Louisiana-Pacific Corporation

Plain-English summary

OSHA cited Louisiana-Pacific's Montana particleboard plant for three alleged violations of the Hazard Communication Standard and proposed $1,000. The items concerned formaldehyde warnings on particleboard shipping labels, warnings on stationary formaldehyde tanks, and safety data sheets for particleboard shipped to downstream businesses. The ALJ vacated all three items, including findings that the cited wood product was excluded from the standard and that the plant substantially complied with the tank-labeling requirements. Commission review was limited to the stationary-tank item. After further review of the evidence, the Secretary withdrew that item. The Commission granted the withdrawal, set aside the ALJ's ruling only as to the withdrawn item, and allowed the vacatur of the other two items to become final.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1200(f)(1)(ii), 1910.1200(f)(5)(ii), and 1910.1200(g)(6)
• Outcome: All three hazard communication items were vacated or withdrawn, eliminating the proposed $1,000 penalty.
• Key point: The Secretary ended review of the stationary-tank warning item, while the ALJ's vacatur of the shipping-label and safety-data-sheet items became final.

Full text (OSHRC public release)

Docket No. 88-2021

SECRETARY OF LABOR,

Complainant,

v.

LOUISIANA-PACIFIC CORPORATION,

Respondent.

OSHRC Docket No. 88-2021

ORDER

This case was directed for review before the Occupational
Safety and Health Review Commission by Former Acting Chairman Linda L. Arey on October 10,
1989 from a decision by Administrative Law Judge James A. Cronin dated August 29, 1989.
The Secretary has filed a Notice to Withdraw Item 1b of Citation 2 pursuant to Commission
Rule 102, 29 C.F.R. � 2200.102.

Having reviewed the official record in this case, the
Commission construes the Secretary's Notice to Withdraw as a Motion to Withdraw Item 1b of
Citation 2 and grants the motion. In addition, the Commission sets aside the Judge's
decision to the extent that it rules on Item 1b of Citation 2, the withdrawn citation.
Judge Cronin's Decision and Order now becomes a final order to the extent that it rules on
Items 1a and 1c of Citation 2.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: May 24, 1990

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

LOUISIANA-PACIFIC CORPORATION,

Respondent.

OSHRC Docket No. 88-2021

Secretary's Notice to Withdraw Citation

In a decision dated August 8,1989, Administrative Law Judge
James Cronin, Jr. vacated a citation for serious violations of 29 C.F.R.
1910.1200(f)(1)(ii), 1910.1200 (f)(5)(ii) and 1910.1200(g)(6) which had been issued to
respondent by the Secretary on August 2, 1988 (items 1a, 1b, and 1c of serious Citation
2). The Secretary's subsequent petition for discretionary review of the judge's decision
was granted by the Commission on October 10, 1989. The Commission's Direction for Review
was limited to item 1b of serious Citation 2; the 1910-1200(f)(5)(ii) violation.

After extensive review of the record evidence, the Secretary
has determined that further litigation of this case is not merited.

WHEREFORE, the Secretary hereby withdraws the citation for violation of 29 C.F.R.
1910.1200 (f)(5)(ii) issued to respondent on August 2, 1988.

Respectfully submitted,

ROBERT P. DAVIS.

Solicitor

CYNTHIA L. ATTWOOD

Associate Director for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

ORLANDO J. PANNOCHIA

Attorney

SECRETARY OF LABOR,

Complainant,

v.

LOUISIANA-PACIFIC CORPORATION,

Respondent.

APPEARANCES:

For the Complainant:

Mary D. Wright, Esq., Office of the Solicitor,

U.S. Department of Labor, Kansas City, MO

For the Respondent:

Larry Jones, Esq., Missoula, MT,

Bert P. Krages, II, Esq., Louisiana-Pacific

Corporation, Portland, OR

DECISION AND ORDER

Cronin, Judge:

This proceeding arises under the Occupational Safety and Health
Act of 1970 (29 U.S.C. Section 651 et seq. ; hereafter called the
"Act").

Following an inspection of respondent's manufacturing plant at
Missoula, Montana, on April 20 and 21, 1988, the Secretary of Labor issued to respondent,
Louisiana-Pacific Corporation, a "serious" citation alleging three violations of
the Hazard Communications Standard (29 C.F.R. � 1910.1200 et seq. ). A total
penalty of $1,000.00 was proposed for the alleged violations. A hearing was held at
Missoula, Montana, on April 18, 1989, and both parties have filed comprehensive briefs.
This case is now ready for decision.

Issues

1. Whether the HCS applies to respondent's manufactured
   particleboard?

2. Whether � 1910.1200 (f)(1)(ii) requires respondent to
   address the carcinogenic hazard of formaldehyde on the shipping labels for its
   particleboard?

3. Whether respondent is required by � 1910.1200(g)(6) to
   provide either a material safety data sheet (MSDS) relating to its particleboard or
   separate MSDS relating to formaldehyde and wood dust to distributors and employers to whom
   respondent directly ships its particleboard?

4. Whether � 1910.1200 (f)(5)(ii) requires respondent to
   address the carcinogenic hazard of formaldehyde on its stationary tanks containing
   formaldehyde?

5. Whether respondent established its "greater
   hazard" defense?

6. Whether the HCS is invalid as applied to respondent?

A. Applicability of the HCS to Respondent's Particleboard

By order dated March 29, 1989, a partial summary adjudication
was issued deciding that the HCS is not inapplicable to respondent's particleboard by
reason of the wood or wood products exclusion in �1910.1200(b)(6)(iii). The parties,
however, were alerted by the later order of April 12, 1989, that this partial summary
adjudication was subject to change, modification, and even reversal by this Judge's final
decision in this proceeding. Both parties have addressed the applicability issue in their
briefs.

Section 1910.1200 (b)(6)(iii) declares that the HCS at �
1910.1200 et seq . does not apply to "Wood or wood products." The
Secretary at the hearing stipulated that particleboard is a "wood product" and
that wood dust, a component of respondent's particleboard, is "made out of wood"
(Stipulation Nos. 19, 20, Tr. 19). The Secretary, however, claims that the HCS was never
intended by the Secretary not to apply to particleboard. In support, she points to the
Secretary's interpretation of the applicability of the HCS to wood or wood products found
in the preamble to the HCS's final rule published in the Federal Register on November 25,
1983, 48 Fed. Reg. 53,280 et seq. and in the Secretary's comments to the
proposed and final rules governing occupational exposure to formaldehyde 50 Fed. Reg.
50,412 (Dec. 10, 1985); 52 Fed. Reg. 46,168 (Dec. 4, 1987).

The Secretary's comments in the HCS preamble specifically
discussed the wood and wood products exclusion from the HCS explaining that:

"while both kinds of materials are no doubt flammable and may
pose other hazards as well under some circumstances, their identity within the
workplace is unmistakable and their characteristic hazards should be well known to the
workers involved. Accordingly, their exclusion from this standard is appropriate (emphasis
provided) . . . "

The preamble goes on to indicate that wood and wood products
also were excluded from application of the HCS because some of the chemicals with which
some such products are frequently impregnated are subject to a labeling exclusion provided
in the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for regulated
insecticides. Finally, the preamble states that "it should be noted again that, as
with the other exclusions, nonexcluded chemicals which are used in conjunction with
tobacco and wood products, or are known to be present as impurities in those materials are
covered by this standard." 48 Fed. Reg. 53,289 (Nov. 25, 1983)

Subsequently, the secretary specifically addressed the issue of
whether wood products which contain formaldehyde were exempt under the HCS in the comments
to the proposed rule governing exposure to formaldehyde and stated that "wood
products which use formaldehyde would not be exempt from the requirements of the Hazard
Communication Standard since the use of formaldehyde, in this instance, is not for
pesticidal purposes. Therefore, the intention of the hazard communication standard was to
cover wood products treated with a non-excluded chemical such as formaldehyde." 50
Fed. Reg. 50,483-84, (Dec. 10, 1985)

Later, the Secretary reiterated this position in the preamble
to the final rule of the formaldehyde standard stating that, "wood products that are
capable of emitting formaldehyde are not exempted from the standards of the Hazard
Communication Standard since such uses of formaldehyde are not pesticidal." 52 Fed.
Reg. 46,284 (Dec. 4, 1987)

"Wood dust," was never referenced or mentioned in the
preamble to the HCS in November 1983. But some 45 months later on August 24, 1987, the
preamble to an expanded HCS commented that, "OSHA never intended, however, that wood
dust be excluded from the standard's coverage under the wood and wood products exemption.
Wood dust is not generally a wood 'product,' but is created as a by-product during
manufacturing operations involving sawing, sanding or shaping of wood. Wood dust does not
share solid wood products "self-evident hazard characteristics that supported the
exemption of wood products from the HCS coverage." 52 Fed. Reg. 31,863 (Aug. 24,
1987)

Respondent, on the other hand, argues with some persuasion that
the Secretary is bound by the plain meaning of the language of � 1910.1200(b)(6)(iii) and
by her stipulations that respondent's particleboard is a "wood product" and that
wood dust "is made of wood." According to respondent, the Secretary's
interpretation of � 1910.1200 (b)(6)(iii) is inconsistent with the plain meaning of the
words used in (b)(6) and its adoption or acceptance by this Commission, therefore, would
be contrary to law.

The exclusion or applicability question posed by this case is a
difficult one. But further review of the case law tends to support respondent's position
rather than the Secretary's.

When dealing with an administrative regulation or standard that provides penal sanctions
for noncompliance, as we do here, the coverage or application of the standard is no
broader than what is encompassed by its terms. Dravo Corp. v OSHRC , 613 F.2d 1227
(3d Cir. 1980)

On its face, the language of 1200 (b)(6)(iii), which appears
under the "scope and application" section of the HCS, expressly excludes from
coverage "wood or wood products" without any exceptions. Because the Secretary
stipulates that respondent's particleboard is a "wood product," the plain and
ordinary meaning of 1200.(b)(6)(iii) excludes respondent's particleboard from the
application of the HCS.

Citing Church of Scientology v. U.S. Dept. of Justice,
612 F.2d 417 (9th Cir. 1979) in support, the Secretary forcefully argues that the
Commission should not rely solely on the so-called "plain meaning" rule in
interpreting the wood products exclusion because such reliance would ignore the
Secretary's avowed intent and would expose countless employees to the hazardous chemicals
formaldehyde and wood dust.

The interpretation of an administrative standard by the
promulgating agency is entitled to "great deference" but not if this
interpretation is "clearly erroneous or inconsistent with the regulation
itself." See Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215 (1945)
and Udall v Tallman, 330 U.S. 1 at 16, 87 S.Ct. 792, at 801 (1965). As the courts
have held, a promulgated standard under the Act cannot be construed to mean what the
Secretary intended but did not adequately express. See Diamond Roofing Co. v.
OSHRC, 528 F.2d 645, 649-650 (5th Cir. 1976); Usery v Kennecott Corporation,
577 F.2d 1113 (10th Cir. 1977)

In this Judge's view, the coverage of the HCS cannot be
broadened to apply to some wood products when the HCS excludes all wood products without
exception. Cf. Dravo Corp v OSHRC , supra, where a standard was held inapplicable to
certain work places because the standard's language did not include them.

Moreover, the Act grants to the Secretary, and not to this
judge or Commission, the means and responsibility to amend � 1910.1200(b)(6)(iii) to
express what was intended by the Secretary but not stated in the standard. The Secretary
may be right to be concerned that respondent's particleboard is not subject to the HCS but
she needs only to amend � 1910.1200(b)(6)(iii) to eliminate that concern.

This Judge expressly overrules his partial summary adjudication
which held that the HCS is not inapplicable to respondent's particleboard by reason of
1200.(b)(6)(iii). But to obviate the need for a remand should the Commission or a
reviewing court decide that the HCS applies to respondent's particleboard, items 1a and 1c
of the citation will be decided as if the HCS is applicable to respondent's particleboard.

In its answer, respondent also raised the affirmative defense
that the HCS was inapplicable to respondent's particle-boards because they are
"articles," which are expressly excluded from the HCS by � 1910.1200(b)(6)(iv).
Although this defense was not addressed by respondent in its brief and apparently has been
abandoned, a brief discussion of the issue appears in order.

"Article" is defined at � 1200(c) as

". . . a manufactured item:

(i) which is formed to a specific shape or design during manufacture, (ii) which has end
use function(s) dependent in whole or in part upon its shape or design during end use; and
(iii) which does not release, or otherwise result in exposure to a hazardous chemical
under normal conditions of use."

Exposure exists under �1910.1200 (c) when

"an employee is subjected to a hazardous chemical in the
course of employment through any route of entry (inhalation, ingestion, skin contact or
absorption; etc.) and includes potential (e.g. accidental or possible) exposure."

Respondent's particleboard clearly fails to satisfy the third
definitional criterion of "article" because the record establishes that
respondent's particleboard releases the hazardous chemicals formaldehyde and wood dust
under normal conditions of use by downstream employees and that these employees are
exposed to formaldehyde and wood dust through inhalation. Respondent's particleboards,
therefore, are not "articles" and not excluded from application of the HCS by
reason of � 1910.1200(b)(6)(iv).

B. Item 1a - Alleged Violation of � 1910.1200(f)(1)(ii)

The Secretary has charged respondent with the failure of its
shipping labels that are attached to the units of its particleboard to address the
carcinogenic hazard of the formaldehyde contained in the particleboard (Ex. C-3).

� 1910.1200(f) provides in pertinent part:

Labels and other forms of warning. (1) The chemical
manufacturer, importer, or distributor shall ensure that each container of hazardous
chemicals leaving the workplace is labeled, tagged or marked with the following
information:

(i) Identity of the hazardous chemical(s);

(ii) Appropriate hazard warnings; and

(iii) name and address of the chemical manufacturer, importer or other responsible party.

Most of the facts are undisputed and many of them were
stipulated by the parties.

Respondent is an employer engaged in a business which affects
commerce and is listed within the SIC codes 20 through 39.

Respondent manufactures particleboard, a material formed by
binding small particles of wood and wood dust with urea formaldehyde resin. The
formaldehyde content of this manufactured particleboard varies from .007 to .021 percent.
The particleboard also contains more than 1% of soft wood dust.

The HCS defines a chemical manufacturer as "an employer
with a workplace where chemicals are produced for use or distribution. See �
1910.1200(c).

A "chemical" is broadly defined in 1200(c) as
"any element, chemical compound or mixture of elements and/or compounds." The
term "hazardous chemical" is defined as "any chemical which is a physical
hazard or a health hazard." "Health hazard" also is defined in section
1200(c) and means a chemical for which there is statistically significant evidence based
on at least one study conducted in accordance with established scientific principles that
acute or chronic health effects may occur in exposed employees. The parties stipulated
that formaldehyde has been the subject of at least one such study and was found to be a
carcinogen. Therefore, formaldehyde is a "health hazard" and a "hazardous
chemical."

The HCS also establishes a "floor" of hazardous
substances which chemical manufacturers are required to treat as hazardous chemicals or
carcinogens. See 1910.1200(d)(3) and (4).

Both formaldehyde and wood dust are listed in the Threshold
Limit Values for Chemical Substances in the Work Environment, American Conference of
Governmental Industrial Hygienists (ACGIH). Formaldehyde also is regulated under Subpart
Z. of 29 C.F.R. Part 1910 at � 1910.1048. Formaldehyde additionally is listed by both the
International Agency for Research on Cancer (IARC) Monographs (latest editions) and
by the National Toxicology Program (NTP), Annual Report on Carcinogens (latest edition) as
a carcinogen. Both formaldehyde and wood dust, therefore, must be treated as
"hazardous chemicals," and formaldehyde additionally treated as a
"carcinogen," for purposes of the HCS.

Particleboard is not the result of a chemical reaction and,
therefore, is a "mixture" of chemicals as that term is defined under � 1200(c).
Because wood dust, a hazardous chemical, comprises more than 1% of the mixture
constituting the particleboard, the particleboard itself also must be treated and
considered as a "hazardous chemical." See 1200 (d)(5)(ii).

Respondent is found to be a chemical manufacturer and its particleboard a
"hazardous" chemical subject to the labeling requirements of the HCS under �
1200.(f)(1)(ii).

Respondent, however, was not charged with the failure of its
shipping label to address the hazards generally associated with wood dust, but only with
the failure to address the carcinogenicity of formaldehyde. Respondent initially argues
that a label referencing the carcinogenic hazard of formaldehyde is not appropriate and
not required given the insignificant emission levels of formaldehyde from its
particleboard. This Judge agrees that this record does not establish that respondent's
shipping label is required to reference the potential cancer risk of formaldehyde but for
somewhat different reasons.

� 1200(f)(1)(ii) requires "appropriate hazard
warnings" on the label of a hazardous chemical mixture. The HCS also requires a
chemical manufacturer to determine the hazards of any chemical mixture that he produces.
He may test the mixture "as a whole" to determine its hazards or assume that the
mixture presents the same hazards as posed by the individual components of the mixture.

In effect, the HCS also creates a presumption that a
carcinogenic component that comprises less than .1% of the mixture poses no cancer hazard.
The HCS, of course, also presumes that a carcinogenic component comprising more than .1%
of the mixture poses a cancer hazard.

Because of this presumption, no cancer warning on a container label of a hazardous
chemical mixture is required if the carcinogenic component comprises less than .1% of the
chemical mixture.

A chemical manufacturer, who does not test the mixture as a
whole to determine its hazards, is entitled to rely on this presumption unless he has
reason to believe that the emissions of the carcinogenic component will exceed the OSHA
PEL or an ACGIH Threshold Limit Value for that chemical. See � 1910.1200(d)(ii)
and (iv).

In this case, formaldehyde comprises less than .1% of the
particleboard, a hazardous chemical, and there is no evidence that respondent had reason
to believe that formaldehyde could be released at a concentration exceeding the OSHA PEL
of one part formaldehyde per million parts of air (1 ppm) as a 8-hour time weighted
average (TWA) concentration under normal conditions of use. Indeed, the respondent's and
Secretary's tests demonstrate that formaldehyde emissions from the particleboard do not
exceed, the OSFA PEL.

There also is no evidence that respondent had reason to believe
that its particleboard under normal conditions of use could emit formaldehyde in
concentrations that could cause cancer.

Respondent's expert, who was not a respondent employee, agreed
that employee exposure to formaldehyde below 1 ppm poses a potential risk of cancer. But
that evidence is insufficient to prove that respondent has reason to believe that the
emission level of formaldehyde from its particleboard could cause cancer.

Because no test for wood dust apparently was performed,
respondent did not test the particleboard as a whole to determine its hazards. Therefore,
respondent was entitled to rely on the presumption that, formaldehyde posed no cancer
hazard because it comprises less than .1% of the particleboard, and conclude that no
cancer hazard warning on its container labels for formaldehyde was required.

Moreover, even assuming that respondent's testing of its
particleboard for formaldehyde emissions constituted a test of the particleboard "as
a whole," the test results were not indicative of a cancer hazard. Thus, no cancer
hazard warning on the container shipping label for formaldehyde was required. Item 1c -
Alleged Violation of � 1910.1200(g)(6)

The Secretary alleges that respondent failed to provide
downstream employers and distributors with material safety data sheets (MSDS) for the
hazardous chemicals formaldehyde and wood dust contained in its particleboard.

� 1910.1200(g)(6) provides:

(6) Chemical manufacturers or importers shall ensure that
distributors and employers are provided an appropriate material safety data sheet with
their initial shipment, and with the first shipment after a material safety data sheet is
updated. The chemical manufacturer or importer shall either provide material safety data
sheets with the shipped containers or send them to the employer prior to or at the time of
the shipment. If the material safety data sheet is not provided with a shipment that has
been labeled as a hazardous chemical, the employer shall obtain one from the chemical
manufacturer, importer, or distributor as soon as possible.

Respondent stipulated that it did not provide MSDS relating to
its particleboard or to the hazardous chemicals formaldehyde and wood dust contained in
its particleboard to "all" downstream distributors or employers to whom it
directly shipped its particleboard (Tr. 18). The compliance officer further testified that
he was told by respondent's plant manager that MSDS were not being sent with the shipped
particleboard (Tr. 48). By failing to provide a MSDS for its particleboard which contains
more than 1% wood dust, and, therefore, is a hazardous chemical or an MSDS for wood dust,
respondent failed to comply with � 1910.1200(g)(6).

For reasons similar to those previously discussed concerning
the alleged violation of � 1200(f)(1)(ii), however, respondent was not required to
provide a MSDS for formaldehyde or reference formaldehyde in an MSDS for the
particleboard. An MSDS need not list the carcinogenic component of a hazardous chemical
mixture if the carcinogenic component does not comprise more than .1% of the mixture and
if there is no evidence that the component could be released in concentrations exceeding
the OSHA PEL or could present a cancer hazard to employees. See 1200.(g)(2)(c)(1), (2) and
(3).

As previously discussed, formaldehyde did not comprise more
than 0.1% of the particleboard's hazardous chemical mixture. The Secretary also failed to
establish by a preponderance of the evidence that respondent had reason to believe that
formaldehyde could be released in concentrations exceeding the OSHA PEL for formaldehyde
of 1 ppm or that the concentrations of formaldehyde released could present a cancer hazard
to downstream employees under normal conditions of use. See 48 Fed. Reg. 53,292.

D. Item 1b-Alleged Violation of �1910.1200(f)(5)(ii)

The Secretary alleges a violation of � 1200(f)(5)(ii) due to
respondent's failure to label its stationary urea formaldehyde tanks with information
relating to the carcinogenicity of formaldehyde.

� 1910.1200(f)(5)(ii) provides:

(f) Labels and other forms of warning.

(5) Except as provided in paragraphs (f)(6) and (f)(7) the employer shall ensure that each
container of hazardous chemicals in the workplace is labeled, tagged or marked with the
following information:

(ii) Appropriate hazard warnings.

Respondent appears to argue that it was not required to address
the carcinogenicity of formaldehyde on the labels of its tanks because it made available
to its employees MSDS which did address the carcinogenicity of formaldehyde.

The parties stipulated that the labels affixed to respondent's
tanks identified the tanks as containing formaldehyde and that MSDS for formaldehyde were
available to all employees (Tr. 17-18). These labels were provided by the formaldehyde
manufacturer, Borden Chemical (Tr. 39), The MSDS for formaldehyde contain information
regarding the carcinogenicity of formaldehyde (Ex. C-1, C-2).

The standard at issue requires that each container of hazardous
chemical must be labeled, tagged, or marked with the identity of the hazardous chemical(s)
contained therein and "appropriate hazard warnings." The HCS at �
1910.1200(f)(6), however, allows an employer to use "signs, placards, process sheets,
batch tickets, operating procedures, or other such written materials in lieu of affixing
labels to individual stationary process containers, as long as the alternative method
identifies the containers to which it is applicable and conveys the information required
by paragraph (f)(5) of this section to be on the label."

The Secretary's brief argues that the alternative method in
(f)(6) is available only with respect to "individual stationary process
containers" and that respondent's tanks are not "process containers."

The compliance officer testified that in his opinion the term
"process container" under the HCS is limited to containers in which some kind of
a chemical reaction takes place. This Judge disagrees.

In referring to the exemption in � 1200(f)(6) for an inplant
container labeling requirement, the preamble in the HCS indicates that this exemption was
intended to apply "[W]here stationary containers in a work area had similar contents
and hazards . . . " 48 Fed. Reg. 53,280. Moreover, if the Secretary had actually
intended to restrict the meaning of "process container" only to a chemical
reaction vessel, the Secretary would have simply used the term "reaction
vessel," which already is referenced under the definition of "container,"
See � 1910.1200(c).

Contrary to the Secretary's contention, the terms "process
container" and "reaction vessel" are not synonymous. "Process
container" is a much broader term and covers stationary tanks like respondent's which
are an integral part of a manufacturing process and contain "similar contents and
hazards."

Pointing to the phrase " in lieu of " the
Secretary also argues that if an employer chooses to use any form of label on its
containers, it cannot use the alternative method provided by (f)(6). But this alternative
method requires no labels on stationary process tanks. Therefore, an employer should not
be precluded from using this alternative method simply because it chooses to additionally
label its tanks with the identity of the contents.

Another issue raised is whether the availability of MSDS for
formaldehyde is sufficient to constitute compliance with (f)(6) and (f)(5)(ii) .

There appears to be nothing in the HCS to prevent an employer
from using MSDS forms in lieu of affixing labels to individual stationary process
containers. The provision at (f)(6) allows employers to use among other things ". . .
operating procedures or other such written materials" instead of labels. Certainly,
"other such written materials" is sufficiently broad to cover MSDS forms. In
fact, MSDS can be in the form of "operating procedures." See 1200(g)(iv)

MSDS or "other such written materials," however,
cannot be used unless they identify the containers to which they are applicable, identify
the contents of those containers, and contain the appropriate warning information
applicable to the contents involved.

Although respondent's MSDS for formaldehyde do not identify the
containers to which they are applicable, the labels on the containers fulfilled that
requirement by identifying the contents as formaldehyde. The MSDS which are available to
respondent's employees also address the carcinogenic hazard of formaldehyde. In this
Judge's view, respondent is in substantial compliance with � 1910.1200 (f)(6). It also
should be noted that there is no evidence in the record that respondent employees are
actually or potentially exposed to the formaldehyde in the tanks.

E. The Alleged Invalidity of the HCS

Citing the Supreme Court's decision in Industrial Union
Department, AFL-CIO v American Petroleum Institute, 448 U.S. 607F 100 S.Ct. 2844
(1980), the respondent contends that the HCS is invalid as applied to it because the
Secretary failed to provide sufficient conclusive evidence in both the rulemaking and
hearing records to support a finding that the HCS labeling requirement is reasonably
necessary and appropriate to remedy a significant risk of material health impairment.

This Commission has long acknowledged and held that it lacked the statutory authority to
question the wisdom of the Secretary's standards or review the Secretary's
quasi-legislative determination that the requirements or prohibitions of a standard are
"reasonably necessary or appropriate" means of eliminating oz reducing workplace
hazards. See Cornish Dress Mfg, Co., 3 BNA OSHC 1850 (No. 6765, 1975), Van
Raalte Co., 4 BNA OSHC 1151 (No. 5007, 1976, and Austin Bridge Company, 7 BNA
OSHC 1761 (No. 76-93, 1979).

According to the Commission, the determinations made by the
Secretary when promulgating a standard that a hazard exists and that the standard will
eliminate or reduce that hazard are both quasi-legislative and adjudicative resolutions of
disputed facts. See Austin Bridge Co., supra, at n.10.

In promulgating the HCS, the Secretary found that employees are
more likely to be harmed handling hazardous chemicals if they are ignorant of the nature
of those chemicals. The Secretary found that inadequate communication is itself a hazard
which the HCS can eliminate or mitigate. 48 Fed. Reg. 53,321 (1983). Because these
particular findings by the Secretary constitute in part quasi-legislative determinations
which the Commission lacks statutory authority to review, respondent's invalidity
challenge to the HCS must await review by a Circuit Court of Appeals or possibly by the
Supreme Court.

The HCS is predicated on the existence of a hazard if its terms
are not met. Therefore, at an enforcement hearing concerning the HCS the Secretary is not
required to prove either that noncompliance with a particular section creates a hazard or
that compliance with the standard would have eliminated or reduced a significant risk of
harm. The Secretary in this hearing only had to prove that respondent failed to comply
with the cited requirements of the HCS.

F. Greater Hazard Defense

Respondent raised the so-called "greater hazard"
defense in its answer. According to respondent, it is inappropriate to risk causing
stress-related illnesses in employees by placing a cancer warning on labels when the risk
of cancer is insignificant.

Because of the determination above that the Secretary failed to
prove that respondent was required to put a cancer warning on its particleboard shipping
label, it becomes unnecessary to address respondent's greater hazard defense.

Findings of Fact

All findings of fact relevant and necessary to a determination
of the contested issues have been found specially and appear above in the decision. See
Rule 52(a) of the Federal Rules of Civil Procedure. Any proposed findings of fact and
conclusions of law that are inconsistent with this decision are denied.

Conclusions of Law

1. Respondent's particleboard is a "wood product" as that term is used in �
   1910.1200(b)(6)(iii).

2. The language of � 1910.1200(b)(6)(iii) excludes
   respondent's particleboard from application of the HCS.

3. Respondent's particleboards are not "articles" and
   not excluded from application of the HCS by reason of � 1910.1200(b)(6)(iv).

4. Respondent's tanks that contain formaldehyde are
   "stationary process containers" that are subject either to the labeling
   requirements of 1910.1200(f)(5)(ii) or � 1910.1200(f)(6).

5. Respondent was in substantial compliance with the inplant
   labeling requirements of �1910.1200(f)(6) and � 1910.1200(f)(5).

ORDER

Based on the findings of fact, conclusions of law, and the
entire record, it is ORDERED:

1. Citation No. 1 issued August 2, 1988, and the proposed
   penalty of $1,000.00, are VACATED.

James A. Cronin, Jr.

Judge, OSHRC

Dated: August 29, 1989