Martin v. American Cyanamid Co.
| Decision Date | 15 September 1993 |
| Docket Number | No. 92-3321,92-3321 |
| Citation | 5 F.3d 140 |
| Parties | , 23 Envtl. L. Rep. 21,515, 16 O.S.H. Cas.(BNA) 1369, 1993 O.S.H.D. (CCH) P 30,198 Lynn MARTIN, Secretary of Labor, United States Department of Labor, Petitioner, v. AMERICAN CYANAMID COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Edward Falkowski (argued and briefed), Barbara Werthmann, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for petitioner.
Kenneth B. Stark (argued and briefed), Duvin, Cahn & Barnard, Cleveland, OH, for respondent.
Peter L. de la Cruz (briefed), Kris Anne Monteith, Keller and Heckman, Washington, DC, amicus curiae.
Before: RYAN, Circuit Judge; KRUPANSKY, Senior Circuit Judge; and JOINER, Senior District Judge. *
Hazard Communication Standard (HCS), 29 C.F.R. Sec. 1910.1200, promulgated by the Secretary of Labor, requires that chemical manufacturers, importers and distributors ensure that each container of hazardous chemicals leaving the workplace be labeled with "appropriate hazard warnings." 29 C.F.R. Sec. 1910.1200(f)(1)(ii). The issue in this case is whether the Secretary permissibly can interpret the HCS to require that shipping labels include the hazardous chemicals' known effects on "target organs," i.e., specific symptoms and signs of exposure.
The Secretary of Labor petitions for review of the final order of the Occupational Safety and Health Review Commission (OSHRC), reversing the determination of the ALJ that respondent American Cyanamid Company violated the HCS by utilizing hazardous chemical container labels that did not provide warnings of the chemicals' target organ effects. The OSHRC held that the HCS does not require that labels describe target organ effects but, rather, requires a case-by-case factual determination of whether the label warnings are appropriate under the circumstances. The OSHRC further held that the Secretary had not met the burden of demonstrating that Cyanamid's labels are not appropriate.
We grant the Secretary's petition for review, and set aside the order of the OSHRC.
Congress enacted the Occupational Safety and Health Act to assure safe and healthful working conditions. 29 U.S.C. Sec. 651(b). The purpose of the Act is "forward-looking; i.e., to prevent the first accident." Brock v. L.E. Myers Co., 818 F.2d 1270, 1275 (6th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 479, 98 L.Ed.2d 509 (1987) (citing Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir.1981)). The Act authorizes the Secretary to promulgate safety and health standards, and requires employers to comply with those standards. 29 U.S.C. Secs. 654(a)(2), 655. Those standards "shall prescribe the use of labels or other forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed," including relevant symptoms and appropriate emergency treatment. 29 U.S.C. Sec. 655(b)(7).
The Hazard Communication Standard at issue was promulgated in November 1983, with an effective date of November 25, 1985. Its stated objective is to "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 employees and employers." 29 C.F.R. Sec. 1910.1200(a).
To achieve this objective, the HCS requires that a manufacturer of hazardous chemicals inform not only its own employees of the dangers posed by the chemicals, but downstream employers and employees as well. The manufacturer is required to have or to prepare a material safety data sheet (MSDS) for each hazardous chemical, and to provide the MSDS to distributors and employers. 29 C.F.R. Sec. 1910.1200(g). The HCS lists 12 separate categories of information that must be included in the MSDS, including the identity of the chemical; health hazards posed; handling precautions; and the identity, address and phone number of the preparer of the MSDS for contact in an emergency. The manufacturer is also required to ensure that each container of hazardous chemicals leaving the workplace is labeled with "appropriate hazard warnings." 29 C.F.R. Sec. 1910.1200(f)(1)(ii).
At issue in this case is the Secretary's interpretation of "appropriate hazard warning" to require that shipping labels for containers of "hazardous chemicals" disclose the effects of exposure to the chemical by describing known changes in body function and the signs and symptoms that signal the changes. "Hazard warning" is defined in the HCS to mean words or symbols "appearing on a label or other appropriate form of warning which convey the hazards of the chemical(s) in the container(s)." 29 C.F.R. Sec. 1910.1200(c). "Hazardous chemical" is defined to mean any chemical which is a physical hazard (e.g., combustible or explosive) or a health hazard. "Health hazard" is defined broadly to mean
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.... Appendix A provides further definitions and explanations of the scope of health hazards covered by this section....
29 C.F.R. Sec. 1910.1200(c) (emphasis added).
Appendix A to the HCS, in turn, states:
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 both the change in body function and the signs and symptoms that may occur to signal that change.
(Emphasis added.) Appendix A states that any chemicals which meet the following criteria are "health hazards":
7. Target organ effects. The following is a target organ categorization of effects which may occur, including examples of signs and symptoms and chemicals which have been found to cause such effects.
Among the noninclusive list of signs and symptoms are jaundice, liver enlargement, edema, narcosis (drowsiness), decrease in motor functions, cyanosis (blueness of skin as from imperfectly oxygenated blood), loss of consciousness, cough, tightness in chest, shortness of breath, rashes, irritation, birth defects, sterility, conjunctivitis, and corneal damage.
In August 1985, OSHA issued a compliance directive, CPL Instruction 2-2.38, to its field staff to ensure uniform enforcement of the HCS. There is no dispute that this directive was publicized through reporting services. With respect to what constitutes an appropriate hazard warning for a chemical shipping label, the instruction 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 Lc50 test result, "harmful if inhaled" may be appropriate.
American Cyanamid produces resins and molding compounds for sale to customers in the plastics industry. In December 1985, an OSHA compliance officer inspected Cyanamid's Perrysburg, Ohio, plant to investigate Cyanamid's compliance with the HCS. The compliance officer obtained the labels and MSDSs for Cyanamid's products and ultimately issued a citation to Cyanamid for alleged improper labelling of four of its products, each of which was an untested mixture containing chemicals deemed hazardous by the HCS.
Glaskyd: contains amorphous silica and talc. This label warned "CAUTION: MAY BE HARMFUL IF INHALED." The compliance officer contended that the label should warn of lung damage if the product is inhaled.
Cyglas: contains silica and vinyl toluene. This label warned "CAUTION: MAY BE HARMFUL IF INHALED." The compliance officer contended that the label should address the effects of those substances; e.g., lung damage (silica), headache, dizziness and drowsiness (vinyl toluene).
Cyanamid contested the citation, and the Occupational Safety and Health Review Commission, an independent tribunal whose members are appointed by the President subject to Senate confirmation, was required to...
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