Mobay Chemical Corporation

Plain-English summary

Mobay manufactured chemicals and maintained self-contained breathing apparatuses throughout a plant that used highly toxic substances. OSHA found four departmental units that were not fully charged and proposed a $350 serious penalty, although the rescue-team units and employees’ escape respirators were adequate. The judge vacated the citation. Chairman Buckley agreed because the four units were voluntarily supplied as additional protection, remained substantially charged, and had alarms that warned users when five to seven-and-a-half minutes of air remained. Commissioner Cleary would have affirmed because any respirator made available for toxic atmospheres had to be fully charged under the standard, whether voluntarily supplied or required. The divided Commission left the citation vacated without precedential value on the merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.134(f)(2)(ii)
• Outcome: Serious breathing-apparatus citation and proposed $350 penalty remained vacated.
• Key point: The Commission did not reach a majority holding on whether voluntarily supplied backup respirators must meet the same full-charge requirement as required units.

Full text (OSHRC public release)

Docket No. 82-0367

SECRETARY OF LABOR,

Complainant,

v.

MOBAY CHEMICAL CORPORATION,

Respondent.

INTERNATIONAL CHEMICAL WORKERS

UNION AND ITS LOCAL 566,

Authorized Employee

Representative.

OSHRC Docket No. 82-0367

DECISION

Before: BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.
� 661(i), 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
("OSHA"). 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).

Following an OSHA inspection of its plant in Natrium, West Virginia, Mobay Chemical
Corporation ("Mobay"), a chemical manufacturer, was issued one citation alleging
that it failed to fully charge the air cylinders of four self-contained breathing
apparatuses ("SCBA's") located in four separate departments in the plant, in
serious violation of 29 C.F.R �1910.134 (f )(2) (ii).[[1]] A penalty of $350 was
proposed.

Mobay, which used various highly toxic chemicals, had specific areas, in its plant where
it kept SCBA's intended for use by its in-house rescue squad and fire brigade. Fully
charged SCBA's supply about 30 minutes of breathing air under ideal conditions and are
equipped with a bell called an "Audi-Larm" that sounds when only 5 to 7-1/2
minutes of air remain in the SCBA. Robert Clifford, the industrial hygienist who conducted
the inspection of Mobay's plant, examined the SCBA's intended for use by fire and rescue
employees and found that they were fully charged. In addition, each Mobay employee was
provided a personal canister and mask for escape purposes. The Secretary does not allege
any deficiency in either the SCBA's provided for fire and rescue purposes or the
respiratory devices intended to enable employees to safely escape the plant. This case
concerns other SCBA's located in various departments in Mobay's plant.

Clifford testified that he checked about two SCBA's in each of the 21 departments and
found that four SCBA's in four different departments were not fully charged in accordance
with the manufacturer's instructions. Clifford testified that if Mobay had not provided
the four SCBA's at issue it would not have been cited so long as it had provided other
adequate respiratory protection for escape purposes. According to Clifford, the
undercharged SCBA's presented the hazard of not providing enough air to complete whatever
emergency activity may be necessary. He noted that a fully charged SCBA supplies 30
minutes of breathing air under ideal conditions, which were seldom present, and the four
undercharged SCBA's, at issues would provide even less time. Clifford stated that although
no OSHA standard required Mobay to provide the SCBA's at issue he recommended that a
citation be issued because Mobay, having voluntarily provided them, had to properly
maintain them. He characterized the alleged violation as serious because it reduced the
amount of time available to do "risky" work. However, Clifford rated Mobay's
SCBA maintenance and other safety programs as very good to excellent. Under Mobay's
overall SCBA maintenance program, the SCBA's were inspected on time, given the proper
physical checks, and properly maintained.

Clifford stated that he was told by the two persons who accompanied him during the
inspection --Jim Ingram, Mobay's Safety Supervisor, and James Regiec, President of the
Union Local -- and employees who worked in the areas that. the SCBA's at issue were to be
used during, an emergency, such as an explosion, fire, or major chemical leak, primarily
by the rescue squad for rescue work and by employees for the shutting down and repair of
equipment. He later stated that the cited SCBA's could have been used as backups by the
rescue unit or by employees who needed to escape and did not have better respiratory
equipment available in the event of a shutdown or other emergency. He noted that the four,
SCBA's were hung, in locations that were easily accessible to those employees.

James Gobel, Mobay's Manager of Personnel and Safety, testified that the four cited
SCBA's,, were not intended for employee escape use, although they could have been used for
that purpose. Instead, he testified, the four SCBA's were for general use by employees
while working in toxic atmospheres, where, according to the manufacturer's instructions,
employees were to leave the area of the toxic air when the Audi-Larm rang.

In his decision in this case, Judge Paul L. Brady vacated the citation. For the reasons
set forth below, the two Commissioners are divided on whether the judge erred in his
disposition.[[2]]

Chairman Buckley would affirm the judge. He notes that industrial hygienist Clifford
testified that there was no specific requirement for the SCBA's and that Mobay would not
have been cited for violating section 1910.134(f)(2)(ii) if it had not provided the SCBA's
at issue so long as other adequate escape respirators were provided. Clifford admitted
that Mobay did provide its employees with other adequate respiratory equipment for escape
purposes in the form of personal canisters and masks and provided adequate SCBA's for the
fire and rescue brigade. The cited SCBA's were for general work in toxic atmospheres or
for use as extra protection by the rescue squad or employees performing shut-down work.
Indeed, Clifford rated Mobay's SCBA maintenance and other safety programs as very good to
excellent.

To affirm this citation would penalize Mobay for voluntarily providing its employees with
additional safeguards and could result in the elimination of this additional protection
from the workplace. Such a ruling would discourage employers from voluntarily providing
safety equipment beyond that required, a result patently at odds with the purpose of the
Act -- to provide safe and healthy workplaces. See, e.g., Diebold, Inc. v. Marshall, 585
F.2d 1327, 1338 (6th Cir. 1978); General Motors Corp., GM Parts Division, 84 OSAHRC _____,
11 BNA OSHC 2062, 2066, 1984 CCH OSHD � 26,961, p. 34,611 (No. 78-1443, 1984). In the
instant case, the cylinders on the SCBA's at issue were substantially filled. They would
have provided a user with air for a significant portion of time and certainly enhanced
employee safety by comparison to the apparently acceptable alternative of not providing
the SCBA's.

The lack of full charging could not be considered to have created a hazard where none
previously existed because each SCBA had an alarm that would ring when 5 to 7-1/2 minutes
of air remained. Employees who did use these SCBA's as backups to their personal canisters
and masks would not remain in contaminated air in reliance on a fixed amount of oxygen in
the SCBA, but would remove themselves immediately once the Audi-Larm sounded. In no case
was the charge of a cylinder diminished to a point where less than 5 to 7-1/2 minutes of
air remained. Thus, employees would have the same amount of time remaining once the alarm
sounded warning them to exit. Mobay's voluntary provision of additional employee
safeguards should be applauded, not discouraged, and certainly not penalized. Chairman
Buckley, therefore, would affirm the judge's decision vacating the citation.

Commissioner Cleary would affirm the citation. Mobay failed to comply with the standard by
not fully charging all or its SCBA's in accordance with the manufacturer's instructions.
While the testimony of Mr. Gobel seems to be that the SCBA's were for general use by
employees "while working in toxic atmospheres," it must be presumed that
normally an employee would not be employed in a toxic atmosphere, and that a toxic
substance must have escaped to create such conditions. If one were to "work" in
a toxic atmosphere as a normal condition, it would be manifestly impractical to use a
succession of 30-minute respirators. One must therefore conclude that emergency conditions
would exist before the SCBA's would be used. But even assuming "working in toxic
atmospheres" was not an emergency condition, the SCBA's must have been intended to be
used in toxic atmospheres, at least on a contingency basis. Given this, both the standard
and logic dictate that the SCBA's provide the maximum protection that the apparatus is
capable of.

It is not sufficient to rely on an alarm to warn when the SCBA's air supply is low. This
is simply a gauge, and does not supplant the requirement for a full tank. When
"working" in toxic atmospheres, the hazard of an insufficient supply of air is
very grave indeed.

Moreover, it is no defense that Mobay was not required to supply these particular
respirators. Whether they were provided voluntarily or were required, they were intended
for use, were used, or were available for use in a toxic atmosphere. It would be no
defense if an employee were killed to maintain that the employer was not responsible
because the employee used a SCBA that was voluntarily provided instead of another that was
required. It is an exaggeration in this case to characterize these SCBA's as unsafe.
However, by way of illustration, it would not be acceptable to require an employer to
supply SCBA's that conform to standards, but to permit it to supply unsafe SCBA's as well,
as long as it supplied them voluntarily. One would presume that because the SCBA'S were
supplied, they were intended for use, and, if used, the potential for a tragic accident is
obvious.

In view of the possibility of death or serious bodily harm, Commissioner Cleary would find
that the violation is properly classified as serious. However, the preceding
notwithstanding, the Secretary's principal witness indicated that Mobay's safety program
was good to excellent. The SCBA's were inspected by Mobay. Only four out of many were
minimally undercharged. Accordingly, he would assess a minimal penalty.

Under section 12(f) of the Act, 29 U.S.C. � 661(e), official action can be taken by the
Commission with the affirmative vote of two members. The two Commission members are
divided on whether the judge erred in his disposition in this case. To resolve this
impasse and to permit this case to proceed to a final resolution, the members have agreed
to affirm the judge's decision but accord it the precedential value of an unreviewed
judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053,
1977-78 CCH OSHD � 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991
(4th Cir. 1979).

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: FEB 27 1985

FOOTNOTES:

[[1]] The standard provides:

Self-contained breathing apparatus shall be inspected monthly. Air and oxygen-cylinders
shall be fully charged according to, the manufacturer's instructions. It shall be
determined that that regulator and warning devices function properly.

[[2]] As established by the Act, the Commission is composed of three members.
Section 12(a), 29 U.S.C. � 661(a). Currently, the Commission has two members as a result
of a vacancy.