Durez Div. of Occidental Chemical Corp. v. Occupational Safety and Health Admin.

• Citation: 906 F.2d 1
• Decision Date: 19 June 1990
• Docket Number: No. 89-1585,89-1585
• Parties: , 20 Envtl. L. Rep. 20,946, 14 O.S.H. Cas.(BNA) 1633, 1990 O.S.H.D. (CCH) P 28,974 DUREZ DIVISION OF OCCIDENTAL CHEMICAL CORP., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1

906 F.2d 1

285 U.S.App.D.C. 1, 20 Envtl. L. Rep. 20,946,

14 O.S.H. Cas.(BNA) 1633,

1990 O.S.H.D. (CCH) P 28,974

DUREZ DIVISION OF OCCIDENTAL CHEMICAL CORP., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent.

No. 89-1585.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1990.

Decided June 19, 1990.

Peter L. de la Cruz, with whom Mark L. Itzkoff, Washington, D.C., was on the brief, for petitioner.

Charles F. James, Atty., Dept. of Labor, Washington, D.C., with whom Cynthia L. Attwood, Associate Sol., and Ann S. Rosenthal, Atty., Arlington, Va., Dept. of Labor, were on the brief, for respondent.

Before WALD, Chief Judge, MIKVA and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

Durez Division of Occidental Chemical Corporation petitions to review the way in which the Occupational Safety and Health Review Administration has interpreted the disclosure requirements of its Hazard Communications Standard and applied them to the petitioners' phenol-formaldehyde compound known as "Durez 153." We agree with the Secretary's contention that the decision of this court in General Carbon Co. v. OSHRC, 860 F.2d 479 (D.C.Cir.1979) forecloses the petitioner's attempt to challenge the Commission's interpretation of the HCS. We are therefore constrained to deny the petition for review.

I. BACKGROUND

Durez 153, a compound containing phenol and formaldehyde, is used by Durez's customers to make a variety of heat-resistent products, including pot and pan handles and distributor caps. When it is molded by a downstream product manufacturer, it releases small quantities of phenol vapor into the atmosphere.

A manufacturer of phenol is required by the HCS to disclose to purchasers all potential health risks associated with that chemical. See 29 C.F.R. Sec. 1910.1000, Table Z-1 (reference list of air contaminants); id. Sec. 1910.1200(d)(3)(i) (coverage of HCS). The HCS imposes upon chemical manufacturers and upon other employers who expose their employees to chemical products at the workplace a variety of requirements intended to ensure that employers and employees alike receive the information necessary to anticipate and to protect against potential chemical hazards. The Standard 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." Id. Sec. 1910.1200(b)(2). It defines as "hazardous" any 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." Id. Sec. 1200(c). Phenol is a regulated air contaminant, id. Sec. 1910.1000, Table Z-1-A, and is therefore subject to the Hazard Communications Standard, id. Sec. 1910.1200(d)(3)(i).

The HCS requires every manufacturer of chemicals to investigate the potential hazards of each chemical it either produces or uses in production; to label containers of hazardous chemicals; and to distribute to downstream users a Material Safety Data Sheet (MSDS) disclosing the health hazards posed by exposure to such chemicals. The HCS requires the MSDS to list

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....

Id. Sec. 1910.1200(g)(2)(iv). It further requires each downstream employer who uses these chemicals to instruct its employees, on the basis of the MSDS, in the appropriate methods for avoiding the hazards of exposure. Id. Sec. 1910.1200(a)(2).

In 1988, OSHA inspected a chemical manufacturing facility operated by Durez, as a result of which the Secretary issued an "other-than-serious" citation alleging that the MSDS that Durez had prepared for Durez 153 violated the HCS. The MSDS disclosed the comparatively minor risks of irritation to the eyes, skin, and respiratory tract, but failed to disclose that overexposure to phenol may cause damage to the liver, the kidneys, or the heart.

Although Durez did not deny that overexposure to phenol may cause damage to the liver, the kidneys, and the heart, it contested the citation before the Occupational Safety and Health Review Commission on the ground that the amount of phenol residue that the compound will release under foreseeable conditions of use in downstream worksites is too insignificant to pose a realistic threat of such damage. After a hearing, an ALJ concluded, based upon the classification of phenol as a hazardous chemical, the Preamble to the HCS, and the decision of this court in General Carbon, that Durez must disclose the potential for heart, liver, and kidney damage regardless of employees' foreseeable levels of exposure to Durez 153. No member of the Commission having called for review of this decision, it became the final order of the Commission, per 29 C.F.R. Sec. 2200.90(d).

II. INTERPRETATION OF THE HCS

The Company places considerable weight upon the Secretary's own distinction between mixtures and chemicals in putting forward its claim that the HCS, properly interpreted, does not require the MSDS for Durez 153 to disclose all potential health risks associated with phenol. Mixtures are chemicals composed of constituents that have not reacted chemically with each other; mixtures are for that reason presumed to retain the hazardous properties of their constituents. Id. Sec. 1200(c), (d)(5)(ii). Because phenol reacts and bonds with formaldehyde, leaving only small amounts of phenol residue that have failed to react with the formaldehyde, Durez asserts that Durez 153 is a chemical rather than a mixture. Under the HCS, Durez contends, the presence in a chemical of a residuum of hazardous material does not require a health hazard warning if a reliable study has shown--as Durez claims here to be the case--that employees at downstream worksites will not be exposed to concentrations above the permissible exposure limits (PEL) for that ingredient in the conditions under which that chemical will foreseeably be used. In our view, however, this court's decision in General Carbon and the deference due the agency's reasonable interpretation of the HCS compel us to reject the claim that forms the core of the petitioner's argument.

First. In General Carbon we upheld a Commission order requiring a manufacturer to affix to containers of electrical brushes, which are mixtures, labels identifying the constituent chemicals and warning of all associated health risks. The brushes, made primarily of copper and graphite--both of which are hazardous chemicals for purposes of the HCS--emit small quantities of copper and graphite dust when they are handled by the employees of a downstream employer. This court considered and rejected the claim that the labeling requirements of the HCS, id. Sec. 1910.1200(f)(1), do not apply where the foreseeable conditions under which such employees would handle the brushes would not expose them to concentrations in excess of the PELs for copper and graphite.

The court based its rejection of this argument upon the Preamble to the HCS, which provides that

The hazard potential does not change even though the risk of experiencing health effects does vary with the degree of exposure.... The chemical manufacturer ... in making hazard determinations, should evaluate and communicate all the potential hazards associated with a chemical, whereas the [down-stream]...