SECRETARY OF LABOR,
Complainant,

v.

SEABOARD FOUNDRY, INC.,
Respondent.

OSHRC Docket No. 77-3964

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  Judge Furcolo vacated one subitem and affirmed the remaining four subitems of a serious citation issued by the Secretary of Labor alleging that Seaboard Foundry, Inc. failed to comply with occupational safety and health standards concerning exposure to excessive levels of silica dust, implementation of engineering controls, and use of respirators.  For the following reasons, we modify the judge's decision as follows.

I

During a 1977 inspection of Seaboard's gray iron foundry in Johnston, Rhode Island, an industrial hygienist employed by the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"), measured Seaboard employees' exposure to silica dust in the "snagging and grinding room."  Samples obtained revealed that five employees were exposed to silica levels ranging from as much as three to fifteen times permissible limits, as provided in 29 C.F.R. 1910.1000, see note 1 infra.   Certain engineering controls which Seaboard had implemented in the room were not in operation or not being properly used on the day that the silica dust level measurements were made.  Also, the industrial hygienist and an OSHA compliance officer who accompanied him believed that there were additional feasible engineering controls.   Various employees were not wearing respirators, used worn and defective respirators, or used a type of respirator which was incapable of protecting against exposure to silica dust.  Accordingly, OSHA issued the serious citation alleging violations of 29 C.F.R. 1910.1000(c), 1910.1000(e), 1910.134(a)(2), 1910.134(b)(2), and 1910.134(b)(7). [[1]]

Seaboard contested the citation and a hearing was held.  At the hearing, Seaboard did not dispute that the five employees were exposed to excessive silica dust levels on the day the OSHA industrial hygienist took samples.  However, Seaboard presented evidence to show that the measured levels were not representative of typical exposure.  The evidence concerned problems with an employee's conduct and with the operation of certain engineering controls or devices for minimizing the amount of airborne silica dust.

In Seaboard's snagging and grinding room where the exposure to excessive levels was found, the employees were engaged in cleaning castings--removing sand which had fused with the castings when the molten iron was poured into the molds, which were made of sand.  Generally, the castings were first cleaned in "wheelabrators," large, box-like pieces of equipment in which sand was shaken from the castings.   Seaboard had two wheelabrators, one which tumbled castings around and another which instead rotated the castings while they were bombarded with steel shot.  After the castings had been cleaned in the wheelabrators, employees used chipping and grinding equipment to remove extraneous ridges or protrusions of iron from the castings and to remove a final, thin layer of the sand fused with the iron.  Small castings which could be lifted were placed on pedestal or stand grinders for this final cleaning.   Larger castings were cleaned with hand grinders or chippers in booths.  The largest castings were cleaned with these tools on the floor.

According to the OSHA industrial hygienist and compliance officer, the wheelabrators were the primary source of the excessive levels of silica dust detected on the day of sampling.  The hand grinding or chipping operations for the larger castings, Seaboard's practice of dry-sweeping, and the pedestal grinder operations on the smaller castings were all secondary or, as in the instance of the pedestal grinding, minor sources.

Seaboard had been aware for several years that there was a hazard of exposure to excessive silica dust in its snagging and grinding operations.  Accordingly, Seaboard had installed a ventilation system, consisting of two devices called "smoke eaters," in the ceiling near the hand grinding floor areas.  Also, the wheelabrators were equipped with internal ventilation systems to exhaust sand to bag houses outside the foundry, and wheelabrator operators were instructed to leave the wheelabrator doors shut for two or three minutes after the end of a cleaning cycle to permit the exhaust systems to exhaust the sand.  According to Seaboard's assistant manager, when this instruction was obeyed, there were no silica dust clouds like the ones observed by the OSHA industrial hygienist and compliance officer on the day of sampling.   Finally, Seaboard inspected and maintained the wheelabrators on a weekly schedule to minimize silica dust leakage through holes and cracks caused by heavy wear and tear.  Seaboard also replaced badly damaged parts, such as doors too badly warped to be straightened and used.

However, on the sampling day there were substantial deficiencies in Seaboard's precautions.  The wheelabrator operator was opening the wheelabrator doors too soon, contrary to Seaboard's instruction.  Seaboard had communicated the instruction to him but, for several months prior to the sampling day, the employee had been failing to obey this and other instructions because of preoccupation with personal problems.  Seaboard management employees knew of this and had talked several times to the employee about rectifying his conduct.  Finally, Seaboard disciplined the employee by laying him off, first for one day and then for two weeks.  The second lay-off occurred after the inspection, and the employee was not rehired as a wheelabrator operator when he returned to work.  There was no evidence as to when the first lay-off occurred.

Additionally, silica dust was leaking from one of the wheelabrators through a warped door.  Seaboard management employees did not know how long this condition had existed.  They only testified in general that delivery of a replacement door could take weeks or months.  A canvas barrier had been installed in front of the opening in this instance to keep steel shot from coming out and hitting employees.

Also, the smoke eaters were not working on the sampling day and Seaboard's assistant manager, who oversaw the snagging and grinding room operations, did not know how long they had been out of operation.  The smoke eaters were supposed to be repaired by an outside maintenance contractor, not Seaboard personnel.

According to Seaboard's assistant manager, the overexposure found on the sampling day was not typical because of the problems with the wheelabrators and the smoke eaters.   However, the company did not present any evidence showing what the silica dust levels were when the existing controls were operating properly.  Again according to the assistant manager, Seaboard never made any measurements.

In addition to properly maintaining and using the existing controls, the Secretary proposed that Seaboard use local ventilation involving exhaust vents in booths and tables, as well as portable tubes called "elephant trunks" which could be placed at the point where the hand grinders were being used on the largest castings.  The parties presented evidence bearing on the feasibility of these controls.   Their evidence concerned technological feasibility and some costs.  The evidence as to cost consisted mainly of very general estimates or guesses and there was no evidence about the costs of some controls and about indirect costs.  Also, there was no evidence relating to Seaboard's financial capacity to implement the proposed controls.

II
Judge Furcolo vacated the alleged violation of section 1910.1000(c) because he determined that, as Seaboard argued, the overexposure detected by OSHA was only "a temporary condition."  The judge determined that Seaboard had taken all reasonably necessary and appropriate steps against overexposure to silica dust.  However, the judge also determined that Seaboard's "equipment and ventilation system need repairs and maintenance to prevent leakage; and the work practices should have included a system of 'wetting down' before sweeping."  Therefore the judge affirmed the alleged violation of section 1910.1000(e), even though he also determined that the Secretary had not established the feasibility of the proposed additional local ventilation.  Finally, on the basis of evidence about noncompliance with the cited requirements for respirators, Judge Furcolo affirmed the alleged violations of sections 1910.134(a)(2), (b)(2), and (b)(7).

The Secretary filed a petition for review.  He argued that the judge was inconsistent in vacating the alleged violation of section 1910.1000(c) for overexposure to silica dust while affirming the alleged violations of sections 1910.1000(e) and 1910.134(a)(2), (b)(2), and (b)(7) requiring engineering controls and personal protective equipment for protection against overexposure.  The Secretary also argued that the judge erred in failing to find the additional ventilation feasible. Commissioner Cleary granted the Secretary's petition and stated the following issues:

1) Whether the Judge erred in vacating the alleged violation of 29 CFR 1910.1000(c)?

2) Having vacated the above item, whether the Judge erred in affirming violations of the standards at 29 CFR 1910.1000(e), 29 CFR 1910.134(a)[(2)], 134(b)(2), and 134(b)(7)?

3) Whether the Judge erred by failing to order respondent to implement certain abatement measures, and in his characterization of those measures as infeasible?

Seaboard argues on review that the judge's decision should be upheld because, among other things, the detected exposures were atypical and the additional engineering controls proposed by the Secretary were infeasible.[[2]]  The Secretary argues that, because the one-time exposures were excessive and Seaboard knew of the need for precautions and controls, there was a violation.  The Secretary maintains that Seaboard failed to establish any defense with its evidence relating to the possibility of atypical conditions. [[3]]

III
The first matter for consideration is whether the judge correctly determined that the one day of overexposure was a temporary condition.  Section 1910.1000(c) proscribes the exposure of employees to excessive levels of air contaminants such as silica dust "in any 8-hour work shift of a 40-hour work week."  See note 1 supra.   Therefore, as an element of his proof of a violation, the Secretary need only show overexposure on one day.  See Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1473 n.34, 1981 CCH OSHD 25,300, p. 31,346 n.34 (No. 13102, 1981); see also General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD 25,345 (No. 13732, 1981) (OSHA measurements on one day are probative of levels in the same operations performed on other days); cf. Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982 CCH OSHD 25,975 (No. 4678, 1982), on remand from 584 F.2d 127 (6th Cir. 1978) (where a serious characterization is in question, the employer may rebut the presumption which arises that one-time exposures are representative of typical exposures). Where, as in this case, the employer claims that the levels detected on the one day were unrepresentative of typical levels, it is the employer who must establish, as a matter of rebuttal to the Secretary's case, that the typical dust levels complied with the requirements of the standard.  To establish this, the employer must ordinarily present evidence consisting of measurements. See Anaconda Aluminum Co., 9 BNA OSHC at 1464-66, 1981 CCH OSHD at pp. 31,337-31,338.  Because Seaboard did not present this type of evidence in this case, Seaboard has not rebutted the Secretary's evidence of overexposure based on the one day's exposures.  We therefore conclude that the Secretary has established employee exposure to excessive levels of silica dust.

We turn now to the issues involving protection of the employees from the overexposure to the silica dust.  Because Seaboard has never disputed that it committed violations of the cited respirator standards, see note 1 supra, and the record supports the Secretary's allegations, we affirm those violations.  Also, because the record demonstrates and Seaboard has never disputed the feasibility of its existing control measures, we find that these controls were feasible. [[4]] The focus of the parties' arguments on review is the feasibility of the additional controls proposed by the Secretary--the local ventilation.  In view of an intervening change in law concerning proof of feasibility, see note 4 supra, we set aside the judge's decision insofar as it concerns the additional controls proposed by the Secretary and we remand this case for further proceedings regarding their feasibility.  See Harmony Blue Granite Co., OSHRC Docket No. 14189 (March 24, 1983). [[5]]

In addition to establishing the existence of noncomplying conditions, the Secretary must show that the employer knew or, with the exercise of reasonable diligence, could have known of the noncomplying conditions.  Delta Field Erection, Inc., 82 OSAHRC 10/A2, 10 BNA OSHC 1391, 1982 CCH OSHD 25,939 (No. 76-4153, 1982); General Electric Co., supra (majority and separate opinions)  In this case, the question is whether Seaboard knew or could have known of the one instance of overexposure and the problems with the existing controls and personal protective equipment.

When an employer knows that an air contaminant covered by section 1910.1000 is generated in the workplace, reasonable diligence requires the employer to make measurements to determine whether and how much the employees are overexposed.  See General Electric Co., supra; see also Mahone Grain Corp., 81 OSAHRC 108/B8, 10 BNA OSHC 1275, 1982 CCH OSHD 25,836 (No. 77-3041, 1981); GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1981 CCH OSHD 25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir. Sept. 30, 1981).  When an employer who knows of a problem with excessive amounts of a regulated air contaminant takes measures to reduce the overexposure, reasonable diligence also requires measurements to determine whether and how much the employees are still overexposed. See General Electric Co., supra.  The employer must also inspect and maintain the engineering controls.  See Union Boiler Co., 83 OSAHRC , 11 BNA OSHC 1241, 1983 CCH OSHD 26,453 (No. 79-232, 1983); Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD 24,495 (No. 76-5089, 1980). Where the employer relies on employee adherence to a workrule for the efficacy of engineering controls, the employer must adequately supervise the employees to assure that the workrule is properly implemented.  Cf. United States Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD 25,282 (No. 76-5007, 1981), and Ulysses Irrigation Pipe Co., OSHRC Docket No. 78-0799 (March 24, 1983) (an employer who implements a workrule to free the workplace of a recognized hazard must adequately implement the workrule).  The same is true with respect to reliance on respirators.

The record in this case reveals that Seaboard knew that its operations for cleaning sand off castings generated excessive levels of silica dust and as a consequence had instituted certain control measures to reduce the levels.  However, Seaboard admittedly never monitored to determine either the initial levels or the levels which resulted after the control measures were implemented.  Thus, Seaboard did not exercise reasonable diligence to learn how effective the controls were and how critical it might be to assure their continued efficacy.  The record further reveals that, on the day that the OSHA measurements were made, problems had developed with the smoke eaters and the wheelabrator operation, the company did not know how long the smoke eaters had been inoperable and how long the wheelabrator door had been warped, and the company had not disciplined the wheelabrator operator to enforce compliance with the workrule even though the company knew of the employee's continued misconduct.  The record also reveals obvious misuse or nonuse of respirators.  All of this evidences lack of reasonable diligence to prevent overexposure to silica dust and demonstrates that Seaboard could have known of the noncomplying conditions on the one day during the inspection.

The Secretary characterized the violations as serious.  Because the compliance level specified in section 1910.1000 for silica dust was set with the object of preventing the contraction of a life-threatening disease, these violations involving employee exposure to excessive levels are serious as alleged.  See Hermitage Concrete Pipe Co., 10 BNA OSHC at 1520, 1982 CCH OSHD at p. 32,575. The judge assessed a penalty of $100 for the four subitems which he affirmed.  Having considered the record relating to Seaboard's size, prior history, and good faith, and the evidence concerning the gravity of the four violations which we affirm in this decision, we assess a penalty of $100.

IV
In summary, we reverse the judge's decision and affirm the subitem alleging that Seaboard violated section 1910.1000(c).  We affirm the judge's decision affirming the subitems alleging violations of sections 1910.134(a)(2), (b)(2) and (b)(7) involving respirators.   We classify the violations as serious and assess $100 in penalty.  With respect to the subitem alleging a violation of section 1910.1000(e), we conclude that the engineering controls which Seaboard had implemented were feasible and we remand the case to the judge for further proceedings consistent with this opinion regarding the additional engineering controls consisting of local ventilation proposed by the Secretary.   Accordingly, we set aside that part of the judge's decision which holds that the additional controls were infeasible.  SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 27 1983


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FOOTNOTES:

[[1]] The occupational health standards in 29 C.F.R. 1910.1000 provide in pertinent part:

1910.1000 Air contaminants.
***

(c) Table Z-3:  An employee's exposure to any material listed in table Z-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.  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.

The standards in 29 C.F.R. 1910.134 provide, in pertinent part:

1910.134 Respiratory protection.
(a) General.
***

(2) Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee.  The employer shall provide the respirators which are applicable and suitable for the purpose intended.  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.
***

(b) Requirements for a minimal acceptable program.

***

(2) Respirators shall be selected on the basis of hazards to which the worker is exposed.
***

(7) Respirators used routinely shall be inspected during cleaning.  Worn or deteriorated parts shall be replaced.  Respirators for emergency use such as self-contained devices shall be thoroughly inspected at least once a month and after each use.

[[2]] Seaboard presents some argument in support of the judge's decision on all of the items, as affirmed and vacated, but also maintains that, if the Commission determines that the company is not responsible for the overexposure detected by OSHA on the ground that the one day's overexposure was atypical, then the respirator and engineering control violations should be vacated. Seaboard additionally argues that the local ventilation proposed by the Secretary was infeasible. 

Seaboard also contends that the Secretary's petition for review was insufficient in that it did not state proper bases for review. Seaboard argues that the petition did not urge that any material factual finding was unsupported, that the judge's decision was contrary to law or Commission precedent, that the case involves a substantial question of law or policy or that the judge abused his discretion, or that a prejudicial procedural error was committed. See 29 C.F.R. 2200.92(b).  However, the Commission has held that issues stated in a direction for review are properly before the Commission despite any possible noncompliance with requirements for a petition for review.   United States Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD 25,282 (No. 76-5007, 1981).  In addition, Seaboard does not allege that it suffered any prejudice from the claimed noncompliance. See Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1809-10 n.4, 1982 CCH OSHD 26,125, p. 32,878 n.4 (No. 77-2096, 1982).

[[3]] The Secretary also argues that he established the feasibility of the additional controls.

[[4]] Controls are feasible within the meaning of 29 C.F.R. 1910.1000(e) if they are technologically and economically achievable or capable of being done.  Harmony Blue Granite Co., OSHRC Docket No. 14189 (March 24, 1983), relying on Sun Ship Inc., 82 OSAHRC , 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3rd Cir. Feb. 14, 1983), which overruled the cost-benefit test of feasibility stated in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir., April 26, 1977).  Moreover, controls which are capable of achieving a significant reduction in air contaminant levels will be considered technologically feasible, even if they are or may prove to be incapable of achieving permissible levels.  Harmony Blue Granite Co., supra; Sun Ship, Inc. supra; GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1981 CCH OSHD 25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir. Sept. 30, 1981).

On review, Seaboard argues in support of the judge's decision to order repairs to the existing ventilation system.  Also, by arguing throughout the case that the OSHA measurements were atypical, Seaboard has maintained that the levels on the one day were excessive only because of temporary deficiencies in the existing controls.   This is tantamount to an admission that the existing controls were at least capable of achieving a significant reduction in the silica dust levels.  And the record indicates that this was the case.  The primary source of excessive silica dust was the wheelabrators and, although there were problems with the wheelabrators on the day of the OSHA measurements, the silica dust clouds were significantly reduced or eliminated when the wheelabrators were operated properly.  Because these controls were also clearly technologically capable of being implemented and economically achievable, their feasibility has been established.

[[5]] We emphasize that Seaboard is required to determine and implement feasible controls of any type and in whatever combination is necessary to achieve compliance levels.  See Kelly Springfield Tire Co., 82 OSAHRC 47/B6, 10 BNA OSHC 1970, 1975 n.5, 1982 CCH OSHD 26,223, p. 33,114 n.5 (No. 78-4555, 1982), appeal filed, No. 82-4389 (5th Cir. Oct. 6, 1982).  If the existing controls are actually capable of achieving compliance, then it will be unnecessary to try the feasibility of the proposed additional controls.