Halocarbon Products Corporation
Commission approves $5,500 chemical-safety settlement
Apply this precedent to your situation
This is citable Commission precedent from 1994, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Halocarbon Products manufactured specialty chemicals at a New Jersey plant where OSHA investigated after a reported chemical exposure hospitalized two employees, one of whom later died. OSHA alleged general-duty, respirator-program, and hazard-communication violations and initially proposed $37,000 in penalties. The ALJ vacated several items but found serious violations involving labeling, material safety data sheets, written respirator procedures, employee training, and evaluation of in-process DFO chemicals; he rejected every willful classification. During Commission review, the parties settled by withdrawing the respirator-use item, removing the serious classification from the general-duty item, reducing two penalties to $750 each, and accepting the remaining ALJ rulings. The agreement expressly retained the determination that Halocarbon committed no willful or intentional violation. The Commission approved the settlement and made the modified citations final with a total penalty of $5,500.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.134(b)(8), 1910.1200(d)(1), 1910.1200(f)(5)(ii), 1910.1200(g)(2)(iv), 1910.1200(h)(2)(i), 1910.1200(h)(2)(iv), 1910.134(e)(3), 1910.134(b)(3), 1910.1200(g)(1), and 1910.1200(h)(2)(ii).
- Outcome: Settled. The Commission approved the parties' modified citation terms and assessed a total penalty of $5,500, with no willful violations remaining.
- Key point: The settlement left in force the ALJ's determination that hazard evaluation and safety-data-sheet duties apply to hazardous intermediate process materials, while resolving every affirmed item as nonwillful.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COhdMlSSlON
One Lafayette Cents I
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE
coM(202)~~00
FTs(2o2)dobdl~
.
l
SECRETARY OF LABOR, .8
..
Complainant ) l
.
.
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v.
.
. Docket No. 89-2821
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HALOCARBONPRODUCTS ..
CORPORATION) 0
..
Respondent) l
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l
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INTERNATIONAL BROTHERHOOD 0
0
OF TEAMSTERS - LOCAL #560, ..
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Authorized Employee 0.
Representative. ..
.*
ORDER
This matter is before the Commission on a direction for review entered by
Commissioner Edwin Go Foulke, Jr. ) on November 9, 1992. The parties have now
filed a stipulation and settlement agreement.
Having reviewed the record, and based upon the representations appearing
in the stipulation and settlement agreement, we conclude that this case raises no
matters warranting further review by the Commission. The terms of the stipulation
and settlement agreement do not appear to be contrary to the purposes of the
Occupational Safety and Health Act and are in compliance with the Commission%
Rules of Procedure l
Accordingly, we incorporate the terms of the stipulation and settlement
agreement into this order) and we set aside the Administrative Law Judge’s decision
and order to the extent that it is inconsistent with the stipulation and settlement
qreement . This is the final order of the Commission in this case. See 29 U. S . C l
Q§ 65 9 ( c ), 66W0, and (b).
Stuart E. Weisberg
Chairman
Commissioner
Dated April 13, 1994
-2-
NOTICE OF ORDER
The attached Order by the Occupational Safety and Health Review Commission
was issued and served on the following on April 13, 1994.
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210
Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014
Marc Owen Mandel, Esquire
Golden & Mandel
122 East 42nd Street
New York, New York 10168
Philip Mandel, Esquire
125 Lighthouse Drive
Jupiter, Florida 33469
Sidney Orenstein, Esquire
Finkelstein, Bruckman, Whol, Most &
Rothman
575 Lexington Avenue, 19th Floor
New York, New York 10022
.
Irving Sommer
Administrative Law Judge
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th Street, Suite 990
Washington, D.C. 20036-3419
FOR THE COMMISSION
Executive Secretary
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
:
ROBERT B. REICH, SECRETARY OF LABOR,
Complainant,
v. 0
l OS Docket No. 89-2821
HALOCARBON PRODUCTS CORP.,
l
0
Respondent. l
0
STIPULATION AND SETTLEMENT AGREEMENT
I
The parties have reached agreement on a full and complete
settlement and disposition of the issues in this proceeding which
are currently pending before the Commission.
II
1a Complainant hereby amends Item 1 of serious citation 1
by withdrawing the charge that the violation was %eriousg* and
characterizing the citation as a violation of Section 17 of the
Act. The proposed penalty for this citation is amended to $750.
Respondent hereby withdraws its notice of contest to said
violation as amended.
20 Complainant hereby withdraws Item 4 of serious citation
1, alleging a violation of 29 C.F.R. 1910.134(b)(8), and the
notification of proposed penalty issued to respondent: the effect
of which withdrawal is to make final the decision and order of
Judge Sommer dismissing said Item 4.
3 l Complainant hereby amends the proposed penalty for
violation of serious citation 1, Item 7 to $750. Respondent
hereby withdraws its notice of contest to said violation as
amended.
4a Respondent withdraws its notice of contest with respect
to the following violations and penalties as found and amended by
Judge Sommer in his Decision and Order of September 18, 1992:
(a 1 citation 1, item 8: $1,000; (b) citation 2, item 1:
$1,000; (c) citation 2, item 4: $1,000; (d) citation 2, item 3
and citation 1, item 6: $1,000 for both items.
5a Except as provided above, each party withdraws its
appeal of the Decision and Order of Judge Sommer below, and
agrees that the citations and penalties as modified herein shall
become a final order of the Commission. Each and every finding
and ruling of Judge Sommer's Decision and Order shall remain in
full force and effect, including, but not limited to, the
determination that respondent did not willfully or intentionally
commit any violation of the Act or regulations issued thereunder.
6 0 Nothing in this Stipulation and Settlement Agreement
constitutes any admission by the respondent of any violation of
the Occupational Safety and Health Act or regulations and
standards promulgated thereunder. By entering into this
Agreement, respondent does not admit that the conditions
complained about were the cause, proximate or otherwise, of any
accident or occurrence which may, or may not, have occurred.
Further, nothing in this Settlement Agreement, nor any order of
the Commission entered pursuant to this Stipulation and
Settlement Agreement, nor any documents gathered or prepared in
2
connection with this matter constitute, or shall be construed by
any person, or federal or state court or agency to constitute,
any wrongdoing either civilly, criminally, at common law, or
under any state or federal statute or regulations promulgated
thereunder. Further, neither this Stipulation and Settlement
Agreement, nor any order of the Commission entered pursuant to
this Stipulation and Settlement Agreement, nor any documents
gathered or prepared in connection with this matter shall be
offered, disclosed or used adversely to respondent or admitted in
evidence against it in any other proceeding or litigation,
whether state or federal, or whether civil, criminal or
administrative, except for subsequent proceedings, if any,
pursuant to the Occupational Safety and Health Act involving
respondent. By entering into this Agreement, the respondent does
not admit to the truth of any alleged facts contained in the
citations, to any of the characterizations of the respondent's
alleged conduct by Complainant, or to any of the conclusions set
forth in the citations in this matter.
Respondent states that it is entering into this Stipulation
and Settlement Agreement solely for the purposes of compromising
and settling this matter economically and amicably and avoiding
the cost and expense which would otherwise be associated with the
further litigation of the issues raised by the citations.
0
70 Respondent hereby agrees to pay a total penalty in the
amount of $5,500 by submitting its check made payable to the
3
W.S. Department of Labor - OSHA," to the OSHA Area Office within
45 days from the date of execution CI this Agreement.
8 0 Each party agrees to bear own fees and other
expenses incurred by such party in CL. :tion with any stage of
this proceeding.
90 Respondent states that there are no authorized
representatives of affected employees at its current workplace.
10 0 The parties agree that this Stipulation and Settlement
Agreement is effective upon execution.
11 0 Respondent certifies that a copy of this Stipulation,
and Settlement Agreement was posted on this &TTMday of March,
1994, pursuant to Commission Rules 7 and 100, and will remain
posted for a period of 10 days.
Dated this &I day of March, 1994,
Respectfully submitted,
THOMAS S. WILLIAMSON, JR.
Solicitor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional
Trial Litigation
l
0
b
PHILIP WDEL, ESQ. owumo J.@~~N~~cHIA
Attorney for Attorney for the
Halocarbon Products Corp. Secretary of Labor
4
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4Tt-i FLOOR
WASHINGTON, DC 20006-I 246
FAX
COM (202) 634-d
FTS (202) 634-40
SECRETARY OF LABOR
Complainant, OSHRC DOCKET
V. NO. 89-2821
HALOCARBON PRODUCTS CORPORATION,
Respondent, .
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS - mAL #560
Authorized Employee
Representative.
NOTICE OF DOCKETING
OF ADMINTSTRATMZ LAW JUDGE’S DECISION
The Administrative Law Judge’s Re art in the above referenced case was
docketed with the Commission on Otto Rer 9, 1992. The decision of the Judge
will become a final order of the Commission on November 9, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received b the Executive Secretary on or before
October 2!s, 1992 in order to ermit suk lcient time for its review. See
Commission Rule 9 1, 29 C.F.ii . 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Sec.retary
0ccuJxitiona.l Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOCKET NO. 89-2821
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party .
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.
Date: October 9, 1992
DOCKET NO. 89-2821
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Re l onal Trial Liti ation
Office of the So1 ‘&or, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
.
Patricia Rodenhausen, Esq
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 7Oj
New York, NY 10014
Philip Mandel, Esquire
Marc Owen Mandel, Esquire
Golden & Mandel
122 East 42nd Street
New York, NY 10166
Sidney Orenstein, Esquire
Solomon & Rosenbaum, Drechmsler
and Leff
100 East 42nd Street
New York, NY 10017
Gary Carmichael c .
Teamsters Local 360
60 Columbia Avenue, Aptl. 37
Dumont, NJ 07628
Irvin Sommer
Chie BAdministrative Law Jud e
Occupational Safety and Healt5l
Review Commission
Room 417/A
1825 K Street, N.W.
Washington, DC 20006 1246
00017635889:02
UNITED STATES OF AMERICA
OCCl JPATIONAL SAFETY AND HEALTH REVIEW COMMISS ION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC. 20006-l 246
FAX:
l
COM (202) 634-4008
. RS 634-4008
SECRETARY OF LABOR, 00
l
.
Complainant, ..
..
v. .. Docket No. 894821
.0
I3LOCARBON PRODUCTS l
.
.
CORPORATION, .
.
.
Respondent, ..
..
INTERNATIONAL BROTHERHOOD ..
OF TEAMSTERS - LOCAL #560 ..
..
Authorized Employee ..
Representative. .0
..
Appearances:
Diane Wade, Esquire Philip Mandel, Esquire
U.S. Department of Labor Marc Owen Mandel, Esquire
Office of the Solicitor Golden and Mandel
New York, New York 10014 New York, New York 10166
For Complainant For Respondent
Before: Administrative Law Judge Sommer
PROCEDURAL BACKGROUND
This is a proceeding under Section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. section 651 et seq., (the Act), to review citations issued by the Secretary
of Labor pursuant to section 9(a) of the Act, and the proposed assessment of penalties
therein issued, pursuant to section 10(a) of the Act.
Following an investigation at a workplace located at 82 Burlews Court in Hackensack,
New Jersey, the Secretary issued a complaint on October 3, 1989. Currently at issue is a
2
serious citation containing seven items,’ and a willful citation containing three items.2
Serious citation 1 alleges that Halocarbon Products Corporation (Halocarbon) violated
section 5(a)(l) of the Act, 29 C.F.R. 1910.134(b)(8), 29 C.F.R. 1910.1200(d)(l), 29 C.F.R.
1910.1200@(5)(ii), 29 C.F.R. 1910.12OO(g)(2)(iv), 29 C.F.R. 1910.1200(h)(2)(i), and
29 C.F.R. 1910.12OO(h)(2)(iv). Willful citation 2 alleges violations of
29 C.F.R. 1910.134(e)(3), 29 C.F.R. 1910.12OO(g)(l), and 29 C.F.R. 1910.12OO(h)(2)(ii). The
total proposed penalty is $7000 for the serious violations and $30,000 for the willful
, violations.
A hearing was held in New York, New York. All parties were represented by counsel
who ftied post-hearing briefs. No jurisdictional issues are in dispute, the parties having
pleaded sufficient facts to establish that the respondent is subject to the Act and the
Commission has jurisdiction of the parties and of the subject matter. Halocarbon filed a
timely notice of contest placing in issue all items in serious citation 1 and willful citation 2.
Background
Respondent Halocarbon is a chemical manufacturing company engaged in the
production of chloroflouro oils, grease, waxes, and lubricants, as well as fluorinated
inhalation anaesthetic and alternate refrigerants. (Tr. 1151-52). At the relevant time,
Halocarbon had two plants operating, one in New Jersey and one in South Carolina. The
citations issued involve the New Jersey plant (the plant). Halocarbon employed approxi-
mately one hundred people in both operations, and approximately twenty-five in New Jersey.
(Tr. B-20).
On February 7, 1989, the Occupational Safety and Health Administration (OSHA)
began an investigation of the Halocarbon facility in New Jersey following the report of an
alleged chemical exposure which resulted in the hospitalization of two employees. (Tr. 140
15). One of the employees, Granville Drinkwater, eventually died. (Exh. C-12). The
1
Items 2, 3, and 5 were withdrawn
2
Item 2 was withdrawn
3
investigation primarily focused on hoods 8 and 9 of the oils section where two chemical
operations, the cracker trap process and the DFO process, took place. (Exh. C-2, C-3, and
C-4). Both processes involve toxic and highly toxic chemicals.
The cracker trap process’ purpose was to collect and treat cracker trap material, a .
chemical by-product of the production of the final product chloro-&. (Tr. 41-42). Cracker
trap material is composed of chloro pentaflouro propene (propene), a highly toxic
halogenated organic compound, chlorotriflouroethene (monomer), a toxic compound, and
other elements with unknown toxicity. (Tr. 22-24). The cracker trap process was performed
four or five times a year. (Tr. 1737). It begins with the heating of material in reactor vessel
G-360 which generated chloro-oil and cracker trap material. After the materials are
separated, the gaseous cracker trap is collected and chilled in the cracker trap reactor vessel
which causes it to condense to liquid. (Tr..41-42, Exh. C-5). Once the vessel fills, the cracker
trap material is moved to storage tanks 551 and 552 which are located outside of the plant.
(Tr. 43, Exh. C-5). When economical, this material is transferred to vessel C-320 where it
is heated which causes the chemical monomer to evaporate. The gaseous monomer then
proceeds through a methylene chloride condenser cooling to a liquid, and is stored in
monomer receiver C-530. Halocarbon will eventually re-use the monomer. (Tr. 45).
As the level of monomer in C-320 decreases, the temperature in the column above
it increases which serves to alert the chemical operator to begin the intermediate cut step
of the process. The chemical operator turns a valve above the C-530 monomer receiver
which re-directs the monomer-propene mixture to the nine gallon bomb pressure vessel,
avoiding the contamination of the pure monomer. This intermediate cut mixture is chilled
to avoid vaporizing. It eventually is forced, by the introduction of nitrogen pressure, through
3/8 inch flexible pipes connected by compression fittings (Tr. 724) back to storage tanks 551
and 552 where it will undergo the same process again in order to maximize monomer
reclamation. (Tr. 45-48).
4
The second chemical operation at issue, the DFO process, is performed within the
confines of hood 9. (Tr. 1410). Halocarbon used the term DFO to describe a gyroflotation
fluid, the process that produces it, and the materials used in the process. For the purposes
of the citation, the Secretary stipulated that DFO materials referred to the bromonated
materials used in the DFO process described below. (Tr. 1406-07).
The DFO process is initiated by placing the chemical bromomonomer in the G-362
cracker reactor. This reactor is heated which breaks the larger molecules into smaller ones.
(Tr. 1409-11). This step produces DFO material composed of bromine, bromomonomer,
the numbered chemicals 470,480, and 490, and other unknown components. (Tr. 1411-14).
After heating, most of the bromonomer goes into a glass trap and the remaining material
goes into a receiver. The material in the receiver is then transferred to a fifty liter glass
flask. (Tr. 1419, 1424). Once transferred, the glass flask is transported to another hood
where its contents are chlorinated. (Tr. 1430). Toxicity studies on some DFO material
components showed them to be toxic. (Exh. C-18).
Alleged Violation of Section 5(a)(l) of the Act- Serious Citation 1, Item 1
Serious Citation 1, Item 1 alleges:
The employer did not furnish employment and place of employ-
ment which were free from recognized hazards that were
causing or likely to cause death or serious physical harm to
employees in that employees were exposed to the cracker trap
material.
To prove a violation of section 5(a)( 1) of the Act, 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 the hazard, (3) that the hazard was
likely to cause death or serious harm, and (4) that feasible means existed to eliminate or
materially reduce the hazard. United States Steel Cop., 12 BNA OSHC 1692, 1697-98 (No.
79-1998, 1986); Coleco Industries, 14 BNA OSHC 1961, 1963 (No. 84-546, 1991).
The Secretary contends that Halocarbon’s intermediate cut was a recognized hazard
to employees, and consequently, was a violation of the general duty clause. The Secretary’s
expert, Motley, maintained that the use of 3/8 inch flexible tubing, compression fittings, and
5
the process’ location outside of hood 8 was a hazard per se. (Tr. 49,54056). He stated that
the compression fittings used were inappropriate for the transfer of highly toxic chemicals
and would be subject to leaks from substantial movement. (Tr. 54). However, after a review
of the relevant credible testimony and evidence, I am led to the inevitable conclusion that
the Secretary has failed to meet her burden of proof.
The Secretary did not fulfill the first element by demonstrating that the intermediate
cut process constituted a condition or activity hazardous to employees. While her expert
Motley, an industrial hygienist, attacked the process as faulty, he was shown to have a
specious knowledge of chemical manufacturing at best. He had no experience in chemical
manufacturing. (Tr. 713). He was unaware of any limitations of the compression fittings that
he called inappropriate. He did not contact manufacturers to discover if the fittings were
susceptible to leaks when moved. (Tr. 715-17). He did not know the pressure rating of the
flexible tubing. (Tr. 718). His experience with these fittings and tubing was restricted to the
laboratory. (Tr. 55). In contrast, Halocarbon’s experts, Bender and Cruice, were shown to
have extensive knowledge of the chemical manufacturing industry. (Tr. 1184, 1305).
Bender and Cruice both maintained that Motley’s conclusions about the intermediate
cut were erroneous. Bender called the tubing and fittings appropriate for the transfer of
cracker trap material. (Tr. 1200). Cruice stated that the strength and durability of the
fittings were unquestioned, and that they could withstand greater movement than occurred
in the intermediate cut. (Tr. 133839, 1365). Cruice also testified that the location of the
nine gallon bomb did not present a hazardous condition. (Tr. 1338). In resolving the
conflicting testimony, I am compelled to find that Halocarbon’s experts’ greater experience
casts grave doubts upon the accuracy of Motley’s testimony, and therefore, cannot find that
the Secretary proved the first element of a 5(a)(l) violation.
The Secretary also failed to prove the second element. No credible evidence was
presented to show that either Halocarbon or the chemical manufacturing industry recognized
a hazard. Motley was unaware of competitors that used a similar process, used cracker trap
materials, or made similar products. (Tr. 475.76,587). He had no knawledge of competitors’
precautions. (Tr. 475). Bender and Cruice both testified that the industry would not classify
the intermediate cut a hazard. (Tr. 1298, 1338).
6
The preponderance of the evidence introduced fails to establish the existence of a
recognized hazard. The record evidence and testimony does not demonstrate that
Halocarbon had the requisite knowledge needed to prove a 5(a)(l) violation. Accordingly
serious citation 1, item 1 is vacated.
Alleged Violation of 29 C.F.R. 1910.134(b)(8)- Serious Citation 1. Item 4
The standard at 29 C.F.R. 1910.134(b)(8) provides:
Section 1910.134 Respiratory protection ...
(b) Requirements for a minimal acceptable program . . .
(8) Appropriate surveillance of work area conditions and degree of employee
exposure or stress shall be maintained.
The standard at issue requires that “appropriate” surveillance of a work area must
take place to meet the requirements for an acceptable program. The plain meaning of
“appropriate” is “specially suitable,” “fit,” “proper.“3 To prove a violation of this standard
the Secretary must show that Halocarbon’s surveillance was inappropriate or not suitable for
an operation utilizing its specific chemicals and processes. To attempt to add additional
meaning or responsrbilities to the standard would deprive Halocarbon of its due process
rights to know what hazard it must protect against so as not to violate the standard. The
Secretary alleges that the combination of the Davis monitor and employee monitoring was
not an appropriate or proper method of surveillance of the oils section of the plant. Motley
testified that due to the varying levels of toxicity of the chemicals at the Halocarbon facility,
the Davis monitor was not suitable as a “gauge of employee exposure.” (Tr. 15455). He
testified that the nine minute cycle where each of six ports will be monitored for
approximately one minute and fifteen seconds was inappropriate for an area where
chemicals used had a high level of toxicity and potential to vaporize as a result of a liquid
spill. (Tr. 159-60). He felt that the Davis monitor’s inability to differentiate between the low
and high toxicity chemicals made it an improper monitor. (Tr. 182). Motley testified that
a monitor that could differentiate and quantify the different chemicals would be appropriate
for a work place such as Halocarbon’s. (Tr. 654). The Secretary also alleged that the alarm
3
Webster’s Third New Int’l Dictionary, 1986 Edition, p. 106.
7
level of 25-30 parts per million was “relatively high,” because of its correlation to the LC-50
of propene, a component of the cracker trap material. (Secretary’s Post Hearing Brief 81).
The Secretary’s complaint about employee monitoring was simply that relying on employee
senses and observation would be insufficient to fulfill the standard’s requirements. (Id.).
There can be no doubt that had Halocarbon relied solely on employee monitoring
the standard of appropriate surveillance would not have been met. However, the
combination of trained chemical operators’ surveillance and the Davis monitor’s surveillance
presents an entirely different situation. The respondent’s witnesses testified that the
chemical operators, who were trained to recognize hazards in the work place (Tr. 1612),
were its first line of defense. (Tr. 1436,1573,1640). They also stated that the Davis monitor
was the best surveillance monitor for the Halocarbon facility. (Tr. 143940, 1164-65, 1170).
It was the Secretary’s position that the surveillance of potential toxic hazards was not
appropriate and that other instruments could survey the work area and warn of impending
hazards more promptly and efficiently. This position was not proven. Actually, a new
instrument being tested was found wanting. (Tr. 1849). No credible proof was offered that
an employee could be exposed to either propene or another chemical at Halocarbon at a
level to cause harm considering the totality of the protective methods used by Halocarbon
including the use of the Davis monitor plus management and employee surveillance
methods. Surely the record of Halocarbon’s more than twenty years of use of these
protective systems without any serious incidents (the mishap and death in 1989 is
unexplained and the investigation was unable to determine the reason d’etaire) attests to the
suitability of the surveillance method used.
The evidence as presented by the Secretary was insufficient to support a finding that
there was a violation of 29 C.F.R. 1910.134(b)(8). Insufficient evidence in the eye of the law
is no evidence. Accordingly, the citation alleging a violation of 29 C.F.R. 1910.134(b)(8) is
vacated.
8
Alled Violation of 29 C.F.R. 1910.12OO(f)(5)(ii)- Serious Citation 1, Item 7
The standard at 29 C.F.R. 1910.12OO(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.
Secretary alleges that Halocarbon violated 29 C.F.R. 1910.12OO(f)(5)(ii) by failing to
have appropriate hazard warnings on certain process equipment. Halocarbon contends that
it was permitted to use an alternative method of hazard warning as provided in
29 C.F.R. 1910.1200(f)(6) which allows the use of “other written materials in lieu of affiing
labels . . . as long as [they] identifies containers to which it is applicable and conveys the
information required by paragraph (f)(5) . . .” 29 C.F.R. 1910.1200(f)(6).
In the Halocarbon system, each vessel was identified by a letter and number. This
letter and number could be found in an index in front of the material safety data sheet
(MSDS) books which lists the corresponding vessel’s contents. Another list could then be
consulted to find either the page or volume number where the MSDS for a specific chemical
could be found. The MSDS was expected to convey the appropriate hazard warnings. (Tr.
1647, 1782438).
For Halocarbon to have an adequate alternative method, it must show that it
communicated appropriate hazard warnings to its employees. To do so Halocarbon had to
prove that it had an appropriate MSDS for the contents of each cited vessel. While the
MSDS for chlorotriflouroethene was provided (Exh. C-9) and had appropriate warnings, the
same cannot be said for methylene chloride. The record evidence does not demonstrate that
such an MSDS did exist at the Halocarbon facility. As a result, it cannot be said that
Halocarbon’s alternative system effectively communicated appropriate hazard warnings as
9
required by the standard. Accordingly, I find that Halocarbon in violation of 29 C.F.R.
1910.1200(f)(5)@). A penalty of $1000 is appropriate under the criteria of section 17(j) of
the Act l
Alleged Violation of 29 C.F.R.1910.12OO(g)(2)(iv) - Serious Citation 1. Item 8
The standard at 29 C.F.R. 1910.12OO(g)(2)(iv) provides:
(g) Material safety data sheets ....
(2) Each material safety data sheet shall be in English and shall contain at
least the following information....
(iv) The health hazards of the hazardous chemical, including signs and
symptoms of exposure, and any medical conditions which are generally recognized as being
aggravated by exposure to the chemical...
The Secretary alleges that Halocarbon violated the standard because its MSDS on
cracker products materials did not identify the acute health hazards associated with such
materials, such as pulmonary and kidney dysfunction and accompanying health risks.
The Hazard Communication Standard (HCS) requires every manufacturer of chemicals to
investigate the potential hazard of the chemicals it uses or produces, and provide an MSDS
which communicates “all the potential hazards associated with a chemical” so that employees
know “the specific nature and degree of hazard they are likely to encounter in their
particular exposure situations.” (Preamble to HCS) Appendix A is to be consulted for the
scope of the health hazards covered. The appendix requires detailed information about
bodily health risks and includes a target organ description of health damage which may occur
from chemicals. The MSDS must list fully the target organ dangers to apprise employees
10
of the specific hazards present. Durez, Divisionof Occidental Chemical Cop. v. OS&l, !#06
F2d 1,2 (14 BNA OSHC 1633)(D.C. Cir. 1990).
The MSDS for the cracker trap products did not warn of the hazards associated therewith,
specifically to the lungs or kidneys. Yet-the evidence shows that Halocarbon was aware both
from the illnesses and death which occurred in 1965 due to chemical exposure to such
materials, and the results of the inhalation exposure tests in 1966 that cracker trap products
constituted a significant health hazard.
It is clear that Halocarbon was required to list such specific target organ hazards,
including signs and symptoms of exposure. It failed to do so, and therefore violated the
standard at 29 C.F.R. 1910.1200 (g)(2)(iv). A penalty of $1000 is appropriate under the
criteria of Section 17(j) of the Act.
Alleged Violation of 29 C.F.R. 1910.1200(h)(2)(i) Serious Citation 1. Item 9
The standard at 29 C.F.R. 1910.1200(h)(2)(i) provides:
(h) Emplovee information and training . . .
(2) Training. Employee training shall include at least:
(i) Methods and observations that may be used to detect the presence or release of
a hazardous chemical in the work area (such as monitoring devices, visual appearance or
odor of hazardous chemicals when being released, etc.)
The Secretary alleges that Halocarbon did not train (a) that the Davis monitor
analyzed all points serially, and (b) that odors or signs associated with leaks in the cracker
trap process could signal exposure to a potentially lethal chemical.
11
Motley’s hearing testimony served to discredit his issuing of this citation regarding
improper training on the Davis monitor’s functioning. He stated that the allegation was
based solely on employee Carmichael’s statements that he misunderstood the Davis
monitor’s serial analysis. (Tr. 776, 779). However, cross examination elucidated the reality
that Motley’s conclusion and characterization of Carmichael’s understanding of the Davis
monitor was simply unfounded, having no basis in fact. The Secretary later had no choice .
but to admit that she had no evidence to claim that Carmichael misunderstood the Davis
monitor’s serial analysis. (Tr. 1858). This repeal of Motley’s allegation, the entire .basis for
this complaint, leads to the inevitable conclusion that this charge is without merit. Accord-
ingly, this charge is vacated.
The second allegation of a lack of training regarding odors and signs associated with
kxiks is similarly unfounded. The record testimony and evidence does not establish a
violation. When asked if employees were not trained to realize that odors or signs of leaks .
could signify hazardous exposure, Motley hedged and avoided giving a straightforward,
definitive answer. He eventually admitted that employees recognized that odors could lead
to exposure to the cracker trap material which could be deadly. (Tr. 783-85).
Former safety trainers Cohen and Chablani testified that they trained employees to
recognize that odor could indicate potential exposure to a chemical leak. (Tr. 1652, 1733).
Cohen testified that all Halocarbon employees received training on the signs of leaks in their
initial hazard communication training. (Tr. 1649-50). While Silence testified in his deposition
that employees were not trained to detect leaks, his statement cannot be regarded as
persuasive. He was confused during questioning by what he termed an “ambiguous”
12
question. (Exh. R-28 149-50). He also was not presented as a witness at the hearing, and
therefore, was not subject to searching and probing cross examination which could serve to
highlight or uncover any inconsistencies or misunderstandings present in his testimony. The
credibility of his testimony is therefore suspect.
The Secretary did not allege that Halocarbon did not have a training program, but
that it did not train employees in this isolated instance. In light of the evidence presented
she was obligated to establish that the training that employees received was inadequate. I
cannot find by the preponderance of the evidence that she has met her burden of proof.
Accordingly, serious citation 1, item 9 alleging a violation of 29 C.F.R. 1910,1200(h)(2)(i) is
vacated.
Alleged Violation of 29 C.F.R. 1910.12OO(h)(2)(iv)- Serious Citation 1, Item 10
The standard at 29 C.F.R. 1910.12OO(h)(2)(iv) provides:
(h) EmDlovee information and training . . .
(2) Training. Employee training shall include at least:
(iv) The details of the hazard communication program developed by the employer,
including an explanation of the labeling system and the material safety data sheet,
and how employees can obtain and use the appropriate hazard information.
Halocarbon was cited for a violation of 29 C.F.R. 1910.120(h)(2)(iv) for failing to
explain how to use appropriate hazard information on the cracker trap MSDS. This claim
13
was based specifically on foreman Mallon’s lack of knowledge of the term LC-50 as
indicating an acute hazard, and “partially” on the claim that Carmichael never saw the
cracker trap MSDS before the Drinkwater fatality. (Tr. 81849). Halocarbon contests this
citation and claims that it gave the required training on MSDS reading and interpretation.
Cohen and Ferstandig testified that MSDS training was given, and numerous
employees stated that they received training. (Tr. 146546, 1652,278, Exh. R-3, Exh. R-28
155). Halocarbon submitted signed documents that confirmed employee MSDS training.
(Exh. R-25). While Mallon could not define LC-50, Motley failed to ask him if he had
received training on its meaning. (Tr. 841). Cohen testified that he discussed the term LC-
50 in his training sessions. (Tr. 1652). Carmichael had not seen the cracker trap MSDS, but
Motley did state that Carmichael said that MSDS training was part of Cohen’s training
program. (Tr. 821).
After a review of the record evidence and testimony, I cannot find that the Secretary
has met her burden of proof in establishing a violation of the cited standard. The
foundation of this citation is little more than vague assertions and conclusions that are far
from convincing when weighed against the opposing evidence and testimony. These facts
and circumstances constrain me to the conclusion that Halocarbon was in compliance with
the cited standard. This citation alleging a violation of 29 C.F.R. 1910.12OO(h)(2)(iv) is
vacated.
14
Alleged Violation of 29 C.F.R. 1910.134(e)(3) and/or (b)(3) Willful Citation 2,
Item 1
The standard at 29 C.F.R. 1910.134(e)(3) provides:
(e) Use of resDirators . . .
(3) Written procedures shall be prepared covering safe use of respirators in
dangerous atmospheres that might be encountered in normal operations or emergencies.
Personnel shall be familiar with these procedures and the available respirators.
The standard at 29 C.F.R. 1910.134(b)(3) provides:
(b) Reauirements for a minimal accentable Drogram.
l . 0
(3) The user shall be instructed and trained in the proper use of respirators and their
limitations.
This citation involves two separate allegations that must be addressed accordingly.
The Secretary alleges that Halocarbon did not comply with 29 C.F.R. 1910.134(b)(3)
by failing to instruct and train employees in the proper use and limitations of the respirators
in its plant. Halocarbon has offered extensive proof that compels me to conclude that their
training was in compliance with the cited standard. Respirator fit test records signed by
employees were introduced to evidence which established that employees were shown how
to operate the respirators. (Exh. R-24). Cohen testified that he gave a forty-five minute
training session on the proper use of respirators. (Tr.1605). Motley admitted that employees
were taught how to put on and check the mechanics of the respirators. (Tr. 323). He further
stated that monthly meetings (that employees were paid overtime to attend) were held
15
regarding the respirator program. (Tr. 882). The Secretary introduced no evidence to
discredit this testimony and evidence. Accordingly, the citation alleging a violation of
1910.134(b)(3) is vacated.
The violation of 29 C.F.R. 1910.134(e)(3) was alleged for Halocarbon’s failure to have
written procedures covering the safe use of respirators in foreseeable emergencies.
Halocarbon contends that the combination of its contingency plan and emergency
procedures (Exh. R-13), and the Scott Air Pack Operational Instructions and Halocarbon’s
supplement (Exh. J-2) satisfy the standard. However, this does not appear to be the case.
While these instructions do explain the procedure for putting on and operating the
respirators, they do not explain when the respirators should be-used. Halocarbon has argued
that employees knew that they were to evacuate the premises in the event of a significant
leak and then were to inform a foreman who would decide if respirator use was warranted.
(Tr. 864, Exh. R-28 77). This procedure, however, does not fulfill the standard, because it
fails to establish a written procedure for determining when the respirators should be used.
Mere subjective decisions of a foreman about the need for respirator use are not enough.
There must be “[wlritten procedures . . . prepared covering safe use . . .” 29 C.F.R.
1910.134(e)(3). ‘Halocarbon did not have these required written procedures which must
result in the finding of a violation.
I cannot find that the Secretary showed the required indicia necessary to hold that
Halocarbon’s violation of the standard was willful. To establish a willful violation of the Act
it must be established that the violative conduct “was committed voluntarily with either an
intentional disregard for the requirements of the Act or plain indifference to employee
16
safety.” Sbnpkx lime Recorder Co., 12 BNA OSHC 1591, 1595 (No. 82-12, 1985).
Halocarbon has shown a commitment to employee safety, and therefore, such a finding
would be unwarranted. Halocarbon had a good faith opinion that its program did not
violate the hazard communication standard. (Tr. 1598). Thus, the violation cannot be classi-
fied as willful. See Mel Jan& Constmction Co., 10 BNA OSHC 1052, 1053 (No. 77-2100,
1981). Accordingly, the violation is amended to serious as there is “substantial probability .
that death or serious physical harm could result” from the condition. Section 17(k). A
penalty of $1000 is assessed.
Alleged Violation of 29 C.F.R. 1910.12OO(h)(2)(ii)- Willful Citation 2. Item 4
The standard at 29 C.F.R. 1910.12OO(h)(2)(ii) provides:
(h) Emplovee information and training.
(2) Training. Employee training shall include at least:
(ii) The physical and health hazards of chemicals in the work area l ..
Halocarbon was cited for violation of 29 C.F.R. 1910.1200(h)(2)@) for failing to train
on health hazards of the toxic materials bromo-oil, cracker trap material, and
chloromonomer. Halocarbon does not dispute that it did not give speciic training on each
of the materials in its plant, but instead, contends that its generic training was sufficient to
comply with the requirements of the cited standard. (See ~espondent’s Post-Hearing
Memorandum 138). This generic training was intended to explain the general dangers of
17
hmrdous chemicals, important terms, and the use of MSDS’s so that employees could learn
about specific dangers. (Tr. 1618, 1628-29). The generic training was divided into two
categories: physical hazards and health hazards. During training, safety director Cohen
would use specific examples to elucidate general chemical dangers. (Tr. 1628-29). He did
specifically train on chloromonomer, but did not use either bromo-oil or cracker trap
material as examples. (Tr. 1630).
The Secretary does not contend that Halocarbon must train on each individual
chemical in the plant, but that Halocarbon’s training was not enough to alert employees to
the physical and health hazards in the work area. The purpose of the standard is to protect
employees from serious risks of health damage posed by hazardous chemicals which
insidiously cause bodily damage. Employee training is a vital part of this protection.
Training about physical and health hazards is more than an explanation of the MSDS
system and important terms which are covered under 1910.12OO(h)(l)(iii) and (h)(2)(iv). For
generic training to be sufficient, it cannot place an inordinate amount of responsibility on
employees to complete the process. Mere words of caution and general statements about
health hazards are not enough. Training must include an explanation of “both the change
in body function and the signs and symptoms that may occur to signal that change.”
29 C.F.R. 1910.1200 Appendix A. An employer may train generically if the training classifies
similar chemicals with similar dangers together in a single category. Thus, a group of similar
toxic chemicals that similarly affect the lungs, for example, could be grouped together in a
training program. If a chemical does not fall within a known catepry, separate, supple-
mentary training is required in order to comply with the star&d.
18
-.
Halocarbon drd not provide training on either bromo-oil or cracker trap material that
fulfills the requirements of the standard. There is no evidence of record that suggests that
Halocarbon employees knew of the particular dangers of these materials. While they knew
that a man had died from cracker trap materials many years before, they were not trained
in the health hazards associated with cracker trap exposure as defined in Appendix A.
There furthermore is no credible evidence that suggests any training in the hazards of
bromo-oil. This lack of training is a violation of 29 C.F.R. 1910.12OO(h)(2)(ii).
The violation cannot be classified as willful. The Secretary did not introduce any
testimony or evidence that proved that Halocarbon had the requisite state of mind to
constitute willfulness. Motley specifically stated that parts (a) and (c) of the citation would
not have been classified as willful if they had not been cited in conjunction with part (b). (Tr.
1039). He stated that there was not any evidence of intentional disregard. (Tr. 1031-32).
All credrble evidence constrains me to conclude that Halocarbon believed that it was in
compliance with the cited standard. Accordingly, the citation alleging a violation of
29 C.F.R. 1910.12OO(h)(2)( 11
“) is amended to serious in accordance with section 17(k) of the
Act and a penalty of $1000 is assessed.
Alleged Violation of 29 C.F.R. 1910.1200(‘(l) - Willful Citation 2 Item 3
The standard at 29 C.F.R. 1910.1200(g)(l) provides:
(g) Material Safetv Data Sheets. (1) Chemical manufacturers and importers shall
obtain or develop a material safety data sheet for each hazardous chemical they produce or
import. Employers shall have a material safety data sheet for each hazardous chemical
which they use.
19
This citation alleges that Halocarbon did not develop a material safety data sheet for
DFO chemicals produced during the DFO process located in hood 9. Halocarbon does not
contend that it developed an MSDS for DFO chemicals, but that it was not required to do
so, because DFO material is not a single chemical, but is a bundle of chemicals that are
continually changing throughout the DFO process. (Tr. 1411-14, 1425). Halocarbon
maintains that it complied with the cited standard by having MSDS’s for the known elements
in the DFO material. It did not believe that OSHA regulations required an MSDS for all
in process chemicals produced. (Tr. 1421, 1432-33).
The standard requires chemical manufacturers to “obtain or develop a [MSDS] for
each hazardous chemical they produce . . . .” 29 C.F.R. 1910.1200(g)(l). ‘Produce’ means
to manufacture, process, formulate, or repackage.” 29 C.F.R. 1910.1200(c). The standard
does not limit itself to final products, nor does it exclude intermediate products. The
purpose of the hazard communication standard is to ensure that employees working with
I hazardous chemicals are apprised of their dangerous properties. 29 C.F.R. 1910.1200(a).
Failure to abide by any section of the standard strikes a potentially fatal blow to its multi-
tiered system of protection.
Halocarbon’s failure to develop an MSDS for DFO materials is a clear violation of
the standard. The standard requires an MSDS for each
A
hazardous chemical produced.
1
Failure to have an MSDS available for the DFO material undermines effective communi-
cation of potential hazards to employees. While the DFO material may contain bromine,
a known toxic with good warning properties, this fact does not alleviate the requirements of
the Act. To apprise employees of potential changes in body function and signs and
20
symptoms that may signal that change (as required in Appendix A), an employer must make
an appropriate MSDS as required by the standard. Halocarbon’s failure left employees
without a way to determine all difficulties that could arise in a foreseeable emergency. The
complexity and transitory nature of the DFO materials does not remove it from the scope
of the standard. Accordingly, a violation of the standard has been established. While
agreeing with the Secretary that Halocarbon violated the standard at 1910.12OO(g)(1), I do
not agree that on this record said violation was wilfirl in nature. “A wilful violation is
differentiated by a heightened awareness-of the illegality of the conduct or conditions-and
by a state of mind-conscious disregard or plain indifference” and a showing of “such reckless
disregard for employee safety ... that one can infer that if the employer had known of the
(legal provision), the employer would not have cared that the conduct or conditions violated
it.” WiuiamsEnterprises, Inc., 13 BNA OSHC AT 125657,1986-87 CCH OSHD at p. 36,589.
The evidence does not establish that Halocarbon was indifferent to employee safety or
showed intentional disregard of the standard. The totality of the evidence shows an
employer with a positive attitude toward the Act and concerned with employee safety, and
with an ongoing safety program with positive training efforts. Halocarbon’s violation of
5 1910.1200(g)(l) will be affirmed as “serious”.
It is further concluded that serious citation 1, item 6 which alleges that Halocarbon
did not evaluate DFO materials in violation of 29 C.F.R. 1910.12OO(d)(1) is duplicative of
citation 2, item 3. In order for Halocarbon to prepare a proper MSDS, it would have to
evaluate the DFO materials as required in 8 1910.12OO(d)(1). Thusly, the two citations
involve substantially the same violative conduct. Under such situations, only a single
21
violation is found and a single penalty assessed.
I
Cleveland Consolidateti,Inc., 13 BNA
OSCH 1114, 1118 (No. 84-696, 1987). Accordingly, citation 2, item 3 and citation 1, item
.
6 are affirmed as serious and a penalty of $1000 is considered appropriate under the criteria
of section 17(j) of the Act.
PENALTY
The penalties assessed herein were based on the nature and gravity of the violations
and with consideration of the other relevant elements set out in 29 U.S.C. 7 666(J).
*
FINDINGS OF FACT AND CiNCLUSIONS OF LA735r
The findings of fact and conclusions of law contained in this opinion are incorporated
herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Any
proposed findings or conclusions not contained in this opinion are nether found nor
concluded. Any motions pending are denied.
ORDER
.
In view of the foregoing, good cause appearing therefore, it is ORDERED that :
(1) The allegation of a serious violation set forth at section 5(a)(l) of the Act
found in serious citation 1, item 1 is vacated.
(2) The allegation of a serious violation of 29 C.F.R. 1910.134(b)(8) found in
serious citation 1, item 4 is vacated.
(3) The allegation of a serious violation set forth at 29 C.F.R. 1910.1200(f)(5)@)
found in serious citation 1, item 7 is afTirmed, and a penalty of $1000 is assessed.
(4) The allegation of a serious violation set forth at 29 C.F.R. 1910.12OO(g)(2)(iv)
found in serious citation 1, item 8 is affirmed, and a penalty of $1000 is assessed.
22
(4) The allegation of a serious violation set forth at 29 C.F.R. 1910.12OO(g)(2)(iv)
found in serious citation 1, item 8 is affirmed, and a penalty of $1000 is assessed.
(5) The allegation of a serious violation set forth at 29 C.F.R. 1910.1200(h)(2)(i)
found in serious citation 1, item 9 is vacated.
(6) The allegation of a serious violation set forth at 29 C.F.R. 1910.12qh)(2)(iv)
found in serious citation 1, item 10 is vacated.
(7) The allegation of a wiUfu1violation set forth at 29 C.F.R. 1910.134(e)(3) and/or
(b)(3) found in willful citation 2, item 1 is amended to a serious violation. A violation of
29 C.F.R. 1910.134(e)(3) is found. The allegation of a violation of 29 C.F.R. 1910.134(b)(3)
is vacated. A penalty of $1000 for the serious violation of 29 C.F.R. 1910.1200(e)(3) is
assessed.
(8) The allegation of a willful violation set forth at 29 C.F.R. 1910.12OO(h)(2)(ii)
found in willful citation 2, item 4 is amended to a serious violation and as amended is
a0irmed. A penalty of $1000 is assessed.
(9) The allegation of a wilIfu1 violation of 29 C.F.R. 1910.12OO(g)(1) found in
willful citation 2, item 3 is amended to a serious violation and as amended is affirmed.
Citation 1, item 6 alleging a serious violation of 29 C.F.R. 1910.12OO(d)(1) is affirmed. A
penalty of $looO is assessed to reflect both items.
IRVING SOkl&lER
Judge, OSHRC
DATED: on-91992
Washington, D.C.
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