ELR Citation: ELR 20946
No(s). 89-1585 (D.C. Cir. Jun 19, 1990)

The court holds that the Occupational Safety and Health Administration's (OSHA's) Hazard Communication Standard (HCS) requires a chemical manufacturing company to disclose the potential for a chemical compound to cause heart, liver, and kidney damage, regardless of foreseeable exposure to employees. The compound, used to make heat-resistant products, releases small quantities of phenol vapor into the atmosphere when molded by a downstream product manufacturer. Although the company did not deny that overexposure to phenol may cause heart, liver, and kidney damage, it argued that the amount of phenol residue that the compound will release under foreseeable conditions in downstream worksites is too insignificant to pose a realistic threat. The court rejects the company's argument and generally upholds OSHA's decision to issue a citation against the company for failing to disclose that overexposure to phenol may cause heart, liver, and kidney damage. First, the court adheres to its earlier ruling that the HCS requires that container labels list all potential health risks associated with hazardous constituents, regardless of expected exposure levels. The court observes that it would now be anomalous to hold that the required disclosures need not cover health risks that the manufacturer concludes will not materialize at projected levels of exposure. Second, the court defers to OSHA's interpretation of its own regulation. Recognizing that hazardous residue in pure form is no less dangerous when contained in a chemical than when contained in a compound, OSHA reasonably interpreted the HCS as attributing to the compound the hazardous properties of its unreacted ingredients. The determination of the actual risks posed by a hazardous chemical applies equally to compounds and to chemicals. Finally, the court concludes that the petitioner failed to preserve for judicial review a challenge to the validity of the HCS, and the court rejects the company's claim that the HCS disclosure requirement interferes with the company's duty under state tort law to warn employees of the health hazards posed by its products.

Counsel for Petitioner
Peter L. de la Cruz, Mark L. Itzkoff
Keller & Heckman
1150 17th St. NW, Washington DC 20036
(202) 956-5600

Counsel for Respondent
Charles F. James, Cynthia L. Attwood, Ann S. Rosenthal
Department of Labor
200 Constitution Ave. NW, Washington DC 20001
(202) 523-7675

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