American Cyanamid Company

Read the official release (oshrc.gov)

Plain-English summary

American Cyanamid manufactured resins and molding compounds for shipment to plastics-industry customers. OSHA alleged that several container labels lacked appropriate target-organ warnings and that material safety data sheets omitted short-term exposure limits. The Commission rejected OSHA's position that every known target-organ effect had to appear on a container label because the hazard communication rule used a performance standard and OSHA had not adequately explained its departure from the rule's original flexible labeling policy. It therefore vacated the label item for four products whose warnings generally followed an industry consensus system. It affirmed the item for Fibercore because that product's label had no hazard warning at all. The Commission also affirmed the safety-data-sheet item because the required ACGIH threshold limit value included the short-term exposure limit. No penalties were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(f)(1)(ii); 29 C.F.R. § 1910.1200(g)(2)(vi).
• Outcome: Label item affirmed only for Fibercore and vacated for four other products; safety-data-sheet item affirmed; no penalties.
• Key point: A performance-based requirement for appropriate hazard warnings did not create a universal target-organ label rule, but a chemical container with no hazard warning and a safety data sheet missing a required short-term limit still violated the standard.

Full text (OSHRC public release)

Docket No. 86-0681

SECRETARY OF LABOR,

Complainant.

v.

AMERICAN CYANAMID COMPANY,

Respondent.

OSHRC DOCKET NO. 86-0681

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This case primarily involves the types of label warnings that
are required on containers of toxic chemicals that leave the manufacturer's workplace. At
issue is whether American Cyanamid Co. ("Cyanamid"), a chemical manufacturer,
violated the requirements of the Hazard Communication Standard ("HCS"), 29
C.F.R. � 1910.1200, promulgated by the Secretary of Labor's Occupational Safety and
Health Administration ("OSHA"). More specifically, the Secretary charges that
Cyanamid failed to label containers of hazardous chemicals with "appropriate hazard
warnings" as required by � 1200 (f)(l)(ii), and failed to include the fill Threshold
Limit Value ("TLV") of the American Conference of Governmental Industrial
Hygienists ("ACGIH") on certain of its material safety data sheets
("MSDS's"), as required by 1200(g)(2)(vi).

The Commission's administrative law judge found violations of
both those provisions. He found that Cyanamid's container labels did not have
"appropriate hazard warnings," because they did not contain certain "target
organ warnings." [[1]] that the Secretary argues are necessary. We reverse the
judge's decision on this issue. We find that the broad requirement of "appropriate
hazard warnings," as used in the HCS, is inconsistent with the manner in which the
Secretary sees to enforce the standard in this case.

Specifically, we find that the Secretary's insistence on target
organ warnings in this case is a departure from the original policy under the HCS, and
that the current policy is not enforceable, because the departure has not been adequately
explained on this record. More fundamentally, we find that the policy is not enforceable
because it would change the substance of the cited provision, by depriving the employer of
the opportunity to show that label warnings not containing the target organ warnings
advocated by the Secretary are nevertheless "appropriate hazard warnings." The
Secretary's enforcement position in this case would create, in effect, an irrebuttable
presumption that a target organ warning is required on the container label whenever a
specific target organ effect is "known." We find that its enforcement position
is inconsistent with the broad, performance-oriented language of the cited standard, which
requires the Secretary to show, by a preponderance of the evidence in each case, that the
container labels do not contain "appropriate hazard warnings." The Secretary
failed to make that factual showing in this case.

We therefore find that except for the containers of one of the
chemicals (Fibercore), which did not have any hazard warnings on the label, the Secretary
failed to establish that the cited containers lacked "appropriate hazard
warnings." We affirm a violation as to Fibercore. We also affirm the judge's holding
that Cyanamid violated {sym} 1200(g)(20(vi). No penalties were proposed by the Secretary,
and none will be assessed.

BACKGROUND

Cyanamid is a chemical manufacturing company with headquarters
in Wayne, New Jersey. The plant involved here is in Perrysburg, Ohio, where Cyanamid
produces resins and molding compounds for "out of plant shipment" (sale and
distribution) to customers in the plastics industry. The five products at issue here were
among those compounds. The products are Cyglas, Fibercore, Glaskyd, XC-4001 resin,and
XC-4005 resin.

OSHA Compliance Officer ("CO") Ralph Mericle
inspected the Perrysburg plant on December 6, 1985, to determine compliance with the HCS.
The CO reviewed the MSDS's for the five products at issue and reviewed the corresponding
labels on their containers. The chemicals at issue in the products are as follows: (1) for
Cyglas -- vinyl toluene and amorphous silica (2) for Fibercore -- styrene and vinyl
toluene: (3) for Glaskyd amorphous silica and talc: (4) for XC-4001 resin -- n-Butanol and
propylene glycol methyl ether; and (5) for XC-4005 resin -- n-Butanol. Each of the
chemicals at issue is classified as a hazardous chemical under the standard, because they
all are identified as hazardous chemicals by 29 C.F.R. Part 1910, Subpart Z, and by ACGIH.
[[2]]

The HCS is intended to:

ensure that the hazards of all chemicals produced or imported
are evaluated, and that information concerning their hazards is transmitted to employers
and employees. This transmittal of information is to be accomplished by means of
comprehensive hazard communication programs, which are to include container labeling and
other forms of warning, material safety data sheets and employee training

� 1200(a)(l). See. e.g., Secretary of Labor v. United
Steelworkers, 494 U.S. 26 (1990).

ITEM 1 (b): HAZARD WARNINGS ON CONTAINER
LABELS

The cited subsection. � 1200(f)(1)(ii), and its
surrounding provisions state:

(f) 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.

The cited provision requires, but does not define,
"appropriate hazard warnings." "Hazard warning" is defined in �
1910.1200(c) as "any words, pictures, symbols, or combination thereof appearing on a
label or other appropriate form of warning which convey the hazard(s) of the chemical(s)
in the container(s)." The definition of "health hazard" given there is very
broad:

"Health hazard" 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 term "health hazard" includes chemicals which are
carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives,
sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents which act on the
hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes.
Appendix A provides further definitions and explanations of the scope of health hazards
covered by this section, and Appendix B describes the criteria to be used to determine
whether or not a chemical is to be considered hazardous for purposes of this standard.

�1200(c).

A. The Target Organ Warning Issue

The Secretary argues that the hazard warnings on Cyanamid's
labels were not "appropriate," because they did not warn of certain target organ
effects of the chemicals at issue. Instead, Cyanamid's container labels for XC-4001 resin,
XC-4005 resin, Cyglas and Glaskyd had hazard warnings that generally conformed to the
language recommended at that time by the American National Standards Institute
("ANSI"). ANSI Z 129.1-1982 Hazardous Industrial Chemicals: Precautionary
Labeling. ANSI is a national industry consensus standard-setting group to which Cyanamid
belonged. For example, Cyanamids label for XC-4001 stated:

WARNING! FLAMMABLE LIQUID AND VAPOR

HARMFUL IF INHALED

CAUSES EYE IRRITATION

MAY CAUSE SKIN IRRITATION

Keep away from heat, sparks, and flame.

Avoid breathing vapor .

Avoid contact with eyes, skin, and clothing.

Keep container closed.

Use with adequate ventilation.

Wash thoroughly after handling.

The label also contained first aid instructions. The warnings
and Instructions generally used the same language and format recommended by ANSI at the
time for irritants, and substances that are toxic by inhalation. E.g., ANSI Z129.1-1982,
at 10-11, 19, 2I. [[3]]

However, as the Secretary notes, the labels did not
specifically state, for example, that n-Butanol propylene glycol methyl ether, styrene,
and vinyl toluene may cause central nervous system depression, including dizziness,
headache, nausea, and other symptoms. Nor did the labels specifically warn that silica and
talc may cause lung damage. [[4]] We will address the Secretary's interpretation of the
standard, under which label warnings of every "'known" target organ effect would
be required. Our role is to determine whether that interpretation is "a permissible
gloss" on the standard, in light of the standard's language, structure and regulatory
history. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980).

1. Appendix A to the HCS

The judge held that target organ warnings are required on
container labels, in light of Appendix A to the HCS. [[5]] Target organ effects are among
the health effects defined in Appendix A. The Appendix states that employees must be
apprised of the organs that may be harmed, and the signs and symptoms of potential harm.

That appendix does not state, however, whether all that
information must be conveyed on container labels. The inclusion of target organ effects
within the scope of "health hazards" does not establish, by itself, that each
such effect must be described on container labels. Label warnings are only one part of a
comprehensive scheme of hazard communication:

OSHA's stated purpose for the labels within the comprehensive
hazard communication program [is] serving as an immediate warning and as a reminder of the
more detailed information provided in other forums.

Hazard Communication: Final Rule, 48 Fed. Reg. 53,280, 53,301
(1983). Those other forums include MSDS's. All health hazards. including signs and
symptoms of exposure, must be stated on the MSDS, under � 1200(g)(2)(iv). [[6]] See
Durez, supra note 2 (MSDS's must list target organs regardless of whether exposures to
chemical may foreseeably exceed OSHA permissible exposure limits). MSDS's are to be
readily available to the employees at each worksite. �� 1200(g)(8) and (10). Another
means of conveying detailed safety information is employee training. � 1200(h). In this
case, the compliance officer testified that professional judgment is needed to determine
which hazards identified on the MSDS are important enough to list on the container label.
Thus, we must look beyond the HCS labeling provisions and Appendix A to the HCS, to
determine what the Secretary meant to require on container labels.

2. The HCS Preamble on labeling requirements generally

The 1983 HCS Preamble ("the Preamble") contained an
authoritative statement of the agency's intent in promulgating the labeling requirements.
It made clear that the requirement of "appropriate hazard warnings" was a
performance standard, and that only "minimal information" was required for label
warnings, 48 Fed. Reg. at 53,301, 53,336. The Preamble also indicated that the employer
was given broad discretion in choosing the warnings. "The employer is responsible for
selecting the message and ensuring that it is effective for the purpose involved."
Id. at 53,336.

Since there is no information in the record to indicate that
one type of labeling system is inherently more effective than another, and since the
labeling provisions of the standard are supplemented by a training program where the
employer will have to explain to employees the labeling aspects of the hazard
communication program in their workplace, OSHA does not find that the record warrants
disruption of current labeling practices to implement a standardized system.

Id. at 53,301 (emphasis added). The Preamble reaffirmed that
numerous existing labeling systems "would generally be in compliance." Id.
Specifically, it named the ANSI system followed by Cyanamid. It also named the Hazardous
Materials Identification System (HMIS) of the National Paint and Coatings Association
(NPCA). It noted that, as under the 1982 proposal.

Use of these systems would not mean that employers
would not be held accountable for providing the information required. It simply meant that
they would not have to after the format of their information presentation.

Id. (emphasis added). However, the Preamble stated that
"the information required under the (1982) proposal is sufficient, and remains the
same under the final standard." 48 Fed.

Reg. at 53,301. [[7]] The 1982 proposal called for "a
simple performance-oriented standard. 47 Fed. Reg. at 12,101 (emphasis added).

The Iabeling requirements are very much performance-oriented in that most existing
labeling systems could be used to satisfy the requirements....

One issue of concern in this area is the extent of information
required to be included on the label. In the proposal, OSHA's intent has been to limit the
information, to what is needed for immediate protection. More extensive will be required
on material safety data sheets, which will be available to employees.

Id . at 12,103 (emphasis added).

The 1982 proposal criticized a 1981 OSHA labeling proposal for
hazardous chemical containers. That earlier proposal, which would have deprived employers
of much of the discretion that is provided under the final standard, Hazards
Identification: Notice of Proposed Rulemaking and Public Hearings, 46 Fed. Reg. 4412
(1981), was withdrawn only weeks after it was published. 46 Fed. Reg. 12,214 (1981). It
was a specification standard, requiring particular language for labels on containers of
hazardous chemicals. Proposed � 1200(q)(3) and Appendix C, 46 Fed. Reg. at 4443, 4451-53.
For chemicals classified only as toxic substances, such as the ones here, the label was to
state: ''Warning -- Toxic: May be fatal if [inhaled], [absorbed through skin],
[swallowed]."[[8]] The 1981 proposal also would have required, where appropriate,
statements of (1) appropriate precautions to avoid exposure (such as "[w]ear rubber
gloves"), (2) antidotes, (3) instructions in case of fire, spill, or leak, and (4)
instructions for container handling and storage. Proposed Appendix C. �� (b)(4), (c)(l),
46 Fed. Reg. at 4452. The 1982 proposal specifically noted the change from the 1991
approach:

Container labels are limited to a hazard warning [e.g.,
flammable] and a chemical identifier. Their primary purpose is to alert users to potential
hazards. The identifier on the label would provide the link to the corresponding MSDS
which would serve as the sole source of more detailed information in the specific
characteristics of the chemical (instead of each container as provided in the January
[1981] proposal).

47 Fed. Reg. at 12,110.

The 1982 proposal stated that "[s]erious concerns have
been raised regarding the excessive costs and paperwork burdens imposed by the January
[1981] proposal." Id. at 12,109. The HCS Preamble added:

the requirement for an extensive label would ignore proven
industry practices. Changes in these practices to comply with a requirement for extensive
labeling of containers would involve significant costs with no gains in terms of the
effectiveness of the overall hazard communication program.

48 Fed. Reg. at 53,326-27. Thus, OSHA clearly indicated its
intention to provide employers flexibility and discretion in determining how to
"convey the hazards of the chemicals in the containers." Yet, the enforcement
policy on which the Secretary's case is based goes in the opposite direction. As noted
above, even the 1981 proposal would not have required target organ warnings for chemicals
classified merely as toxic substances, such as those involved here. We conclude, based on
the Preamble, that the HCS originally was intended not to create a general requirement, or
irrebuttable presumption, that a target organ warning is required on the container label
whenever a specific target organ effect is "known." We will defer to the
reasonable intent of the Secretary in promulgating the standard, as that intent is
authoritatively explained in the standard's Preamble. Phelps Dodge Corp., 11 BNA OSHC
1441,1444,1983-84 CCH OSHD 26,552, pp. 33,920-21 (No. 80-3203,1983), aff'd, 725 F.2d 1237,
1240 (9th Cir. 1984) (where standard is susceptible to different interpretations,
"the preamble is the best and most authoritative statement of the Secretary's
legislative intent").

3. Exemptions from HCS labeling requirements

The exemptions from the labeling requirements of the HCS, as
explained in the Preamble, are consistent with our conclusion that the Secretary
originally did not intend to establish an inflexible rule that container labels, for the
kinds of chemicals involved here. include the kinds of target organ warnings sought here.
Those exemptions are not consistent with an intent to require target organ warnings
whenever a target organ effect is "known," or with an irrebuttable presumption
to that effect.

From its inception, the HCS has exempted from its labeling
requirements -- but not its other requirements -- certain chemicals which are subject to
labeling requirements under other Federal laws. � 1200(b)(5). [[9]] We have reviewed the
labeling requirements under those other Federal laws. We have found no target organ
warning requirements in those labeling provisions that relate to toxic chemical hazards
comparable to those for which the Secretary seeks target organ warnings here. [[10]]

The HCS Preamble indicates that the Secretary considered the
labeling requirements of the other Federal agencies sufficient, regarding those chemicals:

In the case of pesticides. the purpose of such labeling
[labeling required by EPA] is mainly the protection of workers exposed to the pesticide.
In the case of the other substances, the purpose of the labels is more general consumer
protection....

OSHA recognizes ... that there may be situations where worker
exposure is significantly greater than that of consumers, and that under these
circumstances, substances which are safe for contemplated consumer use may pose unique
hazards in the workplace. For this reason, the standards exclusion is limited to labeling.

48 Fed. Reg. at 53,289. Thus, the Preamble indicated that even
in the potentially more dangerous situation where "worker exposure is significantly
greater than that of consumers," OSHA believed that the protective components of the
HCS other than container labels (for example, training and the availability of MSDS's)
would be adequate to deal with the "unique hazards" to workers. Based on that
belief, the labeling requirements of the other Federal agencies, which are generally less
stringent than the requirements that the Secretary urges here, would be acceptable. Thus,
the exemptions under � 1200(b)(5), as explained in the Preamble are consistent with our
conclusion above regarding the Secretary's original intent under the HCS. Those
exemptions, as discussed in the Preamble, are inconsistent with the view that the HCS
container labeling provision was intended to mandate target organ warnings across the
board, for "known" target organ effects.

4. CPL Instruction 2-2.38

The Secretary argues that her current target organ warning
policy was properly explained in OSHA Instruction CPL 2-2.38, Inspection Procedures for
the Hazard Communication Standard, 29 CFR 1910.1200 (1985) (the "Instruction").
She argues that the interpretation in that Instruction is entitled to deference, and that
therefore her current policy must be upheld.

The Instruction was originally prepared by the Office of Health
Compliance Assistance. It was signed by Acting Assistant Secretary for OSHA Patrick R.
Tyson on August 5, 1985, more than 20 months after the HCS was promulgated, and less than
four months before the effective date of the requirements at issue here. The Instruction
was an internal directive to OSHA's field staff, intended to establish internal OSHA
policies and provide clarifications to promote uniform enforcement of the HCS. OSHA did
not disseminate the Instruction to the public.

The interpretation the Secretary relies on is found in Appendix
A to the Instruction. That Appendix notes that the phrase "appropriate hazard
warning" is performance-oriented and "allows the use of many different, existing
labeling systems." Instruction at A-6. However, it states:

The "hazard warning" must convey the hazard of the
chemical. This is intended to be specific information regarding the hazard -- the specific
hazards indicated in the standard's definitions for "physical" and
"health" hazards would be appropriate. Phrases such as "caution,"
"danger," or "harmful if inhaled," generally do not meet the intent of
the standard by themselves. The definition of hazard warning states that the warning must
convey the hazard of the chemical. If, when inhaled, the chemical causes lung damage, then
that is the appropriate warning. Lung damage is the hazard not inhalation. There are some
situations where the specific target organ effect is not known. Where this is the case,
the more general warning statement would be permitted. For example, if the only
information available is an L c 50 [11] test result, "harmful if
inhaled" may be appropriate.

Id . at A-7 (footnote and emphasis added).

The Supreme Court recently held that the Secretary's
interpretations of her regulations in enforcement guidelines such as the Instruction are
entitled to some weight:

[T]he Secretary regularly employs less formal means [than
standards and citations] of interpreting regulations prior to issuing a citation. These
include the promulgation of interpretive rules . . . and the publication of agency
enforcement guidelines, see United States Department of Labor, OSHA Field Operations
Manual ["FOM"] (3d ed. 1989).... Although not entitled to the same deference as
norms that derive from the exercise of the Secretary's delegated lawmaking powers, these
informal interpretations are still entitled to some weight on judicial review. See
Batterton v. Francis, 432 U.S. 416, 425-426, and n.9 (1977); Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). A reviewing court may certainly consult them to determine
whether the Secretary has consistently applied the interpretation embodied in the
citation, a factor bearing on the reasonableness of the Secretary's position.

M artin L. OSHRC ICF & I Steel Corp. , 111 S. Ct.
1171, 1179 (1991). Furthermore, the agency's interpretation of the regulation as expressed
in the citation may be entitled to great weight:

[W]hen embodied in a citation, the Secretary's interpretation
assumes a form expressly provided for by Congress. See 29 U.S.C. � 658. Under these
circumstances, the Secretary's litigating position before the Commission is as much an
exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace
health and safety standard.

Id. However, whatever the source of the
interpretation, it must be reasonable. "[W]e emphasize that the reviewing court
should defer to the Secretary only if the Secretary's interpretation is reasonable."
Id. at 1180 (emphasis in original). "Varying degrees of deference are accorded to
administrative interpretations. based on such factors as the timing and consistency of the
agency's position, and the nature of its expertise." Batterton, 432 U.S. at 425. The
Court sometimes has "declined to follow administrative guidelines in the past where
they conflicted with earlier pronouncements of the agency." General Electric Co. v.
Gilbert, 429 U.S. 125, 143 (1976), and cases cited therein. Cf, e.g., Gardebring v
Jenkins, 485 U.S. 415, 429-30 (1988) (agency's unpublished interpretation of its
regulation upheld, where there was no claim that it was inconsistent with the governing
statute or with the agency's intent when the regulation was promulgated).

The Secretary's current enforcement position, which she claims
that she stated in the Instruction, represents a departure from the original
interpretation of the cited standard in the HCS Preamble. [[12]] As discussed above, the
HCS originally was not intended to require, across the board, the kinds of target organ
warnings sought here, whereas the Instruction suggests that they generally would be
required. An administrative agency is free to chance its policies pursuant to existing
requirements, so long as the change in policy is adequately explained. However,

[A]n agency changing its course must supply a reasoned analysis
indicating that prior policies and standards are being deliberately changed, not casually
ignored, and if an agency glosses over or swerves from prior precedents without discussion
it may cross the line from the tolerably terse to the intolerably mute.

Greater Boston Television Corp. v. FCC, 444 F.2d 841. 852 (D.C.
Cir. 1970), cert. denied, 403 U.S. 923 (1971) (citations omitted), (quoted in Ohio Fast
Freight Inc. v. United States, 574 F.2d 316, 319 (6th Cir. 1978)), and Mazza v. Secretary,
Dept of HHS, 903 F.2d 953, 959 (3d Cir. 1990) (courts do not accept revision in
administrative interpretation when it flatly contradicts agency's previous position,
stated closer to enactment of governing statute). See Motor Vehicle Mfrs. Ass'n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S 29, 43 (1983), cited in CF & I
Steel Corp., 111 S. Ct at 1180.

The Instruction states that the intent of the standard is that
phrases such as "Harmful it inhaled" on container labels are inadequate to
describe "known" [[13]] target organ effects. because such phrases do not
"convey the hazard" in that situation. However, the original intent of the
standard, discussed above, was to allow employers to select any effective language on
labels to convey the hazards, including language based on "proven industry
practices." 48 Fed. Reg. at 53,326-27, 53,336. Thus, contrary to the enforcement
policy, a general warning such as "'harmful if inhaled" would be appropriate
under the original intent, even as to a "known" target organ effect, if the
warning had proven effective within the industry.

Because the Secretary misconstrues the original intent of the
HCS, we conclude that OSHA did not properly consider that original intent in formulating
its current target organ warning policy. In the words of the Greater Boston court, quoted
above, the Secretary does not "supply a reasoned analysis indicating that prior
policies ... are being deliberately changed rather than casually ignored." Thus, the
enforcement policy does not merit the deference that we have it the that we have accorded
to the previous, authoritative interpretation of labeling requirements which the Secretary
trade in the HCS Preamble.

Beyond the lack of adequate explanation for the Secretary's
departure from prior policy, there is a more fundamental problem with the Secretary's
position. She essentially seeks, by interpretation, to change the broad performance
standard, "appropriate hazard warnings," into a narrow specification standard
that would require a target organ warning for each "known" target organ effect.
She relies on her current enforcement position as if it created an irrebuttable
presumption that a target organ warning is required on the container label whenever a
specific target organ effect is "known."

"An agency's interpretation of a regulation is valid,
however, only if that interpretation complies with the actual language of the
regulation." Fluor Constructors, Inc v. OSHRC, 861 F.2d 936, 942 (6th Cir. 1988).
[[14]] See, e.g., Bonessa v. United States Steel Corp., 884 F.2.d 726, 732 (3d Cir. 1989),
and cases cited therein (agency may not rewrite regulations through interpretation).
"Appropriate hazard warnings," as used in the HCS, is a broad performance
criterion. It clearly calls for a factual, case-by-case determination of the effectiveness
of the hazard warning. As discussed above, the other provisions of the HCS do not put the
employer on fair notice that it must state all "known" target organ effects on
container labels, in addition to stating them in its MSDS's. Any doubts about whether the
term "appropriate hazard warnings" was intended to be a broad performance
standard are resolved by the Preamble.

If the Secretary's current interpretation were given deference
it would have binding effect and the standard would be substantively amended, because
Cyanamid would have no opportunity to show factually that its hazard warnings were
"appropriate." A substantive amendment of a standard is ineffective unless
preceded by new rulemaking. Administrative Procedure Act ("APA"), section 4, 5
U.S.C. � 553. See, e.g., Chrysler Corp v. Brown, 441 U.S. 281. 301-03, 315-16 (1979)
(substantive agency rules must conform to procedural requirements imposed by Congress,
Including applicable notice and comment procedures of APA). Thus, we cannot adopt the
Secretary's current Interpretation.

The Secretary's current enforcement position is not entitled to
Judicial deference, just as a general statement of agency policy would not be. The
Secretary's opinion as to what are "appropriate hazard warnings" does not
eliminate her burden of proving, by a preponderance of the evidence at the hearing, that
the employer's hazard warnings in fact are not appropriate. See, e.g., Limerick Ecology
Action v. NRC, 869 F.2d 719, 733-36 (3d Cir. 1989) (when agency applies general statement
of policy to specific case, it must support policy "just as it the policy statement
had never been issued"). Thus, we hold that the Secretary is not authorized, through
the Instruction or otherwise, to enforce her interpretation as controlling, or as if it
created an irrebuttable presumption that target organ warnings are required on container
labels for all "known" target organ effects.[[15]]

5. The Secretary's evidence at the hearing

The evidence does not show that target organ warnings were
necessary to create appropriate hazard warnings" in this case. The Secretary's only
witness was the CO, who had no background in product labeling or hazard warnings. He did
not testify as to why the target organ warnings sought here are required on container
labels to warn employees effectively. He merely applied the Secretary's current
enforcement policy. Thus, we find that the Secretary failed to prove by a preponderance of
the evidence, as required, that the container labels did not have "appropriate hazard
warnings." We also hold that, in any event, the Secretary's departure from the
original HCS policy on container labeling is unenforceable because it was not adequately
explained at the hearing. [[16]]

The CO acknowledged that the determination as to which hazards,
listed on the MSDS are important enough to list on the container label is a matter of
judgment, and that normally the people who make those judgments are toxicologists.
However, the CO was not a toxicologist. Marvin A. Friedman, Ph.D., a very experienced
toxicologist and Cyanamid's Director of Toxicology and Product Safety, testified as to why
Cyanamid does not include all the target organ warnings on labels that it states on its
MSDS's:

if we have [to] go through [every] substance which is in every
product and put a [target organ] label warning on that substance, we are going to have
long labels that are virtually illegible.

And, it's just going to take enormous amounts of time that
really result in a negative impact on what we think employee health will be.

[Also], I'm going to have to develop new label wording which is unique to the industry
because the industry just doesn't do this. It's not practiced.

Cyanamid's manager of hazard communication, Linda Hanavan,
testified that the basic philosophy of the chemical industry toward labeling is "that
a label should be as brief as possible and understandable as possible." She also
testified that "we attempt to reduce the language [so] that someone with less than a
high school education could possibly understand." She testified that Cyanamid uses
the ANSI standard as the basis for labeling industrial chemicals. Ms. Hanavan holds a B.A.
in chemistry and, at the time of the hearing, had 11 years of experience in chemical
labeling. She was on the Board of Directors of the American Conference of Chemical
Labeling.

Many of the warnings that the Secretary has endorsed in this
case were specifically criticized by Ms. Hanavan. The CO testified that OSHA would accept
on the labels the statements of affected organs in Cyanamid's MSDS's. Typical of the
statements regarding central nervous system ("CNS") effects and silica hazards
are those on Cyanamid's MSDS, for Fibercore:

Prolonged inhalation of vinyl toluene or styrene vapors can
cause depression of the central nervous system including headache, dizziness and
drowsiness. While this product contains inorganic materials such as silicates which may
cause lung fibrosis after chronic overexposure, these components are not likely to be
released from this product.

Typical of the other relevant statements is that in Cyanamid's
MSDS for XC-4001 resin:

Direct contact with the liquid may cause mild skin and moderate
eye irritation. Overexposure to butanol and propylene glycol methyl ether may cause eye

and respiratory tract irritation, headache, dizziness or nausea.

Ms. Hanavan gave the opinion that the statement, "Warning!
Causes central nervous system depression," is less effective than "Harmful if
inhaled," because the average worker would not comprehend the former phrase unless it
were explained. As to the suggestion that a list of specific CNS effects be given, she
testified that she doubted that a full list would be as effective as "Harmful if
inhaled," because a worker would "not have a tendency to read through all
that." (Potential CNS effects include lightheadedness, nausea, fatigue, depression,
dizziness ataxia, and headache.) Ms. Hanavan also testified that listing only a single CNS
symptom, such as "Warning! May cause dizziness," would not be quite accurate,
because it would describe only one of many things that could occur. Cf. supra note 12.

Based on the discussion above, we find that the Secretary has
faded to show by a preponderance of the evidence, as required, that the hazard warnings
put on the labels of Cyglas, Glaskyd, XC-4001 resin and XC-4005 resin were not
"appropriate hazard in any even warnings." [[17]] We further hold that,in any
event, she has not adequately explained her departure from the original intent of the HCS
labeling provision in this case.

6. The General Carbon decision

The Secretary notes a case in which the D.C. Circuit rejected a
challenge to the requirement in the Secretary's citation that a chemical manufacturer
include certain target organ warnings on its container labels. General Carbon Co., Div. of
St. Mary's Carbon Co. v. OSHRC, 860 F.2d 479 (D.C. Cir. 1988). However, the court did not
rule on the merits of the issue. The basis for the court's action was that General Carbon
had not raised that challenge before this Commission, and thus had failed to exhaust its
administrative remedies. Id at 486. It also noted that OSHA had "demonstrated some
willingness to negotiate over the content of the required label." Id .

The Secretary relies on the court's comments relevant to the
extent of warnings required on labels:

[T]he MSDS is intended to set forth more detailed information
than are the labels. The standards contain no suggestion, though, that a health hazard
which is required to be reported on the MSDS can be omitted entirely from the labels. In
fact, given the label's function in alerting employees to the more detailed information
contained in the MSDS, it would make little sense to insist that a particular chemical be
identified in the MSDS while imposing no corresponding labeling requirement.

Id at 484-85. Assuming arguendo that no health hazard
may be "omitted entirely" from the labels, that does not negate the broad
discretion left to the employer by the standard, regarding, how to best "convey the
hazards." As discussed above, the record indicates that effective hazard labeling
involves a good deal of judgment. and that label warnings must be sufficiently clear to
employees who have limited formal education. For example, in the HCS Preamble, OSHA
specifically rejected an extensive label warning requirement because of the
"potential for information overload" with such labels. 48 Fed. Reg. at 53,326;
See id. at 53,301.

Thus, General Carbon does not hold that target organ effects
generally must be described on container labels under the HCS. We also note that General
Carbon did not address the effect of the HCS Preamble on the reasonableness of the
Secretary's current target organ warning policy under the cited standard. Nor did Durez,
in which the court upheld the requirement of target organ information in MSDS's. 906 F.2d
at 2-4.

We wish to emphasize that we are not addressing whether a
standard that expressly required employers to specifically describe all "known"
target organ effects on container labels would be reasonable. We merely hold that the
cited standard does not impose that requirement but rather requires a case-by-case,
factual analysis of whether the employer's label warnings are "appropriate" in
the circumstances. We further hold that the Secretary's interpretation of the standard to
impose a universal target organ warning requirement is unenforceable in this case in any
event, because it departs from the original interpretation in the HCS Preamble, and the
Secretary does not adequately explain why the interpretation is being changed.

B. Other Alleged Deficiencies in Cyanamid's Label
Warnings

At oral argument, the Secretary asserted that statements on
Cyanamid's labels such as "'Harmful if inhaled" to describe the toxic substances
at issue are ineffective under any test. The evidence presented at the hearing does not
establish that proposition, however, for the reasons given above. The Instruction states
that phrases such as "harmful if inhaled" do not meet the intent of the standard
by themselves where a target organ effect is "known." However, as discussed
above, the Secretary may not establish that the employer's warnings were inappropriate
simply by citing its Instruction. We have no basis on this record for concluding that
Cyanamid's hazard warnings on the container labels of Cyglas, Glaskyd, XC-4001 or XC-4005
were not "appropriate hazard warnings" at the time. [[18]]

C. Lack of Warning Labels on the Fibercore Containers

Cyanamid's label on Fibercore containers contained no hazard
warning at the time of the inspection. The hazardous substances in Fibercore that are at
issue are styrene and vinyl toluene. There is no dispute that those substances are
hazardous chemicals under � 1200(d)(3), see supra note 2, and thus are subject to the
standard's requirements. It also is undisputed that Cyanamid did not comply with the terms
of the cited provision, and that it knew. or with the exercise of reasonable diligence
could have known, of the lack of hazard warnings.

Cyanamid's counsel claimed at oral argument that the way the
case has been tried, the only basis on which the Secretary has pursued a violation with
respect to the Fibercore labels is the lack of target organ warnings. We reject Cyanamid's
claim. Item 1(b) of the Secretary's citation referenced Fibercore in alleging a lack of
appropriate hazard warnings, and did not restrict the allegation to the target organ
warning issue. [[19]] Cyanamid adduced evidence that the Fibercore label had no warnings
at the time of the inspection. The judge understood that that issue was before him. The
record does not show that the Secretary has abandoned the issue.

Cyanamid does not contest the sufficiency of the evidence that
employees potentially would be exposed to the styrene and vinyl toluene in Fibercore.
Nonetheless, the parties have extensively addressed the question of whether the Secretary
bears a burden, under the cited standard, of proving that employees would be potentially
or actually exposed to the hazardous chemicals involved. The basic issue is whether the
Secretary must show that employees in "downstream" workplaces (that is,
workplaces to which the chemicals are shipped) would be exposed to the hazards. The burden
of proof Issue is an important one that affects chemical manufacturers, importers and
distributors under the HCS generally. Thus, we will address it.

Cyanamid argues that the Secretary bears the burden of
establishing, by [a] preponderance of the evidence, that a hazardous chemical is present
in such a manner that employees may be exposed to it under normal conditions of use or in
a foreseeable emergency." The Secretary argues that under the cited standard, she has
no burden of proving exposure once she establishes that "hazardous chemicals"
are leaving the chemical manufacturer's workplace. She argues that "the Standard
presumes a risk....Once the chemicals have been found to be per se hazardous [by being
listed in the source documents named in � 1200(d)(3)], the Standard presumes they will be
released downstream." As discussed above, the Secretary's interpretation of her own
regulation is entitled to deference where reasonable. CF & I Steel Corp., 111 S.Ct. at
1176 ("In situations in which 'the meaning of [regulatory] language is not free from
doubt,' the reviewing court should give effect to the agency's interpretation so long as
it is 'reasonable,' Ehlert v. United States, 402 U.S. 99, 105 (1971).....")

A number of provisions of the HCS are directly relevant to
whether the Secretary's interpretation of the burden of proof as to employee exposure
under the cited standard is reasonable. The scope provision of the HCS states:

This section applies to any chemical which is known to be
present in the workplace in such a manner that employees may be exposed under normal
conditions of use or in a foreseeable emergency.

� 1910.1200(b)(2). "Exposure" under the HCS is
defined as follows:

"Exposure" or "exposed" means that 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.

� 1200(c). "Foreseeable emergency" is defined as
follows:

any potential occurrence such as, but not limited to, equipment
failure, rupture of containers, or failure of control equipment which could result in an
uncontrolled release of a hazardous chemical into the workplace.

Id.

The United States Court of Appeals for the D. C. Circuit agreed
with the Secretary's interpretation of the burden of proof of exposure, in General Carbon.
860 F.2d at 482-83. The court stated:

The agency's reading of the HCS, however, is supported both by
the plain language of the standard and by the Preamble issued at the time of promulgation.
The Secretary's interpretation of the standard is in our view not merely reasonable, but
is the only plausible reading of the rule.

Id . at 483.

There is a compelling reason for not requiring the Secretary to
affirmatively prove downstream employee exposure under � 1200(f)(l), once she shows that
the chemicals involved are hazardous chemicals within the meaning of the HCS. Cases under
that provision present much greater difficulties of proof for the Secretary, regarding
employee exposure, than most OSHA citation cases. In most OSHA inspections, the employees
who are exposed to a hazard are on the inspected worksite. Thus, the general rule is that
the Secretary bears the burden of proof of employee access to the hazards: that is, that
the employee was, or predictably would be, in the "zone of danger." E.g., Wyman
Gordon Co., 15 BNA OSHC 1433, 1449, 1992 CCH OSHD 29,550, p. 39,940 (No. 84-785, 1991).

By contrast, in cases under the cited standard, the Secretary
will inspect a chemical manufacturing plant (or an importer's or distributor's facility)
from which chemicals are shipped downstream to a variety of workplaces. The inspected
facility may be far removed from the workplaces where employees are actually or
potentially exposed to the hazards of the chemicals shipped. Thus, the Secretary in many
cases will be unable to determine whether those downstream employees will be exposed to
the hazards, without extensively investigating those distant workplaces. As a result, it
would be unduly burdensome on the Secretary if she were required to prove downstream
employee exposure in cases under the cited standard.

We also note that the Secretary's position that she bears no
such burden under that standard is consistent with general principles governing burdens of
proof. A standard treatise on the law of evidence summarizes the major considerations:

[T]he apportionment of the burdens of proof ... either
initially or ultimately, will depend upon the weight that is given to any one or more of
several factors, including: (1) the natural tendency to place the burdens on the party
desiring change, (2) special policy considerations such as those disfavoring certain
defenses, (3) convenience, (4) fairness, and (5) the judicial estimate of the
probabilities.

McCormick on Evidence � 337 at 952 (3d ed. 1984)
("McCormick") (citation omitted). Here, the Secretary's position is supported by
the special policy considerations underlying the HCS, as well as by convenience, fairness,
and the probabilities of the situation. The overall policy of the HCS is to protect
employees by giving them Information about the "hazards of all chemicals produced or
imported." � 1200(a)(l) (emphasis added). The HCS Preamble indicates that
speculation about whether downstream employees would be exposed is inappropriate:

[J]ust as a chemical manufacturer cannot make specific control
measure recommendations for unknown downstream uses, it also cannot accurately predict the
hazard presented by the chemical downstream. Therefore, the chemical manufacturer must
provide thorough hazard information, which would be applicable to a full range of
reasonably foreseeable exposure situations, rather than limiting the information on the
basis of presumed use. The downstream employer will then be assured of having the
information reasonably necessary to make informed choices for control measures.

48 Fed. Reg. at 53,307 [[20]] Thus, it would be inconsistent
with the overall policy of the HCS to deny enforcement to a citation merely on the basis
that the Secretary did not have an accurate prediction of the employee exposure
downstream. A defense based on speculation or presumption that there would be no such
exposure is disfavored under the HCS.

As to convenience and fairness, we have found above that it
would be unfair and inconvenient in cases under the cited standard to require the
Secretary to investigate the details of each product's use to determine exposure. That is
particularly true, considering that the party cited, who relies on lack of exposure,
predictably will have far better access to evidence on the issue of employee exposure. In
fact,

A doctrine often repeated by the courts is that where the facts
with regard to an issue lie peculiarly in the knowledge of a party, that party has the
burden of proving the issue.

McCormick . � 337 at 950. Thus, considerations of
convenience and fairness support the Secretary's interpretation of the burden of proof
under the cited standard.

Finally, as to the probabilities of the situation, the more
probable assumption is that employees are potentially exposed to the hazardous chemicals
with which they work. Although employee exposure to hazardous chemicals shipped to
downstream employers may be presumed, under the cited standard, this does not mean that
the presumption is irrebuttable. We note that the HCS provides an explicit exemption for
"articles," that is, manufactured items that are formed to a specific shape or
design during manufacture, that have end use function(s) dependent on that shape or
design, and that do not result in exposure to a hazardous chemical under normal conditions
of use. � 1200(c).

Thus, we find that the Secretary's interpretation of the burden
of proof of exposure under � 1200(f)(l) is reasonable, and we defer to it, for the
reasons stated in General Carbon, and for the further reasons discussed above. Under �
1200(f)(I) the Secretary need not prove that employees will be potentially or actually
exposed to the chemical hazards, once she shows that the chemicals leaving the
"upstream" workplace are hazardous under 1200(d)(3). Neither the Act nor the
Commission's Rules of Procedure require placing the burden of proof on the Secretary here.
[[21]]

For the reasons discussed above, all the necessary elements of
a violation have been established as to Fibercore. To summarize, styrene and vinyl
toluene, which are components of Fibercore, are hazardous chemicals under the HCS.
Cyanamid had no hazard warning on the Fibercore containers at the time of the inspection.
as required. Also, it had the requisite knowledge of the violative conditions. Thus, we
affirm a violation of � 1910.1200(f)(l)(ii) as to Fibercore [[22]].

ITEM 2(c): STATEMENTS OF THRESHOLD LIMIT VALUES ON
CERTAIN MSDS's

The chemicals involved here are propylene glycol methyl ether,
styrene and vinyl toluene, which are contained in one or more of Cyanamid's products at
Issue. [[23]] The judge found that Cyanamid had violated the cited standard �
1910.1200(g)(2)(vi), because it failed to include the applicable short-term exposure
limits ("STEL's") of the American Conference of Governmental Industrial
Hygienists ("ACGIH") in its material safety data sheets ("MSDS's") for
the chemicals at issues here. The standard provides:

(g) Material safety 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.

(2) Each material safety data sheet shall be in English and
shall contain at least the following information:

(vi) The OSHA permissible exposure limit, ACGIH Threshold Limit
Value, and any other exposure limit used or recommended by the chemical manufacturer,
importer, or employer preparing the material safety data sheet, where available[.]

(Emphasis added). The company argues that the judge erred
because the cited standard does not require listing the STEL. We disagree with this
argument. The standard requires that employers have an MSDS for each hazardous chemical
they use, and that it list the "ACGIH Threshold Limit Value (TLV)" for exposure
to the chemical, and other exposure limits. A source for determining the "ACGIH
Threshold Limit Value (TLV)" is referenced in � 1910.1200(d)(3)(ii) (supra note 2).
That source is the ACGIH Threshold Limit Values for Chemical Substances and Physical
Agents in the Work Environment.

That document is part of the ACGIH publication, Threshold Limit
Values and Biological Exposure Indices for 1985-86, which was introduced into evidence by
the Secretary. It defines the term "Threshold Limit Values" to include the STEL
and ceiling limits as well as the 8-hour Time Weighted Average, ("TWA").[[24]]
The document lists STEL's for each of the chemicals involved here. [[25]] Cyanamid's
MSDS's for the products at

Issue did not list a STEL for any of those chemicals.

Cyanamid argues that the CO's testimony supports it position
that the STEL is not properly considered as part of the ACGIH TLV. It quotes the following
passage:

A common understanding of what a TLV or threshold limit value
is [would be] an eight hour time weighted average. Isn't that right?

A A time weighted average is sometimes eight hours, yes, sir.

Q And in Industrial Hygiene parlance, it's different than a
short-term exposure limit, isn't it?

A Yes, sir; as commonly discussed, yes, sir.

The CO's testimony dotes not actually support Cyanamid's,
claim, because he agreed only that the "time weighted average is sometimes eight
hours," not that the TLV is restricted to an eight-hour period. Moreover, he
testified that the actual definition of "threshold limit value is "essentially
what this document [the ACGIH document discussed above] indicates." He also testified
that the STEL is "a different kind of threshold limit value" from an 8-hour TWA.

In any event, the ACGIH definition, expressly incorporated in
the HCS by 1200(d)(3), clarifies any ambiguity that might exist about whether
"threshold limit value" includes the STEL. A reading of that document, which is
required to assure compliance with the HCS, would have revealed to Cyanamid the actual
meaning of "ACGIH Threshold Limit Value."

Thus, Cyanamid failed to comply with the terms of the standard,
and knew or reasonably could have known of the noncompliance. The requisite showing was
made of potential employee exposure to propylene glycol methyl ether, styrene and vinyl
toluene, for the reasons discussed above regarding Item 1(c). We therefore affirm Item
2(c).

PENALTIES

No penalties were proposed by the Secretary for the alleged
violations and none will be assessed. The HCS had just gone into effect when the
inspection occurred. As discussed above, the major issues in dispute in this case are
difficult legal issues that had not been addressed previously. The Secretary presented no
evidence in support of a penalty assessment. See 29 U.S.C. � 666(j).

Accordingly, Item 1(b) is affirmed as to the Fibercore
container labels, and vacated as to the other four products at issue. Item 2(c) is
affirmed. No penalties are assessed.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman Commissioner

Velma Montoya

Commissioner

Dated: February 7, 1992

SECRETARY OF LABOR

Complainant,

v.

AMERICAN CYANAMID COMPANY,

Respondent.

OSHRC Docket No. 86-681

APPEARANCES: Bruce C. Heslop, Esquire, Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant

Kenneth B. Stark, Esquire, Cleveland, Ohio, on behalf of
respondent

DECISION AND ORDER

SALYERS, Judge: Respondent, American Cyanamid Company, is a
chemical manufacturer headquartered in Wayne, New Jersey. It has a plant facility located
in Perrysburg, Ohio, where it produces resins and molding compounds for sale and
distribution to customers engaged in the plastics industry. On December 6, 1985,
Compliance Officer Ralph Mericle conducted an inspection of respondent's Perrysburg plant
to determine if respondent was complying with the Hazard Communication Standard (29 C.F.R.
� 1910.1200) of the Occupational Safety and Health Act (29 U.S.C. � 651, et seq.), which
standard became effective With regard to chemical manufacturers on November 25, 1985.

As a result of this inspection, the Secretary of Labor cited
respondent for alleged violations of the HCS, and the citation was duly contested with
respect to certain items. [[1/]] At the hearing the parties announced the only matters
remaining at issue were item 1b of the citation and item 2c insofar as it relates to
listing short-term exposure limits (STEL) on the material safety data sheets prepared for
certain products (Tr. 5- 6). The parties also stipulated at the set of the hearing that
the respondent is a "chemical manufacturer as contemplated by the HCS and that the
involved products of respondent were intended for "out of plant shipment" (Tr.
7).

The issues to be decided are as follows:

1. Did respondent violate 29 C.F.R. � 1910.1200(f)(l)(ii) by
   its failure to ensure that containers of XC-4005 resin, glaskyd, XC-4001 resin, cyglas and
   fibercore were labeled, tagged or marked with appropriate hazard warnings prior to
   shipment to "downstream" employers.

2. Did respondent violate 29 C.F.R. � 1910.1200(g)(2)(vi) by
   its failure to list on its material safety data sheets (MSDS) developed for fibercore,
   XC-4001 resin and cyglas, the applicable ACGIH STEL for certain hazardous chemical
   components contained in these substances.

I.

The HCS was developed by the Secretary over a period of years
beginning in 1974 with the appointment of a Standards Advisory Committee on Hazardous
Materials Labeling to study the need for such regulations and to recommend guidelines for
categorizing and ranking chemical hazards. Following receipt of the committee's report and
recommendations received from the National Institute for Occupational Safety and Health
(NIOSH), the Secretary published an advance notice of proposed rulemaking on chemical
labeling in the Federal Register (42 Fed. Reg. 5,372) requesting comments and suggestions
from the public and input was received from a variety of government agencies, trade
associations, businesses and labor organizations. On March 19, 1982, the Secretary
published his final notice of rulemaking proceedings (47 Fed. Reg. 12,092) which
established a 60-day period for submission of written comments and notices of intent to
appear at public hearings. The foregoing culminated in the issuance of the HCS (29 C.F.R.
� 1910.1200) which was published in the Federal Register on November 25, 1985. 48 Fed.
Reg. 53,280.

The HCS is designed:

[T]o ensure that the hazards of all chemicals produced or
imported by chemical manufacturers, or importers are evaluated, and that information
concerning their hazards is transmitted to affected employers and employees within the
manufacturing sector. This transmittal of information is to be accomplished by means of
comprehensive hazard communication programs, which are to include container labeling and
other forms of warning, material safety data sheets and employee training. �
1910.1200(a)(l)

The standard is unique in its requirement for
"downstream" disclosure of information regarding hazardous chemicals from
chemical manufacturers and importers to employer-purchasers of such products. See �
1910.1200(b)(l). The full and accurate downstream flow of information regarding hazardous
chemicals is essential to complete implementation of the standard's requirements by
manufacturing sector employers who purchase such products. See generally �
1910.1200(d)(l), � 1910.1200(a) and � 1910.1200(h). To initiate this downstream flow of
information, the standard requires chemical manufacturers, such as respondent, to evaluate
chemical substances produced in their workplace to determine if they are hazardous, see �
1910.1200(b)(l) and (d), to ensure that each container of hazardous chemicals leaving its
workplace is appropriately labeled, tagged or marked, see � 1910.1200(f), and to develop
a material safety data sheet for each hazardous chemical they produce, see �
1910.1200(g).

The standard imposes an obligation on manufacturers shipping
chemicals to downstream employers as follows:

(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.
� 1910.1200(f)(l)

The standard further provides at � 1910.1200(d)(3):

The chemical manufacturer, importer or employer evaluating
chemicals shall treat the following sources as establishing that the chemicals listed in
them are hazardous:

(i) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous
Substances, Occupational Safety and Health Administration (OSHA); or,

(ii) Threshold Limit Values for Chemical Substances and
Physical Agents in the Work Environment, American Conference of Government Industrial
Hygienists (ACGIH). (Latest Edition)

During the course of his inspection, Compliance Officer Mericle
examined the labels and corresponding MSDS for each of the products enumerated in the
contested citation, ie., XC-4005 resin, glaskyd, XC-4001 resin, cyglas and fibercore (Exs.
C-1 thru C-5). First, he determined the presence of hazardous ingredients in each
substance by referring to the appropriate section of the respondent's MSDS. The substance
listed as hazardous included butanol, vinyl toluene, styrene, amorphous silica, and talc.
Mericle verified that each of these substances was identified as hazardous in Table Z-1 of
29 C.F.R. � 1910.1000 (Ex. C-7) and in the Threshold Limit Values prepared by the
American Conference of Governmental Industrial Hygienists (Ex. C-8). He noted that
respondent's label for fibercore (Ex. C-3) listed no hazard warning. The labels for the
remaining substances gave the general warning, "harmful if inhaled,"
"causes eye irritation," may cause skin irritation," "avoid breathing
dust," etc., but did not warn of possible target organ effects if exposed to the
hazardous chemical (Exs. C-1 thru C-5). Mericle then consulted the target organ effects
section of the standard (Appendix A, para. 7) and the NIOSH/OSHA Guidelines for Chemical
Hazards [[2/]] (Exs. C-9 thru C-13) to identify the target organ effects of each hazardous
chemical. Based upon his review of respondent labels and the foregoing technical sources,
he determined that respondent had not complied with the standard's requirement to provide
"appropriate hazard warnings" since the labels in question did not specify
target organ effects.

In reaching this conclusion, Mericle relied upon OSHA
Compliance Directive CPL 2-2.38 dated August 5, 1985 (Ex. C-6). which was in effect at the
time of his inspection and on the date the citation was issued. In particular, he referred
to Appendix A of this directive, pages A-6 and A- 7 (Tr. 37) which reads, in pertinent
part, as follows:

The "hazard warning" must convey the hazard of the
chemical. This is intended to be specific information regarding the hazard - the specific
hazards Indicated in the standard's definitions for "physical" and
"health" hazards would be appropriate. Phrases such as "caution."
"danger," or "harmful if inhaled," generally do not most the intent of
the standard by themselves. The definition of "hazard warning" a states that the
warning must convey the hazard of the chemical. If, when inhaled, the chemical causes lung
damage, then that is the appropriate warning. Lung damage, then that is the appropriate
warning. Lung damage is the hazard, not inhalation. There are some situations where the
specific target organ effect is not known. Where this is the case, the more general
warning statement would be permitted. For example, if the only information available is an
L950 test result, "harmful if inhaled" may be appropriate.

The crucial question in this case is centered on whether the
labels used by respondent in connection with the substances cited by the Secretary were
marked with "appropriate hazard warnings" as contemplated by the standard. The
Secretary takes the position that the labels utilized by respondent were inadequate since
they did not identify the target organ effects of exposure to the hazardous chemicals
contained in the cited substances. Respondent maintains its labels were appropriate, that
the label need not convey comprehensive information concerning potential hazards, and that
target organ effects are more appropriately relegated to the material safety data sheets.

The Review Commission has not yet considered or ruled on the
question presented in this case. However, two Administrative Law Judges in three separate
cases have thus far decided the issue in the Secretary's favor. Secretary v. Hilton-Davis
Chemical Co., (Burroughs), 13 OSHC 1182 (No. 86-494, 1987); Secretary v. Monsanto Company
(Burroughs), No. 86-391; Secretary v. Emery Chemicals (Sparks), No. 86-457.

The Secretary must establish at the outset that the chemicals involved are "health
hazards" as this term is defined in � 1910.1200(c). [[3/]] In this case, this
requirement has been satisfied since each of the chemicals contained in respondent's
products is specifically listed in the source documents prescribed by � 1910.1200(d)(3).
Under these circumstances, the Secretary has made out a prima facie case since chemicals
so listed are per se hazardous under the standard. Hilton-Davis Co., supra, at pages 3-4.

Respondent does not dispute the hazardous characterization with
respect to styrene, vinyl toluene and butanol and agrees that "these chemicals are
sufficiently hazardous to warrant a label warning" [[4/]] (Respondent's Brief, pg.
41). Respondent does not concede, however, that amorphous silica and talc are hazardous
based upon the testimony of its toxicologist, Dr. Marvin A. Friedman, who testified
toxicological studies do not confirm the hazardous nature of these substances (Tr.
176-177). Dr. Friedman gave no specifics to support this generalized conclusion. On
cross-examination Dr. Friedman admitted each of the involved substances are mixtures and
that respondent has made no independent studies of these mixtures to determine the hazards
of the mixture as a whole (Tr. 229-230). The standard does not require a manufacturer to
conduct independent studies of mixtures but � 1910.1200 (d)(5)(ii) provides:

(ii) If a mixture has not been tested as a whole to determine
whether the mixture is a health hazard, the mixture shall be assumed to present the saw
health hazards as do the components which comprise one percent (by weight or volume) or
greater of the mixture . . . .

The MSDS for glaskyd and cyglas (Exs. C-4, C-S) reflect the
presence of amorphous silica and talc in excess of one percent. In the absence of
independent studies to rebut the presumption of the standard, these mixtures must be
considered to present the same hazards as its components.

Respondent argues that the history of the HCS reveals it is the
MSDS and not the label where the Secretary reposed the requirement for detailing target
organ effects (Respondent's Brief. pgs. 4-12, 33-34). It avers that the interpretation
urged by the Secretary in this case is contrary to prevailing industry practices (Id.,
pgs. 28-29) and is inconsistent with requirements contained in substance-specific OSHA
standards for other hazardous substances (Id., pgs. 12, 36-38). It urges that the
Secretary's interpretation would lead to label "overload" and is
counterproductive to the standard's purpose (Id., pgs. 20-22). While these arguments are
well presented and have been considered, the pervading question in this case is whether
the Secretary's interpretation that labels must reflect target organ effects is in accord
with the purpose and scheme of the HCS and is reasonable.

This issue was specifically and definitively addressed in
Hilton-Davis Co., supra, as follows:

In determining the proper interpretation of the
"appropriate hazard warning(s)" requirement, one must look primarily to the
language of the standard. Bunge Corporation, 12 BNA OSHC 1785, 1986 CCH OSHD 27,565 (Nos.
77-1622, 78-838, 78-2213, 1986). Any one particular provision of a standard "should
be interpreted in the context of the entire standard." Bunge Corporation, supra, 12
BNA at 1790. In reaching the proper interpretation, "OSHA standards must be
interpreted in accordance with the natural and plain meaning of their words; they cannot
be construed to mean what the agency may have intended but did not adequately
express." Bunge Corporation, Supra, 12 BNA OSHC at 1791.

Since the provision of the HCS cited, � 1910.1200(f)(l)(ii),
makes no reference to target organs, it must be interpreted in the context of the whole
standard. The definition of "hazard warning" makes it clear that the hazards of
the chemical are to be conveyed on the container label. The definition of "health
hazard" incIudes the reference to Appendix A which provides further definitions and
explanations of the scope of the health hazards covered. The first paragraph of Appendix A
makes it clear that employees exposed to health hazards must be apprised of both the
change in the body function and the signs and symptoms that may occur to signal the
change. The paragraph is as follows:

Although safety hazards related to the Physical characteristics
of a chemical can be objectively defined in terms of testing requirements (e.g.
flammability), health hazard definitions are less precise and more subjective. Health
hazards may cause measurable changes in the body--such as decreased pulmonary function.
These changes are generally indicated by the occurrence of signs and symptoms in the
exposed employees--such as shortness of breath, a nonmeasurable, subjective feeling.
Employees exposed to such hazards must be apprised of change in body function and the
signs and both the change in body function and the signs that may occur to signal that
change. (Underlining added)

Appendix A includes a target organ categorization of health
effects that may occur. Examples of signs and symptoms of exposure, as well as indications
of substances which have been found to affect the target organs, are set forth at the end
of Appendix A. The reference to the change in body function and to target organ effects in
Appendix A makes it clear that "appropriate hazard warnings" for any given
hazardous substance are those that warn about potential danger of significant risk.
Appendix A, in referring to target organ effects, states:

***These examples are presented to illustrate the range and
diversity of effects and hazards found in the workplace, and the broad scope employers
must consider in this area. (Underlining added)

The change in body function caused by the hazards of the
chemical is required by Appendix A to be included on the label. The change in body
function is, in essence, a requirement to include target organ effects.

In interpreting a standard, it is proper to look to the
preamble for the administrative construction of the standard. Udall v. Tallman, 380 U.S.
1, 17, 85 S. Ct. 792 (1965); Fidelity Federal Savings & Loan Assn. v. De La Cuesta,
458 U.S. 141, 102 S. Ct. 3014 (1982). The preamble accompanying and explaining the
standard in this case supports the target organ interpretation. In commenting on the
definition of "health hazard," the preamble states as follows (48 Fed. Reg.
53,295):

The definition for "health hazard" has been modified
somewhat by including in it the target organ classification of hazards that are proposed
in Appendix A. This should clarify the required scope of hazards to be evaluated.

The preamble makes the following further comment under the
hazard determination provision of � 1910.1200(d) (48 Fed. Reg. 53,296):

The term "health hazard" was defined very broadly in
the proposal as a "chemical which; upon exposure, may result in the occurrence of
acute or chronic health effects in employees." This.definition was further expanded
upon Appendix A, which included a discussion of the difficulty of defining health hazards,
and a categorization of health effects according to target organ. Included in the
categorization were examples of both the signs and symptoms of overexposure and some
specific substance which may affect those target organs. (Underlining added)

The "hazard warning" must convey the hazard of the
chemical. Appendix A of the standard makes it clear that employees must be apprised of the
change in body function and the signs and symptoms that may occur to signal that change.
When � 1910.1200(f)(l)(ii) is read in conjunction with the definitions of *hazard
warning" and "health hazard," set forth at � 1910.1200(d), it is clear
that the intent of the labeling requirement goes far beyond the HMIS numerical rating
system used by Hilton-Davis. The conclusion that target organ effects must be included on
the label is a reasonable interpretation of the "appropriate hazard warning"
requirement. This interpretation is consistent with the underlying goal of the standard.
Id., pgs. 10-13.

The Secretary's conclusion that target organ effects must be
included on labels in connection with the shipping of hazardous chemicals is a reasonable
interpretation of the standard. Accordingly, the labels with respect to the products in
question containing one or more hazardous chemicals should have included an appropriate
warning advising Of potential target organ effects. The Secretary does not insist that any
particular language be used in conveying this information, and Compliance Officer Mericle
indicated at the hearing that the information contained in respondent's MSOS would
constitute sufficient warnings (Tr. 121-126). Appropriate language is also available in
the NIOSH/OSHA Guidelines for Chemical Hazards for each of the involved substances (Exs.
C-9 thru C-13). The key requirement is that the label transmit an immediate warning of the
hazards of the chemical as it may affect one or more of the target organs, i.e., eyes,
lungs, nervous system, etc.

The second issue in this case relates to whether respondent
violated 29 C.F.R. 1910.1200(g)(2)(vi) [[5/]] by its failure to specify the Short Term
Exposure Limit (STEL) for hazardous chemicals continued in fibercore, (styrene and vinyl
toluene), XC-4001 resin (propylene glycol menthyl ether) and cyglas (vinyl toluene).

During his inspection Compliance Officer Mericle examined the
MSDS for each of the products in question (Exs. C-1, C-3, C-5) and determined these
documents listed TLV for each substance but did not specify STEL information (Tr. 57-59).

Respondent does not dispute that STEL information was missing
from the MSDS but maintains that the standard requires only a reflection of the
eight-hour, time-weighted average (TLV), which respondent maintains is the "common
understanding of Threshold Limit Value" (Respondent's Brief, pgs. 49-50). Respondent
further urges that the "plain words of the standard are in the singular" ( Id .,
pg. 49) and that requiring respondent to list both the TLV and STEL imposes an additional
burden over and above that required by the standard.

In making his determination, Compliance Officer Mericle
referred to Threshold Limit Values and Biological Exposure Indices. (Ex. C-8; Tr.
150-151), a document approved by the American Conference of Governmental Industrial
Hygienists. This source lists both a time-weighted average (TWA) and a short-term exposure
limit (STEL) for each hazardous chemical specified in the document. The document explains
that the STEL is "a 15 minute time-weighted average exposure which should not be
exceeded at any time during a work day" and is a "supplement to the TWA."
Id., pg. 3. This information is of important concern to the downstream employer who most
inform and advise employees of the potential hazards of these products. The information
conveyed by the STEL is no less vital to the downstream employer than the information
imparted regarding the TWA. To withhold this information from the MSDS is inconsistent
with the purpose of furnishing thorough and complete information as contemplated by the
standard. Accordingly, the STEL information must be specified in the MSDS.

FINDINGS OF FACT

1. Respondent is a chemical manufacturer engaged at Perrysburg,
   Ohio, in the production of resins and molding compounds for sale and distribution to
   customers in the plastics industry.

2. On December 6, 1985, an inspection of respondent was
   conducted by the Occupational Safety and Health Administration to determine its compliance
   with the provisions of the HCS, 29 C.F.R. � 1910.1200.

3. During the course of this inspection, it was determined that
   respondent produced products identified as XC-4001 resin, XC-4005 resin, glaskyd, cyglas
   and fibercore, each of which contained one or more hazardous substances (butanol, vinyl
   toluene, styrene, amorphous silica, and talc) listed in Subpart Z of 29 C.F.R. � 1910 or
   in TLVs for Chemical Substances and Physical Agents in the Work Environment (ACGIH).

4. The labels utilized by respondent for the aforesaid products
   did not provide warnings advising of the target organ effects of exposure to the hazardous
   chemicals contained in these products.

5. The Secretary's inspection also disclosed that respondent's
   MSDS relating to XC-4001 resin, fibercore and cyglas did not specify the short-term
   exposure limits (STEL) set forth in TLVs and Biological Exposure Indices for 1985-86 ACGIH
   (Ex. C-8) for the hazardous substances (styrene, vinyl toluene and methyl ether) contained
   in these products.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in an industry affecting
   commerce, and the Review Commission has jurisdiction of the parties and subject matter in
   this case.

2. The Secretary's interpretation that the HCS requires a
   warning of target organ effects on labels used in shipping hazardous chemicals is
   reasonable and in keeping with the overall scheme and objectives of the standard.

3. Respondent has violated 29 C.F.R. � 1910.1200 (f)(l)(ii) by
   its failure to include target organ effects on labels used in shipping XC-4001 resin,
   XC-4005 resin, glaskyd, cyglas and fibercore to downstream employers.

4. The Secretary's requirement that the MSDS reflect STEL
   information is reasonable and is consistent with the standard's objectives to furnish
   thorough information to downstream employers.

5. Respondent has violated 29 C.F.R. � 1910.1200 (g)(2)(vi) by
   its failure to list short-term exposure limit information on its material safety data
   sheets developed for fibercore, XC-4001 resin and cyglas.

ORDER

It is hereby ORDERED:

1. Item 1b of "other" Citation No. 1 is affirmed with
   no penalties assessed.

2. Item 2c of "other" Citation No. 1 is affirmed with
   no penalties assessed.

EDWIN G. SALYERS

Judge

July 6, 1987

FOOTNOTES:

[[1]] A target organ warning is a warning of the effect that a
chemical has on a specific organ of the body.

[[2]]Section 1200(d)(3) provides:

The chemical manufacturer, importer or employer evaluating
chemicals shall treat the following sources as establishing that the chemicals listed in
them are hazardous:

(i) 29 CFR Part 1910. Subpart Z Toxic and Hazardous Substances, Occupational Safety and
Health Administration (OSHA); or

(ii) Threshold Limit Values for Chemical Substances and
Physical Agents in the Work Environment, American Conference of Governmental Industrial
Hygienists (ACGIH) (latest edition).

See Durez Div. of Occidental Chemical Corp. v. OSHA, 906 F.2d
1, 2 (D.C. Cir. 1990) ("Durez").

[[3]] Additional warning statements would be required under
ANSI for highly toxic chemicals, but there is so evidence that the chemicals involved here
would be classified as highly toxic. There has been no suggestion that Cyanamid's warnings
regarding flammability and combustibility of any of the products at issue were inadequate.

[[4]] We will assume, for the sake of argument in this case,
that these symptoms are in fact properly characterized as target organ effects, although
Cyanamid submitted evidence challenging the claim that central nervous system depression
is a genuine target organ effect, and that silica and talc may came lung damage.

[[5]] He adopted the reasoning of Commission Administrative Law
Judge James Burroughs in a previous case on the same issue. Hilton-Davis Chemical Co., 87
OSAHRC 21/A5, 13 BNA OSHC 1182 (full text), 1967 CCH OSHD 27,872 (digest) (No. 86-494,
1987) (ALJ). Judge Burroughs held there that target organ data is required because the
hazards of the chemical are to be conveyed on the container label and the scope of
"health hazards" includes target organ effects. Judge Burroughs also relied on
the discussion in the HCS Preamble of the definition of "health hazard." The key
remarks in that preamble are as follows:

The definition for "health hazard" has been modified
somewhat by including in it the target organ classification of hazards that was proposed
to Appendix A. This should clarify the required scope of hazards to be evaluated. In
addition, it has been clarified that health hazards to be included are those for which
there is scientific (i.e. statistically significant) evidence based on at least one
positive study conducted in accordance with established Scientific Principles.

48 Fed. Reg. 53,280, 53,295 (1983).

[[6]] That subsection specifically provides that each MSDS must
state:

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(.)

[[7]] The section cited here is essentially comparable to the
proposed � 1910.1200(d)(3) in the 1982 proposal. Hazard Communications: Notice of
Proposed Rulemaking and Public 47 Fed. Reg. 12,092, 12,121 (1982). The only relevant
difference is that the 1982 proposal did not contain the word "appropriate"
before "hazard warnings."

[[8]] Toxic substances were classified as Category B Hazards
under the 1981 proposal. Proposed � 1200(gg)(22), 46 Fed. Reg. at 4447. Table 2 to
Appendix C specified the required hazard warnings for Category B hazards.

The 1981 proposal would have required language akin to target
organ warnings only for irritants, carcinogens and reproductive toxins, and certain
miscellaneous "adverse health effects." The evidence does not indicate that any
of Cyanamid's chemicals at issue in this case were carcinogens or reproductive toxins, or
that they had the miscellaneous "adverse health effects" referred to in the 1991
proposal.

For irritants, depending on the organ affected, the warning
proposed in 1981 was to read: "Warning - Irritant: Causes [eye] [eye and skin
irritation] [lung (chest)] irritation." 46 Fed. Reg. at 4452. As discussed at p. 10
supra. Cyamamid had comparable warnings for eye and skin irritants.

[[9]] The chemicals excluded from the HCS labeling requirements

• but not its other requirements - are as follows: (1) pesticides regulated by EPA under
  the Federal Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. � 136 et seq.; (2)
  substances regulated by the Food and Drug Administration ("FDA") under the
  Federal Food, Drug and Cosmetic Act, 21 U.S.C 301 et seq., (3) alcoholic beverages
  regulated by the Bureau of Alcohol, Tobacco and Firearms under the Federal Alcohol
  Administration Act. 27 U.S.C � 201 et seq.; and (4) products regulated by the Consumer
  Product Safety Commission ("CPSC") under the Consumer Product Safety Act, 16
  U.S.C. 2051 et seq. and the Federal Hazardous Substances Act. 15 U.S.C. 1261 et seq.

[[10]] The EPA pesticide labeling regulations at 29 C.F.R. Part
156 require the statement, "causes eye and skin damage [or eye irritation]," for
the most highly toxic pesticides. 40 C.F.R. 156(i); see id. 156(h)(i) (definitions of
toxicity categories). However, the Secretary has not claimed or shown that Cyanamids
labels did act contain adequate target organ warnings regarding eye and side damage Those
labels mentioned that the chemical "causes" or "may cause" eye of skin
irritation, as to those chemicals which were identified as eye or skin hazards. See supra
pp. 4-5).

Among the other labeling regulations that we have reviewed are
the FDA regulations at 21 C.F.R. 1.20, 1.21, and the CPSC regulations at 16 C.F.R.
1500.121. Those regulations do not contain the kinds of target organ warnings that the
Secretary seeks to require here. Although our review of the relevant regulations has not
been exhaustive, the fact that numerous regulations regarding the chemicals exempted from
HCS labeling requirements have not contained the kind of target organ warning requirements
that the Secretary seeks to impose here is significant. It is consistent with our
conclusion that the Secretary originally did not intend to impose the general target organ
warning requirement advocated here, even for chemicals not exempt from HCS labeling
provisions.

[[11]] An L[c]50 test is designed to determine the median
lethal concentration of a substance in an animal species See, e.g. HCS, Appendix A, 6(c).

[[12]] As mentioned above, OSHA did not disseminate the
Instruction to the public. The Court noted in Martin v. OSHRC:

the decision to use a citation as the initial means for
announcing a particular interpretation may bear on the adequacy of notice to regulated
parties,... the quality of the Secretary's elaboration of pertinent policy
considerations...and other factors relevant to the reasonableness of the Secretary's
exercise of delegated lawmaking powers.

111 S. Ct. at 1180 (citations omitted). For example, an
interpretation made publicly available for the first time in a citation might be entitled
to only prospective effect in some cases. Thus, it might not be a proper basis for
penalizing the violation alleged in that citation. See, eg., Diebold, Inc. v. Marshall,
585 F.2d 1327, 1338 (6th Cir. 1978).

[[13]] The term "known" target organ effect is not
defined in the Instruction. However, as mentioned above, the evidence needed to establish
a "health hazard" under the HCS generally is "statistically significant
evidence used on at least one study conducted in accordance with established scientific
principles that acute or chronic health effects may occur in exposed employees." �
1200(c).

[[14]] We do not rely on any statements by the Fluor court
regarding the deference due to the interpretations of OSHA standards. The Supreme Court
has definitively resolved the different positions of the lower courts, ruling that the
Secretary's reasonable interpretation of her regulations are entitled to deference.
notwithstanding a different interpretation favored by the Commission. CF & I Steel
Corp.

[[15]] We note that the official file contains a document
marked as Complainant's Exhibit 15, which purports to be OSHA's 1986 changes to CPL
2-2.38, and which contains an interpretation of the cited standard that seems consistent
with our holding, and inconsistent with the one the Secretary urges here. OSHA Instruction
CPL 2-2.38A CH-1, Change to the Inspection Procedures for the Hazard Communication
Standard 29 CFR 1910.1200 (July 18, 1986). The transcript does not reflect that it was
introduced in evidence, and the parties do not rely on it. We do not rely on that document
for any purpose. However, for the parties' information, we am that the document interprets
the cited standard, in the context of container labeling for carcinogens, in a manner that
seems inconsistent with OSHA's interpretation of target organ warning requirements.

The HCS requires "appropriate hazard warnings," but
does not specify when a warning of carcinogenicity would be "appropriate." This
is consistent with the performance-oriented approach to the hazard determination and
labeling requirements. The information which follows is intended to provide general
guidance for compliance officers ["CSHO's"] in assessing labels for substances
which are potentially carcinogenic. Employees may deviate this guidance as long as they
can scientifically defend their position regarding the appropriateness of warning about
carcinogenicity on the label for the particular substance involved.This general guidance
does not supplant the professional judgment of the employer evaluating the hazards, nor of
the CSHO in assessing compliance.

Id. at A-12 The HCS is no more specific about when a warning of
target organ effects would be "appropriate" on a container label, than it is
about when a warning of carcinogenicity would be "appropriate" Thus, it
Complainant's Exhibit 15 is what it purports to be, OSHA interpreted the cited standard's
requirements for carcinogen labeling in a manner that seems contrary to in enforcement
position regarding target organ warnings, and consistent with our holding. Finally, we
note that the 1986 Instruction was issued between the time of the citation and the hearing
in this case.

[[16]] At oral argument before the Commission on review of the
judge's decision, the Secretary suggested that target organ warnings an needed because
employees have become inured to general warnings such as "Harmful if inhaled,"
and tend not to need them. This proposition may be correct, but it was not supported by
evidence having been pressed for the first time on review. We decline to evaluate this
proposition in the circumstance E.g. 29 C.F.R. 2200.92(c) ("The Commission will
ordinarily not review issues that the Judge did not have the opportunity to pass
upon.")

[[17]] It bears noting that Cyanamid had an extensive program
to achieve compliance with the HCS. As noted above, it followed the ANSI label warning
standard, and there was so claim or proof that its labels for the containers at issue
failed to comply with the ANSI standard that was in effect at that time. Dr. Friedman's
department performs Cyanamid's hazard evaluations on new products. His staff looks at each
individual component of the product and comprehensively reviews the available literature
relative to its safety. If then is not enough information in the literature to determine
the safety of a component, his staff arranges for toxicological studies of it.

Once the hazards of a new product are determined, a warning
Iabel is drafted by Cyanamid's toxicologists and chemical hazard specialists. Every label
then is reviewed by a committee, chaired by Dr. Friedman, which includes a representative
of each relevant profession within the company, and which develops a consensus as to
whether or not the label is correct, legally and otherwise. Dr. Friedman testified that
during the year before the hearing, his staff managed the production of about 1200 labels,
at a cost of $700.000 or more.

[[18]] We note that as the state of the art in labeling
improves, the meaning of "appropriate" may also change. For example, ANSI
periodically issues a revised standard for chemical container labeling. E.g. ANSI
Z129.1-1988. Those revisions may be relevant to whether certain companies' hazard warnings
an currently "appropriate" under the HCS.

[[19]] Item 1(c) of the citation stated:

The labels for XC-4005 resin, glaskyd, XC-4001 resin, XC-4011 resin and Cyglas did not
identify the effects of inhalation overexposure, target organs were not identified and the
label for fibercore listed no hazard warnings.

[[20]] The court in General Carbon noted that this last passage
occurred in a discussion of the manufacture's duty to provide an MSDS, and thus did not
focus directly on the labeling requirement. However, the court properly noted that
"it would make little sense to insist that a particular chemical be identified in the
MSDS while imposing no corresponding labeling requirement." 860 F.2d at 485.

[[21]] The Commission's Rule of Procedure do not impose on the
Secretary an automatic burden of proof of employee exposure or access to the alleged
hazards. Rule 35, governing Complaints, states:

(b) Complaints concerning contested alleged violation... A
paragraph alleging a violation shall in separate subparagraphs, state clearly and
concisely--

(4) Where pertinent, the factual basis for the allegation that
employees had access to or were exposed to the cited circumstances, conditions, practices
or operations[.]

29 U.S.C. � 2200.35(b) (emphasis added). The Rule does not
state when an allegation of access is "pertinent." An allegation of access is
not required to the extent that it goes beyond the Secretary's burden of proof on the
issue. (The current Rules of Procedure were in effect at time of the hearing in 1987. 51
Fed. Reg. 32,002 (September 8, 1986) (new rules took effect on December 8. 1986).)

[[22]] The direction for review raised the issue whether the
judge erred in concluding that the Secretary has authority to require chemical
manufacturers to conform to the HCS for the protection of employees of other employers.
That issue was not raised or discussed by the parties or the judge, and neither party
addressed the issue in response to the direction for review. In the circumstances,
Cyanamid has waived any reliance on the issue, and the Commission will not address it. See
Commission Rule 92(c), 29 C.F.R. � 2200.92(c) (Commission ordinarily will not review
issues that judge did not have opportunity to address)

The direction for review also raised the issue whether the evidence established that
butanol, vinyl toluene mid styrene produce "target organ effects" as that term
is used in the HCS. In light of our disposition of this item, we need not address that
issue.

[[23]] Cyanamid argues that both disputed citation items should
be vacated insofar as they relate to amorphous silica and tale on the grounds that (1) the
Secretary failed to prove that employees were potentially exposed to amorphous silica and
talc, and that (2) those chemicals do not in fact pose health hazards. We need not address
these issues, because the aspects of the citation which we affirm do not relate to
amorphous silica and talc.

[[24]] The documents state, in pertinent part:

Definitions. Three categories of Threshold Limit Values (TLVs) are specified herein, a
follows:

a) The Threshold Limit Value-Time Weighted Average (TLV-TWA) -- the time-weighted average
concentration for a normal 8-hour workday and a 40-hour workweek, to which nearly all
workers may be repeatedly exposed, day after day, without adverse effect.

b) Threshold Limit Value-Short Term Exposure Limit (TLV-STEL) -- the concentration to
which workers can be exposed continuously for a short period of time without suffering
from 1) irritation, 2) chronic or irreversible tissue damage, or 3) narcosis of sufficient
degree to increase the likelihood of accidental injury, impair self-rescue or materially
reduce work efficiency, and provided that the daily TLV-TWA is not exceeded. It is not a
separate independent exposure limit, rather it supplements the time-weighted average (TWA)
limit where there are recognized acute effects from a substance whose toxic effects are
primarily of a chronic nature. STELs are recommended only where toxic effect have been
reported from high short-term exposures in either humans or animals.

A STEL is defined as a 15-minute time-weighted average exposure
which should not be exceeded at any time during a work day even if the eight-hour time-
weighted average is within the TLV.

c) Threshold Limit Value-Ceiling (TLV-C) -- the concentration
that should not be exceeded during any part of the working exposure...

[[25]] The listed STEL for propylene glycol methyl ether is 150
ppm or 540 mg/m 3. That chemical is actually listed by ACGIH as "Propylene glycol
monomethyl ether." (Emphasis added). However, the two terms are synonymous. I. Sax,
Dangerous Properties of Industrial Materials 943-44 (5th ed. 1979) They have the same
identifying Chemical Abstract Service Number (CASE No. 000107-98-2). The listed STEL for
"Styrene, monomer" is 100 ppm or 425 mg/m3 The listed STEL for vinyl toluene is
100 ppm or 485 mg/m 3.

[[1/]] Respondent did not contest items 1a, 1c, 2a, certain
portions of 2c and 2d of the citation. These items have, therefore, become final pursuant
to section 10(a) of the Act. Prior to the hearing, the Secretary withdrew item 2b (See
Judge's Ex. J-15). The Secretary also deleted XC-4011 resin from the products included in
the citation since this product had been discontinued by respondent (Tr. 5).

[[2/]] These documents are jointly prepared by the U. S.
Department of Health and Human Services and the Department of Labor as a source of
information for employees, employers, physicians, industrial hygienists and other
occupational health professionals. They contain information concerning the identity and
properties of each chemical and include health hazard information concerning the effects
of overexposure.

[[3/]] Section 1910.1200(c) defines "health hazard"
as follows:

"Health hazard" 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 term "health hazard" includes chemicals which are
carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives,
sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents which act on the
hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes.
Appendix A provides further definitions and explanations of the scope of health hazards
covered by this section, and Appendix P describes the criteria to be used to determine
whether or not a chemical is to be considered hazardous for purposes of this standard.

[[4/]] Although respondent concedes the hazardous nature of
these chemicals, it maintains its warning on the label is appropriate under its principal
theory that target organ effects are not reasonably required on the label.

[[5/]] Section 1910.1200(g)(2)(vi) states as follows:

(2) Each material safety data sheet shall be in English and
shall contain at least the following information:

(vi) The OSHA permissible exposure limit, ACGIN Threshold Limit
Value, and any other exposure limit used or recommended by the chemical manufacturer,
importer, or employer preparing the material safety data sheet, where available.