LONE STAR STEEL COMPANY

OSHRC Docket Nos. 77-3893; 77-3894

Occupational Safety and Health Review Commission

December 15, 1981

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William A. Osborn, Plant Attorney, Line Star Steel Company, for the employer

Mr. Herschel Burks, V. President, United Steelworkers of America, Local Union No. 4134, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission pursuant to a sua sponte direction for review by Commissioner Cottine. In response to the direction for review, neither party seeks reversal or modification of the administrative law judge's decision. In the absence of either party interest or a compelling public interest in Commission review of the judge's decision, we affirm that decision without review, according it the precedential value of an unreviewed judge's decision. See Cargill, Inc., 79 OSAHRC 90/A2, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).

SO ORDERED.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I join my colleagues in affirming the judge's decision in this case. However, their summary affirmance is improperly based on the Secretary's desire that the case not be reviewed rather than the Secretary's failure to [*2] meet his burden of proof under the cited standard. Moreover, the issue of legal interpretation raised by the direction for review in this case is an issue of compelling public interest that must be addressed by the Commission.

I

The Respondent, Lone Star Steel Company ("Lone Star"), has been charges with two serious violations of 29 U.S.C. 654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (the "Act"). The citations allege in relevant part that Lone Star: (1) failed to comply with the standards at 29 C.F.R. 1910.141(g)(2) and (g)(4) n1 by permitting its employees to store and consume food in areas exposed to toxic materials; and, (2) failed to comply with the standards at 29 C.F.R. 1910.1000(a)(2) and (e) n2 by exposing an employee to excessive concentrations of coal tar pitch volatiles ("CTPV") in the ambient air and by failing to institute administrative and engineering controls to reduce the exposure.

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n1 1910.141 Sanitation.

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(g) Consumption of food and beverages on the premises.

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(2) Eating and drinking areas. No employee shall be allowed to consume food or beverages in a toilet room nor in any area exposed to a toxic material.

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(4) Sanitary storage. No food or beverages shall be stored in toilet rooms or in an area exposed to a toxic material.

n2 1910.1000 Air Contaminants.

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(a) Table Z-1:

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(2) Other materials - 8-hour time weighted averages. An employee's exposure to any material in table Z-1, . . . in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

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(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. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1910.134.

TABLE Z-1

Substance

mg/m<3>

Coal tar pitch volatiles (benzene

soluble fraction) anthracene, BaP,

phenanthrene, acridine, chrysene,

pyrene

0.2

[*3]

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After a hearing on the merits, Administrative Law Judge John S. Patton vacated both charges. I concluded that the case raised important and novel questions of law that should be considered by the Commission under 29 C.F.R. 2200.91a(d) n3 and on December 13, 1978, I directed review under the authority of 29 U.S.C. 661(i) and 29 C.F.R. 2200.91a(a) n4 on the following issues:

Whether the judge erred in vacating the alleged violation of 29 C.F.R. 1910.1000 on the basis that the Secretary failed to establish by a preponderance of the evidence the presence of excessive levels of benzene and coal tar pitch volatiles.

(2) Whether the judge erred in vacating the alleged violations of 29 C.F.R. 1910.141(g)(2) and (g)(4) on the basis that employees were not exposed to "a toxic material" because the levels of concentration of benzene and coal tar pitch volatiles were not excessive as determined by 29 C.F.R. 1910.1000.

(3) Whether the judge erred in excluding from the record the pareamble to 29 C.F.R. 1910.[1029] on the ground that it is hearsay and therefore inadmissible evidence.

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n3 The rule states in pertinent part:

(d) At any time within 30 days after the filing of a decision of a judge, a case may also be directed for review by a member upon his own motion upon any ground that could be raised by a party, but the issues would normally be limited to novel questions of law or policy or questions involving conflict in Administrative Law Judges' decisions.

Recodified at 29 C.F.R. 2200.92(d), 44 Fed.Reg. 70111, Dec. 5, 1979.

n4 The rule provides:

(a) Review is a matter of sound discretion of a member of the Commission.

Recodified at 29 C.F.R. 2200.92(a), 44 Fed.Reg. 70111, Dec. 5, 1979.

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In response to the direction for review, Lone Star filed a brief in support of the judge's disposition. The Secretary filed a letter instead of a brief, urging that the Commission not review the judge's decision. The Secretary stated in pertinent part:

The first two issues in particular raise important and complex technological and legal questions. Commission precedent on these issues would have far-reaching effects [*5] on OSHA enforcement with respect to hazardous substances. The issues undoubtedly merit careful consideration in an appropriate case, but we feel that to rach a decision where the necessary factual and legal predicate and context were not fully developed would not result in a decision which would effectuate the purposes of the Act. Upon careful review of the entire record in the instant case, we concluded that the issues were not fully developed by the evidence presented and that an adequate factual background does not exist to allow their proper determination. The Secretary continues to adhere to that conclusion. Accordingly, the Secretary will not file a brief in response to the direction for review but rather requests that the Commission, without review and without precedential effect, allow the judge's decision to stand.

The Secretary correctly indicates that the directed issues "raise important and complex technilogical and legal questions. . . [that] merit careful consideration." However, the Commission must not forego consideration of these issues simply because one party, after presenting its case, concludes that issues relevant to the case were not fully developed by [*6] the proofs and a judge's decision without precedential effect is preferable to a possibly adverse decision following full Commission review. The record in this case is adequately developed to decide the directed issues. Furthermore, the meaning of "toxic materials" in the cited standards and the applicability of the toxic substance threshold limit values to ingestion hazards are questions of compelling public interest that have a significant effect on national safety and health law and must be determined by the Commission once review has been directed. n5 See Cargill, Inc., 80 OSAHRC 28/D8,    BNA OSHC   , 1980 CCH OSHD P24,359 (No. 78-3006, 1980) (Cottine, Commissioner, concurring); Cargill, Inc., 79 OSAHRC 90/A2, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979) (lead and concurring opinions); Keco Industries, Inc., 79 OSAHRC 105/D9, 7 BNA OSHC 2048, 1979 CCH OSHD P24,117 (No. 78-661, 1979) (Cottine, Commissioner, dissenting); Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979) (Cottine, Commissioner, dissenting).

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n5 My colleagues offer no justification for their summary conclusion that there is no compelling public interest in Commission review of this case. Compare Middletown Volkswagen, Inc., 80 OSAHRC 50/F7, 8 BNA OSHC 1720, 1980 CCH OSHD P24,493 (No. 77-349, 1980) (no compelling public interest warranting Commission review where case involving alleged excessive employee exposure to carbon monoxide involved unique factual question restricted to conditions at cited worksite and Commission review would have no significant effect on national safety and health law).

[*7]

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Section 12(j) of the Act reserves to the discretion of each Member of the Commission the statutory authority to direct that a case "shall be reviewed by the Commission":

(j) A hearing examiner appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

29 U.S.C. 661(i) (emphasis added). n6 My colleagues' action in dec lning to review the merits of this case effectively nullifies my exercise of discretion. n7 The statute does not provide for reconsideration by other Commission members of an individual Commissioner's exercise of section 12(j) authority. Any reconsideration [*8] of whether the case continues to present issues of compelling public interest is reserved to the Commissioner who directed the case for review. Keco Industries, Inc., supra, 7 BNA OSHC at 2052, 1979 CCH OSHD at p. 29,310 (Cottine, Commissioner, dissenting); n8 see Francisco Tower Service, Inc., 76 OSAHRC 11/A2, 3 BNA OSHC 1952, 1975-76 CCH OSHD P20,401 (No. 4845, 1976) (lead and dissenting opinions).

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n6 Section 113(d)(2)(B) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 823(d)(2)(B), also provides for review pursuant to a minority vote.

n7 The individual Member's authority under section 12(j) parallels the minority rule of the U.S. Supreme Court, commonly referred to as the "rule of four". In his concurring opinion in Donnelly v. DeChristoforo, 416 U.S. 637, (1974), Justice Stewart stated:

We are bound here . . . by the 'rule of four.' That rule ordains that the votes of four Justices are enough to grant certiorari and bring a case before the Court for decision on the merits. If as many as four Justices remain so minded after oral argument, due adherence to that rule requires me to address the merits of a case, however strongly I may feel that it does not belong in this Court.

416 U.S. at 648. Similarly, Justice Harlan wrote in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 559-62 (1957) (concurring in No. 46 and dissenting in Nos. 28, 42 and 59), that once a petition for certiorari has been granted by four justices the writ should not be annuled by the later vote of five objecting justices, "[o]therwise the 'rule of four' surely becomes a meaningless thing . . . [the vote of the dissenting five] would undermine the whole philosophy of the 'rule of four', . . . [and] the 'rule of four' would, by indirection, become a 'rule of five.'" This reasoning was adopted by the Court in Missouri Pacific. 352 U.S. at 509 n. 23.

n8 With limited exceptions, the U.S. Supreme Court's "rule of four" is construed as precluding the Justices who opposed a grant of certiorari from voting to dismiss the writ as improvidently granted in the absence of intervening factors not known or fully appreciated when certiorari was granted. R. STERN and E. GROSSMAN, SUPREME COURT PRACTICE 346-48 (5th ed. 1978) and authorities cited. Cf. Triangle Improvement Council v. Ritchie, 402 U.S. 497, 580 (1971) (Douglas, J., dissenting) ("It is improper for . . . [the five justices who originally opposed the writ of certiorari] to dismiss the case after oral argument unless one of the four who voted to grant moves so to do, which has not occured here.")

[*9]

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I have considered my colleagues' objections to Commission review of this case and the Secretary's representation regarding the adequacy of the record. In my view there are no changed circumstances justifying the Commission's failure to consider the significant issues of legal interpretation raised by the direction for review in this case. The Commission's duty to establish a national body of occupational safety and health law, S & H Riggers & Erectors, Inc, 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd on other grounds, No. 79-2358 (5th Cir. Oct. 26, 1981), compels consideration of these issues.

II

The first issue directed for review involves whether the Secretary established by a preponderance of the evidence that Lone Star violated 29 C.F.R. 1910.1000(a)(2) and (e) by exposing its exhausterman to excessive concentrations of coal tar pitch volatiles (benzene soluble fraction) in the ambient air. This factual issue, standing alone, is not an issue of compelling public interest. See note 5 supra. However, its resolution is a necessary predicate to [*10] a determination of the important interpretive issue in this case. Accordingly, it must be considered.

The Secretary issued the citation because an air sample collected by an Occupational Safety and Health Administration ("OSHA") industrial hygienist from the exhausterman's breathing zone showed an eight-hour time-weighted average of 0.32 milligrams of CTPV per cubic meter of air. The upper limit of permissible respiratory exposure to ambient CTPV is 0.2 milligrams per cubic meter of air ("mg/m<3>"). Section 1910.1000, Table Z-1, note 2 supra. Lone Star disputed the accuracy of this sample because it was inconsistent with three other samples in evidence. The other samples, which were all collected during the same eight-hour period as the 0.32 mg/m<3> sample, included an area sample collected by the industrial hygienist and two samples collected by Lone Star. OSHA's analysis of air on the first floor of the exhauster building showed a CTPV level of 0.04 mg/m<3>. Samples collected by Lone Star showed 0.128 mg/m<3> CTPV in the exhausterman's breathing zone and 0.196 mg/m<3> on the ground floor of the exhauster building.

Judge Patton concluded that there had been "no real impeachment" [*11] of the test results or of the sampling technique of either party and that the conflicting breathing zone samples tended to "cancel each other out". He noted that both parties' area samples tended to substantiate Lone Star's test for the exhausterman. As a result, he ruled that the Secretary had not proven a violation by a preponderance of the evidence. I affirm Judge Patton's assessment of the evidence and would adopt his decision vacating the citation alleging noncompliance with 29 C.F.R. 1910.1000(a)(2) and (e). See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

III

A

The second issue is whether Judge Patton erred in vacating those items alleging violations of 29 C.F.R. 1910.141(g)(2) and (g)(4) which prohibit the storage and consumption of food and beverages in areas "exposed to a toxic material." See note 1 supra. The Secretary issued the citation on the basis of several OSHA air samples showing detectable traces of ambient CTPV in areas where employees were permitted to store and consume food and beverages: 0.16 mg/m<3> (Foamite Building), 0.14 mg/m<3> (Exhauster Building), and 0.04 mg/m<3> (Coal Handling Building). [*12] Individual breathing zone samples showed CTPV levels of 0.17 mg/m<3> (mixerman) and 0.04 mg/m<3> (coal unloader) n9. An area sample collected in the Foamite Building showed ambient benzene at 1.6 parts per million ("ppm"). n10

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n9 The Secretary also relied on the 0.32 mg/m<3> sample taken from the exhausterman's breathing zone. As discussed above, however, that measurement is of questionable accuracy.

n10 29 C.F.R. 1910.1000, Table Z-2, specifies the following limits for exposure to benzene: 10 ppm for an 8-hour time weighted average; 25 ppm for a ceiling concentration; 50 ppm for a maximum duration of 10 minutes as an acceptable maximum peak above the acceptable ceiling concentration for an 8-hour shift.

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The industrial hygienist who conducted the investigation testified that he formed an opinion, based on learned treatises, n11 that benzene is a toxic substance. His opinion with respect to CTPV was based on the Preamble to the Coke Oven Emissions Standard which concluded that CTPV is a toxic substance. n12 [*13]

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n11 Specifically, he relied on N. SAX, DANGEROUS PROPERTIES OF INDUSTRIAL MATERIALS, (4th ed. 1975) and 2 F. PATTY, INDUSTRIAL HYGIENE AND TOXICOLOGY (2d ed. 1964).

The industrial hygienist had earned an undergraduate degree in math and chemistry and an M.S. in environmental management. At the time of this hearing he had worked as an OSHA industrial hygienist for a year and a half. He had not been board certified.

n12 The Preamble was published in the Federal Register when the Coke Oven Emissions Standard, 29 C.F.R. 1910.1029, was promulgated. 41 Fed.Reg. 46742 (1976). See generally, Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1981 CCH OSHD P25,300 (No. 13102, 1981).

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The Secretary took the position that his burden of proof on this item was to show that food or beverages were stored and eaten in areas exposed to materials defined as "toxic", regardless of their concentration or amount. Lone Star had not disputed that employees were permitted to store and consume food in the coal handling [*14] building and byproducts area and the OSHA industrial hygienist had testified to the "toxicity" of benzene and CTPV. Therefore, the Secretary maintained that he had carried his burden.

In support of this argument, the Secretary relied on the Commission decision in Western Metal Decorating Co., 75 OSAHRC 34/D12, 2 BNA OSHC 1604, 1974-75 CCH OSHD P19,325 (No. 1657, 1975). Western Metal had been cited under section 1910.141(g)(3), n13 the predecessor of sections 1910.141(g)(2) and (g)(4), for permitting employees to eat near spray painting operations. At the hearing in that case the spray paint and thinner which were alleged to have contaminated the employees' food were not identified by trade name or chemical substance, nor was evidence introduced of the substances' toxic properties or ill effects on employees. The administrative law judge ruled that the employer had committed an other than serious violation and assessed a penalty of $300. On appeal of the penalty assessment by the employer, the Commission concluded that the penalty was excessive in view of the lack of evidence of any harmful effects on employees and the lack of evidence as to the chemical composition of the [*15] materials. The Secretary asserted in this case that in Western Metal the Commission "affirmed a violation of the predecessor of .141(g)(2) and (4) despite the fact the company was not cited for violation of the air contaminant standards." The Secretary argued that "harm may occur under certain limited conditions where there is not exposure to an excess of the TLV" and that employees should not be permitted to store and consume food "in areas where toxic substances are present."

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n13 1910.141 Sanitation

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(g) Lunchrooms.

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(3) Locations. (i) No food shall be stored or eaten where there are present any toxic materials and substances that may be injurious to health.

Renumbered and revised as 1910.141(g)(2) and (g)(4), effective June 4, 1973, 38 Fed. Reg. 10932 (1973).

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Lone Star argued that a material is toxic only if it is present in concentration or amount exceeding an applicable limit such as the air contaminant exposure limits at 29 C.F.R. 1910.1000 or if the concentration or [*16] amount is recognized as causing or likely to cause death or serious physical harm. In support of its argument Lone Star relied on the definition of a toxic material at section 1910.141(a)(2)(viii). n14 Lone Star maintained that the threshold limit values for benzene and CTPV set out at section 1910.1000 constitute the applicable exposure limits for purposes of sections 1910.141(g)(2) and (g)(4). Inasmuch as these limits, 10 ppm for benzene and 0.2 mg/m<3> for CTPV, were not exceeded, Lone Star argued that no violation had occurred.

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n14 This section provides as follows:

1910.141 Sanitation.

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(a) General --

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(2) Definitions applicable to this section.

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(viii). "Toxic material" means a material in concentration or amount which exceeds the applicable limit established by a standard, such as 1910.1000 and 1910.1001 or, in the absence of an applicable standard, which is of such toxicity so as to constitute a recognized hazard that is causing or is likely to cause death or serious physical harm.

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Lone Star also contended that the Secretary had also failed to demonstrate that toxic materials were present in a concentration likely to cause death or serious harm. The Secretary had offered no evidence that the levels of benzene and CTPV detected in the coal handling building and byproducts area were likely to cause death or serious physical harm when ingested. Lone Star, on the other hand, had introduced expert medical testimony that the concentrations in question posed no health hazard. Citing the example of table salt, which although generally harmless can be toxic if taken in sufficient amount, Lone Star's medical director testified that a substance cannot be regarded as dangerous except in relation to its quantity. The medical director stated that it was his opinion as a physician that the amounts of benzene and CTPV at issue did not constitute a danger to health.

Rejecting the Secretary's theory of the case, Judge Patton concluded that the Secretary's burden of proof for a citation issued pursuant to sections 1910.141(g)(2) and (g)(4) is determined by the second definition of a toxic material set out at section 1910.141(a)(2)(viii) -- a material is toxic [*18] when its concentration or amount is recognized as causing or likely to cause death or serious physical harm. He reasoned that the air contaminant standards at section 1910.1000 are not applicable limits for purposes of the prchibition against storage and consumption of food because threshold limit values relate to inhalation of ambient substances, not ingestion of surface accumulations. Accordingly, he concluded that the Secretary had not sustained his burden of proof under the definition at section 1910.141(a)(2)(viii) and vacated the citation.

B

The cited standards, 29 C.F.R. 1910.141(g)(2) & (4), prohibit consumption and storage of food or beverages "in any area exposed to a toxic material." As used in section 1910.141, "toxic material" is defined at section 1910.141(a)(2)(viii). See note 14 supra. Although the definition of "toxic material" includes a reference to sections 1910.1000 and 1910.1001, neither of these referenced standards sets forth specific ingestion limits. In general, the TLVs at section 1910.1000 limit human exposure to air contaminants and the associated hazards of inhaling these substances. The TLVs do not specifically address ingestion from a [*19] non-airborne mode, such as ingestion of surface accumulations or skin absorption. However, ingestion of some amount of airborne contaminants occurs as a result of inhalation of these contaminants, e.g. ingestion after particles are cleared from the respiratory passages by coughing. n15 Because it is known that ingestion occurs secondary to inhalation, it must be assumed that the TLV's contemplate ingestion as a secondary, nonquantified mode of entry related to inhalation of airborne contaminant -- an entry that may present significant hazards. n16 Accordingly, consumption of food or beverages in environments that contain airborne contaminants in amounts that exceed the TLVs is prohibited by the first definition of "toxic material."

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N15 See generally 3 PATTY'S INDUSTRIAL HYGIENE AND TOXICOLOGY 259, 338-40 (L. Cralley & L. Cralley eds. 1979).

n16 For example, the preamble to the Coke Oven Emissions Standards acknowledges the problem presented by the ingestion of coke oven particulate, noting that the excessive incidence of genitourinary tract carcinomas exhibited by coke oven workers "may result from the ingestion of the carcinogenic constituents of coke oven emission." 41 Fed. Reg. 46,776 (1976).

[*20]

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In the absence of proof that excessive airborne levels exist at the worksite, the Secretary must establish an independent basis for the application of the cited standards -- the presence of non-airborne substances "causing or likely to cause death or serious physical harm" when ingested. Section 1910.141(a)(2)(viii). n17

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n17 The Secretary's reliance on Western Metal for the proposition that a violation of the food and beverage restriction is proved by a generalized showing of toxicity is misplaced. The meaning of toxicity was not at issue on review in Western Metal; the Commission merely ruled on the appropriateness of the penalty assessment. More importantly, at the time Western Metal was cited for permitting employees to store and consume food near spray paint operations, the sanitation standards contained no definition of a toxic material. Accordingly, there was no reason for the Commission to question the very general construction placed on that term in the administrative law hearing. However, when section 1910.141(g)(3) was subsequently revised and renumbered, the definition of a toxic material noted above was incorporated into the sanitation standards for the first time. This definition effectively nullified the general concept of toxicity implicit in the judge's decision in Western Metal and assigned to the Secretary the specific burden of proof outlined above.

[*21]

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For the reasons set forth above, the judge erred in concluding that the TLV's are inapplicable to the cited standards and focusing only on the second definition contained in section 1910.141(a)(2)(viii) n18 The proper test under the cited standards is whether the airborne substance is present in a concentration or amount which exceeds the applicable TLV established in sections 1910.1000 or 1001, or, if shown to be present in non-airborne form (i.e., swipe sample), whether the substance causes or is likely to cause death or serious injury when ingested.

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n18 To conclude that the levels in sections 1910.1000 and 1910.1001 are totally unrelated to ingestion hazards would nullify the first definition in section 1910.141(a)(2)(viii) and would ignore the fact that ingestion naturally occurs as a result of inhalation of an airborne particulate.

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The preponderance of the evidence in this case fails to establish that Lone Star employees were exposed [*22] to either excessive airborne CTPV and benzene, or to any non-airborne CTPV and benzene. n19 Accordingly, on this basis alone, the judge's disposition is properly affirmed.

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n19 The Secretary offered into evidence the Preamble to the Coke Oven Emissions Standard to establish that CTPV is a toxic substance. The Preamble summarizes the various scientific studies, articles and research on which the Secretary relied in formulating that standard, and contains a discussion of the adverse effects of exposure to coke oven emissions, including CTPV. Judge Patton allowed portions of the Preamble to be read into the record but reserved judgment on its admissibility. However, he ultimately concluded that the Preamble is hearsay and excluded it from consideration.

Judicial notice must be given to the contents of the Federal Register. 44 U.S.C. 1507. See Application of Watson, 517 F.2d 465, 472 (5th Cir. 1975); Hood v. Defense Homes Corp., 83 F. Supp. 365 (D.C. D.C. 1949); U.S. v. Vehicular Parking, Ltd., 52 F. Supp. 749 (D.C. Del. 1943). Accordingly, the judge erred in excluding this evidence. However, the error is harmless because the Secretary failed to satisfy his initial burden of establishing the presence of non-airborne CTPV or benzene in order to invoke an inquiry regarding toxicity.

[*23]

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