard and held a hearing on the proposal. The polyurethane industry, through the
Polyurethane Manufacturers Association, a trade association that includes Kastalon and
Conap among its members, participated in the hearing and urged the Secretary to adopt a
more reasonable standard governing MOCA. However, the Secretary took no action on the
proposal. Beginning in 1976, the Secretary began to issue citations alleging that
employers were in violation of the general duty clause for not taking adequate precautions
against MOCA exposure.[[4]] The alleged violations in Kastalon's and Conap's workplaces
occurred in late 1978 and early 1979.

The administrative law judges, James H. Alesia in Kastalon and
Mary E. Cerbone in Conap, vacated the section 5(a)(1) citations primarily because they
concluded that the Secretary was using the general duty clause to circumvent both the
court's decision holding the original MOCA standard invalid and the statutory requirements
for promulgating standards. The judges noted that many of the abatement requirements the
Secretary was seeking to have Kastalon and Conap implement were taken directly from the
invalid MOCA standard,[[5]] and they viewed the citations as an attempt by the Secretary
to enforce the invalid standard through the general duty clause.

We are troubled, as were the judges, by the Secretary's
apparent attempt to enforce an invalidated standard through citations under the general
duty clause.  As noted above, Congress contemplated that the Secretary would place
primary reliance on standards to achieve safe and healthful workplaces and envisioned that
the general duty clause would be used sparingly. Particularly in a situation like this,
where a standard has been proposed and rulemaking proceedings have been conducted, the
Secretary's failure to complete the rule-making, coupled with his issuance of citations
under the general duty clause, do not promote the goals of "fairness and mature
consideration of rules of general application" that the Act's rulemaking provisions
were designed to foster.  See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969).

On the other hand, the Secretary contends that he did not issue
a MOCA standard because he was simultaneously conducting a number of other rulemaking
proceedings that had higher priority. The Secretary also maintains that his failure to
promulgate a standard should not deny employees any protection that Congress intended them
to have under the general duty clause. We recognize that the Secretary has discretion to
take into account other rulemaking proceedings in which he is engaged in setting a
timetable for issuing a particular standard. Public Citizen Health Research Group v.
Auchter, 702 F.2d 1150, 1157-58 (D.C. Cir. 1983). However, we question whether this
discretion coupled with the Secretary's aim of protecting employee health justifies the
use of the general duty clause in effect to side step the procedural requirements of the
Act and impose the requirements of the invalidated MOCA standard on employers. We need
not, however, decide whether the Secretary exceeded the limits of his discretion here.
Assuming arguendo that the general duty clause citations were properly issued, we conclude
that the Secretary failed to prove that Kastalon and Conap violated section 5(a)(1), and
we vacate the citations on that basis.

II

Kastalon and Conap both use MOCA as a raw material in the
manufacture of polyurethane products. Both companies purchase MOCA in the form of dry
pellets about the size of kernels of corn. To manufacture polyurethane, MOCA is first
melted and then mixed in proper proportions with another chemical, referred to as a
prepolymer, to form liquid polyurethane. The liquid polyurethane is then molded into the
shape of the part being fabricated. Employee contact with MOCA can occur when the chemical
is removed from its shipping container, when it is heated in order to melt it, and when
the molten MOCA is mixed with the prepolymer. Spills of MOCA can also lead to employee
contact.

By the time of the alleged violations, Conap had eliminated
human contact with MOCA in most of its MOCA-handling operations. Most of the polyurethane
products Conap fabricated were made in the following way. A closed drum of MOCA was placed
in an enclosed chamber, with access to the MOCA provided through rubber gloves in one side
of the the chamber.  A worker would place his hands in the gloves, remove the top of
the MOCA barrel, and insert a vacuum tube. The dry MOCA would be sucked through the vacuum
tube into a MOCA melter, from which it would be transferred without human contact to an
automatic process control ("APC") machine. The melted MOCA would be
automatically mixed with the prepolymer in the APC machine, which would then discharge the
liquid polyurethane into molds. Conap also used other processes in which the possibility
of employee contact with MOCA was present, but it was in the process of automating some of
these processes. The company also provided personal protective equipment to minimize
employee contact with MOCA.

Kastalon used much less MOCA than did Conap, and its
MOCA-handling was not automated, as was Conap's. However, after the MOCA was transferred
from its original shipping container, all handling of MOCA was done under a ventilated
laboratory hood. Kastalon also provided personal protective equipment to minimize employee
contact with the chemical and rotated the employees who handled MOCA, thus limiting the
amount of MOCA to which any individual employee was exposed.

Kastalon's and Conap's polyurethane manufacturing operations
resulted in employee exposure to MOCA.  MOCA is readily absorbed through the skin,
and the handling of MOCA in Kastalon's and Conap's plants resulted in some degree of
employee skin contact with the chemical.  Because it has an extremely low vapor
pressure, MOCA does not present a hazard of airborne contamination except to the extent
that MOCA dust is generated and becomes airborne. The record indicates that certain
operations performed in Kastalon's and Conap's plants did generate visible quantities of
airborne MOCA dust for brief periods of time. The Secretary's industrial hygienist
measured the concentration of airborne MOCA to which two Kastalon employees were exposed.
These measurements showed 8-hour time weighted average concentrations of 9.9 and 12
micrograms per cubic meter. Wipe samples of surfaces in Kastalon's plant showed that MOCA
was present on the surfaces in amounts ranging from 87 to 1830 micrograms per 100 square
centimeters of surface area. In Conap's plant, airborne samples, and wipe samples from
employees' skin taken during the inspection yielded no detectable amounts. However,
measurements of the concentration of MOCA in the urine of certain of Conap's employees
showed that the employees were absorbing measurable amounts of MOCA. These measurements
showed concentrations of MOCA ranging from 100 to 620 micrograms per liter of urine.

To prove that an employer violated section 5(a)(1), the
Secretary must show (1) that a condition or activity in the employer's workplace presented
a hazard to employees, (2) that the cited employer or the employer's industry recognized
that hazard, (3) that the hazard was likely to cause death or serious physical harm, and
(4) that feasible means existed to eliminate or materially reduce the hazard. Pelron
Corp., 86 OSAHRC ____, 12 BNA OSHC 1833, 1986 CCH OSHD � 27,605 (No. 82-388, 1986); Davey
Tree Expert Co., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1984 CCH OSHD � 26,852 (No. 77-2350,
1984).

The threshold question in this case is whether the Secretary
proved that Kastalon's and Conap's employees were exposed to a hazard. The Secretary
argues that MOCA must be regarded as a human carcinogen based on experiments in which
cancer was induced in laboratory animals, and that any amount of exposure to a carcinogen
is hazardous. Although the record does not support a finding that MOCA is a known human
carcinogen, it does establish that MOCA may be carcinogenic in man and therefore it should
be considered a suspect human carcinogen. Expert witnesses for both sides testified to
that effect. The mere fact that a chemical is a suspect human carcinogen, however, does
not establish that a hazard exists within the general duty clause of the Act. In order to
establish the existence of a hazard, the Secretary cannot simply show that a suspect human
carcinogen is present in the workplace or that employees are exposed to it in some
detectable amounts. The Secretary must prove that the amount to which employees are
exposed presents a significant risk of harm.

Our conclusion that the evidence must establish that a
significant risk of harm exists at Kastalon's and Conap's workplaces rests on the Supreme
Court decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute,
448 U.S. 607 (1980) ("the Benzene Case"). In the Benzene Case, the Supreme Court
concluded that an OSHA standard governing exposure to benzene was invalid. Benzene is a
chemical that has long been known to cause nonmalignant diseases in sufficiently large
exposures. In order to protect against these diseases, the Secretary adopted a standard in
1971 limiting exposure over an 8-hour time period to an average of 10 parts per million
("ppm").[[6]] 448 U.S. at 617.

In the 1970's, evidence began to accumulate that benzene can
cause leukemia as well as the nonmalignant diseases it had previously been known to cause.
  The Secretary thereupon initiated notice-and-comment rulemaking proceedings aimed
at lowering the permissible exposure limit. He proposed, and ultimately adopted, a
standard limiting employee exposure to an 8-hour average of 1 ppm. In reducing the
permissible exposure by a factor of ten, the Secretary proceeded on the assumption that no
safe limit for exposure to a carcinogen could be established. He believed that the Act
required him to establish as a permissible exposure limit the lowest limit that industry
could feasibly achieve in the absence of evidence establishing that a higher limit was
safe. Concluding that 1 ppm was a feasible limit, the Secretary established that as the
permissible exposure limit. 448 U.S. at 623-26.

The Supreme Court concluded that the new standard was invalid
because the Secretary had not justified reducing the permissible exposure limit from 10
ppm to 1 ppm. The Court primarily criticized the Secretary's reasoning that the
permissible exposure limit had to be set at the lowest feasible level if a safe level of
exposure could not be established. The Court noted that Congress did not intend the Act to
create risk-free workplaces and it therefore concluded that a precondition to the adoption
of a standard under section 6(b) of the Act was a finding that workers were exposed to a
significant risk of harm under the conditions currently existing in the workplace. 448
U.S. at 642. In issuing the new benzene standard, the Secretary had not made a finding
that benzene posed a significant risk at the preexisting permissible exposure limit of 10
ppm. Instead, the Secretary had found that the evidence presented in the rule-making
record did not establish any level as safe, and therefore he presumed that exposure in any
amount was hazardous. This finding, under the Court's reasoning, was insufficient to
permit a new standard to be promulgated. Id. at 659.

The Court's observation that Congress did not intend for the
Act to create risk-free workplaces applies equally to enforcement of the general duty
clause as well as to the Secretary's authority to issue standards. Congress intended that
the general duty clause would provide protection when no standard had yet been adopted,
not provide protection that would go beyond what standards could permissibly provide.
Indeed, the general duty clause is more restrictive than standards, for it applies only to
hazards that are recognized by an employer or the employer's industry and that are causing
or are likely to cause death or serious physical harm. Thus, in order to prove the
existence of a hazard within the meaning of the general duty clause, the Secretary cannot
merely show that there may be some degree of risk to employees. He must show, at a
minimum, that employees are exposed to a significant risk of harm. Cf. Anoplate Corp., 86
OSAHRC, _____,12 BNA OSHC 1678, 1681, 1986 CCH OSHD � 27,519, p. 35,680 (No. 80-4109,
1986) (Secretary must show significant risk when standard requires proof of a hazard as an
element of the alleged violation).[[7]]

The Secretary contends that the concept of "significant
risk" is already subsumed in the general duty clause in the requirement that a hazard
be "recognized." He argues that the recognition requirement "encompasses
notions of what workplace conditions reasonably prudent persons believe should be guarded
against," and thus assures that conditions that do not present a significant risk
will not be subject to section 5(a)(1). Implicit in this argument is the suggestion that
any precautions employers take to protect the health or safety of their employees must be
directed at a significant risk of harm or the employers would not take them. We do not
believe this is a valid premise. Employers may decide to limit the exposure of their
employees to chemicals of unknown toxicity or to take other precautions against injury or
illness out of an abundance of caution rather than a belief that the absence of such
precautions would expose employees to a significant risk of harm. The mere fact that
employers take certain precautions does not prove that those precautions are required by
an occupational safety or health standard or by the general duty clause. The Commission
and courts have consistently held that it would be inappropriate to base a finding that a
hazard exists solely on evidence that an employer has taken certain precautions because to
do so would dissuade employers from taking voluntary protective measures beyond those the
law requires. General Motors Corp., GM Parts Division, 84 OSAHRC 23/A2, 11 BNA OSHC 2062,
2066, 1984 CCH OSHD � 26,961, p. 34,611 (No. 78-1443, 1984). aff'd, 764 F.2d 32 (1st Cir.
1985); Cotter & Co. v. OSHRC, 598 F.2d 911, 915 (5th Cir. 1979); Diebold, Inc. v.
Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978); Cape & Vineyard Division v. OSHRC, 512
F.2d 1148, 1154 (1st Cir. 1975). Accordingly, we reject the Secretary's argument that the
"recognition" element of section 5(a)(1) eliminates the need for him to show
that employees are exposed to a significant risk of harm in order to show that a hazard
exists within the meaning of the general duty clause. We turn to whether the Secretary met
his burden of proof in this case.

III

MOCA is a member of a family of chemicals referred to as
aromatic amines. Several members of this group are known to cause cancer in humans. To
date, there is no evidence directly linking MOCA exposure to cancer in humans.[[8]]
However, there is typically a long latency period, often 30 to 40 years, between human
exposure to a carcinogen and the onset of cancer. Therefore, the absence of direct
evidence that a chemical is a human carcinogen, particularly as when here the chemical has
not been in use for a long period of time, is inconclusive evidence that the chemical is
not a human carcinogen.

Because of the long latency period between human exposure to a
carcinogen and the onset of cancer, humans may be exposed to a chemical for many years
before it can be definitively established that the chemical is carcinogenic. See, e.g.,
Society of the Plastics Industry v. OSHA, 509 F.2d 1301, 1305-06 (2d Cir. 1975) (vinyl
chloride, which began to be used in 1939, was found to be a carcinogen in the early
1970's). In order to determine whether a chemical may be a human carcinogen before cases
of cancer occur in humans, scientists perform experiments in which they determine whether
laboratory animals exposed to the chemical contract cancer. Their supposition is that
chemicals that induce cancer in small mammals are also likely to be human carcinogens.

MOCA has been the subject of several laboratory experiments in
which the chemical induced cancer in three species of laboratory mammals: rats, mice, and
beagles. The beagle study. performed by du Pont, demonstrated that beagles who ingested
MOCA contracted bladder cancer.[[9]] Expert witnesses for both sides, Dr. John D. Scribner
for the Secretary and Dr. George T. Bryan for the employers, agreed that the induction of
bladder cancer in dogs strongly indicated that MOCA would also cause bladder cancer in
humans. Dr. Scribner noted that other aromatic amines -- benzidine, beta napthalamine, and
4 amilnobiphenyl -- were known to cause bladder cancer in both dogs and humans. Dr. Bryan,
a qualified expert in carcinogenicity, had been engaged by the Polyurethane Manufacturers
Association ("PMA") to evaluate the available data regarding MOCA, to advise its
members on how to deal with MOCA, and to assist it in the rule-making proceedings
initiated by the Secretary. He believed that MOCA should be strictly regulated based on
the studies showing that it induced cancer in laboratory animals. He stated that "no
level of exposure to a carcinogenic substance, however low it may be, can be
scientifically established . . . to be a 'safe level' for humans."

The Secretary contends that these statements by Dr. Bryan
constitute evidence that an expert familiar with the polyurethane industry recognized that
MOCA is hazardous in any detectable exposure. However whether Dr. Bryan's statements show
that the polyurethane industry "recognized" a hazard is not our initial inquiry.
The first question we must address is whether the evidence shows any hazard at all; only
then does the question of whether the hazard is "recognized" arise. Dr. Bryan's
statement that no level of exposure to a carcinogen can be scientifically established as
"safe" does not prove that Kastalon's and Conap's employees were exposed to a
significant risk of harm under the conditions present in their workplaces.[[10]] The
central point of the Benzene Case is that a significant risk at any level of exposure
cannot be presumed simply because a "safe" level of exposure cannot be
established. 448 U.S. at 652-53. The Court rejected the Secretary's policy that, "in
the absence of definitive proof of a safe level, it must be assumed that any level above
zero presents some increased risk of cancer." Id. at 635-36 (emphasis by the Court,
footnotes omitted). The Secretary cannot impose this discredited policy on an industry
under the general duty clause simply by finding an expert familiar with the industry to
testify that a safe level cannot be established for a carcinogen used by the industry. The
absence of a "safe" level does not mean that there is a "significant
risk" of harm at any particular level. As the Court made plain, risk-free workplaces
are not required by the Act.

The Secretary also argues that industry recognition of a hazard
should be predicated on advice given by Dr. Bryan to the PMA that its members should
"insure" that employees are not exposed to detectable quantities of MOCA. This
is simply the "no safe level" argument in another guise. Moreover, we do not
agree with the Secretary's interpretation of the contents of the letter Dr. Bryan wrote to
the PMA. The relevant portion of the letter states:

Tumors of the bladder frequently are produced in animals fed
chemicals of the class called aromatic amines. Representative chemicals of this class are
2-naphthylamine, 4-aminobiphenyl, and benzidine. Each of these chemicals are recognized as
human urinary bladder carcinogens, and each has caused urinary tract tumors in dogs when
fed. These tumors are qualitatively similar to those produced by MOCA in dogs. Finally,
MOCA is a member of the aromatic amine class of chemicals.

I believe that these data will have a substantial impact on the
MOCA regulation proceeding. They demonstrate that MOCA possesses the same carcinogenic
potential as other recognized human carcinogens. The inference that most will draw is that
individuals working with MOCA are at definite risk of developing cancer. This inference
might be blunted somewhat by a demonstration that under conditions of working with MOCA
potentially exposed persons do not incorporate MOCA into their bodies, or excrete it or
any of its metabolites into body fluids in detectable quantities. Additional evidence
desirable in support of the view that MOCA does not represent an actual hazard would be a
demonstration that no detectable quantities of MOCA are present in the work environment
under conditions of usual usage. If these are not possible or feasible, then MOCA must be
dealt with as a known animal carcinogen and as a potential human carcinogen.

This letter reiterates Dr. Bryan's consistently expressed view
that MOCA should be regarded as a suspect human carcinogen based on its carcinogenic
activity in animals. Although it says that a showing that employees are not exposed to
detectable quantities of MOCA would negate any inference that a hazard exists, Dr. Bryan
did not state that a hazard exists whenever there are detectable levels of MOCA. Also,
contrary to the Secretary's argument, the letter does not advise employers that employees
should not be exposed to any detectable quantity of MOCA.

The Secretary also argues that industry recognition of a hazard
was shown because industry generally recognized the need to take precautions against MOCA
exposure. He particularly relies on recommended precautions for MOCA handling published by
du Pont, which was then the chemical's primary manufacturer. Du Pont included with each
barrel of MOCA it sold a booklet entitled "Safe Handling of MOCA Urethane
Curative." This booklet recommended that MOCA users take certain precautions the
Secretary alleges Kastalon and Conap failed to take. The Secretary also points out that
the polyurethane industry, through the Polyurethane Manufacturers Association, was urging
both the federal government and the State of California to adopt MOCA standards and was
informing its members, through semiannual meetings and in publications, of the need to
control MOCA exposures. These PMA activities, the Secretary argues, show that the
polyurethane manufacturing industry recognized the need for controlling exposure to MOCA.
The Secretary further argues that hazard recognition is shown by evidence that individual
companies in the polyurethane industry took certain precautions when handling MOCA.

The Secretary's argument demonstrates that the evidence of
MOCA's carcinogenicity is sufficiently compelling that reasonable people recognize it is
necessary to handle the chemical carefully. That evidence does not, however, show that the
levels of MOCA to which Kastalon's and Conap's employees were exposed presented a
significant risk of harm. An industry's general recognition that a chemical may be
carcinogenic in man and that exposure to it should be controlled does not eliminate the
need for the Secretary to prove that a particular employer's employees are exposed to
dangerous levels in order to prove a violation of the general duty clause.[[11]]

IV

In order to establish a significant risk in a section 5(a)(1)
case involving a carcinogen, the Secretary must show the probability that employees will
contract cancer under the conditions present in the workplace. This is consistent with the
Supreme Court decision in the Benzene Case. There the Court ruled that the Secretary must
establish a significant risk exists through a body of reputable scientific thought. It
noted that animal studies, epidemiological evidence and worker mortality rates could be
used to establish the existence of a significant risk. 448 U.S. at 656 & n. 64.

The only evidence in the record which tends to show the
probability of employees contracting cancer from exposure to MOCA is a quantitative risk
assessment prepared by Dr. John D. Scribner, an expert in chemical carcinogenesis. A
quantitative risk assessment is an estimate of the probability that humans will contract a
disease. It is often based on evidence gathered from animal tests.[[12]]

Dr. Scribner's quantitative risk assessment relied heavily on
evidence gathered in the du Pont study that showed MOCA induced cancerous tumors in
beagles. In that study, six dogs were fed MOCA in their daily diet in an amount equal to
14 milligrams per kilogram of body weight. One dog died early in the study. The remaining
five contracted lower urinary tract cancers--four bladder tumors and one tumor of the
ureter--after 8 to 9 years. Of a group of six control dogs, none contracted cancer within
that same time span. Dr. Scribner calculated that each exposed dog had received a total
lifetime dose of 14 grams of MOCA per kilogram of body weight, and he observed that this
dose produced a 100% chance of contracting cancer, as all the exposed dogs had done so.

Dr. Scribner then attempted to correlate this information with
evidence of human exposures. He noted that a MOCA rat study at the National Institute for
Occupational Safety and Health showed that the rats excreted in their urine about 0.03% of
the MOCA they consumed, and that this was approximately the same as the percentage of
benzidine that a human excreted when benzidine was applied to his skin. Dr. Scribner
therefore estimated that the total amount of MOCA to which a person was exposed in a day
would be about 3000 times the amount the person excreted in his urine that day. Assuming
that a worker excreted 50 micrograms of MOCA per day in his urine and worked 250 days per
year, Dr. Scribner calculated that the worker would receive a total dose of 14 grams per
kilogram of body weight after 39 years. As this was the total dose at which the beagle
dogs exhibited a 100% incidence of tumors, Dr. Scribner postulated that the worker would
be at a 100% risk of contracting cancer after 39 years. To buttress his estimate, Dr.
Scribner noted that MOCA and benzidine were about equally potent at producing cancer in
dogs, and that a study had shown that 50% of workers had contracted bladder cancer after a
total exposure to benzidine of 5 grams per kilogram of body weight. Assuming that MOCA and
benzidine proved to be equally potent in humans, as they were in dogs, the human
experience with benzidine demonstrated that workers exposed to similar amounts of MOCA as
benzidine would experience a significant risk of contracting cancer.

The employers' expert, Dr. Bryan, criticized the central assumption underlying Dr.
Scribner's risk assessment; that the quantitative response of humans and dogs to MOCA
would be equal. Dr. Bryan believed that quantitative estimates of the risk to humans from
animal responses to a carcinogen could not be made with any reasonable degree of
scientific certainty. He noted that it was difficult to obtain the same quantitative
response even in different experiments with animals of the same species due to the many
variables that enter into such experiments. It was even more difficult to extrapolate from
laboratory animals to humans. Dr. Bryan stated, for example, that the animals used in
cancer experiments are genetically similar (homogeneous) while a typical group of exposed
workers would be genetically mixed (heterogeneous). Because an animal's or human's genetic
structure greatly affects its response to a carcinogen, one cannot assume that a
heterogeneous group of humans will respond quantitatively in the same manner as a
homogeneous group of laboratory animals.

Dr. Bryan was also critical of Dr. Scribner's assumptions that
the carcinogenic potential of MOCA in humans could be equated to that of benzidine. Dr.
Bryan noted that humans are typically exposed to a variety of substances while laboratory
tests on animals attempt to isolate the effect only one chemical produces in the animal.
He postulated that the workers who had contracted bladder cancer after exposure to
benzidine had also been exposed to a number of other chemicals and that the high incidence
of bladder cancer should be attributed to the mixture of exposures and not solely to
benzidine exposure. Furthermore, if MOCA was as potent a carcinogen as benzidine, Dr.
Bryan was of the opinion that human cases of bladder cancer would already have begun to
appear among MOCA workers. The absence of any such cancers, as shown by the study of du
Pont workers in which no adverse health effects attributable to MOCA were found, indicated
that Dr. Scribner had overestimated the risk of bladder cancer in humans from MOCA.

Dr. Bryan's reasons for believing that extrapolations from
animal experiments to estimate human risks were not valid within a reasonable degree of
scientific certainty largely correspond to the reasons expressed by the Secretary for
rejecting quantitative risk assessment in a rulemaking directed at developing a general
policy for regulating carcinogens. That policy, which the Secretary issued on January 22,
1980, examined the considerations relevant to the regulation of carcinogens.
"Identification, Classification and Regulation of Potential Occupational
Carcinogens," 45 Fed. Reg. 5002 (1980). One of the principal issues considered in the
rulemaking was whether a substance's carcinogenic potency should be considered in
establishing a permissible exposure level, i.e., whether quantitative risk assessment
could reliably estimate the risk presented to workers by a carcinogen. After receiving
numerous expert opinions on both sides of the question, the Secretary rejected such an
approach, saying:

Extrapolation from animal data to predict risks in humans
introduces many additional uncertainties. These include selection of appropriate scaling
factors for size, lifespan, and metabolic rate; differences in routes of exposure,
duration and schedule of exposure, absorption, metabolism, and pharmacokinetics;
differences in intrinsic susceptibility and repair capabilities; intra-population
variation in susceptibility; and exposure to other carcinogens and intrinsic and extrinsic
modifying factors. At least theoretically, these factors can affect the relative response
of humans and animals by many orders of magnitude.[[13]]

Id. at 5200. Thus, the Secretary has concluded that quantitative extrapolations from
animal data are too speculative to provide useful estimations of human risk.

The number of assumptions made by Dr. Scribner to extrapolate
human risk from the animal studies on which he relied renders Dr. Scribner's conclusions
too speculative for purposes of section 5(a)(1). Moreover, some of the studies relied upon
in making the quantitative risk assessment involved exposure to benzidine rather than
MOCA. Dr. Bryan's testimony demonstrates that conclusions as to the carcinogenicity of one
chemical cannot readily be drawn from experience with a different chemical. Dr. Scribner's
risk assessment was based on the assumption that the exposed workers would excrete 50
micrograms of MOCA a day for 250 days per year. However, this assumption is based on the
urine tests of only a few Conap employees on a single day. As to Kastalon, the record is
silent on the amount of MOCA in the employees' urine. We are therefore unable to correlate
Dr. Scribner's risk assessment to the levels of MOCA to which the workers were exposed.
Nor did Dr. Scribner take into consideration the information obtained from the du Pont
study which showed no increase in the incidence of bladder cancer to du Pont workers
exposed to MOCA. We therefore conclude that the quantitative risk assessment presented by
the Secretary is too speculative to establish that Kastalon's and Conap's employees were
exposed to a significant risk of harm within the meaning of section 5(a)(1) of the Act.
Accordingly, we vacate the citations issued to Kastalon and Conap alleging violations of
the general duty clause.

Because we conclude that the Secretary failed to prove that
Kastalon's and Conap's employees were exposed to a hazard, we need not and do not decide
whether the Secretary proved the remaining elements of a general duty clause violation.

V

We now turn to the Secretary's allegations that Conap violated
standards governing the provision and use of personal protective equipment.

As noted above, the primary means by which MOCA can enter the
body is through skin absorption. MOCA is only present as an air contaminant if handling of
the chemical generates airborne dust. In the personal protective equipment citations
issued to Conap, the Secretary alleges that the company did not provide and/or require
employees to use equipment that would minimize skin contact and inhalation of MOCA. The
standards cited by the Secretary, 29 C.F.R. �� 1910.132(a) and 1910.134(a)(2), provide
as follows:

� 1910.132 General requirements.

(a) Application. Protective equipment, including personal
protective equipment for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, shall be provided, used, and
maintained in a sanitary and reliable condition wherever it is necessary by reason of
hazards of processes or environment, chemical hazards, radiological hazards, or mechanical
irritants encountered in a manner capable of causing injury or impairment in the function
of any part of the body through absorption, inhalation or physical contact.

� 1910.134 Respiratory protection.

(a) Permissible practice.

(2) Respirators shall be provided by the employer when such equipment is necessary to
protect the health of the employee. The employer shall provide the respirators which are
applicable and suitable for the purpose intended. The employer shall be responsible for
the establishment and maintenance of a respiratory protective program which shall include
the requirements outlined in paragraph (b) of this section.

The Secretary alleges that Conap violated these standards because employees in various
areas of the plant were not using impervious gloves, impervious suits, shoe covers,
goggles, head coverings, and appropriate respirators. One of the citation items also
alleges that Conap violated section 1910.132(a) because MOCA was present on surfaces of a
piece of equipment. In the Secretary's view, that means the equipment was not maintained
in a sanitary or reliable condition, as the standard requires.

We vacate these citation items for the same reason we vacate
the general duty clause citations: the Secretary failed to prove that Conap's employees
were exposed to a hazard. Section 1910.132(a) requires that personal protective equipment
be provided and used "wherever it is necessary by reason of hazards of processes or
environment," and section 1910.134(a)(2) mandates that employers provide respirators
"when such equipment is necessary to protect the health of the employee." Thus,
like the general duty clause, the Secretary must show that a significant risk to employees
is present as a necessary element of proof that an employer violated either standard. See
Donovan v. General Motors Corp., 764 F.2d 32 (1st Cir. 1985) (significant risk test for
proof of a hazard applies under section 1910.132(a)); Modern Drop Forge Co. v. Secretary
of Labor, 683 F.2d 1105, 1114-15 (7th Cir. 1982) (significant risk test applies where
standard does not presume existence of a hazard); Anoplate Corp., 12 BNA OSHC at 1681,
1986 CCH OSHD at p. 35,680 (where standard requires proof of a hazard, Secretary must show
a significant risk to employees exists). As the Secretary failed to prove that MOCA
presented a significant risk to employees at the exposure levels present in Conap's plant,
it follows that he failed to prove that Conap violated the personal protective equipment
and respirator standards.

Although we vacate these items due to lack of proof of a
hazard, we also note that there are other deficiencies in the Secretary's evidence as to
certain items. In item 8 of the citation, the Secretary alleged that one employee wore an
unapproved respirator and another wore no respirator at all. However, none of the
measurements made by the Secretary showed any detectable levels of airborne MOCA, so even
assuming that exposure to some amount of MOCA is hazardous, the Secretary failed to prove
the need for respirators.[[14]]

Conap also provided various items of protective equipment to
minimize skin contact with MOCA, including polyethylene gloves, full-body impervious paper
uniforms, and paper hats. Use of this equipment was left to the discretion of employees.
The Secretary alleged in items 7(b), (d), and (e) of the citation that Conap violated
section 1910.132(a) by not requiring that the equipment be used in various areas of the
plant. The Secretary also alleged in items 7(a) and (c) that Conap violated section
1910.132(a) because employees were not using goggles or other eye protection and were not
wearing shoe covers to prevent spilled MOCA from being tracked throughout the plant.

Some of these allegations involve employees who were not
exposed to MOCA. For example, in subitems 7(b)(3), (c)(2), and (e)(2), the Secretary
alleged that employees in the room containing the Automatic Process Control machines
("the APC room") were not wearing impervious gloves, shoe covers, and impervious
clothing. However, employees did not handle MOCA in the APC room. The MOCA was mixed with
the prepolymer in the APC machine before the mixture was discharged from the machines.
Employees could contact the mixture after it came out of the machines, but there is no
evidence that this would be harmful. To the contrary, Robert Turkington, an industrial
hygienist who testified for the Secretary, stated that employees could not absorb MOCA by
contacting the mixture of MOCA and prepolymer. Thus, the Secretary failed to show that
there was any possibility of employee absorption of MOCA in the APC room.

The Secretary also alleged in item 7(b)(1) a violation of
section 1910.132(a) because employees in the belts room did not wear gloves all the time.
  Employees weighed and melted MOCA in the belt room, but they also performed other
operations there.[[15]] Although the record shows that employees in the room did not wear
gloves all the time, that does not prove that employees failed to wear gloves when they
handled MOCA.

The Secretary alleged in item 7(a) that employees did not wear
eye protection in two areas where MOCA was handled. However, there is no evidence that
MOCA presented any special danger to the eye. The precautions recommended by du Pont, on
which the Secretary places so much emphasis, do not mention the need for eye protection.
Thus, the Secretary failed to show any hazard necessitating eye protection.

The Secretary alleged in item 7(c) that Conap violated section 1910.132(a) because
employees did not wear shoe covers in the plant areas where MOCA was used. According to
the Secretary, employees should have worn shoe covers in rooms where MOCA was used and
should have discarded them before leaving the room, thus preventing MOCA from being
tracked into areas of the plant where MOCA was not used. The Secretary did not show,
however, that such a practice would significantly reduce employee exposure to MOCA. There
is no evidence that MOCA was in fact being tracked throughout Conap's plant. Also, we
assume that all employees wore shoes, so even if MOCA was present on the floors, there
would appear to be little, if any chance, it could be absorbed through the skin of
employees. Even under the Secretary's argument that any measurable exposure to MOCA
presents a hazard, the Secretary failed to prove the need for shoe covers.

The Secretary alleged in item 6 that Conap failed to maintain a
glove box in a sanitary and reliable condition. As described earlier, the glove box is one
of the devices Conap used to minimize employee contact with MOCA. It is an enclosed
chamber into which a closed container of MOCA is placed and manipulated through rubber
gloves installed on the side of the chamber. Wipe samples taken during the inspection of
Conap's plant revealed 3.6 micrograms of MOCA inside one glove, 9.9 micrograms inside the
other. and 460 micrograms on top of the glove box. The Secretary argues that these
measurements show that the glove box was not maintained in a sanitary condition. We do not
agree. The drums of MOCA used by Conap each contained 132 pounds of the chemical.
Translated into micrograms, each drum contained approximately 60 billion micrograms.[[16]]
To find a violation based on the presence of a few micrograms, or even a few hundred
micrograms, would impose on employers the duty to eliminate all traces of a chemical from
all surfaces employees may contact. Such a requirement is simply unrealistic. The purpose
of the glove box was to minimize employee contact with MOCA, and the fact it did not
eliminate such contact entirely does not show it was not maintained in a sanitary
condition.

VI

The evidence in these cases strongly suggests that MOCA is a
human carcinogen. Certainly it would be preferable not to be exposed to a carcinogen than
to be exposed to even a small amount. However, many substances to which people are exposed
daily are known carcinogens, and the Benzene Case recognizes that human activity cannot be
guided by the sole objective of totally removing exposure to carcinogens. Instead, a
reasoned judgment must be made as to whether the amounts to which people are exposed
present a significant risk of harm. In these cases, the Secretary alleges that Kastalon
and Conap violated the general duty clause and certain general standards because their
employees were exposed to MOCA. The Secretary has not, however, proven by a preponderance
of the evidence of record that the amounts of MOCA to which Kastalon's and Conap's
employees were exposed were hazardous. We are therefore compelled to conclude that the
Secretary has failed to sustain his burden of proof and to vacate the citations.

From a broader perspective, to find violations here would be
beyond the limited adjudicatory role of the Commission. We would effectively be
establishing a permissible exposure limit through the adjudicatory process without
regulated industries having the opportunity for input under the Act's notice and comment
rulemaking procedures. While this may be appropriate where appropriate exposure limits
have been firmly and scientifically established, see, e.g., American Smelting and Refining
Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974), it is not desirable where it requires
"findings . . . on the frontiers of scientific knowledge."

Benzene Case, 448 U.S. at 656. Such findings are uniquely
suited to rulemaking, in which the Secretary can "make a policy judgment as to
whether a specific risk of health impairment is significant in terms of the policy
objectives of the statute." Id. at 663 (Burger, C.J., concurring). Moreover, in a
rulemaking proceeding, all interested persons have the opportunity to be heard, and a rule
gives employers notice of what they must do to provide safe and healthful workplaces. If
the Secretary believes that MOCA presents a significant risk in the workplace, he retains
the authority under section 6(b) of the Act to complete the rulemaking he has already
started.

Finally, we note that Kastalon contends that the costs it would
incur if the Secretary's abatement order is enforced would render it uncompetitive within
its industry and thus put it out of business. Although it is not necessary to reach the
merits of this contention, we mention it here because it reinforces the importance of
proceeding through rulemaking instead of the general duty clause where a decision can be
expected to have broad impact within an industry or industries. As the Court of Appeals
for the District of Columbia observed:

[I]f adoption of the precaution would clearly threaten the
economic viability of the employer, the Secretary should propose the precaution by way of
promulgated regulations, subject to advance industry comment, rather than through
adventurous enforcement of the general duty clause.

National Realty & Construction Co. v. OSHRC, 489 F.2d 1257,
1266 n.37 (D.C. Cir. 1973).

The judges' decisions are affirmed and the citations are
vacated. FOR THE COMMISSION Executive Secretary

DATED: JUL 23 1985

The Administrative Law Judge
decision in this matter is unavailable in this format. To obtain a copy of this document,
please request one from our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax
(202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] "MOCA" is a registered trade name of E.I. du
Pont de Nemours & Co., Inc., which at one time was the chemical's primary
manufacturer. Du Pont no longer manufactures MOCA.

[[2]] Section 5(a)(1), 29 U.S.C. � 654(a)(1), provides:

Each employer shall furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees.

[[3]] Section 6(b) of the Act, 29 U.S.C. � 655(b), provides
that the Secretary may promulgate occupational safety and health standards following
rulemaking proceedings in which interested persons are given notice of the proposed rule
and an opportunity to be heard. These notice-and-comment rulemaking provisions are similar
to those in 5 U.S.C. � 553, section 4 of the Administrative Procedure Act, 5 U.S.C. �
551 et seq. ("the APA"), but impose additional requirements not found in the
APA. Among those additional requirements are provisions governing the use of advisory
committees. The Secretary may convene such a committee to advise him regarding a standard
under consideration. Where he does so, he must publish a proposed standard within 60 days
of receiving the committee's recommendations. Interested persons are given 30 days to
submit comments and request a hearing. In the case of the MOCA standard, the Secretary
published the proposed standard before receiving the advisory committee's recommendations,
and he held a hearing on the standard less than 30 days after receiving the
recommendations. The court held that this procedure did not conform to the statutory
requirements because it did not give interested persons an adequate opportunity to review
the committee's recommendations before submitting comments on the standard and
participating in the hearing.

[[4]] The record indicates that two companies in addition to
Kastalon and Conap were cited. A 1976 citation issued to Roadway Tire & Rubber Company
was resolved in a settlement agreement. A citation issued in 1979 to Nazar Rubber Company
was vacated by an administrative law judge, and the Secretary did not seek review of that
decision. Nazar Rubber Co., 81 OSAHRC 52/D13, 9 BNA OSHC 1960, 1981 CCH OSHC � 25,437
(No. 79-4005, 1981).

[[5]] This was particularly true in Kastalon, where the
abatement requirements listed by the Secretary were largely taken verbatim from the
invalidated MOCA standard.

[[6]] The Secretary adopted this standard under section 6(a) of
the Act, 29 U.S.C. � 655(a), which required him to summarily promulgate national
consensus standards and established federal standards as occupational safety and health
standards within two years of the Act's effective date without notice-and-comment
rulemaking proceedings. The OSHA standard was originally adopted as a standard by the
American National Standards Institute in 1969.

[[7]] We note that the United States Court of Appeals for the
Fifth Circuit has held that the significant risk test should not be applied in enforcing
the general duty clause. Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 323-24 (5th
Cir. 1984). We respectfully disagree with that court's conclusion. The Fifth Circuit
reasoned that the Benzene Case dealt with the promulgation of standards and was therefore
of limited relevance in the different context of the general duty clause. We believe,
however, that the Supreme Court's conclusion that the Act was not intended to create
risk-free workplaces applies equally to the enforcement of the general duty clause as to
the promulgation of standards. As we have stated, Congress did not intend for the general
duty clause to provide broader protection than could be achieved through the promulgation
of standards. Thus, a limitation on the Secretary's authority to issue standards
necessarily also limits the scope of the general duty clause.

[[8]] The only record evidence regarding a specific study of
human exposure to MOCA involves a study by du Pont. Du Pont began development work with
MOCA in 1954 and commenced full-scale commercial production in 1962. Between 1967 and
1971, Du Pont studied the medical records of all its employees who had been involved with
MOCA and found no adverse health effects attributable to MOCA.

[[9]] In the du Pont study, six dogs were fed MOCA in their
daily diet. One died early in the experiment from unrelated causes, and the remaining five
all ultimately contracted cancer. None of the six dogs in the control group contracted
cancer, indicating that MOCA had induced the cancers in the exposed group. See note 12
infra.

[[10]] The Secretary cites National Realty & Construction
Co. v. OSHRC, 489 F.2d 1257, 1265 n. 32 (D.C. Cir. 1973), for the proposition that a
hazard is recognized within the meaning of the general duty clause if "safety experts
who are familiar with the circumstances of the industry or activity in question"
would have recognized the existence of a hazard. The court made this statement in the
context of holding that the general duty imposed on employers by section 5(a)(1) was an
achievable one, and that the test for recognition of the hazard was therefore an objective
one. The court stated, in full, "The standard would be the common knowledge of safety
experts who are familiar with the circumstances of the industry or activity in
question." Id.

In this case, it is very doubtful whether Dr. Bryan's opinions can be said to
represent the "common knowledge" of the polyurethane industry. Dr. Bryan did not
work in the industry, but was retained by the Polyurethane Manufacturers Association to
provide it with expertise the industry did not possess. In general, we think it would be
unrealistic to hold an industry to the standard of knowledge of an outside expert it
engages to provide it with specialized expertise. However, because we conclude that the
evidence does not establish the existence of a hazard, we need not decide whether Dr.
Bryan's recognition of a hazard would be sufficient to find that the polyurethane industry
recognized the hazard.

[[11]] We also note that the general knowledge that a chemical
is a suspect human carcinogen and should be controlled does not equate with recognition
that exposure to any amount of the chemical is hazardous within the meaning of the general
duty clause. We, therefore, do not agree with the Secretary that the polyurethane
manufacturing industry recognized the existence of a hazard at any detectable level of
MOCA. Additionally, we note that Kastalon and Conap took considerable steps to reduce the
exposure of their employees to MOCA. No employees had been known to suffer ill effects
from working with MOCA. There is no evidence that Kastalon and Conap believed the measures
they took were inadequate or that they recognized that a hazard existed at their
worksites.

[[12]] In a typical animal experiment, a certain number of
laboratory animals are exposed to a measured quantity of a chemical while a control group
of similar animals is maintained in a similar fashion but is not exposed to the chemical.
If a larger number of exposed animals than control animals contract a disease and the
disparity is statistically significant, it can be concluded that the chemical causes the
disease. The statistical probability that an animal will contract the disease at the
exposure level used in the experiment can also be calculated. If the experiment is
conducted with different groups of animals exposed at several different levels, the degree
to which the probability of contracting the disease varies with the exposure level -- the
"dose-response curve" -- can be obtained. In order to extrapolate this
quantitative animal data to determine the risk the chemical presents to humans, a number
of assumptions must be made. First some assumption must be made about the relative
sensitivity to the chemical exhibited by humans and the experimental animals. Assumptions
must also be made about differences in conditions under which humans and laboratory
animals are exposed. For example, the experiment may involve animal ingestion of the
substance, but human exposure may typically be through inhalation. In such a situation, an
assumption must be made about the relative risk posed by the different exposure routes.
Also, animal experiments often involve exposure levels that are much higher than humans
typically encounter in the workplace. In order to estimate the risk to humans from the
data gathered in such experiments, assumptions must be made about the relative risk at
high and low dosages. One possible assumption, for example, is that the risk is directly
proportional to the dosage--in technical terms, that the "dose-response curve"
is a straight line. Experience shows, however, that it is extremely difficult to predict
the risk to humans at low dosages from the results of information gathered at high
dosages, for substances that are toxic at high dosages are often relatively less harmful
or even completely safe at the typical dosages workers receive.

[[13]] The Secretary noted that estimates of the probability
that humans could develop cancer from saccharin ingestion calculated by different
scientists assuming different models for cancer induction varied by seven orders of
magnitude, i.e., by a factor of ten million. (One order of magnitude represents a tenfold
difference in the estimated risk; two orders of magnitude represents a hundredfold
difference). 45 Fed. Reg. at 5196-5200.

[[14]] The Secretary also alleged in item 9 that Conap did not
establish and maintain a respiratory protection program because it did not train employees
in the use of respirators and did not have written respirator instructions. However,
absent evidence of a hazard requiring the use of respirators, an employer cannot be found
in violation for failing to implement a respirator program. Gulf Oil Corp., 83 OSAHRC
21/A2, 11 BNA OSHC 1476, 1480, 1983 CCH OSHD � 26,529, p. 33,819 (No. 76-5014, 1983).

[[15]] Much of the Secretary's evidence pertaining to the belt
room was directed at an operation in which the liquid mixture of MOCA and prepolymer was
poured over a mandrel on a lathe to form polyurethane belts. The evidence establishes that
this was a "very sloppy" process and resulted in considerable spillage. However,
as noted above, the evidence shows that there was no hazard of MOCA contact once the MOCA
was mixed with the prepolymer. Thus, the evidence of the sloppiness of the belt-forming
operation is irrelevant to whether there was a hazard of MOCA exposure in the belt room.

[[16]] One pound equals 454 grams. Each gram contains one
million micrograms. Thus, the number of micrograms in a drum is 132 multiplied by 454
multiplied by one million.