American Sterilizer Company

Plain-English summary

An American Sterilizer Company technician died from carbon monoxide exposure while cleaning medical sterilization equipment with a glass-bead blasting machine. Contrary to company rules, he connected his supplied-air respirator to the gasoline compressor powering the blaster instead of a separate electric breathing-air compressor. The Commission vacated the training item because the record showed that the company had trained and repeatedly warned him about the carbon monoxide hazard. It affirmed air-quality and respirator-approval violations because the company had made no sufficient effort to monitor whether the technician followed the compressor rule, so unpreventable employee misconduct was not established. The Commission also rejected the consumer-product exemption for gasoline and diesel fuel because the potential workplace exposure was not comparable to ordinary household use. The remaining portions of the judge's decision were affirmed, and total penalties of $28,800 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.94(a)(5)(iv); 29 C.F.R. § 1910.134(a); 29 C.F.R. § 1910.134(b); 29 C.F.R. § 1910.134(d)(2)(ii); 29 C.F.R. § 1910.134(d)(1)(i); 29 C.F.R. § 1910.94(a)(6); 29 C.F.R. § 1910.134(b)(11); 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(h)
• Outcome: The respirator-training item was vacated; the remaining judge-affirmed items were left in place; $28,800 was assessed.
• Key point: Safety training alone does not establish unpreventable misconduct when the employer makes no meaningful effort to discover whether a field employee follows the rule.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 91-2494
AMERICAN STERILIZER COMPANY,
Respondent.

                                    DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.
BY THE COMMISSION:
Dan Troy, an employee of American Sterilizer Company (“AMSCO”) died from
breathing carbon monoxide gas while working at the University of Texas Health Science
Center (“UTHSC”), a hospital and research facility in Tyler, Texas. At the time, Troy was
using a blasting machine to clean medical sterilization equipment. For reasons that are
unknown, Troy connected an air-supplied respirator to the gasoline-powered air compressor
that was used to operate the blasting equipment rather than to a separate electrically-powered
compressor that would not produce carbon monoxide gas.
Following an inspection, the Secretary issued citations containing 10 items alleging
serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(1970) (“the Act”), and one item alleging a nonserious violation. Administrative Law Judge
Louis G. LaVecchia affirmed nine of the 10 alleged serious violations. He vacated item 8 of
 2

that citation and also vacated the nonserious citation. Before us for review are five items of
the serious citation. For the reasons that follow, we affirm the judge’s decision with the
exception of item 1, which we vacate.1
I. FACTS
AMSCO sells and services sterilization chambers called autoclaves that hospitals and
other medical facilities use to sterilize medical equipment. The chambers are approximately
the size of a commercial clothes dryer, but unlike a clothes dryer the interior is rectangular,
not cylindrical, about 20 inches square and 36 to 38 inches deep. Periodically, the interior
surfaces must be cleaned. This procedure is performed by a type of blasting that uses glass
beads rather than sand and produces large amounts of dust, requiring that the blaster operator
be protected with a respirator. While cleaning, the technician stands outside of the open door
to the chamber and reaches into it. Because of the dust that is generated by the blasting, a
containment area is created by hanging a plastic curtain or “tent” around the working space.
The blasting procedure normally takes 8 to 10 hours.

1
The Commission requested briefs on issues relating only to items 1,2,4,7,9, and 10. See
Pennsylvania Steel Foundry & Machine Co., 12 BNA OSHC 2017, 2019 n.3, 1986-87 CCH
OSHD ¶ 27,671, p. 36,063 n.3 (No. 78-638, 1986), aff’d, 831 F.2d 1211 (3d Cir. 1987)
(Commission has discretion to limit the scope of its review). AMSCO’s arguments regarding
items 3 through 6 are beyond the scope of the Commission’s briefing order and we decline
to address them.

On its own motion the Commission raised issues regarding whether items 4 and 7 should be
grouped for purposes of penalty assessment. AMSCO does not acknowledge that these issues
were raised and does not address them in its review briefs. Normally, the Commission will
not consider issues which the party aggrieved by the judge’s decision declines to address in
its briefs. Bay State Ref. Co., 15 BNA OSHC 1471, 1475, 1991-93 CCH OSHD ¶ 29,579,
p. 40,025 (No. 88-1731, 1992); S & S Diving Co., 8 BNA OSHC 2041, 2042, 1980 CCH
OSHD ¶ 24,742, p. 30,464 (No. 77-4234, 1980). Accordingly, in the absence of argument
by AMSCO, we express no opinion on the grouping of penalties. See Marmon Group, Inc.,
11 BNA OSHC 2090, 2090 n.1, 1984-85 CCH OSHD ¶ 26,975, p. 34,641 n.1 (No. 79-5363,
1992). Since that issue was the only issue we asked the parties to brief regarding item 4, we
do not address that item.
 3

   AMSCO’s service contracts are maintained by its service technicians who are

assigned to discrete geographic areas and are responsible for service at all medical facilities
that have contracts with AMSCO in each area. However, while service technicians perform
routine preventive maintenance, they do not clean sterilization chambers. The cleaning
procedure itself is the responsibility of AMSCO’s utility technicians. The deceased, Troy,
was a utility technician whom AMSCO had assigned to its southwest region, which consists
of Texas, Mississippi, Louisiana, Arkansas, Oklahoma, Nebraska, and Kansas. Troy was the
only utility technician in that region and was responsible for cleaning autoclaves at all
service locations within the region.2 Although Troy had an office at AMSCO’s regional
office near Dallas, he normally worked in the field at AMSCO’s service locations and
reported to AMSCO’s office approximately one day a week.
Troy started doing chamber cleaning work for AMSCO in December 1988, about two
years and three months before the fatal accident. He spent the first nine months as a trainee
under the supervision of AMSCO employee David Heitzer. During his training and
afterwards until his death Troy would wear one of two different types of respirators
depending upon which of two blasting units he was using. According to both Heitzer and
Keith Lindstrom, AMSCO’s regional service manager, an operator using the smaller blasting
unit only needed to wear a half-mask respirator because the unit had an effective vacuum
recovery system that captured most of the dust generated during the cleaning. In contrast, the
larger blasting unit generated much more dust. Heitzer therefore had instructed Troy that
“AMSCO’s policy was that [he] always” had to wear a supplied-air respirator if he used the
large blaster.3

2
AMSCO, which operates nationwide, has five regional offices. Because Troy worked
throughout the entire southwest region, he reported directly to the manager for that region,
Keith Lindstrom. The record does not indicate how many utility technicians AMSCO
employed in its other regions.
3
At UTHSC, Troy used a new unit that AMSCO had only recently purchased, a “Zero
(continued...)
 4

   All of AMSCO’s blasting units were powered by compressed air produced by an air

compressor. These compressors, which Troy would either rent locally for use on a particular
project or would borrow from the medical facility being serviced, are powered by internal
combustion engines that use either gasoline or diesel fuel. Carbon monoxide gas is a
byproduct of this type of engine. The air Troy breathed when wearing his supplied-air
respirator was also produced by an air compressor. However, under AMSCO’s work rules,
Troy was strictly prohibited from connecting his respirator to the same compressor that
powered the blasting unit. Instead, he was required to use a separate breathing air compressor
powered by an electric motor, which would not produce any carbon monoxide emissions.
On March 12, 1991, Gary Funk, AMSCO’s service technician who handled the
UTHSC account, and Gene Manus, a UTHSC maintenance employee, assisted Troy in
setting up the gasoline compressor, which Manus had borrowed from UTHSC, in preparation
for the chamber cleaning operation. After Troy expressed concern that carbon monoxide
generated by the compressor would create a hazard because of a lack of air flow in the
courtyard where it had been positioned, they moved the compressor into a vehicle parking
space some distance away. Because of the distance of this location from the SPD (sterile
processing department), the blaster was linked to the gasoline compressor by 250 feet of
hose. After the compressor for the blaster was positioned, Troy asked Funk and Manus
whether the hospital had an electric compressor he could use. Manus took Funk and Troy to
the UTHSC’s carpentry shop which had such a compressor and informed Troy that he could
use that unit so long as he waited until the end of the carpenters’ shift.

3
(...continued)
Comet” blaster. Although AMSCO had expected this blaster to be even more effective than
the small blaster in reducing dust levels, Troy found that the vacuum recovery on the blasting
unit did not work as well as expected, and he encountered problems with escaping debris.
It is presumably for this reason that Troy was wearing the supplied-air respirator at the time
of his death.
 5

   Based on her investigation, Compliance Officer Kathryn Delaney determined that

Troy began working sometime between 10 and 11 p.m. on the night of March 12, 1991, and
died at approximately 2 a.m. on March 13. The autopsy revealed that Troy died of carbon
monoxide poisoning, and Delaney’s investigation established that the source of the carbon
monoxide was the gasoline compressor. Acting contrary to AMSCO’s work rules, Troy had
used a “T-split” or “T-assembly,” located within the containment curtain that surrounded his
immediate work area, to connect both his supplied-air respirator and the blaster to the same
250-foot-long air hose that extended between the SPD room and the gasoline compressor.
There is no indication that Troy obtained or used the electrically powered compressor, and
the record contains no explanation of his failure to do so.4

       II. TRAINING AND INSTRUCTIONS ON RESPIRATOR USE

4
In support of her conclusion that “Troy was confused as to the purpose and necessity of an
electric air compressor,” the Secretary relies on a statement Troy assertedly made to Funk
and Manus when the three were setting up the equipment. According to Funk, Troy stated
that he wanted the “fitting” to the “oiler” changed on the gasoline compressor “because he
used it for his breathing air, and he didn’t want to breathe oil.” We do not believe this
testimony establishes that Troy intended to attach the supplied-air respirator to the gasoline
compressor, or that Troy was confused over the need for a separate breathing air compressor.
Funk conceded that Troy’s remarks made no sense to him. Funk was not Troy’s supervisor,
and he had no prior experience with chamber cleaning nor any knowledge “of the appropriate
assembly of respirators” so that he could “assist in any sort of inspection function.” We
conclude that it is more likely than not that Funk simply misunderstood Troy. By moving the
gasoline compressor because of the carbon monoxide hazard he thought it created in the
courtyard and by requesting a separate electrical compressor after setting up the gasoline
compressor for the blasting unit Troy demonstrated an awareness of the hazards posed by
not using a separate electrical compressor.

We note that the Secretary has standards governing compressors that are lubricated by oil,
see infra note 7, but it is not clear that Troy was referring to these requirements.
 6

   Item 1 alleged that AMSCO violated 29 C.F.R. § 1910.94(a)(5)(iv) by failing to

establish a respiratory protection program that met the performance criteria set forth at 29
C.F.R. § 1910.134(a) & (b). Although section 1910.134(a) & (b) contains a number of
requirements for respirator use, the parties agree that the gravamen of this item is the
adequacy of Troy’s training.5 In affirming this item, Judge LaVecchia found that Troy was
inadequately trained with respect to the type of compressor that must be used with an air-
supplied respirator. On review of the record, we conclude that the judge’s finding is contrary
to the preponderance of the evidence.
It is undisputed that AMSCO provided instructions and training to Troy on the proper
assembly and use of the supplied-air respirator. AMSCO employee Heitzer, who was doing
chamber cleaning at the time, was assigned to provide on-the-job training to Troy. Heitzer
testified that in December 1988, when Troy started working for AMSCO, he showed Troy
how to obtain and set up a breathing air (electrical) compressor in the same room where he
was to perform the chamber cleaning and to connect the supplied-air respirator to that
compressor with a single, 25-foot-long air hose. Heitzer further testified that he made it clear
to Troy that he was always supposed to obtain a separate breathing air compressor for use
with the supplied-air respirator, that “Dan understood that there was no exception” to this
requirement, and that he (Heitzer) “also went over the dangers of using gasoline or a diesel
compressor” as the air source because of the carbon monoxide hazard it would create.
Heitzer, who had been with AMSCO since 1985, was described by Lindstrom as “very
conscientious, very detail-oriented . . . . and [a] safety-oriented type person.” Lindstrom

5
The cited standard, section 1910.94(a)(5)(iv), requires employers who engage in abrasive
blasting to establish “[a] respiratory protection program as defined and described in
§ 1910.134(a) and (b) . . . wherever it is necessary to use respiratory protective equipment.”
Section 1910.134(a) prescribes some general requirements for respirator use while section
1910.134(b) sets forth ten elements that are required “for a minimal acceptable” respiratory
protection program. The third element, section1910.134(b)(3), is that “[t]he user shall be
instructed and trained in the proper use of respirators and their limitations.”
 7

regarded Heitzer as AMSCO’s “best trainer” to conduct on-the-job training. Other than the
initial instance in which Troy was first shown how to use the supplied-air respirator and the
incident which resulted in his death, there is no evidence to show how often, if at all, he used
a supplied-air respirator as opposed to the half mask.
Lindstrom also told Troy that, if he was ever unable to obtain a separate breathing air
compressor, he was required to wear the half-mask dust respirator (and to perform his
cleaning with the small blaster) rather than wear a supplied-air respirator that was improperly
connected to a gasoline or diesel fuel compressor. Lindstrom was stationed at AMSCO’s
regional office, where Troy would report approximately one day each week. Lindstrom
testified that at those times, he and Troy “talked extensively about procedures and about
work practices and about hazards involved,” including “the potential hazard of carbon
monoxide poisoning if [Troy] did not use a separate breathing air compressor.” Lindstrom
testified that he had no doubt that Troy was aware of this hazard. On May 14, 1990, Troy
and Lindstrom attended a sales meeting with a representative of a company that manufactures
air-supplied respirators. The hazard of carbon monoxide poisoning from failure to use a
breathing compressor was among the subjects addressed at this meeting.
The judge found that Troy’s training was “inadequate” because he had been “trained
in supplied-air respirator use only once, over two years before the accident.” In our view, this
finding is not supported by the record inasmuch as the evidence demonstrates that Troy’s
training had been reinforced during the interim period. However, even assuming that the
judge correctly found that Troy was given training on only one occasion, that fact alone
would not necessarily establish that the training was inadequate. See Trinity Indus., Inc., 15
BNA OSHC 1788, 1789, 1991-93 CCH OSHD ¶ 29,773, p. 40,493 (No. 89-1791, 1992)
(broadly-worded standard does not specify how often training must be conducted).
When, as here, the Secretary alleges a violation of a broadly-worded training standard
and the employer defends by showing that it has provided the type of training at issue, the
burden shifts to the Secretary to show some deficiency in the training provided. For instance,
 8

in Atlantic Battery Co., 16 BNA OSHC 2131, 2176-77, 1993-95 CCH OSHD ¶ 30,636,
p. 42,493 (No. 90-1747, 1994), the Commission vacated a citation alleging a violation of
section 1910.1200(h), relating to training on particular hazardous chemicals, where the
employer presented evidence that employees had been warned about the relevant hazards and
the Secretary’s industrial hygienist was unable to specify the basis on which she concluded
that the requisite training had not been given. In this case, the Secretary made no effort at the
hearing either to rebut the testimony given by Heitzer and Lindstrom or to challenge the
adequacy of the training that they described. Indeed, the Secretary presented no evidence to
show that Troy lacked the knowledge and expertise necessary for the job.6 Funk’s account
of Troy’s actions setting up the gasoline compressor shows that Troy understood the
prohibition against use of the gasoline compressor as a source of breathing air for his
supplied-air respirator. We therefore set aside the judge’s finding and vacate item 1 on the
ground that the Secretary has failed to prove the alleged violation.

6
Compliance Officer Delaney testified that her opinion that Troy’s training was inadequate
was based on a description in AMSCO’s written respiratory protection plan of one instance
in which Troy received on-the-job training on or about October 9, 1989. This training differs
from the training Heitzer gave Troy when AMSCO first hired Troy in December 1988, at
which time Heitzer instructed Troy in the proper use of an air-supplied respirator to protect
against the hazard of carbon monoxide poisoning. The training to which Delaney referred
dealt only with use of the half mask dust respirator as protection against silica dust. This
training—even if inadequate—has no relevance to the sufficiency of Troy’s training with
respect to the carbon monoxide hazard presented by improper use of a supplied-air
respirator. Moreover, Delaney conceded that she made no attempt to determine what training
Troy actually received but rather relied entirely on AMSCO’s written program. Accordingly,
she was unable to give an opinion as to whether Troy’s training regarding the supplied-air
respirator was adequate, and, in particular, she did not know whether AMSCO had instructed
Troy not to connect the supplied-air respirator to a gasoline compressor.
 9

                                  II. ITEM TWO
   Item 2 alleges that the air supplied by the gasoline compressor to the supplied-air

respirator that Troy was wearing when he was killed was not tested for carbon monoxide
levels as required by 29 C.F.R. § 1910.134(d)(2)(ii) and did not meet the specifications for
air purity required by section 1910.134(d)(1)(I) or in the alternative section 1910.94(a)(6).7
AMSCO’s noncompliance with the cited standards is undisputed. The record shows that the
air contained excessive levels of carbon monoxide, and that AMSCO had not taken either of
the required alternative precautions against overexposure to carbon monoxide (frequent
testing of the air supply or use of a carbon monoxide monitor with an audio or visual alarm).
AMSCO’s defense to this item is that the violations were the result of Troy’s misconduct.
It claims that if Troy had followed the company work rule and attached his supplied-air
respirator to a separate electrical breathing air compressor, there would have been no
possibility of any carbon monoxide contaminating his air supply and no need to take the
prescribed precautions against overexposure. Judge LaVecchia rejected the defense based
on his finding that Troy’s training was inadequate. We agree with the judge that AMSCO
failed to establish the elements of the defense but for reasons other than those assigned by
the judge.
In order to establish the affirmative defense of unpreventable employee misconduct,
an employer is required to prove: (1) that it has established work rules designed to prevent
the violation, (2) that it has adequately communicated these rules to its employees, (3) that
it has taken steps to discover violations, and (4) that it has effectively enforced the rules

7
Section 1910.134(d)(2)(ii) requires that if an oil-lubricated compressor is used for breathing
air, the air must be “frequently” tested for carbon monoxide unless the compressor is
equipped with a carbon monoxide alarm. Section 1910.134(d)(1) provides that breathing air
must meet the standard for Grade D breathing air “as described in Compressed Gas
Association Commodity Specification G-7.1-1966.” Section 1910.94(a)(6), which deals with
abrasive blasting operations, requires that abrasive blasting respirators must meet the
specifications “for air purity set forth in ANSI Z9.2-1960.”
 10

when violations are discovered. E.g., Precast Services, Inc., 17 BNA OSHC 1454, 1455,
1995 CCH OSHD ¶ 30,910, p. 43,034 (No.93-2971,1995), aff’d without published opinion,
106 F.3d 401 (6th Cir. 1997). For the reasons that follow, we reject AMSCO’s unpreventable
employee misconduct defense on the ground that it has failed to prove the third element of
its defense, i.e., that it took steps to discover violations of the work rule at issue.8 We
therefore need not reach any other elements of the defense, including the element of adequate
communication of work rules to employees, i.e., training, on which Judge LaVecchia relied.
Establishing adequate procedures for monitoring employee conduct for compliance
with applicable work rules is a critical part of any employer effort to eliminate hazards. It is
not enough that an employer has developed an exemplary safety program on paper. Rather,
“the proper focus in employee misconduct cases is on the effectiveness of the employer’s
implementation of its safety program . . . .” Brock v. L.E. Myers Co., 818 F.2d 1270, 1277
(6th Cir.), cert. denied, 484 U.S. 989 (1987) (emphasis added). Effective program
implementation requires “a diligent effort to discover and discourage violations of safety
rules by employees.” Paul Betty d/b/a Betty Bros., 9 BNA OSHC 1379, 1383, 1981 CCH
OSHD ¶ 25,219, pp. 31,151-52 (No. 76-4271, 1981). Therefore, in the absence of evidence
that the employer has “attempted to discover violations” of its work rules, we must conclude

8
Although the defense of unpreventable employee misconduct is available to an employer,
the Secretary has an initial burden to show that the employer knew or reasonably could have
known of the existence of conditions that fail to comply with the standard. Precast Services,
17 BNA OSHC at 1456-57, 1995 CCH OSHD at p. 43,035. In this case, however, AMSCO
argued only the defense before the judge and did not contest the knowledge element of the
Secretary’s case. Review was directed only on issues relating to the defense, and AMSCO
did not address the element of employer knowledge in its briefs on review. Accordingly, that
element is not before us. GEM Indus., Inc., 17 BNA OSHC 1861, 1862 n.4, 1996 CCH
OSHD ¶ 31,197, p. 43,686 n.4 (No. 93-1122, 1996), petition for review filed, No. 97-3096
(6th Cir. Jan. 31, 1997). Cf. D.A. Collins Constr. Co. v. Secretary of Labor, 117 F.2d 691,
694-95 (2d Cir. 1997) (appellate court considers issue of knowledge to be waived where
employer fails to raise the issue in its petition for discretionary review before the
Commission).
 11

that the employer “could not have enforced its work rules effectively.” Tampa Shipyards,
Inc., 15 BNA OSHC 1533, 1539, 1991-93 CCH OSHD ¶ 29,617, p. 40,101 (No. 86-360,
1992) (consolidated).
We find that AMSCO has failed to prove that it made sufficient efforts to discover
violations of its work rules. AMSCO has not demonstrated that Lindstrom used his ongoing
discussions with Troy to determine whether Troy was complying with the work rule that is
at issue here. While Lindstrom testified that he and Troy had discussed the hazard of carbon
monoxide poisoning, there is no evidence that Lindstrom ever questioned Troy to determine
how frequently, if at all, Troy used the supplied-air respirator or whether Troy was following
proper procedures in setting up the supplied-air respirator on any occasion when he used that
respirator in his work.
Lindstrom admitted to Compliance Officer Delaney that he had never accompanied
Troy to a worksite, “had never seen or evaluated the respiratory protection program set up
by Mr. Troy or used by Mr. Troy,” and did not even know whether Troy was using the half-
mask dust respirator or the supplied-air respirator in his work. Lindstrom was also unaware
“of what type of equipment the employee was using while work was performed” and “of the
connections that the employee was or was not making in using a supply of air to the
respirator.” Lindstrom further told Delaney that he had only observed the setup of the
supplied-air respirator once and that observation had been for the purpose of evaluating the
system itself rather than Troy’s use of the system. In essence, Lindstrom delegated to Troy
the authority to decide for himself whether to use the supplied-air respirator or the half-mask
dust respirator and, generally speaking, did not even know which respirator Troy had chosen
on any particular project.
Because the record does not show any effort by AMSCO to determine whether Troy
was complying with its work rule on the proper assembly of the supplied-air respirator, we
cannot agree with its contention that the violation was the result of unpreventable employee
misconduct. Like the employer in Austin Bldg. Co. v. OSHRC, 647 F.2d 1063 (10th Cir.
 12

1981), AMSCO would have us infer that it “justifiably relied” on its employee to comply
with the applicable safety rules and that violations of these safety policies were therefore not
preventable. However, we may draw such an inference only when the evidence demonstrates
“that the employer effectively communicated and enforced safety policies to protect against
the hazard . . . .” Id., 647 F.2d at 1068 (emphasis added). The fact that Troy was considered
to be an expert in chamber cleaning operations with a known record of safe work
performance does not relieve AMSCO of responsibility for affirmatively enforcing its safety
rules. Borton, Inc., 10 BNA OSHC 1462, 1466, 1982 CCH OSHD ¶ 25,983, p. 32,599 (No.
77-2115, 1982), rev’d on other grounds, 734 F.2d 508 (10th Cir. 1984). As the Commission
observed in Stuttgart Mach. Works, 9 BNA OSHC 1366, 1369, 1981 CCH OSHD ¶ 25,216,
p. 31,142, a favorable safety record “can be [merely] a matter of good fortune rather than an
indication of an effectively enforced safety program.”
We therefore find that AMSCO failed to prove that it had taken reasonable measures
to determine whether Troy was complying with its work rule and thus failed to establish that
his noncompliance with the standards was the result of unpreventable employee misconduct.9
III. ITEM SEVEN
Item 7 alleges that AMSCO failed to comply with 29 C.F.R. § 1910.134(b)(11)
because at the time of the accident Troy was using a respirator that was not “approved”
within the meaning of the standard.10 Compliance Officer Delaney testified that the entire

9
AMSCO presented evidence regarding the suitability of Troy’s work operations for random
spot inspections by Lindstrom or other supervisors. On review, it argues that such inspections
of Troy’s workplaces would have been neither feasible nor useful as a means of ensuring
Troy’s compliance with the work rule in question. We express no opinion on this question.
Our decision requires that AMSCO undertake measures to more accurately and more
comprehensively inform itself of the manner in which its utility technicians perform their
work. It may do so by whatever means it considers reasonable and appropriate in the
circumstances.
10
Under section 1910.134(b)(11), one of the requirements for an acceptable respirator
(continued...)
 13

“respirator assembly,” that is, the respirator together with its air supply and connecting hose,
did not meet the specified standards for approval because the air hose was 50 feet longer than
the maximum permissible length of 200 feet.11 AMSCO does not dispute that it failed to
comply with the standard but argues that the violation is the result of Troy’s unpreventable
misconduct in failing to adhere to the work rule previously discussed. In AMSCO’s view,
had Troy acted properly, he would have connected the supplied air respirator he was wearing
to an electrical compressor set up in the same room where the chamber blasting took place
rather than to a gasoline compressor set up outside the building far from that room. The hose
carrying the pressurized air from the compressor to the respirator would therefore have been
only 50 feet long, well within the 200-foot maximum. Under those conditions, the respirator
assembly would have been “approved” within the meaning of the cited standard and AMSCO
would have been in compliance.
For the same reasons we rejected AMSCO’s affirmative defense of unpreventable
employee misconduct with regard to item 2, we reject it here. Since AMSCO has failed to
establish its claims that the violations alleged in items 2 and 7 were unpreventable and
because it has raised no other issues concerning these two items, we affirm the judge’s
decision to the extent it affirms items 2 and 7 and assesses the penalties proposed for those
items.

10
(...continued)
program, respirators must be “selected from among those jointly approved by the Mine
Safety and Health Administration and the National Institute for Occupational Safety and
Health . . . .”
11
The compliance officer further testified that the respirator assembly also could not be
considered approved because it had a defective air pressure gauge on the air line filter.
However, in her review brief, the Secretary distinguishes between items 4 and 7 on the
ground that item 7 deals with the improper selection of respirator components, while item
4 deals with AMSCO’s failure to maintain properly-selected respirator components in their
original condition. The brief implicitly acknowledges that the defective pressure gauge was
incorrectly cited as a basis for item 7.
 14

                          IV. ITEMS NINE AND TEN
   These two items allege violations of the hazard communication standard (“HCS”) for

AMSCO’s failure to require respectively (a) maintenance of a list of hazardous chemicals
as part of the employer’s written safety program and (b) the providing of hazard information
and training to employees who are exposed to such chemicals.12 Judge LaVecchia found that
gasoline and diesel fuel were hazardous materials required to be listed and that Troy was not
properly trained in the hazards presented by them.13 AMSCO defends against both charges
on the ground that the gasoline and diesel fuel used by Troy were excluded from coverage
under the HCS pursuant to the terms of the HCS “consumer product exemption.”14 It claims
that, while Troy “occasionally purchased and used small quantities of gasoline and diesel
fuel for the compressor to run the blaster,” his exposure was no greater than that of “a
homeowner who purchases five gallons of gasoline to run his lawnmower.”

12
29 C.F.R. § 1910.1200(e)(1) requires an employer to “develop, implement, and maintain”
a written hazard communication program including a “list of the hazardous chemicals known
to be present.” Section 1910.1200(h) requires that employees be given “effective information
and training on hazardous chemicals in their work area.”
13
The Secretary also alleged that AMSCO violated the HCS with respect to the blasting beads
and to a metal primer allegedly used by Troy. In her review brief, the Secretary states that
she no longer relies on these substances as a basis for the alleged violations of the HCS.
14
At the time this case arose, 29 C.F.R. § 1910.1200(b)(6)(vii) provided that the HCS does
not apply to the following:

   Any consumer product or hazardous substance . . . where the employer can
   demonstrate it is used in the workplace in the same manner as normal
   consumer use, and which use results in a duration and frequency of exposure
   which is not greater than exposures experienced by consumers[.]

Subsequent to the inspection and citation at issue, the Secretary amended this exception, and
it is now codified at 29 C.F.R. § 1910.1200(b)(6)(ix). 59 Fed. Reg. 6153, 6170 (1994).
Although the parties refer to the amended provision in their briefs, our analysis and
conclusion would be the same under either version of the exception.
 15

   An employer makes out the consumer product exemption to the HCS by showing that

the product is used in the same manner in the workplace as it is used in normal consumer use
and that the exposure to the hazard is comparable to that of a typical consumer. See Safeway
Store No. 914, 16 BNA OSHC 1504, 1510-11, 1991-93 CCH OSHD ¶ 30,300 (No. 91-373,
1993). It may well be that Troy’s exposure to the carbon monoxide hazard created by those
products would have been no greater than the exposure of a homeowner operating a gasoline-
powered lawnmower if Troy had complied with AMSCO’s work rule and used the gasoline
compressor only to supply air to the blasting unit and not to the supplied-air respirator.
However, the consequences of noncompliance with that work rule could be and were fatal.
These circumstances are far removed from those of a homeowner using a lawnmower. We
therefore do not accept AMSCO’s analogy. The fact that AMSCO adopted a work rule
designed to prevent overexposure to carbon monoxide during the chamber cleaning
operations and then warned its utility technician of the possible consequences of
noncompliance with that work rule establishes that AMSCO realized that the hazard posed
by such operations was not comparable to a homeowner’s use of a gasoline-powered mower.
We therefore conclude that the judge properly affirmed item 9 since it is undisputed
that AMSCO’s master list of hazardous chemicals did not include gasoline and diesel fuel.
We conclude that the merits of item 10 are not before us, and we affirm that item, because
the only issue AMSCO argues with respect to item 10 is the consumer product exception.15

15
AMSCO has not argued in its briefs to us that it provided the requisite training and
instruction even though it raised that issue in its petition for review and we accordingly
included the merits of item 10 in our briefing order. Under Commission precedent, an issue
raised in a petition for review or direction for review but not addressed in the party’s brief
is treated as abandoned. StanBest, Inc., 11 BNA OSHC 1222, 1224 n.4, 1983-84 CCH
OSHD ¶ 26,455, p. 33,618 n.4 (No. 76-4355, 1983); See Bay State Ref. Co., 15 BNA OSHC
1471, 1475, 1991-93 CCH OSHD ¶ 29,579, p. 40,025 (No. 88-1731, 1992) (issue raised
before judge and included in briefing notice but not addressed in the party’s brief is
(continued...)
 16

   As in the case of items 2 and 7, neither party on review addresses the penalties

assessed by the judge in his decision. We therefore do not disturb those assessments.
ORDER16
Accordingly, item 1 of citation no. 1 is vacated. In all other respects the judge’s
decision is affirmed. A total penalty of $28,800 is assessed.

                                                    /s/
                                                    Stuart E. Weisberg
                                                    Chairman



                                                    /s/
                                                    Daniel Guttman
                                                    Commissioner

Dated: November 5, 1997

15
(...continued)
considered abandoned).
16
AMSCO has moved for oral argument. The written record, however, adequately disposes
of the issues raised. We therefore deny the motion.