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

648.0

C. L. Thompson

 6:35 a.m.

12:35 p.m.

360

1.8

648.0

C. L. Thompson

 6:24 a.m.

12:24 p.m.

360

1.8

648.0

Robert Gilliam

 6:41 a.m.

12:41 p.m.

360

1.8

648.0

Robert Gilliam

 6:29 a.m.

12:29 p.m.

360

1.8

648.0

Willie Cargle

 6:47 p.m.

12:47 p.m.

360

1.8

648.0

Willie Cargle

 6:31 a.m.

12:31 p.m.

360

1.8

648.0

Archie Hanner

 7:17 am

10:57 am

11:29 am

 1:49 pm

360

1.8

648.0

L. C. James

 7:18 am

10:55 am

360

1.8

648.0

11:26 am

 1:49 pm

Jersey Joe

Green

 7:18 am

10:58 am

360

1.8

648.0

11:32 am

 1:52 pm

Jersey Joe

Green

 7:09 am

10:56 am

360

1.8

648.0

11:30 am

 1:43 pm

Lee McWilliams

 6:48 am

12:48 pm

360

1.8

648.0

Charlie Wheelous

 7:02 am

 1:02 pm

360

1.8

648.0

15. The silica samples were submitted to a chemist for an analysis of the silica in milligrams [*31] per cubic meter of air. The percentage of silica was also requested for the following field samples taken from the locations as indicated: (Ex. 4; Tr. 13, 115)

Field

Sample Number

Operation

P3-53, P3-66

Smelter Operation

P3-54, P3-68

Mixing enamel

P3-56, P3-69

Bagging enamel

P3-74, P3-81

Molding

P3-88, P3-89

Shake-out

16. The chemist made an analysis of the samples for silica by the Cahn balance method. His worksheet, which was received by Pullum, reflected the total amount of sample in mg. of dust, and results in mg/m<3> for the filters submitted with the following field sample numbers: (Ex. 5; Tr. 13, 115)

Total Amount

Field Sample

of Sample

Results

Number

(mg. of Dust)

(Dust in mg/m<3>)

Blank

  .03 mg

Blank

P3-53

1.42

2.191

P3-66

0.91

1.404

P3-54

1.19

1.836

P3-67

1.07

1.651

P3-55

0.98

1.512

P3-68

1.45

2.238

P3-56

2.07

3.194

P3-69

4.92

7.592

P3-58

1.54

2.376

P3-71

2.21

3.41

P3-74

0.68

1.05

P3-80

1.47

2.27

P3-75

0.93

1.44

P3-81

1.22

1.88

P3-88

0.70

1.08

P3-89

1.10

1.70

17. The chemist determined the percentage of free silica by the Cahn balance and Talvitie method for the field samples. The [*32] field numbers, total amount in samples, and percentages are as follows: (Ex. 5; Tr. 14)

Field

Total Amount

Numbers

in Sample (mg.)

Percengage

P3-53, P3-66

.518

 22%

P3-54, P3-68

.343

 13%

P3-56, P3-69

.138

  2%

P3-74, P3-81

.098

5.2%

P3-88, P3-89

.153

8.5%

Field numbers P3-58 and P3-71 were from the same location as P3-56 and P3-69. (Ex. 4)

18. The results of the analysis of the silica dust obtained from the chemist were used by Pullum to determine the permissible limits in milligrams per cubic meter and the concentrations of silica dust that employees were exposed to in milligrams per cubic meter. (Ex. 6; Tr. 14-15)

19. The milligrams per cubic meter determined as the permissible limits and the concentration of silica dust in milligrams per cubic meter as determined by Pullum, along with the information considered in arriving at the mg/m<3> concentration, is as follows: (Ex. 6; Tr. 14-15)

(a) Tom Pouncy (Smelting Operator)

Limit 0.42 mg/m<3>

Concentration 1.80 mg/m<3>

Field

Sample

Total

mg/m<3>

Number

Date taken

Time Started

Time Stopped

Time Minutes

Concentration

P3-53

4/4/73

6:27 a.m.

12:27 p.m.

360

2.191

P3-66

4/5/73

6:19 a.m.

12:19 p.m.

360

1.404

(b) Glenn Ellis (Mixer of Enamel)

Limit 0.67 mg/m<3>

Concentration 1.74 mg/m<3>

P3-54

4/4/73

6:31 a.m.

12:31 p.m.

360

1.836

P3-67

4/5/73

6:22 a.m.

12:22 p.m.

360

1.651

(c) C. L. Thompson (Mixer of Enamel)

Limit 0.67 mg/m<3>

Concentration 1.87 mg/m<3>

P3-55

4/4/73

6:35 a.m.

12:35 p.m.

360

1.512

P3-68

4/5/73

6:24 a.m.

12:24 p.m.

360

2.238

(d) Robert Gilliam (Color Mill Operator)

Limit 2.5 mg/m<3>

Concentration 5.39 mg/m<3>

P3-56

4/4/73

6:41 a.m.

12:41 p.m.

360

3.194

P3-69

4/5/73

6:29 a.m.

12:29 p.m.

360

7.592

(e) Willie Cargle (Harding Mill Bagging Operator)

Limit 2.5 mg/m<3>

Concentration 2.89 mg/m<3>

P3-58

4/4/73

6:47 a.m.

12:47 p.m.

360

2.376

P3-71

4/5/73

6:31 a.m.

12:31 p.m.

360

3.410

(f) Archie Hanner and L. C. James

(Cope Molder in Old Foundry)

Limit 1.39 mg/m<3>

concentration 1.66 mg/m<3>

P3-74

4/11/73

7:17 a.m.

10:57 a.m.

360

1.05

11:29 a.m.

1:49 p.m.

P3-80

4/12/73

7:18 a.m.

10:55 a.m.

360

2.27

11:26 a.m.

1:49 p.m.

(g) Jersey Joe Green (Drag Molder in Old Foundry)

Limit 1.39 mg/m<3>

Concentration 1.66 mg/m<3>

P3-75

4/11/73

7:18 a.m.

10:58 a.m.

360

1.44

11:32 a.m.

1:52 p.m.

P3-81

4/12/73

7:09 a.m.

10:56 a.m.

360

1.88

11:30 a.m.

1:43 p.m.

(h) Lee McWilliam (Shake-out in Automatic Foundry)

Limit 0.96 mg/m<3>

Concentration 1.08 mg/m<3>

P3-88

4/18/73

6:48 a.m.

12:48 p.m.

360

1.08

(i) Charlie Wheelous (Gate Removal Operator)

Limit 0.96 mg/m<3>

Concentration 1.70 mg/m<3>

P3-89

4/18/73

7:02 a.m.

1:02 p.m.

360

1.70

[*33]

20. Pullum determined the limit for silica dust by the formula contained in table G-3 of standard 29 CFR 1910.93(c). The permissible level is 10 milligrams per cubic meter of air, divided by the percentage of free silica plus two. The formula used by Pullum is as follows: (Tr. 14)

10 mg/m<3> / % SiO[2] +2

21. All locations, except two, were sampled on two separate days for silica dust. The employee hanging tubs and the employee removing gates in the shake-out of the automatic foundry were sampled for only one day. n4 (Ex. 4; Tr. 17) Where the samples covered two days, the concentrations were averaged by Pullum to arrive at his 8-hour time weighted average. (Tr. 14-15)

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Pullum went back on April 19, 1973, to conduct a second day of testing but found the automatic foundry closed down because of mechanical trouble. When he returned to his office he learned of a directive (Ex. B) which indicated one day samples were permissible. (Tr. 17-18, 54)

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

22. When testing for silica and lead, Pullum subjected two of [*34] the same type filters with each batch of samples to the same handling procedure but no air was drawn through them. These blanks were then run through the same type of analysis by the chemist as the other samples. (Exs. 2, 5; Tr. 121-122)

23. The sampling pumps used by Pullum as identified by OSHA number, the age of the pumps, the last calibration dates, and whether they had pulsation dampnersare as follows: (Tr. 43-44, 66-70, 72)

Pump

Approximate

Calibration

Pulsation

No.

Age of pump

date

dampner

 1

1-1/2 yrs.

2/6/73

yes

 2

1-1/2 yrs.

11/14/72

yes

 4

1-1/2 yrs.

11/14/72

 No

 9

6 Mos.

2/6/73

 No

19

6 Mos.

11/27/72

 No

20

2 Mos.

2/5/73

Yes

21

2 Mos.

2/5/73

Yes

23

2 Mos.

2/6/73

Yes

24

2 Mos.

2/5/73

Yes

24. All of the pumps had been personally calibrated by Ronald J. Young, an employee of OSHA, at the Nashville, Tennessee office. (Tr. 30, 65, 69, 71) All were in good order. The older pumps had been taken apart by Young to insure that they were in good working order. (Tr. 71) A card was attached to each pump showing filter, rotometer setting and flow rate. (Tr. 69)

25. The pumps were calibrated every six months and the calibration [*35] date was included on the pump along with the date after which the pump should not be used. (Tr. 57, 69-70, 103) The pulsation dampners in the pumps used by Pullum were installed by Ronald Young and in some cases in conjunction with another person. (Tr. 42, 73)

26. A pulsation dampner in a pump limits the fluctations in the flow rate of the pump and results in a more accurate reading. (Tr. 60, 70, 74, 104) The use of a pulsation dampner in the pump assists in collecting more dust since a cyclone works best at a smooth, steady and constant flow. (Tr. 71, 74, 105)

27. Pullum was at all times in close proximity to the test sampling for lead and silica. He made constant checks of the pumps to assure that they were in proper working order. The pumps were checked at least every 15 minutes. (Tr. 18) He checked to ascertain if there was any leakage between the inlet of the tube and the pump and to see if the filter was fitted properly. He always found the filters fitted properly. (Tr. 31)

28. Pullum checked the pumps to see if they were pulling the proper flow rate. (Tr. 29-30) The pumps have a rotometer on the side that goes from zero to 10 and can be adjusted to a desired [*36] setting to regulate the air flow. (Tr. 33, 58, 98-99) The setting of the rotometer determines the air flow. (Tr. 33,100-101) Pullum never saw any indication that the pumps were not properly calibrated. (Tr. 57)

29. The sampling techniques utilized by Pullum and the tests undertaken by the chemist on the samples were according to established procedure for the Occupational Safety and Health Administration, as approved by the National Institute of Occupational Safety and Health, and are accepted practices in the field of industrial hygiene. (Tr. 18, 41, 152-153, 165)

30. Foundry dust can be controlled within the permissible limits. (Tr. 160, 166) The proper kind of ventilation would have reduced the levels of lead and silica dust in respondent's plant within permissible limits. (Tr. 19, 158-160)

31. Techniques and principles of ventilation control which can accomplish the proper reduction in dust levels for lead and silica in a plant such as respondent's have been recognized for years in foundry operations. (Ex. 13; Tr. 153, 155, 158-161, 166)

32. Employees exposed to excessive concentrations of lead and silica were not being rotated. (Tr. 20)

33. One of the cope molders [*37] and the drag molder in the old foundry did not wear a respirator. The employee hanging tubs and the employee removing gates in the shake-out in the automatic foundry wore dust respirators which did not have the Bureau of Mines approval on the respirator or the boxes in which they were stored. (Tr. 21-22) All other employees determined to be exposed to excessive levels of lead and silica were observed wearing approved respirators. (Tr. 44-45) Respirators were provided by the respondent. (Tr. 45)

34. Employees were permitted to handle their respirators in any manner they desired. There were no standard oral or written procedures for the use of respirators. Respirators were on occasions laid at various locations which exposed them to bacteria.

(Tr. 22-24, 45, 60, 108)

35. The complainant proposed unadjusted penalties of $500, $400, $300 and $100 for the alleged violations of 29 CFR 1910.93(b)(1), 29 CFR 1910.93(c), 29 CFR 1910.93(e) and 29 CFR 1910.134(a)(1), respectively. The unadjusted penalties were reduced 40 percent. This decrease consisted of a 20 percent reduction for good faith and a 20 percent reduction for previous history. A 50 percent abatement credit was then [*38] allowed to arrive at the final penalties. (Ex. 8, 9; Tr. 27-28)

LAW AND OPINION

Section 5(a)(2) of the Act provides that every employer shall comply with occupational safety and health standards promulgated under the Act. The respondent has contested the allegation that it violated five of the standards set forth in the citation issued to it on May 25, 1973. Three of the alleged violations set forth in the citation are: (1) 29 CFR 1910.93(b)(1), as it relates to lead, (2) 29 CFR 1910.93(c), as it relates to silica, and (3) 29 CFR 1910.93(e), as it applies to engineering or administrative controls. The alleged violation of 29 CFR 1910.93(e) has been cited as separate and independent of the alleged violations of the first two enumerated paragraphs of 29 CFR 1910.93.

1. Alleged Violation of 29 CFR 1910.93(e)

Complainant construes subparagraphs (b), (c) and (e) of 29 CFR 1910.93 as if they were unrelated in order to establish three separate violations. This is an erroneous construction of the standard. The standard must be read and construed as a whole in order to fully understand its effect and intent. Section 1910.93 of 29 CFR provides, in pertinent part, as follows: [*39]

" 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 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. * * *"

The ramifications of 29 CFR 1910.93(b) and (c) are such as to require that [*40] exposure of employees to any material listed in tables G-2 and 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. However, exposure of employees in excess of the established limits does not per se establish a violation of 1910.93(b) of (c). Paragraph (e) of section 1910.93 informs an employer how he can achieve compliance with paragraphs (b) and (c). The employer is to determine and implement administrative or engineering controls whenever feasible. When full compliance can not be accomplished in this manner, protective equipment or other protective measures are permitted to be used to keep the exposure of employees to air contaminants within the prescribed limits. Thus, paragraph (e) recognizes that it may not be possible for an employer to achieve full compliance with the limits specified in the tables.

Complainant alleges that respondent's plant exceeded permissible limits with respect to lead and silica. In order to establish such violations, it is not sufficient to establish that the concentration at the time of the inspection exceeded the 8-hour time weighted average prescribed [*41] by tables G-2 and G-3. Complainant must also establish that respondent had failed, as required by paragraph (e), first, to determine administrative or engineering controls, and second, to implement them if feasible. Failure to establish administrative or engineering controls and to implement them is not a separate and distinct violation. These are factors which must be considered prior to determining a violation of 29 CFR 1910.93(b) or (c).

Complainant's interpretation would make a violation mandatory if the permissible limits were exceeded since he construes 29 CFR 1910.93(e) independently of paragraphs (b) and (c). A violation would have to be determined even though the employer had utilized every administrative or engineering control known in the industry and had been unable to lower the level of exposure to permissible limits. The purpose of the Act is to protect employees and alternative methods of protection must be recognized and their use encouraged when it is not possible to lower air contaminants within the permissive levels.

2. Alleged Violation of 29 CFR 1910.93(b)(1)

Table G-2 of 29 CFR 1910.93(b)(1) establishes maximum allowable concentrations of airborne [*42] particles of inorganic lead at 0.2 milligrams of lead per cubic meter of air (.2 mg/m<3>). The standard is based upon a time weighted average, i.e., the average level of inorganic lead over an 8-hour workshift of a 40-hour work week. Paragraph (d)(1)(i) of 29 CFR 1910.93 sets forth the computation formula as follows:

(1)(i) The cumulative exposure for an 8-hour work shift shall be computed as follows:

E=C[a]T[a] + C[b]T[b] + . . . C[a]T[a] / 8

where:

E is the equivalent exposure for the working shift.

C is the concentration during any period of time T where the concentration remains constant.

T is the duration in hours of the exposure at the concentration C.

Respondent has not specifically taken exception to the concentrations of lead determined by the industrial hygienist. It argues that complainant failed to meet its burden of showing that administrative or engineering controls had not been determined and, if determined, that they were feasible and had not been implemented. As previously stated this is a necessary element in establishing a violation of 29 CFR 1910.93(b)(1). The burden of proving a violation of 29 CFR 1910.93(b) is on the complainant and he must satisfy [*43] that burden by the preponderance of the evidence. Complainant has met its burden on this issue.

The record conclusively reflects that the industrial hygienist used care in obtaining the samples and followed procedures that are accepted practices in the field of industrial hygiene. n5 The techniques utilized by him conformed to standard practices of the Occupational Safety and Health Administration. n6 These techniques are recognized as standard practice in American National Standard Z37.11-1969, n7 and by the National Institute of Occupational Safety and Health. n8 The samples for both leas and silica were taken close to the breathing zone of the employee and a large number of employees were sampled. The samples for lead were also taken for long periods (six hours on both days).

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n5 Respondent offered no evidence to even indicate that the procedures followed by the industrial hygienist and chemist were not acceptable practices in the field of industrial hygiene.

n6 The OSHA Sampling Data Sheet dated January 3, 1972, contains the following guidelines for sampling for lead and its inorganic compounds:

Analytical Method:

Atomic absorption.

Detection Limit: 0.003 mg/filter.

Sampling Equipment:

Personal sampling pump plus unweighted 37 mm Millipere type HA filter. Either 2- or 3-piece filter cassette may be used. Sampling rate: 1.5 l/m.

Sample Size:

A minimum sampling period of 60 minutes is recommended, and longer periods, up to full shift, are preferable. Care must be taken to prevent material from falling off heavily loaded filters during shipment. This may be done by placing another filter on top of the one with the sample, exercising care not to dislodge any of the sample in the process.

Blanks:

With each batch of samples, submit two filters which are subjected to exactly the same handling as for the samples except that no air is drawn through them. Label these as blanks.

n7 American National Standard Z 37.11.1969, paragraph 4.2, contains a recommended sampling procedure for lead. The following are among its provisions: (1) Sample should be truly representative of the actual working conditions of the location tested. The volume of the sample and the rate at which it is drawn into the sampling apparatus shall be such that the taking of the sample does not of itself appreciably change the atmospheric conditions at the locations tested; (2) Samples shall be taken within the breathing zone of the worker; (3) Samples shall be taken in sufficient numbers to show up whatever differences in concentration of lead exist during the working period; and (4) suitable filter collectors are among one of the methods commonly used for the collection of lead dust. The standard also states: "In recent years, increasing use has been made of the atomic absorption method for determining lead in air and in biological materials because of its sensitivity and specificity."

n8 NIOSH Criteria for a Recommended Standard - Occupational Exposure to Inorganic Lead, which was recently published offers the following guidelines for sampling of lead in the air (Appendix I): (1) Air should be drawn through a filter by means of a pump at the rate of 2 liters per minute (not to be less than 1 nor more than 4 liters per minute) and dust collected on a cellulose membrane filter; (2) a minimum sample of 100 liters of air should be collected but larger samples are encouraged; and (3) one filter labeled as a blank is to be submitted with the samples.

[*44]

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Respondent raised several questions during the hearing concerning the calibration of the pumps, the possibility of leaks at various places in the equipment, the affect of the use of pulsation dampners in the pumps, the use of one day samples as opposed to two day samples, and the proficiency of the chemist. The testimony elicited of complainant's witnesses on these points on cross-examination failed to reveal any evidence that detracts from the accuracy of the test results.

The evidence clearly shows that all the pumps utilized in the sampling procedure for lead and silica were properly calibrated and in good working order. All of the pumps had been calibrated within six months of the sampling date and none of the pumps were more than 1-1/2 years old. n9 Pullum was in close proximity to the test sampling for lead and silica. He checked the pumps every 15 minutes to insure that they were working properly. The filters were checked to ascertain if they were properly fitted and for possible leakage between the inlet of the tube and the pump. In the event of a leak, less air would have been pulled through [*45] the filter with the result that there would have been less contamination on the filter. This would have resulted to the benefit of respondent.

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n9 Three of the pumps were 1-1/2 years old. Two pumps were 6 months old and the remaining pumps were approximately 2 months old.

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The use of pulsation dampners in some of the pumps did not result in distortions of the actual concentrations at the locations sampled. The pulsation dampners assisted in obtaining a more accurate reading of the concentrations since they assured a smoother flow rate. n10

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n10 For a discussion of the use of pulsation dampners, see The Effect of Pulsation Dampening on the Collection Efficiency of Personal Sampling Pumps, authored by Daniel P. Anderson, Joseph A. Seta and John F. Vining, III, and published by NIOSH, September, 1971; The Effect of Pulsation Damping on Respirable Dust Collected by Coal Mine Dust Personal Samplers, authored by J. A. Lamonica and H. N. Treaftes and published by the Department of Interior.

[*46]

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The past analysis of inorganic lead sampled by the chemist under the NIOSH Proficiency Analytical Testing program show him to always have been within 5% of the accepted value. His results have been regarded as excellent by NIOSH. (Ex. 11) He also had less than a 10% deviation from the standard values for silica testing. (Ex. 10). These past results show a high degree of proficiency on his part and is convincing evidence as to the reliability of the results of his analysis.

While the results of the sampling by complainant's industrial hygienist are regarded as accurate, n11 he has failed to calculate the 8-hour time weighted average in accordance with the formula contained in paragraph (d)(1)(i) of 29 CFR 1910.93. He has simply combined the average results for both days of sampling and divided by two to arrive at his concentration level. For example, he computed the concentration to which Tom Pouncy (smelting operator) was exposed by taking the results of the 2-three hour samples (0.48 mg/m<3> and 0.29 mg/m<3>) of Pouncy on March 1, 1973 and averaging them to arrive at an average for March 1, 1973, [*47] of 0.38 mg/m<3>. He then took the results of the six hour sample (0.31 mg/m<3>) on February 28, 1973, and averaged it with the average for March 1, 1973, to arrive at a final value of 0.35 mg/m<3>. In effect the hygienist treated the six hour samples for each day as the 8-hour time weighted average for each day and then averaged the two days. This is not permissible under the formula.

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n11 Respondent offered no results of any sampling done by it. There is no evidence to conflict with the results obtained by the complainant's industrial hygienist.

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The test results of two different days sampled can not be intermingled to arrive at a 8-hour time weighted average. Each work day is required to stand on its own. The standard refers to "any 8-hour work shift of a 40-hour work week." The test samples must come from the same 8-hour work shift if distortions are to be prevented.

Certain operations performed during an 8-hour shift may expose employees to higher concentrations of lead during that period of his work day [*48] than at any other time of the 8-hour shift. n12 As an illustration, assume an employee with hours from 8:00 a.m. to 4:00 p.m. performs duties between 9:00 a.m. and 11:00 a.m. which expose him to a concentration of 0.42 mg/m<3>. The remaining six hours he has an exposure of only 0.12 mg/m<3>. If two samples taken between 9:00 a.m. to 11:00 a.m. on each of two days are used to arrive at the exposure level the following results are obtained under the formula:

E = 2 (hrs) X 0.42 (concentration) + 2 (hrs) X 0.42 (concentration) / 8

E = .21 mg/m<3>

This results in the employer being in excess of the permissible limits. Yet, the actual 8-hour time weighted average is as follows:

E = 2 X 0.42 + 6 X 0.12 / 8

E = 0.19 mg/m<3>

It is clear that the intermingling of samples from two different days would distort the actual exposure of the employee if the sampling was made on both days at the time of the hightest concentrations.

n12 This is clearly demonstrated by the concentration levels of samples taken of the Color Mill operator. On March 1, 1973, from 6:48 a.m. to 9:48 a.m. he had an exposure level of 0.91 mg/m<3>. From 9:48 a.m. to 12:48 p.m. he had an exposure level of 3.35 mg/m<3>. [*49]

The 8-hour time weighted average for the sampling days of February 28, 1973, and March 1, 1973, must be computed separately by the use of the formula reflected in 29 CFR 1910.93(d)(1). The proper use of the formual changes the exposure levels in all instances, but the resulting levels are still in excess of 0.20 mg/m<3>. In the case of Tom Pouncy (smelting operator) the exposure level for each day under the formula is as follows for the day indicated:

February 28, 1973

E = 6(hrs) X 0.31 (concentration) / 8

E = .23 mg/m<3>

March 1, 1973

E = 3 (hrs) X 0.48 (concentration) +3(hrs) X 0.29(concentration) / 8

E = .28 mg/m<3>

The respondent was in violation of the permissible level on both days sampled.

The test results computed by the proper formula give the following exposure levels for the remaining operations which complainant alleges exceeds 0.20 mg/m<3>:

OPERATION

EMPLOYEE

8-hour time weighted

SAMPLED

SAMPLED

Exposure level (mg/m<3>)

2/28/73

3/1/73

Mixer of enamel

C. L. Thompson

0.32

AL Clendenen

0.33

Dryer Operator

Dora Lee

0.60

0.55

Harding Mill

Willie Cargle

1.74

1.86

bagging operator

Color Mill Operator

Robert Gilliam

2.01

1.59

It is clear [*50] that complainant has sustained his burden in proving that the exposure level exceeded 0.2 milligrams of lead per cubic meter of air.

Since employees were exposed to concentrations of lead in excess of the permissible limits, the further question of whether feasible engineering or administrative controls existed to lower the concentration levels within the permissible limits must be resolved. n13 Respondent submits that the complainant has failed to meet its burden on this issue since the record does not show the type of equipment it used to lower the level of the air contaminants or the additional equipment required to bring the level of contaminants within the permissible limits.

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n13 If such controls existed, it is obvious that they were never implemented since the concentration levels greatly exceeded the maximum allowable in all instances.

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The industrial hygienist based his conclusion that respondent failed to determine engineering controls on the fact that the concentrations exceeded the permissible limits. [*51] (Tr. 19-20) He did not recall talking to anyone about respondent's engineering controls, but was of the opinion that more exhaust ventilation would have been the proper solution. (Tr. 19-20) The record does not contain any facts as to the present ventilation system utilized by respondent or how that system could be improved to lower the concentration levels.

The evidence is undisputed that the technical knowledge and materials are known and available to reduce the dust levels in plants such as respondent's within the permissible limits. Robert H. Wolle n14 testified in some detail concerning the present technology available to control silica and lead dust. (Tr. 151-162) He expressed the opinion that the dust levels of lead and silica in a plant such as respondent's could have been corrected by proper ventilation systems.

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n14 Mr. Wolle was not offered as an expert but his background shows him to be well qualified in the field of industrial ventilation. He serves on the Committee on Industrial Ventilation of the American Conference of Governmental Industrial Hygienist. He also had some knowledge of respondent's operations. He conducted an investigation in the plant some 10 or 15 years ago. (Tr. 157)

[*52]

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(Tr. 153, 155-156, 158, 160-161) His observations were formulated from ventilation systems used to control lead and silica dust in plants similar to that operated by respondent. He further testified that these ventilation systems have been known to the industry for a substantial number of years. The testimony of Wolle was corroborated by Tom P. Roberts, who testified that there were well known ventilation systems, as well as operating practices and procedures, that can control industrial sources of dust to acceptable levels. (Tr. 166) Respondent offered absolutely no evidence to dispute the testimony of Wolle or Roberts.

The Act or the standard in question does not require that complainant give details of a specific ventilation system for an employer's business. A prima facie case is established by competent evidence that technology, known and recognized by the industry, exists to control the dust within permissible limits. When this fact is established, a prima facie case is made and the burden of going forward with the evidence shifts to the employer. n15 Complainant's evidence was sufficient [*53] to establish a prima facie case. Respondent chose not to present any evidence on the issue. Complainant's evidence is undisputed and is sufficient to meet his burden.

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n15 The burden of proof still remains with complainant. However, the burden of meeting a prima facie case with contrary evidence shifts to the respondent.

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No administrative controls were being utilized by respondent to reduce the amount of exposure to lead or silica. The employees worked a normal shift without rotation to some other operation with less exposure.

3. Alleged Violation of 26 CFR 1910.93(c)

Table G-3 of 29 CFR 1910.93(c) sets the permissible level of respirable quartz particles (the most common form of crystalline silica) at 10 milligrams per cubic meter of air, divided by the percentage of free silica plus two. The formula is shown as follows:

10 mg/m<3> / % SiO[2] +2

The standard is based upon a time weighted average, i.e., the average level of silica dust over an 8-hour workshift of a 40-hour work week. The formula for [*54] computing the exposure level is set forth in paragraph (d)(1)(i) of 29 CFR 1910.93. It is the same formula used in computing exposure to lead.

The record is clear that complainant's industrial hygienist used care in obtaining the samples and followed accepted procedures and practices in the field of industrial hygiene. Model G portable sampling pumps were used to induce a flow of air at 1.8 liters per minute 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. The cyclone removed the non-respirable particles and permitted the respirable particles to pass through to be collected on a type VM-I filter. Each position or operation was sampled for a period of six hours.

The techniques utilized conformed to standard practices of the Occupational Safety and Health Administration. n16 The same degree of care was used in obtaining the samples for silica as was used in obtaining the samples of lead. The results obtained from the samples are considered representative of the actual working conditions of the locations tested. Respondent has offered no evidence to refute the results obtained by complainant. The [*55] questions concerning the accuracy of the results alluded to by the respondent have been covered under the discussion of lead and are equally applicable to a resolution in this issue.

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n16 The OSHA Sampling Data Sheet dated January 3, 1972, contains the following pertinent portions for sampling for crystalline silica:

Analytical Method:

Gravimentric personal samples for worker exposure should be tared and reweighed by DOL on a Cahn balance. The percent of free silica is determined by NIOSH on the fixed location sample using a colorimetric wet chemical method, minimum detectable amount: 0.01 mg/filter.

Sampling Equipment:

For worker exposure:

Personal sampling pump plus preweighed MSA type FWS-B or Gelman type VM-1 filter, using 2-piece filter cassette and 10 mm nylon cyclone. Two filters should be subjected to the same handling as the samples except that no air is drawn through them, and these should be used as blanks. Sampling rate: 1.8 1/m.

For determining % quartz:

Collect at fixed locations near workers, using NIOSH preweighed MSA type FWS-B filters in 3-piece cassettes plus Gast 1531 pump with 9 1/m critical crifice and 1/2 inch steel cyclone. The vacuum release valve should be adjusted to 10-15 in Hg suction. Two blanks of the same filter type should be submitted with the sample. Sampling rate: 9 1/m.

Sample Size:

Minimum: 4 hours. Maximum: 8 hours.

[*56]

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The industrial hygienist committed the same error in arriving at the 8-hour time weighted average for silica as he did for lead. Sampling for silica took place over a period of several different days. Two day samples were obtained for all the operations sampled except for two that were sampled for only one day. The two day samples were averaged to arrive at the concentration levels. The two one day samples and the average of the two day samples were regarded as the 8-hour time weighted average even though the samples covered only six hours.

The permissible levels were properly determined and the concentration of the samples are accurate. When the results of the samples are computed with the proper formula for employees allegedly exposed to excessive limits, the following 8-hour time weighted averages are obtained:

Permissible

8-hour time weighted

EMPLOYEE

OPERATION

Level (mg/m<3>)

DATE

Average (mg/m<3>)

Tom Pouncy

Smelting Operator

.42

4/4/73

1.643

Tom Pouncy

Smelting Operator

.42

4/5/73

1.053

Glen Ellis

Mixer of Enamel

.67

4/4/73

1.377

Glen Ellis

Mixer of Enamel

.67

4/5/73

1.238

C. L. Thompson

Mixer of Enamel

.67

4/4/73

1.134

C. L. Thompson

Mixer of Enamel

.67

4/5/73

1.678

Robert Gilliam

Color Mill

Operator

2.5

4/4/73

* 2.395

Robert Gilliam

Color Mill

Operator

2.5

4/5/73

5.694

Willie Cargle

Harding Mill

Bagging

Operator

2.5

4/4/73

* 1.782

Willie Cargle

Harding Mill

Bagging

Operator

2.5

4/5/73

2.557

Archie Hanner

Cope Molder - Old

Foundry

 1.39

4/11/73

 * .787

L. C. James

Cope Molder - Old

Foundry

 1.39

4/11/73

1.702

Jersey Joe Green

Drag Molder - Old

Foundry

 1.39

4/11/73

* 1.08

Jersey Joe Green

Drag Molder - Old

Foundry

 1.39

4/12/73

1.410

Lee McWilliam

Shake-Out in

Automatic

Foundry

(employee hanging

tubs)

  .96

4/18/73

 * .810

Charlie Wheelous

Shake-Out in

Automatic Foundry

(Gate removal

operator)

  .96

4/18/73

1.275

[*57]

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* (The 8-hour time weighted average does not exceed the permissible levels.)

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The computations derived by the use of the formula contained in 29 CFR 1910.93(d)(1) show that some of the employees did not exceed the permissible levels on certain of the days. However, the results clearly indicate that the permissible levels have been exceeded on all employees, except for Archie Hanner and Lee McWilliam who were sampled for only one day, for at least one day. In three instances the concentrations were in excess of the permissible limits on both days sampled.

The second part of this issue, i.e., whether there were feasible engineering or administrative controls, has been considered in the discussion of lead and those comments are equally applicable to silica. The testimony of Wolle and Roberts pertained to the control of lead and silica dust. Accordingly, it is concluded that respondent is in violation of 29 CFR 1910.93(c).

4. Alleged Violation of 29 CFR 1910.134(a)(1)

Section 1910.134(a)(1) of 29 CFR provides [*58] as follows:

In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure of confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.

Complainant contends that appropriate respirators were not utilized in areas where there was an exposure to air contaminants in excess of permissible limits. It is alleged that the cope molder and drag molder in the old foundry and an employee hanging tubs and an employee removing gates in the shake-out in the automatic foundry did not utilize appropriate respirators.

The undisputed evidence establishes that a cope molder (two were sampled) and the drag molder in the old foundry were not wearing any type of respirators. It is also undisputed that the employee hanging [*59] tubs and the employee removing gates in the shake-out in the automatic foundry wore dust respirators which were not approved by the Bureau of Mines. All of these employees were exposed to silica above the permissible limits by the method employed by complainant to arrive at the 8-hour time weighted average.

The computation of the 8-hour time weighted averages by the proper formula for silica results in only one of the cope molders being exposed to concentrations of silica in excess of the permissible levels. The record does not establish which one was not wearing a respirator and it is not possible to determine if there was in fact a violation by a cope molder. The same drag molder was sampled on two different days. The proper computations show the permissible level to have been exceeded on only one of those days. The evidence does not establish the day the alleged violation was observed and it is not possible to determine if a violation occurred on the day the industrial hygienist observed that the respirator was not being worn. The proper computation for the employee hanging tubs shows that he was not exposed to concentrations of silica in excess of the permissible limits [*60] and would not be required to wear a respirator.

The gate removal operator in the automatic foundry was exposed to concentrations of silica above the permissible levels. He was wearing a respirator which did not have the Bureau of Mines approval number on the respirator or the box in which the respirator was being stored. The testimony shows only that the respirator did not have approval by the Bureau of Mines, whereas the standard refers to the use of "appropriate respirators." This raises a question of whether respirators have to be approved by the Bureau of Mines to be appropriate. The standard appears to be clear that no such absolute requirement was intended.

Reference must be made to 29 CFR 1910.134(b)(11) in resolving this issue. It provides as follows:

Approved or accepted respirators shall be used when they are available. The respirator furnished shall provide adequate respiratory protection against the particular hazard for which it is designed in accordance with standards established by competent authorities. The U.S. Department of Interior, Bureau of Mines, and the U.S. Department of Agriculture are recognized as such authorities. Although respirators listed by [*61] the U.S. Department of Agriculture continue to be acceptable for protection against specified pesticides, the U.S. Department of the Interior, Bureau of Mines, is the agency now responsible for testing and approving pesticide respirators.

It appears clear that the primary objective of the standard is to insure that the respirator furnished provides adequate respiratory protection against the particular hazard for which it was designed. The evidence does not answer the question of whether the respirator being worn was adequate to protect the employee against silica dust in accordance with standards established by competent authorities as required by section 1910.134(b)(11). The provisions of 134(b)(11) also recognize that agencies other than the Bureau of Mines might be a competent authority to determine if the respirator was appropriate for the purpose for which it was being used.

The mere fact that the respirator was not approved by the Bureau of Mines is not sufficient to establish a violation under the present wording of the standard. The words "appropriate" and "approved" are not synonymous. Complainant has failed to meet its burden on this issue.

5. Alleged Violation [*62] of 29 CFR 1910.134(a)(2)

Section 1910.134(a)(2) of 29 CFR provides, in pertinent part, as follows:

* * * The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.

Paragraph (b) of 29 CFR 1910.134 sets forth the following provisions applicable to this issue:

(1) Written standard operating procedures governing the selection and use of respirators shall be established.

* * *

(3) The user shall be instructed and trained in the proper use of respirators and their limitations.

The evidence is undisputed that respondent had no written or oral operating procedures governing the use of respirators. The employees were permitted to handle the respirators in any manner that suited their convenience. Complainant has met his burden. The violation is established.

6. ABATEMENT DATES FOR VIOLATIONS

The notice of contest filed by respondent specifically stated that the abatement dates for each of the items contested were also being contested. The citation established abatement dates for the violations determined herein as follows:

Abatement Date

Violation

set by complainant

29 CFR 1910.93(b)(1)

December 2, 1974

29 CFR 1910.93(c)

December 2, 1974

29 CFR 1910.134(a)(2)

June 8, 1974 n17

[*63]

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n17 Amendment to citation issued on June 6, 1973, changed abatement date from June 1, 1973, to June 8, 1973.

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The parties did not introduce any evidence in regard to the reasonableness of the abatement periods. Under the circumstances, the abatement dates set by the complainant will be deemed to be reasonable. Violations have occurred and abatement dates must be set. n18

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n18 Commission Rule 73(a) places the burden of proof on the complainant where the proceeding is commenced by the filing of a notice of contest. Rule 73(b) places the burden on the employer where the proceeding is commenced by a petition for modification of abatement. Since this proceeding arises from a notice of contest, it appears that the Rule places the burden on the complainant. However, the complainant's abatement dates must be deemed prima facie reasonable regardless of whether the challenge to reasonableness emanates from a notice of contest or petition for modification of abatement. A contrary ruling would be to the detriment of the employer. For example, the disallowance of the abatement dates in this case for failure of complainant to meet his burden would be detrimental to respondent since there is no evidence to show longer dates are reasonable.

[*64]

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PENALTY DETERMINATION

Once a notice of contest is served challenging penalties proposed by the Secretary, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under section 9(a) and notifications issued and penalties proposed by the Secretary under sections 10(a) and 10(b) of the Act. The Commission is the final arbiter of penalties if the complainant's proposals are contested. In such an event the complainant's proposals merely become advisory. Secretary of Labor v. Occupational Safety and Health Review Commission and Interstate Glass Co., No. 73-1029, United States Court of Appeals, 8th Circuit, filed October 26, 1973.

The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. Secretary [*65] In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense. In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury.

Six employees were exposed to excess concentrations of lead at four different locations during their 8-hour work shifts. The consequences of lead poisoning are serious and widespred. Fortunately, the employees were wearing appropriate respirators as a precaution against lead poisoning. Due to this fact, the gravity of the violation is considered to be moderately low.

The danger from inhalation [*66] of silica dust cannot be minimized. Eight employees of respondent have been determined to have been exposed to concentrations in excess of the permissible limits during their 8-hour work shifts. Respirators were worn by employees as a precaution against disease n18 Under such circumstances the gravity of the violation is considered to be moderately low.

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n18 The evidence did not support a violation of 29 CFR 1910.134(a)(1). Therefore, for purposes of determining the penalty the employees are regarded as wearing respirators.

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The lack of written standard operating procedures and the lack of instruction and training on the proper use of respirators does not appear to have reduced the employees awareness of the need to wear their respirators. However, employees, when going to lunch or on break, were observed placing their respirators at different locations which exposed the respirators to unnecessary bacteria. The probability of receiving a disease from this practice is considered to be remote. The exposure to some [*67] bacteria exists for all individuals in their daily routines. Therefore, the gravity of the violation is considered to be extremely low.

After consideration of all factors specified by section 17(j) of the Act, with particular emphasis on the gravity of the violation, it is concluded that a penalty of $120.00 is appropriate for the violations of 29 CFR 1910.93(b)(1) and 29 CFR 1910.93(c) and that no penalty is appropriate for the violation of 29 CFR 1910.134(a)(2). The facts surrounding the exposure to lead and silica are such that it is concluded the penalties should be the same for each of the violations.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Paragraph (e) of 29 CFR 1926.93 must be considered in determining a violation of paragraphs (b) and (c) of 29 CFR 1926.93. Paragraph (e) is not independent of paragraphs (b) and (c) and cannot be [*68] a separate violation.

4. The formula specified in paragraph (d) of 29 CFR 1910.93 must be utilized to determine the 8-hour time weighted average for lead and silica dust.

5. It is improper to average concentrations from different 8-hour work shifts to arrive at the 8-hour time weighted average. The samples must come from the same 8-hour shift.

6. A prima facie case that feasible engineering controls exists is established when competent evidence is introduced into the record that clearly establishes that technology exists within the employer's industry to control the alleged violation (lead and silica dust in this case) within permissible limits.

7. Respondent had employees exposed to concentrations of lead and silica dust which exceeded the permissible limits specified by tables G-2 and G-3 of 29 CFR 1910.93.

8. Feasible engineering controls are available to achieve compliance with 29 CFR 1910.93(b) and (c). Accordingly, respondent is in violation of 29 CFR 1910.93(b) and (c).

9. Complainant has failed to meet its burden in establishing a violation of 29 CFR 1910.134(a)(1).

10. Respondent had no written standard operating procedures governing the use of respirators [*69] as required by 29 CFR 1910.134(a)(2) and is in violation of that standard.

11. The abatement dates specified in the citation issued May 25, 1973, for the violations determined herein are reasonable.

12. A penalty of $120.00 each for the violations of 29 CFR 1910.93(b) and (c) is reasonable. The gravity of the violation of 29 CFR 1910.134(a)(2) is such that no penalty is justified.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That items 1, 2 and 5 of the citation issued May 25, 1973, are affirmed and that items 3 and 4 are vacated;

(2) That item 1 of the notification of proposed penalty issued May 25, 1973, is modified to assess a penalty of $120.00 for the violation of 29 CFR 1910.93(b) and that items 2 and 5 of the notification are affirmed. Items 3 and 4 of the notification are vacated.

Dated this 30th day of January, 1973.

JAMES D. BURROUGHS, Judge