CRANE COMPANY
OSHRC Docket No. 3336
Occupational Safety and Health Review Commission
March 8, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Marvin Tincher, Reg. Sol., USDOL
Paul R. Hundt, for the employer
OPINION:
DECISION
BY THE COMMISSION:
On May 25, 1973, complainant, the Secretary of Labor, issued a citation to respondent, Crane Company, alleging six violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"]. Respondent timely filed a notice of contest to five of the six items of the citation and their corresponding proposed penalties. A hearing was held pursuant to section 10(c) of the Act before Administrative Law Judge James D. Burroughs.
On January 30, 1974, Judge Burroughs rendered a decision. Items 1 and 2, alleging noncompliance with the standards at 29 CFR § 1910.93(b)(1) and 1910.93(c), n1 respectively, were affirmed and a $120 penalty was assessed for each. Items 3 and 4, alleging failure to comply with 29 CFR § 1910.93(e) and 1910.134(a)(1), respectively, were vacated along with their corresponding proposed penalties. Item 5 of the citation, alleging noncompliance with 29 CFR § 1910.134(a)(2) was affirmed and no penalty was assessed.
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n1 On May 28, 1975, the standard at 29 CFR § 1910.93 was recodified at 29 CFR § 1910.1000.
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Neither party appealed Judge Burroughs' decision. Review was ordered by Commissioner Moran on his own motion on the following issues:
(1) Whether the evidence supports the judge's finding that respondent was in violation of the Act as charged because of failure to comply with the requirements of Title 29 of the Code of Federal regulations, sections 1910.93(b)(1), 1910.93(c), and 1910.134(a)(2).
(2) Whether the respondent can be held liable under 29 C.F.R. 1910.93(b)(1) and (c), and not for (e); or whether the respondent can be held liable under 29 C.F.R. 1910.93(e), and not for (b)(1) and (c).
(3) Whether 29 C.F.R. 1910.93(c) is so vague as to be unenforceable.
(4) Whether the Secretary sustained his burden of proving that respondent violated 29 C.F.R. 1910. 134(2) by offering uncontroverted and uncorroborated hearsay testimony.
Pursuant to this direction for review, complainant submitted a brief on the issues as framed by Commissioner Moran [*3] and urged that the action of the Administrative Law Judge be affirmed. Respondent, however, by letter dated May 8, 1974, expressly declined to submit a brief. Moreover, respondent expressly asked that "its decision not to appeal should be honored and that the issues are moot." n2
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n2 A copy of respondent's letter is attached hereto as appendix A to this opinion.
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Since respondent does not seek to contest this matter further and complainant does not take issue with the Judge's disposition of the five contested items, n3 we decline to pass upon the listed issues. Accordingly, we affirm Judge Burroughs' disposition of this case.
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n3 In addition to addressing the issues raised by the direction for review, complainant asserted that the Judge misconstrued 29 CFR § 1910.93(d)(1)(i) when he calculated the 8-hour time weighted average exposures to air contaminants.
Complainant concedes, however, that regardless of which computation method is employed, violations were shown to exist. Inasmuch as this issue need not be resolved under the facts of this case, we do not reach it.
[*4]
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So ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
The Commission's refusal to address any of the issues specified in the direction for review on the basis of the respondent's letter of May 8, 1974, is improper. In that letter the respondent states the following:
"[O]n or about January 15, 1974, Respondent Crane Co. sold the manufacturing facility which was the subject of the citation to Rockwell International Corp. which, we were advised at the time, would be making substantial physical alterations to the foundry to ready it for the production of other products. Accordingly, Crane Co. decided early on that the briefing of the issues as to which submissions were invited could not be justified on an economic basis and we have decided to decline the invitation to make a submission.
We continue to disagree with Judge Burroughs as to whether the Secretary has met his burden of proof with respect to the existence of feasible administrative or engineering controls with respect to Crane's facility and that the burden of disproof shifted [*5] to Respondent. We believe the record to be barren of any testimony or other evidence as to the processes, procedures and equipment utilized in the Respondent's plant. For all the general testimony as to the feasibility of such controls, there was no foundation laid for the conclusion that they were feasible in Respondent's plant. As we all know, a foundation is necessary before 'testimony as to generalities can have any application.'" (Emphasis added.)
This letter is more pertinent and persuasive than many of the briefs filed in other cases and should be so treated by this Commission, particularly in view of the formal brief on this matter which was submitted to the Judge in the proceedings below. By failing to do so, the Commission is putting form over substance. n4
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n4 The members of the majority are also being inconsistent. In this case Messrs. Barnako and Cleary take the position that they are a court of appeals where they pass only on errors alleged in briefs submitted by aggrieved parties. At other times they direct review of Judges' decisions where neither party has asked for further consideration. As Martin Luther wrote more than 400 years ago: "It makes a difference whose ox is gored."
[*6]
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Furthermore, the action of the majority is wrong for another reason. The respondent's letter indicates that it is under the impression that it cannot obtain review of its case by the Commission unless it expends additional funds for another brief. The action of my colleagues erroneously fosters such a misapprehension. This would be the case if the Commission members were a tribunal to which parties aggrieved by a lower court decision must appeal. However, there is no right of appeal to the members of this Commission. Review is authorized only when any member of the Commission duly directs review. 29 U.S.C. § 661(i). Therefore, since a party has no right to Commission review and there is no requirement that briefs be filed in cases directed for review, no adverse inference may be drawn from the fact that a party has not done what it need not do. Accordingly, until such time as the law is changed, review by this tribunal remains within the discretion of the members and this case is properly before this tribunal for consideration on the merits.
Item 1 of the citation alleged that the respondent [*7] had failed to comply with 29 C.F.R. § 1910.93(b)(1) because employees at five locations in the respondent's plant were exposed to excessive airborne concentrations of lead. Item 2 of the citation averred that the respondent's employees were exposed to excessive airborne concentrations of silica dust at nine locations in the plant in contravention of 29 C.F.R. § 1910.93(c). Item 3 of the citation charged the respondent with noncompliance with 29 C.F.R. § 1910.93(e) for failing to determine and implement feasible engineering or administrative controls where employees were exposed to air contaminants in excess of permissible limits.
The following parts of the standards formerly codified at 29 C.F.R. § 1910.93 n5 are pertinent to the above-mentioned charges:
"§ 1910.93 Air contaminants.
An employee's exposure to any material listed in table G-1, G-2, or G-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section."
* * *
"(b) Table G-2:
(1) 8-hour time weighted averages. An employee's exposure to any material listed in table G-2, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted [*8] average limit given for that material in the table."
* * *
"(c) Table G-3: An employee's exposure to any material listed in table G-3 in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table."
* * *
"(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section."
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n5 Now codified at 29 C.F.R. § 1910.1000 (40 Fed. Reg. 23072 (1975)).
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The Judge vacated item 3 of the citation on the ground that a failure to comply with paragraph (e) should not have been charged as a separate violation. He concluded that this paragraph was an integral part of the other paragraphs as it merely "informs the employer [*9] how he can achieve compliance with paragraphs (b) and (c)." The complainant concedes in his review brief that the Judge correctly decided this matter. I also agree with the Judge and, therefore, would accept the complainant's concession.
The direction for review questions whether the evidence is sufficient to support the violations alleged in items 1 and 2. Before addressing this question, it is appropriate to first ascertain what paragraph (e) of 29 C.F.R. § 1910.93 requires an employer to do when his employees are exposed to air contaminants in excess of those specified in 29 C.F.R. § 1910.93(b)(1) and (c).
When employees are exposed to air contaminants in excess of those provided in 29 C.F.R. § 1910.93, the employer must first determine whether administrative or engineering controls can feasibly be used at his worksite to reduce exposure to air contamination to acceptable limits. If one of these controls is feasible to achieve this purpose, it must be implemented. If neither can be feasibly used to fully reduce the contamination level to acceptable limits, personal protective equipment must be used to accomplish this goal. n6
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n6 The use of personal protective equipment does not constitute compliance when it is feasible to use administrative or engineering controls to comply with the air contaminant standards. Cf. Secretary v. International Harvester Company, 2 OSAHRC 81, 90 (1972).
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In the instant case, the evidence fails to show that any employee who was located in the vicinity of excessive air contaminante was improperly protected by a respirator. n7 Since the evidence does not establish that the respirators in use failed to afford adequate protection, the critical questions are whether the respondent made the necessary determination concerning the feasibility of using administrative or engineering controls and whether the use thereof was required under the standards.
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n7 The citation also charged the respondent with failing to comply with 29 C.F.R. § 1910.134(a)(1) in that two of its employees were not wearing any respirators and two were wearing respirators not approved by the Bureau of Mines while exposed to excessive air contaminants. The Judge correctly found that the evidence failed to establish that the two employees without respirators were exposed to impermissible levels of contamination. He also properly determined that the use of respirators is not limited to those approved by the Bureau of Mines. The evidence establishes that all other employees were wearing approved respirators where required.
[*11]
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The government inspector concluded that the respondent had not complied with 29 C.F.R. § 1910.93(e) "since the concentrations of silica dust and lead were in excess of concentration limits." Although he did not recall having ever talked to anyone about the existing engineering controls in the respondent's facility, he expressed the opinion that the proper engineering control "could have been . . . [m]ore exhaust ventilation than they had." (Emphasis added.) He also indicated that administrative controls meant the rotation of employees and that he had not observed any employee rotation during his inspection. He gave no testimony concerning the feasibility of administrative controls, and he did not indicate whether he inquired of anyone at the respondent's plant as to whether a determination had been made regarding the feasibility of employee rotation.
An industrial hygienist testified for the complainant in regard to various ventilation systems that were available for use by the respondent. However, he had no personal knowledge of the equipment present in the respondent's plant at the time of the [*12] inspection and was therefore unable to testify in regard to the feasibility of using these systems in the respondent's facility. The Judge correctly recognized the limited purpose of this testimony when he ruled that it was admissible only to establish "in general" that "foundrys do have a means in which they can be ventilated."
Another industrial hygienist also testified for the complainant. When he was asked what feasible engineering controls should have been used by the respondent, he stated that he could not say what controls were specifically applicable to the type of operation conducted by the respondent.
There is no evidence that the respondent failed to determine whether it was feasible to use administrative or engineering controls at its worksite to reduce air contamination to acceptable limits. Furthermore, there is no evidence that the use of administrative controls were feasible for accomplishing this purpose. Standing alone, the mere presence of high concentrations of contaminants in the air where employees were working is not sufficient to establish these aspects of the alleged violations. See Secretary v. GTE Automatic Electric, Inc., 6 OSAHRC 207, 212 [*13] (1974). Therefore, the sufficiency of the complainant's case depends on whether the feasibility of using any engineering control was established.
The Judge properly determined that the burden was on the complainant to show that the use of engineering controls was feasible and that the respondent had not implemented them. However, he erred thereafter in holding that a prima facie case was established by the introduction of "competent evidence that technology, known and recognized by the industry, exists to control the dust within permissible limits."
As previously indicated, an employer is required to implement administrative or engineering controls only if the use thereof to reduce excessive exposure to air contamination is feasible for that employer's operations. This was an element of the violations charged under 29 C.F.R. § § 1910.93(b)(1) and (c), and the burden of proving this element rests on the complainant. n8 Proof that various controls are generally available or have been found feasible in different situations is irrelevant and, therefore, inadequate.
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n8 The same is true in regard to the recodification at 29 C.F.R. § 1910.1000(b)(1) and (c).
[*14]
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The inspector's testimony tends to indicate that some engineering controls in the form of ventilation had been instituted by the respondent. This implies that the use of engineering controls might not be feasible at the respondent's plant to reduce contamination exposure to acceptable levels. Irrespective of this, however, the evidence is insufficient to establish "in what manner the company's conduct fell short of the statutory standard." National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1263 (D.C. Cir. 1973).
The inspector's testimony that more exhaust ventilation could have been the proper engineering control is sheer speculation. He provided no factual information regarding the ventilation system in the respondent's facility, nor did he express an opinion as to what additional equipment was required to achieve compliance.
The testimony of one industrial hygienist consisted of generalizations in regard to available ventilation systems. His testimony was wholly theoretical as he was unfamiliar with the conditions that existed in the respondent's plant at the time [*15] of the inspection. The other hygienist candidly admitted that he could not render valid testimony as to specific controls that should have been implemented in the respondent's operation.
The Act under which this respondent was charged "is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards." Anning-Johnson Co. v. OSAHRC, 516 F.2d 1081, 1088 (7th Cir., 1975). There was no evidence showing what this respondent could have done to achieve compliance with the standards under which it was cited. I reach the same conclusion in this case as the Court reached in the National Realty case, supra at 1267:
". . . the hearing record is barren of evidence describing, and demonstrating the feasibility and likely utility of, the particular measures which National Realty should have taken to improve its safety policy. Having the burden of proof, the Secretary must be charged with these evidentiary deficiencies."
For the above reasons, Items 1 and 2 of the citation and the $240.00 penalty assessment therefor should be vacated. As to the remaining issues raised on review, I find that they lack merit and do not warrant discussion [*16] or are rendered moot by the action I would take on Items 1 and 2 of the citation.
Since the Commission decision does not deal with any of the matters covered by Judge Burroughs' decision, the same is attached hereto as Appendix B.
APPENDIX A
CRANE CO. 300 PARK AVENUE, NEW YORK, N.Y. 10022
PAUL R. HUNDT, ASSOCIATE GENERAL COUNSEL AND ASSISTANT SECRETARY
May 8, 1974
Mr. William S. McLaughlin, Executive Secretary, Occupational Safety & Healty, Review Commission, 1825 K Street, N.W., Washington, D.C. 20006
Dear Mr. McLaughlin:
I have followed with interest the direction for review and invitation for submissions issued by Chairman Moran with respect to the Judge's decision in the above-referenced docket.
However, on or about January 15, 1974, Respondent Crane Co. sold the manufacturing facility which was the subject of the citation to Rockwell International Corp. which, we were advised at the time, would be making substantial physical alterations to the foundry to ready it for the production of other products. Accordingly, Crane Co. decided early on that the briefing of the issues as to which submissions were invited [*17] could not be justified on an economic basis and we have decided to decline the invitation to make a submission.
We continue to disagree with Judge Burroughs as to whether the Secretary has met his burden of proof with respect to the existence of feasible administrative or engineering controls with respect to Crane's facility and that the burden of disproof shifted to Respondent. We believe the record to be barren of any testimony or other evidence as to the processes, procedures and equipment utilized in the Respondent's plant. For all the general testimony as to the feasibility of such controls, there was no foundation laid for the conclusion that they were feasible in Respondent's plant. As we all know, a foundation is necessary before "testimony as to generalities can have any application".
Nevertheless, we also continue to believe that our decision not to appeal should be honored and that the issues are moot
Very trully yours,
Paul R. Hundt
Appendix B
DECISION AND ORDER
Paul R. Hundt, on behalf of respondent
Frank Steiner, for complainant
STATEMENT OF CASE
This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 [*18] et seq., 84 Stat. 1390 (hereinafter referred to as the Act). Respondent contests items 1 through 5 of a citation issued to it on May 25, 1973, by the complaint pursuant to section 9(a) of the Act. Review is also sought by respondent of the penalties proposed, pursuant to section 10(a) of the Act, and of the abatement dates for the alleged violations set forth in the citation.
The citation and notification of proposed penalty were issued as the result of an inspection on May 25, 1973 of a workplace under the operation or control of the respondent located at 33rd Street and Alton Boulevard, Chattanooga, Tennessee. Respondent is engaged in the manufacture and sale of valves and plumbing fixtures at that location.
The citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with six (6) separate safety and health standards promulgated by complainant pursuant to section 6 of the Act. The alleged violations, abatement dates and proposed penalties as set forth in the citation and notification of proposed penalty were as follows:
|
Item |
Alleged |
Abatement |
Proposed |
|
No. |
Violation |
Date |
Penalty |
|
1 |
29 CFR 1910.93(b)(1) |
December 2, 1974 |
$150.00 |
|
2 |
29 CFR 1910.93(c) |
December 2, 1974 |
120.00 |
|
3 |
29 CFR 1910.93(e) |
December 2, 1974 |
90.00 |
|
4 |
29 CFR 1910.134(a)(1) |
June 1, 1973 |
30.00 |
|
5 |
29 CFR 1910.134(a)(2) |
June 1, 1973 |
n1 None |
|
6 |
29 CFR 1910.141(a)(1)(i) |
June 1, 1973 |
None |
[*19]
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n1 An amendment was issued to the notification of proposed penalty on June 6, 1973, which simply restated that no penalty was proposed for item 5.
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The citation was amended on June 6, 1973 to extend the abatement date of item 5 to June 8, 1973.
Respondent, by letter dated June 16, 1973, timely notified the complainant that it wished to contest items 1 through 5 of the citation, the abatement dates for those items and the proposed penalties. The descriptions of the contested items were set forth in the citation in the following manner:
Item 1 - 29 CFR 1910.93(b)(1)
Employees 8-hour time weighted average exposure to lead exceeded the limit of 0.2 milligram per cubic meter of air (mg/m3) as given in Table G-2. Examples of such were:
A. Smelting operator - 0.35 mg/m3
B. Mixer of enamel - 0.44 mg/m3
C. Dryer operator - 0.77 mg/m3
D. Harding mill bagging operator - 2.40 mg/m3
E. Color mill operator - 2.40 mg/m3
Item 2 - 29 CFR 1910.93(c)
Employees 8-hour time weighted average exposure to silica dust [*20] exceeded the limits which are obtained from the formula for respirable dust given in Table G-3. Examples for such were:
A. Smelting operator - 1.80 mg/m3 %Si02 - 22% - Limit 0.42 mg/m3
B. Mixer of enamel - 1.74 mg/m3 %Si02 - 13% - Limit 0.67 mg/m3
C. Mixer of enamel helper - 1.87 mg/m3 %Si02 - 13% - Limit 0.67 mg/m3
D. Color mill operator 5.39 mg/m3 %Si02 - 2% - Limit 2.50 mg/m3
E. Harding mill bagging operator - 2.89 mg/m3 %Si02 - 2% - Limit 2.50 mg/m3
F. Cope molder in old foundry - 1.66 mg/m3 %Si02 - 5.2% - Limit 1.39 mg/m3
G. Drag molder in old foundry - 1.66 mg/m3 %Si02 - 5.2% - Limit 1.39 mg/m3
H. Employee hanging tubs in the shake-out of the automatic foundry - 1.08mg/m3 %Si02 - 8.5% - Limit 0.96 mg/m3
I. Employee removing gates in the shake-out of the automatic foundry - 1.70 mg/m3 %Si02 - 8.5 mg/m3 - Limit 0.96 mg/m3
Item 3 - 29 CFR 1910.93(e)
Feasible engineering or administrative controls had not been determined and implemented where employees were exposed to air contaminants in excess of the permissible limits.
Item 4 - 29 CFR 1910.134(a)(1)
Appropriate respirators were not utilized in areas where there was an exposure to air contaminants [*21] in excess of permissible limits. Example of such were:
A. Cope molder in old foundry
B. Drag molder in old foundry
C. Employee hanging tubs in the shake-out in the automatic foundry
D. Employee removing gates in the shake-out in the automatic foundry.
Item 5 - 29 CFR 1910.134(a)(2)
There was not a program for the maintenance and care of respirators where there was an exposure to air contaminants in excess of permissible limits.
The notice of contest, which was forwarded by complainant, was received by the Commission on June 20, 1973. The case was assigned to this Judge on August 29, 1973, for purposes of conducting a hearing pursuant to section 10(c) of the Act. A pre-hearing conference was held on October 3, 1973, and the hearing was held in Chattanooga, Tennessee on November 13, 1973. No additional parties desired to intervene in the proceeding.
JURISDICTION AND ISSUES
Respondent's position as to the jurisdiction of the Commission is somewhat cluded by its answer. Respondent admits paragraph I of the Complaint which states that jurisdiction is conferred upon the Commission by section 10(c) of the Act. However, it denies that part of paragraph III which [*22] states that respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act and that it (respondent) is subject to the jurisdiction of the Commission.
Respondent concedes that it manufactures and sales valves and plumbing fixtures and that substantial quantities of those products are regularly delivered and sold across state lines. It also admits that materials and supplies consumed by respondent in its manufacturing operations are ordered and received from suppliers in various states. (Par. III, Complaint and Answer; Tr. 5) These admissions are sufficient to legally constitute respondent an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act and to give the Commission jurisdiction of this matter.
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n2 Respondent does not raise any question as to the jurisdiction of the Commission in its brief, and it is assumed that it did not regard this as a bona fide issue in the case.
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The following issues are considered pertinent to a disposition of this proceeding:
1. Did respondent fail to comply with the standards published at 29 CFR 1910.93(b)(1), 29 CFR 1910.93(c), 29 CFR 1910.93(e), 29 CFR 1910.134(a)(1) and 29 CFR 1910.134(a)(2) and thereby violate section 5(a)(2) of the Act?
2. What penalty, if any, should be assessed for any violations of the Act?
3. What abatement dates are reasonable for any violations of the Act?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case.
1. The respondent, Crane Co., is a corporation engaged in the manufacture and sale of valves and plumbing fixtures. Its principal office is located at 300 Park Avenue, New York, New York. It owns and operates a number of plants. One of its plants is located at 33rd Street, and Alton Park Boulevard, Chattanooga, Tennessee. (Par. II, Complaint and Answer; Tr. 4-5)
2. Respondent employs approximately 820 persons in its plant and related operations at 33rd Street and Alton Park Blvd., Chattanooga, [*24] Tennessee. (Tr. 47)
3. The complainant, through a duly authorized industrial hygienist (Harry Pullum), conducted sampling of operations at the Chattanooga plant in the automatic foundry, automatic enamelware, old foundry and in the formulation of enamel for lead and silica. These operations are connected with the production of tubs and sinks. (Ex. 1; Tr. 48)
4. On February 28, 1973, and March 1, 1973, Pullum visited respondent's plant located at 33rd Street and Alton Park Blvd., Chattanooga, Tennessee, for purposes of obtaining samples to determine if employees were subjected to excessive concentrations of lead. (Ex. 1; Tr. 7)
5. Certain employees were fitted with Model G portable sampling pumps made by Mine Safety Appliances. The pumps were battery operated. The pumps induced a regulated air flow through a millipore type HA filter on the end of a tygon tube which was attached to the pump. The filters were attached to one end of the tube at collar level of the employees by an adaptor. The air was induced through the inlet of the filter cassette through the filter. The lead sample was collected on the filter as the air was pulled through it. A field number was assigned [*25] to each employee. (Exs. 1, A; Tr. 7, 34-36, 73. 99)
6. Employees sampled for lead, the field numbers assigned, the date the samples were taken, the operation or location sampled, the time the samples started and ended, the total minutes sampled, the flow rate in liters per minute, and the total volume sampled in liters for each employee are as follows: (Ex. 1)
|
|
Field |
|
|
|
Employee |
Sample |
Date of |
Location or |
|
Sampled |
Number |
Sample |
Operation |
|
Tom Pouncy |
P3-07 |
2/28/73 |
Smelter Operator |
|
Tom Pouncy |
P3-17 |
3/1/73 |
Smelter Operator |
|
Tom Pouncy |
P3-24 |
3/1/73 |
Smelter Operator |
|
C. L. Thompson |
P3-08 |
2/28/73 |
Mixer-Enamel Room |
|
Al Clendenen |
P3-18 |
3/1/73 |
Mixer-Enamel Room |
|
Al Clendenen |
P3-25 |
3/1/73 |
Mixer-Enamel Room |
|
Dora Lee |
P3-09 |
2/28/73 |
Dryer Operator |
|
Dora Lee |
P3-19 |
3/1/73 |
Dryer Operator |
|
Dora Lee |
P3-26 |
3/1/73 |
Dryer Operator |
|
Willie Cargle |
P3-10 |
2/28/73 |
Bagging Enamel (dry) |
|
Willie Cargle |
P3-20 |
3/1/73 |
Bagging Enamel (dry) |
|
Willie Cargle |
P3-27 |
3/1/73 |
Bagging Enamel |
|
|
|
|
(dry) |
|
Robert Gilliam |
P3-11 |
2/28/73 |
Colored Mill |
|
|
|
|
Operator |
|
Robert Gilliam |
P3-13 |
2/28/73 |
Colored Mill |
|
|
|
|
Operator |
|
Robert Gilliam |
P3-21 |
3/1/73 |
Colored Mill |
|
|
|
|
Operator |
|
Robert Gilliam |
P3-28 |
3/1/73 |
Colored Mill |
|
|
|
|
Operator |
|
|
Time |
Time |
Min. |
1/Min. |
Liters |
|
Employee |
Sample |
Sample |
Total |
Flow |
Volume |
|
Sampled |
Started |
Stopped |
Time |
Rate |
Sampled |
|
Tom Pouncy |
6:39 a.m. |
12:39 a.m. |
360 |
1.39 |
500.4 |
|
Tom Pouncy |
6:35 a.m. |
9:35 a.m. |
180 |
1.39 |
250.2 |
|
|
|
||||
|
Tom Pouncy |
9:35 a.m. |
12:35 p.m. |
180 |
1.39 |
250.2 |
|
|
|
||||
|
C. L. Thompson |
6:41 a.m. |
12:41 p.m. |
360 |
1.33 |
478.8 |
|
|
|
||||
|
Al Clendenen |
6:38 a.m. |
9:38 a.m. |
180 |
1:33 |
239.4 |
|
|
|
||||
|
Al Clendenen |
9:38 a.m. |
12:38 p.m. |
180 |
1.33 |
239.4 |
|
|
|
||||
|
Dora Lee |
6:47 a.m. |
12:47 p.m. |
360 |
1.44 |
518.4 |
|
|
|
||||
|
Dora Lee |
6:51 a.m. |
9:51 a.m. |
180 |
1.44 |
259.2 |
|
|
|
||||
|
Dora Lee |
9:51 a.m. |
12:51 p.m. |
180 |
1.44 |
259.2 |
|
|
|
||||
|
Willie Cargle |
6:51 a.m. |
12:51 p.m. |
360 |
1.48 |
532.8 |
|
|
|
||||
|
Willie Cargle |
6:46 a.m. |
9:46 a.m. |
180 |
1.48 |
266.4 |
|
|
|
||||
|
Willie Cargle |
9:46 a.m. |
12:46 p.m. |
180 |
1.48 |
266.4 |
|
|
|
||||
|
Robert Gilliam |
|
||||
|
|
6:54 a.m. |
8:54 p.m. |
120 |
1.46 |
175.2 |
|
|
|
||||
|
Robert Gilliam |
8:54 a.m. |
12:54 p.m. |
240 |
1.46 |
350.4 |
|
|
|
||||
|
Robert Gilliam |
6:48 a.m. |
9:48 a.m. |
180 |
1.46 |
262.8 |
|
|
|
||||
|
Robert Gilliam |
9:48 a.m. |
12:48 p.m. |
180 |
1.46 |
262.8 |
[*26]
The samples were submitted to a chemist for analysis on March 6, 1973. (Exs. 1, 2; Tr. 7-8, 112-113)
7. The chemist, Jack Tyner, ran an atomic absorption analysis on the samples for lead. The filters were dissolved in nitric acid, taking the lead into solution. The solution was then introduced into an atomic absorption unit for analysis. (Ex. 2, Tr. 113-115) Tyner prepared an analyst worksheet showing the results of his analysis and forwarded it to Pullum. (Ex. 2; Tr. 8, 112-113) Tyner's worksheet reflected the following results for the filters submitted with the field sample numbers as indicated: (Ex. 2; Tr. 8, 112-114)
|
Field Sample |
Total Amount |
Results(Lead in |
|
Number |
in Sample(mg of lead) |
mg/m<3>) |
|
P3-07 |
.157 |
0.31 |
|
P3-17 |
.119 |
0.48 |
|
P3-24 |
.072 |
0.29 |
|
P3-08 |
.204 |
0.43 |
|
P3-18 |
.149 |
0.62 |
|
P3-25 |
.065 |
0.27 |
|
P3-09 |
.422 |
0.81 |
|
P3-19 |
.150 |
0.58 |
|
P3-26 |
.234 |
0.90 |
|
P3-10 |
1.235 |
2.32 |
|
P3-20 |
.550 |
2.06 |
|
P3-27 |
.774 |
2.91 |
|
P3-11 |
.201 |
1.15 |
|
P3-13 |
1.21 |
3.45 |
|
P3-21 |
.238 |
0.91 |
|
P3-28 |
.880 |
3.35 |
|
Blank |
Negative |
|
|
Blank |
Negative |
|
8. After receipt of the chemist's worksheet, Pullum calculated the exposure of employees to lead. The results of the two day sampling [*27] for each position n3 were averaged to arrive at his 8-hour time-weighted average. Where two samples for the same position were taken during one day, the results were averaged to obtain an average concentration for that day. (Ex. 3; Tr. 8-10)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Two separate employees, C. L. Thompson and Al Clendenen, were sampled in the enamel room at the position of mixer. They were sampled on different days. (Exs. 1, 3)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
9. The milligrams of lead per cubic meter of air determined as the exposure level by Pullum, along with the information considered in arriving at the exposure level is as follows for each employee determined by Pullum to be exposed to excessive concentration of lead: (Ex. 3; Tr. 9-10)
|
(a) Tom Pouncy (smelting operator) |
|||||
|
Exposure level 0.35 mg/m<3> |
|||||
|
Field Sample |
Date |
Time |
Time |
Total |
mg/m<3> |
|
Number |
Taken |
Started |
Stopped |
Minute |
Concentration |
|
P3-07 |
2/28/73 |
6:39 a.m. |
12:39 p.m. |
360 |
0.31 |
|
P3-17 |
3/1/73 |
6:35 a.m. |
9:35 a.m. |
180 |
0.48 |
|
P3-24 |
3/1/73 |
9:35 a.m. |
12:35 p.m. |
180 |
0.29 |
|
|
|
||||
|
(b) C. L. Thompson and AL Clendenen (Mixer of Enamel) |
|||||
|
Exposure level 0.44 mg/m<3> |
|||||
|
|
|
||||
|
P3-08 |
2/28/73 |
6:41 a.m. |
12:41 p.m. |
360 |
0.43 |
|
P3-18 |
3/1/73 |
6:38 a.m. |
9:38 a.m. |
180 |
0.62 |
|
P3-25 |
3/1/73 |
9:38 a.m. |
12:38 |
180 |
0.27 |
|
|
|
||||
|
(c) Dora Lee (Dryer Operator) |
|||||
|
Exposure level 0.77 mg/m<3> |
|||||
|
|
|
||||
|
P3-09 |
2/28/73 |
6:47 a.m. |
12:47 p.m. |
360 |
0.81 |
|
P3-19 |
3/1/73 |
6:51 a.m. |
9:51 a.m. |
180 |
0.58 |
|
P3-26 |
3/1/73 |
9:51 a.m. |
12:51 p.m. |
180 |
0.90 |
|
|
|
||||
|
(d) Willie Cargle (Harding Mill bagging operator) |
|||||
|
Exposure level 2.40 mg/m<3> |
|||||
|
|
|
||||
|
P3-10 |
2/28/73 |
6:51 a.m. |
12:51 p.m. |
360 |
2.32 |
|
P3-20 |
3/1/73 |
6:46 a.m. |
9:46 a.m. |
180 |
2.06 |
|
P3-27 |
3/1/73 |
9:46 a.m. |
12:46 p.m. |
180 |
2.91 |
|
|
|
||||
|
(e) Robert Gilliam (Color Mill Operator) |
|||||
|
Exposure level 2.40 mg/m<3> |
|||||
|
|
|
||||
|
P3-11 |
2/28/73 |
6:54 a.m. |
8:54 a.m. |
120 |
1.15 |
|
P3-13 |
2/28/73 |
8:54 a.m. |
12:54 p.m. |
240 |
3.45 |
|
P3-21 |
3/1/73 |
6:48 a.m. |
9:48 a.m. |
180 |
0.91 |
|
P3-28 |
3/1/73 |
9:48 a.m. |
12:48 p.m. |
180 |
3.35 |
[*28]
10. On April 4, 5, 11, 12 and 18, 1973, Pullum visited respondent's plant located at 33rd Street and Alton Park Blvd., Chattanooga, Tennessee, for purposes of obtaining samples to ascertain if employees were subjected to excessive levels of silica dust. (Ex. 4; Tr. 12-13, 16-17)
11. Certain employees were fitted with Model G. portable sampling pumps which had been used for the sampling of lead. The pumps induced a regulated air flow through a 10 mm nylon cyclone sampling head which was attached at the employee's collar and attached to the pump by a tygon tube. (Tr. 12, 32-33)
12. The 10 mm nylon cyclone was used to remove non-respirable particles and permit the respirable particles to pass through to be collected on a filter. (Tr. 33, 58) A type VM-1 filter was used to sample for silica. (Tr. 12, 38)
13. A cyclone separates large particles from small particles. Air comes in at a certain velocity and is swirled around. The heavier particles fall to the bottom and the finer particles are pulled out with the air stream. (Tr. 75, 102) Only respirable dust goes into the filter. (Tr. 102) The cyclone was operated at a flow rate of 1.8 liters per minute. (Tr. 103)
14. [*29] The employees sampled for silica, the field sample number, the date the samples were taken, the operation or location sampled, the time the sample started and ended, the total minutes sampled, the liters per minute of air sampled, and the total volume sampled in liters for each employee are as follows: (Ex. 4, Tr. 12-13)
|
Employee |
Field Sarple |
Date of |
Location or |
|
Sampled |
Number |
Sample |
Operation |
|
Tom Pouncy |
P3-53 |
4/4/73 |
Smelter Operator |
|
|
|
||
|
Tom Pouncy |
P3-66 |
4/5/75 |
Smelter Operator |
|
|
|
||
|
Glenn Ellis |
P3-54 |
4/4/73 |
Mixer Helper |
|
|
|
|
(also on fork |
|
|
|
|
lift) |
|
|
|
||
|
Glenn Ellis |
P3-67 |
4/5/73 |
Mixer Helper |
|
|
|
|
(also on fork |
|
|
|
|
lift) |
|
|
|
||
|
C. L. Thompson |
P3-55 |
4/4/73 |
Mixer-Enamel |
|
|
|
|
Room |
|
|
|
||
|
C. L. Thompson |
P3-68 |
4/5/73 |
Mixer-Enamel |
|
|
|
|
Room |
|
|
|
||
|
Robert Gilliam |
P3-56 |
4/4/73 |
Colored Mill |
|
|
|
|
Operator |
|
|
|
||
|
Robert Gilliam |
P3-69 |
4/5/73 |
Colored Mill |
|
|
|
|
Operator |
|
|
|
||
|
Willie Cargle |
P3-58 |
4/4/73 |
Bagging Enamel |
|
|
|
|
(dry) |
|
|
|
||
|
Willie Cargle |
P3-71 |
4/5/73 |
Bagging Enamel |
|
|
|
|
(dry) |
|
|
|
||
|
Archie Hanner |
P3-74 |
4/11/73 |
Cope Molder |
|
|
|
||
|
L. C. James |
P3-80 |
4/12/73 |
Cope Molder |
|
|
|
||
|
Jersey Joe |
|
||
|
Green |
P3-75 |
4/11/73 |
Drag Molder |
|
|
|
||
|
Jersey Joe |
|
||
|
Green |
P3-81 |
4/12/73 |
Drag Molder |
|
|
|
||
|
Lee McWilliams |
P3-88 |
4/18/73 |
Hanging tubs in |
|
|
|
|
Shake-out |
|
|
|
||
|
Charlie Wheelous |
P3-89 |
4/18/73 |
Gate removal on |
|
|
|
|
Shake-out |
[*30]
|
|
Time |
Time |
Min. |
1/min |
liters |
|
Employee |
Sample |
Sample |
Total |
Flow |
Volume |
|
Sampled |
Started |
Stopped |
Time |
Rate |
Sampled |
|
Tom Pouncy |
6:27 a.m. |
12:27 p.m. |
360 |
1.8 |
648.0 |
|
|
|
||||
|
Tom Pouncy |
6:19 a.m. |
12:19 p.m. |
360 |
1.8 |
648.0 p.m. |
|
|
|
||||
|
Glenn Ellis |
6:31 a.m. |
12:31 p.m. |
360 |
1.8 |
648.0 |
|
|
|
||||
|
Glenn Ellis |
|
||||
|
|
6:22 a.m. |
12:22 p.m. |
360 |
1.8 |