SECRETARY OF LABOR,
Complainant,

v.

CF&I STEEL CORPORATION,
Respondent.

UNITED STEEL WORKERS OF AMERICA,
AFL-CIO, LOCAL 2102,

Authorized Employee
Representative
.
OSHRC Docket No. 79-4786

DECISION

BEFORE: BUCKLEY, Chairman; RADER AND WALL, Commissioners.
BY THE COMMISSION:

This case if before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

CF&I Steel Corporation ("CF&I") operates a steel plant near Pueblo, Colorado. At this plant, CF&I also operated a coke oven facility to produce coke for use in its steelmaking. Following an inspection of its coke oven facility, several citations were issued to CF&I that alleged violations of the coke oven emissions standard. CF&I contested these citations and the case was assigned to former Administrative Law Judge Quentin P. McColgin, Jr. After a hearing on the merits, the judge affirmed some citations and affirmed some in part. CF&I and the authorized employee representative, the United Steelworkers of America, AFL-CIO, Local 2102 ("the Union") obtained review of the judge's decision.[[1]]

Background

1. CF&I's Coking Operation

CF&I produced coke in three adjoining batteries: Battery B, containing 65 ovens, was located at the south end of the configuration; Battery C, containing 47 ovens, was in the middle; and, Battery D, containing 31 ovens, was on the north end. Each oven contained in the batteries was approximately 2 feet wide, 20 feet high and 120 feet long. Pinion walls, made of masonry, were located at the ends of each battery. These pinion walls extended vertically from ground level and served as structural supports for the series of ovens contained within each battery. The pinion walls ranged in width from three to six feet thick. Intermediate pinion walls were located between B and C and between C and D. The outer pinion walls were at the ends of batteries B and D. There were coal bins or bunkers adjacent to and beyond the outer pinion walls on the north and south ends of the batteries. Door repair shops were also located beyond the outer walls, below the coal bins on what is known as the "bench level" of the battery.

The coking cycle begins with the introduction of coal into the coke oven. This procedure, called charging, is carried out by a larry car which operates on rails that run the length of the top or "topside" of the battery. The larry car receives coal from one of the coal bins or bunkers located south of the outer pinion wall on Battery B and north of the pinion wall on Battery D. The larry car then moves along topside to the oven to be charged, the lids on the tops of ovens are removed, and the coal is dropped into the oven.

After the lids are replaced, the coal is heated for 16 to 20 hours at approximately 1100 C (2000 F). When the coal is coked, it is then ready to be pushed from the oven. Doors on both sides of the oven, the "push side" and the "coke side," are removed. A "pusher machine" then travels along tracks on the "push side" of the battery and uses a mechanical ram to push the coke into the quench car, located on the tracks on the "coke side" of the oven.

The coke is then removed from the battery area, cooled, and transferred to the coke wharf. It then is stored for use in steelmaking. After the push, the oven doors on both sides of the battery are inspected to determine whether their emission-limiting seals have been damaged during the coking. Damaged doors are returned to one of the door repair shops located below the coal bunkers at bench level.

2. OSHA's Coke Oven Emissions Standard

The coke oven emissions standard was adopted by OSHA after extensive rulemaking proceedings. It was published on October 22, 1976, and became effective on January 20, 1977. 41 Fed. Reg. 46,742-90 (1976). The standard that finally was adopted was published with an extensive preamble. The standard that finally was adopted was published with an extensive preamble. The preamble explained the standard, discussed how it differed from the standard originally proposed, and summarized the comments received during the notice-and-comment rulemaking proceedings.

The final standard requires employers to establish engineering controls and work practices to reduce employees' exposure to coke oven emissions to 150 micrograms per cubic meter (150 ug/m3) averaged over any eight-hour period. This 150 ug/m3 permissible exposure limit (PEL) may not be exceeded in specific "regulated areas" on and near the battery. Although other standards regulating toxic and hazardous substances in substances in Subpart Z of 29 C.F.R. Part 1910 use the term "regulated area," the coke oven emissions standard is unique in its definition of the term. It identifies specific work areas on the coke oven battery as regulated areas. In contrast, other standards in Subpart Z define a "regulated area" as one where the substance being regulated is "manufactured, processed, used, repackaged, released, handled or stored," e.g., 29 C.F.R. § 1910.1003-1910.1016, or where employee exposure to the substance in question exceeds the PEL for that substance. E.g., 29 C.F.R. § 1910.1018, 1910.1044, 1910.1045, 1910.1047. This decision not to define a "regulated area" on the basis of ambient coke oven emission levels was deliberate.[[2]]

The coke oven emissions standard also provides that if the prescribed engineering and work controls do not reduce emission levels in the regulated area to the PEL, employers must supply employees with respirators. The preamble to the coke oven emissions standard states that the fit of respirators is to be tested qualitatively and quantitatively. 41 Fed. Reg. 46,773-74. Respirator fit testing was discussed extensively by the parties in this case. The record shows that a qualitative fit test is subjective in that leakage is detected by the wearer of the respirator. A quantitative fit test is more precise in that leakage is measured by an instrument that compares the contaminant level inside and outside the respirator face piece. The preamble confuses these tests and describes qualitative testing as quantitative testing. 41 Fed. Reg. 46,774.

The validity of the coke oven emissions standard was challenged in the United States Court of Appeals for the Third Circuit by several members of the coke-producing industry, including CF&I. The Third Circuit generally upheld the validity of the standard; however, the provision of the standard that required annual "quantitative testing" of respirators which bears our resolution of one citation here, was invalidated by the court. American Iron and Steel Institute v. OSHA, 577 F.2d 825, 838-9 (3d Cir. 1978) ("AISI"). OSHA subsequently amended the standard to delete the quantitative fit test requirement. 50 Fed. Reg. 37,352-54 (1985).

3. Enforcement of the standard at CF&I's plant

During review of the standard, the Third Circuit lifted a temporary stay of enforcement of the standard. During May and July of 1977, OSHA inspected CF&I's coking operation. As a result of the inspection, CF&I was cited for several violations of the coke emissions standard. The parties entered into a settlement agreement that resolved all disputed issues. The settlement was approved by the Commission and became a final order on June 14, 1979.

On August 1, 1979, after the abatement date agreed upon in the settlement had passed, OSHA conducted a follow-up inspection to determine if the previously cited conditions had been abated. As a result of inspection, OSHA issued the citations now before us.

Citation 1: 29 C.F.R. § 1910.1029(d)(2)(i), "Battery Ends"

The citation alleges that CF&I violated section 1910.1029(d)(2)(i) by failing to establish certain areas and machinery of the coke plant as "regulated areas." These were the topside north and south coal bin areas, the bench level north and south door repair facility, and nos. 1-3 push cars and larry cars. Section 1910.1029(d)(2)(i) provides:

(d) Regulated areas.

(2) The employer shall establish the following as regulated areas:

(i) The coke oven battery including topside and its machinery, pushside and its machinery, coke side and its machinery, and the battery ends; the wharf; and the screening station;

(Emphasis added.)

There is no dispute that CF&I did not establish the north and south coal bin areas and the north and south door repair facilities as regulated areas. As already noted, these cited areas were beyond the outermost pinion walls. There also is no dispute that the larry cars and push cars were not designated as regulated areas when located beyond the pinion walls. The parties do dispute, however, whether the cited work areas and machinery are part of the "battery ends" and, thus, part of the regulated area. As we have already noted, if an area or machinery is designated as a "regulated area," employees in the area may not be exposed to coke oven emissions in excess of the 150 ug/m3 PEL, and the employer must take other protective measures, including medical surveillance and provision of protective equipment.[[3]]

1. Facts

Compliance officer Gerald Ryan conducted the initial inspection as well as the follow-up inspection that resulted in the present citations. Based on conversations with CF&I's management and his review of CF&I's records, Ryan determined that CF&I "no longer" considered the cited areas to be regulated areas. It appears that when the initial inspection was conducted, the cited areas were designated as regulated areas by CF&I. Compliance officer Ryan thought that CF&I had misinterpreted OSHA's "respirator break" policy, described in OSHA Instruction STD 1-4.3, and that as a result, it had deregulated areas on the battery where emissions sampling showed that the PEL was not exceeded.[[4]] These deregulated areas were described by CF&I as "respirator break areas." In Ryan's view, respirator break areas were still part of the regulated area.

John Winkley, CF&I's Manager of Air and Water Quality Control, and James Oliver, assistant superintendent of the Coke Plant, testified that the steelmaking industry considered the "battery end" to be the pinion wall. Winkley stated: "[t]o my knowledge, the ends of the batteries are defined by location of the pinion walls at the end of the series of [coke] ovens." His definition was based on his engineering experience and conversations "with other coke plant operating personnel." According to Oliver, "[t]he end of the battery is customarily defined as being...the pinion walls, the extremity of the pinion wall." Oliver's definition was apparently based on observation of numerous batteries.

Winkley and Oliver also testified that the coal bin and the door repair facility were not included in the regulated area because they were "beyond the ends of the battery." According to assistant superintendent Oliver, these areas were also designated as "respirator break areas" because sampling in these areas showed that emissions were "consistently" below the PEL. CF&I required employees in the cited "respirator break areas" to wear protective clothing. Respirators were to be worn only in the presence of visible emissions. The consumption of food and drinks was prohibited in these but smoking was allowed.

The parties did not focus very closely on whether CF&I was required to designate the cited push cars and larry cars as regulated areas. The compliance officer testified that this machinery should have been designated as regulated areas when located beyond the pinion walls because it was contaminated with coke oven emissions when present on the battery. Assistant superintendent Oliver stated that when the cited cars were not in use or were being repaired, they were beyond the pinion walls and therefore not considered part of the regulated area. He stated that when these cars were within the battery walls they were considered part of the regulated area.

2. The judge's decision

The judge concluded that CF&I had violated the standard by failing to designate the cited locations and machinery as regulated areas. Although the judge found that "[t]he battery end is considered throughout the industry to be the pinion wall," he concluded that the Secretary did not use the term in the sense understood by industry and therefore that facilities and machinery located beyond the pinion walls must be considered part of the regulated area.

Based on an aerial photo of the coke plant, the judge reasoned that "anyone, except possibly a member of the coke oven industry" would consider CF&I's series of coke batteries as a "single structure." Because of the proximity of the cited areas to the coke ovens, he concluded that these areas should be considered part of the "battery ends" and therefore a regulated area.

Citing the preamble to the standard, the judge further found that "[i]t [was] the express intention of the promulgators of the standard to include within the regulated areas, all work areas wherein the permissible exposure limit to coke oven emissions could be exceeded." Although he found no evidence of sampling results taken at the door repair facilities and coal bins, the judge did find that samples taken in the immediate vicinity of these areas approached or exceeded the PEL. See note 5, infra. He concluded that the PEL "could" have been exceeded in these locales and, thus, that they should have been designated as regulated areas. He also found that a statement in the preamble--that "[t]he larry car receives a load of coal bunker at the end of the battery"--provided "[m]ajor support" for concluding that, in using the term "battery ends," OSHA intended to include facilities beyond the pinion walls, such as coal bunkers, as part of the regulated area.

The judge rejected CF&I's argument that the larry cars and push cars should not be considered part of the regulated areas when positioned beyond the pinion walls. According to the judge, this machinery could be contaminated by coke oven emissions even when moved beyond the pinion walls. Without explanation, he concluded that there was "need for some, but not necessarily all, the protective requirements that come into play by designating the machines as regulated areas."

3. The parties' arguments

CF&I argues that the judge's broad interpretation of the term "battery ends" is contrary to the industry's definition of the term and violates the rule of construction that the words of a regulation should be given their "commonly understood" meaning. In this regard, CF&I points out that the judge explicitly found that "[t]he battery end is considered throughout the industry to be the pinion wall."

According to CF&I, the other reasons advanced by the judge for broadly interpreting the term "battery ends" are unfounded. CF&I first argues that the judge's finding that the battery "looks" like a single structure represents a layman's view of the structure that disregards industry's view. It next contends that, contrary to the judge's findings, the preamble does not provide support for a broad interpretation of the term "battery ends." CF&I concedes that the preamble does state that "coal bunkers" are located at the "end of the battery" but argues that this statement was taken out of context by the judge and that it merely reflected a very general statement used in discussing the choking process and not a definition of the term "battery end."

CF&I next contends that section 1910.1029(d)(2) specifically enumerates the areas that must be regulated under the standard. It asserts that the judge misread the standard by finding that a regulated area exists wherever the PEL could be exceeded. CF&I asserts that this approach to designating a regulated area was not followed in the final standard and cites the language from the preamble in support. In any event, CF&I contends that the record contains sampling results from both door repair facilities and that these results were both below the PEL>

The union argues that the pinion walls are not the "battery ends." It asserts that "if the Secretary had intended the regulated area to be defined by the pinion wall[,] that is what the regulation would have said since that is the term used by the industry." In the union's view, "battery ends" refers to the area and structures attached to the pinion walls that contain the cited coal bins and door repair areas. The union points out that the pinion walls are three to six feet thick and that they are not work areas.

Relying on the preamble, the union further asserts that OSHA excluded areas on and near the battery from the regulated area coverage only where there was no epidemiological evidence of excess health risk. It contends that the preamble and standard require that certain job classifications must be monitored quarterly because they are associated with excess health risks. Since certain of the employees in these positions--such as coke oven patchers, repairmen, and maintenance personnel--work on the batteries as well as in cited areas beyond the pinion walls, it submits the cited areas should also be considered part of the regulated area. The union also argues that evidence showing that the PEL could be exceeded in the disputed areas demonstrates the need for establishing these areas as regulated.

Finally, the union contends that even if the Commission narrowly construes "battery ends" as pinion walls and concludes that the door repair facilities and coal bunkers were not regulated areas, the citation must be affirmed as to the cited larry cars and push cars because the standard requires "topside and its machinery [and] pushside and its machinery" to be established as regulated areas without reference to the "battery ends."

Although the Secretary concedes that the term "battery ends" has no plain meaning and is undefined by the standard, he submits that language contained in the preamble to the coke oven standard demonstrates that it was OSHA's "clear intention" to include facilities and machinery located beyond the pinion wall within the regulated area. Like the union, the Secretary contends that the preamble's statement that "[t]he larry car receives a load of coal from the coal bunker at the end of the battery" (emphasis supplied by the Secretary) demonstrates the intent to include areas such as the coal bunkers within the regulated areas. He further asserts the preamble and the standard's definition of regulated area show that OSHA intended to include large areas on and near the battery in the regulated area and not a three-to six-foot wide wall. According to the Secretary, a broad interpretation of battery ends also is appropriate because CF&I's sampling results show that coke oven emissions "can and do exceed the [PEL] in areas beyond the pinion walls." He points out that CF&I recognized that the disputed areas and machinery were part of the regulated area because, prior to the issuance of OSHA Instruction Std. 1-4.3 (see note 4, supra) and when the initial inspection of its facility was conducted, CF&I had designated these areas as regulated areas. Finally the Secretary argues that his construction of the standard should be controlling because it is reasonable.

4. Discussion

To determine whether CF&I violated the standard by failing to establish the door repair and coal hin areas as "regulated areas," we must determine whether they were part of the "battery ends." In construing the standard, we are mindful of several principles. We must look first to the language of the standard. See Bunge Corp., 86 OSAHRC _/_, 12 BNA OSHC 1785, 1789, 1986 CCH OSHD ¶ 27,565, p. 35,804 (No. 77-1622, 1986), and cases cited. Second, although legislative history and other extrinsic aids to interpretation may be used to determine the intent of the drafter, standards should be construed in a way that does not deprive employers of fair of the requirements of the law. See id., 12 BNA OSHC at 1790-91, 1986 CCH OSHD at p. 35,806, and cases cited. See also Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir.1977); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976); Lisbon Contractors, Inc., 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1973-74, 1984 CCH OSHD ¶ 26,924, p. 34,500 (No. 80-97, 1984). We find that the language of the standard and its legislative history shed no light on the question before us, and that the construction of the standard for which the Secretary argues would deprive employers of the fair notice of their obligations that due process of law requires. We therefore construe the term in the manner that this record shows it is understood by the coke oven industry.

The standard does not define the term "battery ends." Moreover, as the Secretary observes, the term has no plain meaning. Yet, the judge found, and neither the Secretary nor the union disputes, that "[t]he 'battery end' is considered throughout the industry to be the pinion wall." The judge and the parties have, however, looked to other sources as interpretive aids.

A.

Relying on the preamble to the standard, the union and the Secretary argue, and the judge found, that OSHA intended to establish regulated areas wherever the PEL for coke oven emissions was exceeded. Because of the proximity of the cited areas to the coke ovens and because CF&I's monitoring data purportedly showed that the PEL "could be exceeded" in the cited areas, the judge determined that the cited areas should be considered regulated areas.

This argument is directly contrary to the legislative history of the standard. The portion of the preamble relied on by the Secretary, the union, and the judge states:

Both the proposed standard and the Advisory Committee report also established "any coke plant area where the [PEL] is exceeded as an RA [regulated area] (Ex. 1a, p. 322278; 3, p. 15). The final standard does not follow that approach. The permissible exposure limit of this standard only applies in the RA. (See discussion Permissible Exposure Limit). Any area where the permissible exposure limit could be exceeded, would, by definition already be a part of the RA. Areas of the coke plant outside of the RA are covered by the existing CTPV standard. (See discussion of Scope and Application).

41 Fed. Reg. at 46,757 (emphasis supplied). As can be seen from this except, regulated areas under the final standard were to be established by work areas and not by whether the PEL is or "could be" exceeded. Although the approach followed by the judge and urged by the Secretary and the union is consistent with the proposed standard and with other OSHA health standards, it is clearly inconsistent with the coke oven emissions standard as finally adopted. See note 2, supra. Finding the preamble very clear on this point, we must reject this basis for concluding that the cited areas are encompassed by the term "battery ends."[[5]]

We also do not find that the preamble's isolated statement that coal bunkers are "at the end of the battery," provides "[m]ajor support" for concluding that, in using the term "battery end," the Secretary intended to regulate facilities beyond the pinion walls. This statement is contained in a general description of a typical coking operation and clearly is not definitional. It is the only instance of such usage in the 43-page, triple-columned preamble to this standard. We decline to wring an inference of intent from such an offhand and isolated statement.

OSHA Instruction STD 1-4.3, a policy directive on respirator programs for coke oven batteries, see note 4, supra, also fails on this record to convincingly show an intent by the drafters to encompass areas beyond outer pinion walls within the "battery ends." This directive discusses at length when "respirator break areas" may be established in a regulated area. In discussion that subject, it also states that:

Battery ends include, but are not limited to, the coal loading area between batteries on topside and bench level (and not just pinion wall to pinion wall). In general, all parts of the battery above ground level are within the regulated area.

(Emphasis added.) This brief passage cannot be said on this record to be controlling. First, the record here contains no evidence that OSHA Instruction STD 1-4.3 reflects the intent of the drafters of the coke emissions standard. The instruction was issued over three years after standard was published. Neither the instruction nor the record shows, and the Secretary's brief does not represent, that the drafters of the instruction were also the drafters of the standard or that they consulted with the standard's drafters. Like the respirator break-area policy it established (see note 4, supra), the instruction's discussion of the term "battery ends" was only a brief digression from the rest of the instruction, and could well have been only an afterthought by enforcement personnel. Second, the instruction does not address the situation posed by the facts of this case. Although the instruction states that battery ends include coal loading areas outside pinion walls, the battery ends being discussed are those between batteries, a configuration that is far different than that existing at CF&I's plant. At best, this view would mean that coal loading areas between operating cokes ovens would be regulated. It provides no support, however, for an argument that the term "battery ends" encompasses exterior coal loading areas beyond the outer pinion walls. Indeed, the very fact that the instruction stated that interior coal loading areas were within the battery ends, but did not say the same bout exterior coal loading areas, would tend to indicate that the author of the instruction understood that the standard did not encompass exterior coal loading areas.

We also decline to ascribe significance to the interpretation of the standard proffered in the brief submitted by the Secretary. This standard is one of the few standards that was drafted by OSHA.[[6]] Inasmuch as the intent of OSHA in drafting the standard must be considered along with considerations of fair notice in construing the standard, we cannot ignore the construction placed on a standard by those in OSHA who drafted it. Such a construction would obviously have considerable probative value in determining the effect of the standard. However, the brief does not represent that it was written or reviewed by lawyers who consulted with the drafters of the standard or participated in the drafting of the standard. See New England Telephone & Telegraph Co. v. Public Utilities Commission, 742 F.2d 1, 11 (1st Cir. 1984) (on rehearing) ("[The FCC's] 'views' here do not reflect agency policy after debated among staff or commissioners. Rather, as far as we can tell, they simply represent the General Counsel's interpretation of the statute; they are contained only in his brief."). Cf. Investment Company Institute v. Camp, 401 U.S. 617, 626-28 (1971) (counsel's efforts in litigation are "hardly tantamount to an administrative interoperation" of a statute).

Finally, we cannot agree with the judge's view that the cited areas are part of the battery ends because the coke oven facility--extending from the north door repair and coal bin area to the south door repair and coal bin areas-- "looks like a single structure." Acknowledging that he was adopting the "single structure" interpretation advanced by the Secretary and the union, the judge found that "[a]nyone, except possibly a member of the coke oven industry...would likely view such facilities as one structure...." As CF&I points out, however, the judge's interpretation is based on a layman's view of its facility. Neither the judge's observation as to the physical continuity of the facility nor his resultant interpretation of the term "battery" ends reflects industry's understanding or usage of this term, but instead employs an untutored observation to supplant the meaning of a term that is well-understood by individuals who are intimately familiar with coking operations and who, ultimately, are responsible for complying with the standard. Given the unrebutted evidence that industry considered the battery ends to be the pinion walls, we cannot adopt an interpretation that is based solely on the appearance of a coke oven to untutored eye.

B.

We shall therefore apply the usual canons of construction here. Two well-settled rules of interpretation guide our decision. The first rule is that a word that is a term of art in a particular discipline should be construed accordingly where the statute or regulation being construed applies to the particular discipline. Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231 (1974). See United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976), and cases cited therein. See also 2A C. Sands ed., Sutherland on Statutory Construction § 45.08 at 23, 47.7 at 137, 47.29 at 150 (1973). The second rule is that which we have noted above--that standards ought not be construed in a manner that deprives employers of fair notice of the requirements of the law.

The record here amply demonstrates that the only individuals who readily understood the term "battery ends" were coke producers. They considered the "battery ends" to be the pinion walls. The Secretary and the union argue that the coke producers' reading of these terms yields an incongruous result because employers would then be required to designate a three-to-six-foot wide wall as a regulated area. However, given the rather formidable evidence of industry's understanding of this term and OSHA's failure to inform employers that it intended this term to be applied in a different sense, it is inappropriate to construe "battery ends" in a sense that differs from industry's understanding of the term. As already stated, employers are entitled to fair notice of their responsibilities under the Act. Standards cannot be construed to mean what an agency intended but did not adequately express. Diamon Roofing, 528 F.2d at 649. "The test is not what [the Secretary] might possibility have intended but what he said." Bethehem Steel, 573 F.2d at 161. As Justice Frankfurter observed with regard to the interpretation of statutes:
Even when it has spoken, it is as true of Congress as of others that what is said is what the listener hears.

Some Reflections of the Reading of Statutes, 47 Colum.L.Rev. 527 (1947). Here, the record shows that when OSHA said "battery ends," the employer heard "pinion walls" because its industry considers these terms synonymous and because OSHA gave the industry no notice in the standard that the term was not used in the sense it understood.

The Secretary asserts that CF&I heard and understood precisely what he claims OSHA intended by "battery ends" because the record also shows that the cited areas and equipment had at one time been designated as regulated areas. It appears that when CF&I was first inspected by OSHA in 1977, the cited areas and equipment were designated as regulated areas; however, following this inspection, CF&I departed from this policy. The assistant superintendent of the coke plant, Oliver, testified that some time after the standard was promulgated, on a date that he could not recall, a determination was made that the cited areas were not part of the regulated area. This evidence, it is submitted to us, demonstrates that the employer understood precisely what the standard required.

An employer who is actually aware of a standard's requirements may not claim that the standard fails to provide adequate notice of its requirements. See Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). We do not, however, find that evidence that the cited areas were once designated as regulated areas is sufficient to overcome CF&I's and the coke oven industry's contrary interpretation in this case.

Accordingly we find that the standard does not require areas beyond the outermost pinion walls to be designated as regulated areas, and we reverse the judge's finding of violation.

We next consider whether CF&I violated the standard by failing to designate the push cars and larry cars as designated areas. Neither the parties nor the judge focused closely on this aspect of the citation. The record shows that CF&I considered these cars part of the regulated areas when they were between the pinion walls. They were not designated as regulated areas when they were positioned beyond the pinion walls, in the vicinity of the door repair and coal bin areas. The judge found that CF&I violated the standard by failing to regulate these cars because they "could be expected to be contaminated with coke oven emissions even when they have moved beyond the pinion walls...." Without elaborating, he noted, "there is need for some, but not necessarily all, the protective requirements that come into play by designating the machines as regulated areas."

We reject the judge's adoption of an intermediate position--declaring that some but not all of the protections applicable to regulated areas shall apply when machinery is beyond the outer pinion walls. The Commission cannot construe this standard to require less or more than the protections imposed by its words without substituting its view of occupational health policy for that of the Secretary. See generally Lisbon Contractors, 11 BNA OSHC at 1973, 1984 CCH OSHD at p. 34,500. The question is instead controlled by the language of the standard and the standard's definition of "coke oven battery."

In describing the machinery that is to be included in the "regulated area," the standard refers to "[t]he coke oven battery including topside and its machinery, push side and its machinery, coke side and its machinery...." Although the standard thus refers to coke oven machinery such as the larry cars and push cars, it does so in connection with the topside, the pushside and the coke side. The standard does not state that the larry cars and push cars are themselves "regulated areas" when they are no longer in the coke oven battery--defined by section 1910.1029(b) as "a structure containing...slot-type coke ovens"--or the battery ends. We therefore find that the judge erred in concluding that the standard required this machinery to be regulated when positioned beyond the pinion walls.

Here the record shows that CF&I treated the machinery as part of the regulated area when it was positioned between the outer pinion walls on the three batteries operated at its facility, Batteries B, C, and D. This is all that the terms of the standard require. Accordingly, we vacate the portion of the citation alleging that CF&I violated this standard by failing to designate this machinery as regulated areas.

Citation 2: Sections 1910.1029(g)(3) and 1910.134(e)(5), Respiratory Program.

CF&I was also cited for a violation for 29 C.F.R. § 1910.1029(g)(3), which incorporates by reference 29 C.F.R. § 1910.134.[[7]] The citation alleges that:

The employer did not institute a respiratory protection program in accordance with 1910.134 of this part, in that: have their respirator fitted properly and test its face-piece-to-face seal:

a) 28 coke oven employees working in the regulated area exposed to coke oven emissions failed their respirator fit test and were not provided with a different respirator which would fit.

The specific provision of the respirator standard that allegedly was violated is section 1910.134(e)(5), which states:

§ 1910.134 Respiratory protection.

(e) Use of respirators.

(5)For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

Compliance officer Ryan testified that before they were assigned to the regulated areas, CF&I employees were given a respirator, told when to use it, and shown how to perform a positive-negative pressure test.[[8]] They were also shown a film illustrating the various types of respirators, their use and proper function, use of a banana oil (isoamyl acetate) atmosphere for fitting, and how to place and fasten a respirator properly, including tightening for good fit. Ryan testified that CF&I also gave the employees a banana oil test. Ryan stated that at the settlement conference that followed his 1977 inspection, he told CF&I that respirators should be fitted in banana oil or irritate smoke. He testified that the training film shown to newly hired CF&I employees stated that if an employee detected the presence of banana oil, a new respirator would be supplied. During the inspection, Ryan learned that this was not being done. He stated that CF&I's plant superintendent and safety director told him that employees who detected banana oil while wearing their respirators in the test atmosphere[[9]] were nevertheless sent to work in the regulated area without being fitted with a different respirator. According to Ryan, CF&I's management told him that this practice was followed throughout the coke oven industry. Ryan also stated that records supplied to OSHA by CF&I's industrial hygiene staff showed that prior to the inspection, twenty-eight employees, who worked in the regulated area, smelled banana oil while wearing respirators in a test atmosphere but were not supplied with different respirators.

In his brief, the Secretary argues that section 1910.134(e)(5), as incorporated by section 1910.1029(g)(3), requires the employer to assure that the respirators worn by its employees are "fitted properly." He maintains that a qualitative fit test conducted conducted in a test atmosphere of irritant smoke or banana oil is required. If the employee fails the test because he can detect the substance surrounding the respirator, the Secretary states that the employer must then provide the employee with a properly fitting respirator or remove him from the workplace. The union agrees with this argument.

CF&I contends that neither a banana oil or irritant smoke test is mandatory under section 1910.134(e)(5). In its view it complied with the standard by providing a positive-negative pressure test to employees at the outset of their employment.

The judge found that CF&I willfully violated section 1910.1029(g)(3) by failing to provide respirators with a different size facepiece to employees who failed the banana oil test. The judge rejected CF&I's argument that administration of a positive-negative pressure test complies with section 1910.134(e)(5) since this test is not done in a test atmosphere as required by the standard. He also reasoned that by failing to replace the respirators of those employees who failed the banana oil test, CF&I had failed to comply with the "fitted properly" requirement of section 1910.134(e)(5).

The gravamen of the alleged violation is CF&I's failure to assure that employees in the regulated area were equipped with respirators that fit, which the Secretary asserts must be determined through use of a test atmosphere. The Secretary cites section 1910.1029(g)(3), which is part of the "Respiratory protection" section of the coke oven emissions standard. However, section 1910.1029(g)(4)(i), which is also a part of the general "Respiratory protection" section specifically covers the fit of respirators. It provides that "the section specifically covers the fit of respirators. It provides that "the employer shall assure that the respirator issued to the employee exhibits minimum facepiece leakage and that the respirator is fitted properly." In our opinion, section 1910.1029(g)(4)(i) is specifically applicable to the cited condition and should have been cited by the Secretary instead of section 1910.1029(g)(3).

We read section 1910.1029(g)(3) as a training standard; it does not require the employer to assure proper fit of an employee's respirator. Section 1910.1029(g)(3) requires the employer to establish a respiratory protection program in compliance with section 1910.134. Section 1910.134(b), entitled "Requirements for a minimal acceptable program," states that the user shall be "instructed and trained in the proper use of respirators and their limitations." (Emphasis added.) At no place does section 1910.134(b) state that the employer must assure proper fit of respirators. The Secretary nevertheless refers to language in section 1910.134(e)(5) concerning proper fit and a test atmosphere in support of his argument that section 1910.1029(g)(3) requires the employer to assure proper respirator fit. We do not agree. Section 1910.134(e)(5) requires instruction to users in the selection, use , and maintenance of respirators. It then states that training shall provide the employees "an opportunity," to among other things, "handle the respirator, have it fitted properly, test its face-piece-to-face seal,...[and] wear it in a test atmosphere." We interpret section 1910.134(e)(5) as requiring the employer to instruct employees during training in such things as how to select a respirator, how to put on a respirator, how to achieve a proper fit and how to obtain a face-piece seal. The employees must also be given hands-on-experience with the respirator and the opportunity to wear it, including the chance to wear the respirator in a test atmosphere, during training. However, section 1910.134(e)(5) does not, as the Secretary asserts, require that the employer assure proper fit of the respirator or specify how this is to be done. As we noted previously, section 1910.1029(g)(4)(i) covers this safety requirement.[[10]]

It is well established principle of statutory construction that a statute or regulation must be read as a whole and that all parts of a statute or regulation must be read as a while and that all parts of a statute, if at all possible, are to be given effect. See Simplex Time Recorder Co., 85 OSAHRC_/_, 12 BNA OSHC 1591, 1594 n.6, 1986 CCH OSHD ¶ 27,456, p. 35,569 n.6 (No. 82-12, 1985); Northwest Airlines, Inc., 80 OSAHRC 87/B5, 8 BNA OSHC 1982, 1989, 1980 CCH OSHD ¶ 24,750, p. 30,487 (No. 13649, 1980). Here the Secretary's own standards make a distinction between training in respirator use and assurance of proper fit: Section 1910.1029(g)(3) requires the establishment of a respirator protection program while section 1910.1029(g)(4)(i) requires respirators to be fitted properly. It would therefore be anomalous to equate training with proper respirator fit. See United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD ¶ 21,795, p. 26,225 (Nos. 10825 & 10849, 1977). Indeed to interpret section 1910.1029(g)(3) as requiring the employer to assure proper respirator fit would read out of the standard any meaning to 1910.1029(g)(4)(i).

Moreover, the source standard from which section 1910.134 was derived makes clear that use of a test atmosphere to determine respirator fir is not mandatory. In this case, the source standard is ANSI Z88.2- 1969. Like section 1910.134(e)(5), the ANSI source standard requires the use of a test atmosphere for the training of employees. ANSI Z88.2-1969, § 7.4. However, the ANSI source standard does not state the employer must assure proper respirator fit during training; it also makes clear that a test atmosphere is not mandatory for the determining facepiece fit.[[11]] The ANSI provision states that "[p]otential users of respirators should also be required to test their facepiece fit by wearing the respirator under realistic test conditions." (Emphasis added.) ANSI Z88.2-1969, § 7.5. Like most ANSI standards, ANSI Z88.2-1969 contains a provision explaining the significance of the words "shall" and "should." Section 1.3 states:

1.3 "Shall" and "Should". The provisions of this standard are mandatory in nature where the word "shall" is used and advisory in nature where the word "should" is used.

Since the ANSI source standard does not require the use of a test atmosphere to determine respirator fit, we do not interpret the OSHA standard to require use of a test atmosphere to determine respirator fit.[[12]]

In the instant case, CF&I raised the applicability of section 1910.1029(g)(4)(i), and the compliance officer acknowledged that it applied. He also acknowledged that he might have cited the wrong standard.[[13]] The Secretary,

however, did not move to amend, see note 15, infra, and continues to allege a violation of section 1910.1029(g)(3).[[14]] We therefore must address whether the Secretary has proven a violation of section 1910.1029(g)(3).

The Secretary alleges a violation of section 1910.1029(g)(3) because twenty-eight employees were not given a proper fitting respirator after failing the banana oil test. The mere fact that employees entered a test atmosphere and encountered facepiece leakage does not mean, however, that their training was inadequate. Indeed the Secretary's respirator expert, Dr. Pritchard, testified that every respirator leaks to one degree or another and that the odor threshold between individuals for detecting banana oil varies. Dr. Pritchard also noted that an employee could smell banana oil because he does not place the mask on his face properly, and not because the mask size is incorrect. In order to prove a violation of section 1910.134(e)(5) the Secretary must show that employees were not adequately instructed in the proper selection, use, and maintenance of respirators or were not permitted to handle the respirator under certain conditions. CF&I had a training program that included instruction in the selection and use of respirators and the avoidance of facepiece leakage. Employees were given an opportunity to handle the respirator under various conditions and to wear it in a test atmosphere under the guidance of an industrial hygienist. The fact that some employees detected the banana oil while in the test atmosphere does not establish by itself that the instructions or training otherwise provided were inadequate. We thus conclude that the Secretary failed to establish a violation of 29 C.F.R. § 1910.1029(g)(3). Accordingly, we vacate the citation for violation of this standard.[[15]]

Citation 3: Smoking and Training.

Items two and three of this citation are in dispute. Item 2 of the citation alleges that CF&I violated 29 C.F.R. § 1910.1029(i)(5)(i) by allowing two employees to smoke in the north and south coal bin and door repair areas during OSHA's inspection. This standard states:

(i) The employer shall assure that in the regulated area, food or beverages are not present or consumed, smoking products are not present or used, and cosmetics are not applied, except that these activities may be conducted in the lunchrooms, change rooms and showers required under paragraphs (i)(1)-(i)(3) of this section.

(Emphasis supplied.) There is not dispute that the employees in question were smoking in these areas. There also is no dispute that these areas are beyond the pinion wall. The judge affirmed this item based on his conclusion that these areas were part of the "battery ends" and, thus, part of the regulated area. As explained above, we conclude that the areas in question--the north and south door repair and coal bin facilities--are not part of the "regulated area" because they are beyond the "battery ends." Accordingly, we reverse the judge's decision and vacate this item.

Item 3 of this citation involves an alleged violation of the employer training standard at 29 C.F.R. § 1910.1029(k)(1)(ii). Item 3 alleges:

29 CFR 1910.1029(k)(1)(ii): The employer did not institute an effective training program for Coke oven employees working in the regulated area or at the time of initial assignment to the regulated area, in that:

a) New employees, with no prior work experience in the regulated area, did not receive adequate on-the-job training on the proper work practice and written procedures to minimize Coke oven emissions prior to assignment in the regulated area.

c) Employees with experience in the regulated area, did not receive adequate instructions and on-the-job training in the proper work practices and written procedures to minimize Coke oven emissions prior to assignment to a new job position they have not worked before.

The cited standard provides:

(k) Employee information and training--(1) Training program.

(ii) The training program shall be provided as of January 27, 1977 for employees who are employed in the regulated area at that time or at the time of initial assignment to a regulated area.

Essentially, this item alleges that CF&I violated the standard by failing to provide "written instructions" and "on the job" training to new employees upon assignment to the regulated area as well as to "experienced" employees upon re-assignment in the regulated area. The judge determined that the standard required employers only to provide written instructions to employees upon their "initial assignment to the battery." He therefore affirmed this citation to the extent that it alleged that CF&I violated the standard by failing to provide written instructions to employees who were newly-assigned to the regulated area. He vacated this item to the extent that it alleged that CF&I violated the standard by failing to provide (1) "on-the-job" training to employees newly assigned to the regulated area, (2) written instructions to experienced employees who were re-assigned to different positions on the battery, and (3) "on-the-job" training to experienced employees who were reassigned to new positions on the battery.

CF&I does not take issue with the judge's partial affirmance of this item.[[16]] Relying on various portions of the preamble, the union, however, asserts that the standard requires more extensive training for newly-assigned and experienced employees.[[17]] Although it concedes that the standard does not state all of the types of training that employers must provide, it asserts that "reasonable and feasible" training must be made available and cites several cases, including Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976), for support. The Secretary also asserts that the standard requires on-the-job training for new and experienced employees. He also relies on the preamble and argues that only through such training can the employer be assured the employees knew the proper work practices.

As the judge found, the text of the standard requires that employees be provided with written instructions only upon their "initial assignment" to the regulated area. The preamble to the standard also does not state or imply that employer's are required to provide anything more than initial training to employees who are newly assigned to the regulated area. We therefore agree with the judge's conclusion that CF&I did not violate the standard by failing to provide on-the-job training to new employees and written instruction as well as on-the-job training to experienced employees.

The cases cited by the union in support of its argument also are inapposite. In none of the cases did the Commission or the courts read an additional training requirement into an additional training requirement into an employee training standard. Rather, these cases held that in order to sustain a defense that it neither knew nor could have known of the occurrence of a violation, an employer must show that it provided "reasonable and feasible" training to its employees. Based on the foregoing, we affirm the judge's decision to vacate that portion of the citation which alleged that CF&I violated section 1910.1029(k)(1)(ii) by failing to provide on-the-job training to new and experienced employees and written instructions to experienced employees.

Accordingly, we vacate citations 1, 2, item 2 of citation 3, item 3 of citation 3 to the extent that it alleged that the employer was required to do more than allow employees to review the written procedures for their job when initially assigned to the regulated area.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: SEP 12 1986


WALL, Commissioner, dissenting in part:

I agree with the Commission's disposition of citations 1 and 3. I respectfully dissent, however, from the decision to vacate citation 2, concerning training in the wearing of respirators. I conclude that section 1910.134(e)(5) applies, that it was violated, and that the violation was willful.

To restate the facts of this issue, during the course of training in the wearing of respirators, some of CF&I's employees wore respirators in a test atmosphere of banana oil. Twenty-eight of the employees reported smelling the banana oil, which indicated that their respirators did not fit properly. They were not supplied with respirators that did fit; rather they were sent to work in a toxic atmospheres wearing respirators that were demonstrably unsuited for the purpose.

The majority emphasizes that the standard in question, continued in paragraph 1910.134(e)(5), is a training standard. I don't take serious issue with this because, whether it is a training standard or a use standard the evidence clearly demonstrates that it was violated. The governing standard, paragraph 1910.1029(g), is headed "Respiratory Protection." Paragraph (g)(3) requires that "The employer shall institute a respiratory protection program in accordance with § 1910.134 of this Part." Paragraph 134(b) is headed "Requirements for a Minimal Acceptable Program." Paragraph 1910.134(e)(5), the standard which was cited in the case, is headed "Use of Respirators." Paragraph (e)(5), in its pertinent part, states that "For safe use of any respirator, it is essential that the user be properly instructed in its...use....Training shall provide the men an opportunity to handle the respirator, have it fitted properly,...and...to wear it in a test atmosphere." (Emphasis added)

CF&I does not deny that 28 employees failed a so-called "banana oil test," and were then sent into the area of coke oven emissions with respirators that obviously did not fit. This clearly establishes that the 28 employees were not provided with respirators that fit, were not trained to comprehend the proper fit of respirators, or to use the use of respirators. Nor could it seriously be argued that this was a minimal acceptable program.

The suggestion that CF&I could have been cited under paragraph 1910.1029(g)(4) does not affect my conclusion. CF&I may have breached another respirator standard as well, but this does not mean that it was not properly cited under paragraph 1910.134(e)(5). The 1910.134(e)(5) citation alleged a failure to train in the use of respirators and, expressly, that employees did not have an opportunity to have their respirators fitted properly. The gravamen of the charge concerns the initial fitting of respirators; a process that is ordinarily associated with the indoctrination or training phase of respirator use. Although the facts of this case might also support a violation of 1910.1029(g)(4), the respirator usage standard, the Secretary has a legitimate concern about the initial fit of respirators, and chose to allege that the employees were not trained properly under paragraph 1910.134(e)(5). This is within his prosecutorial discretion, and is not grounds for vacating the citation.

Regarding the use of banana oil, the question of whether a banana oil test was required, or what test is required, is beside the point. Whether Respondent was required to use the banana oil test, it did use the banana oil, and it demonstrated that the respirators did not fit. Given this knowledge, by whatever test the knowledge was obtained, it can hardly be said that the employees were properly trained in the use of respirators. The purpose of paragraph 1910.134(e)(5) is to ascertain whether the respirator provides protection (have it fitted properly), and to prepare employees to work and function in a toxic environment.

This is clear not only from the language of the test atmosphere provision of 1910.134(e)(5), but also from the ANSI standard which is the source of the OSHA standard. As the majority notes, we may generally not construe an OSHA standard adopted under section 6(a) of the Act, 29 U.S.C., § 665(a), in a way that is different from its ANSI ancestor. Under the 1969 ANSI standard, the positive and negative pressure tests were only field tests. Section 7.5 of the ANSI standard states that "[t]o assure proper protection, the facepiece fit shall be checked by the wearer each time he puts on the respirator. This may be done by following the manufacturer's facepiece- fitting instructions such as these simple field tests:...." (Emphasis added.) What then follows in sections 7.5(1) and (2) are detailed descriptions of the positive and negative pressure tests. The test atmosphere procedure is described next as a means for employees "to test facepiece fit by wearing the respirator under realistic test conditions." ANSI section 7.5, third paragraph (emphasis added). The passage goes on to state that if an employee does not detect the odor of banana oil, "he has a good fit." Thus, the ANSI standard contemplates that the "test atmosphere" provision of the training standard is a means for fitting a respirator properly during training. Another portion of this same paragraph demonstrates that training the employee in the achievement of proper fit is not all that the standard expects. The third paragraph of section 7.5 makes clear that the results of a banana il test could well require the employer to provide another respirator to the employee if the first allows the employee to smell banana oil. That paragraph states in part:

If [the respirator wearer] detects the odor [of banana oil], he should retreat to fresh air, readjust the facepiece, and repeat the test. If leakage is still noted, it can be concluded that this particular respirator will not protect the wearer. The wearer should not continue to tighten the headband straps until they are uncomfortably tight, simply to achieve a gas-tight fit. If fitted too tightly, the wearer will not wear the respirator or will wear it fitting comfortably loose and will not have a gas-tight seal. (Emphasis added)

That a respirator's straps may not be tightened by the employee after a point means that unless the employer monitors the result of the banana oil test and provides a different respirator, there can be no assurance that any amount of employee training will help an employee achieve proper fit.

I also find that the violation was willful. A violation is willful if it is committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety. Simplex Time Recorder Co., 85 OSAHRC_, 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ¶ 27,456, p. 35,571 (No. 82-12, 1985). In a training film, CF&I informed employees that they would be provided with a different respirator if they failed the banana oil test. It clearly understood that the fit of respirators was to be evaluated in a "test atmosphere." It administered banana oil tests, yet failed to provide different to at least 28 employees who failed. These 28 employees then were sent to the regulated area and in several instances were exposed to toxic coke oven emissions above the permissible exposure limit without proper respiratory protection. This conduct demonstrates, at the very least, plain indifference to employee safety.


 

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FOOTNOTES:


[[1]]CF&I ceased operations at this coke plant on or about December 31, 1982. While this case was pending on review, we granted the Secretary's motion to withdraw a citation in another case involving this employer. CF&I Steel Corp., OSHRC Docket No. 81-454. Our order in that case based in part on the Secretary's assertion that he was "informed by counsel for [CF&I] and the authorized employee representative that [CF&I] has permanently ceased operation of its coke oven facility in [Pueblo, Colorado.]" In a notice filed with all parties in this case, we requested information on: (1) whether the coke ovens involved here had ceased operations; (2) whether the abatement requirements of these citations were moot: and (3) what issues, if any, remained in dispute. By joint stipulation of the parties, we were informed that the coke oven facility cited in the case has ceased operation and that CF&I had "no intention" of resuming operations in the "foreseeable future." The parties also stipulated the abatement requirements of the citations were moot but that "[t]he citations upon review, themselves, and the corresponding penalties are the only issues subject to continuing dispute."

[[2]]The final standard's treatment of regulated areas differs significantly from the approach of the standard originally proposed by the Secretary. 40 Fed. Reg. 32,268-77 (1975). The originally proposed regulated area provision did not mention the battery ends or the screening station. The preamble does not explain why "battery ends" was added to the final standard. It does state generally that all areas specified as "regulated areas" in the final standard were associated with increased health risk. 41 Fed. Reg. 46,756 (1976). In addition to designating specific work areas as regulated areas, the proposed standard also provided that a regulated area be established in "any other coke plant work area where the permissible exposure limit is exceeded." The preamble to the final standard stated that this approach to designating regulated areas was deleted because "[a]ny area where the permissible exposure limit could be exceeded, would, by definition already be a part of the [regulated area]. 41 Fed. Reg. 46,757. It is quite clear therefore that under the final standard, regulated areas must be designated in specific work areas and not by reference to whether the PEL is exceeded.

[[3]]The standard requires employers to provide quarterly monitoring of the exposure levels of employees in the regulated area, § 1910.1029(j)(1)(i) and (iii), and monthly medical surveillance for these employees, § 1910.1029(j)(1)(i). Employees who work in the area work must wash their hands and face before eating, and shower at the end of their shift. Section 1910.1029(i)(2)(i) & (i)(4)(i), These employees also must be trained regarding the hazards of emissions and the protective measures required by the standard. Section 1910.1029(k)(1)(i). Smoking and drinking are prohibited in the regulated areas. Section 1910.1029(i)(5)(i).

[[4]]Instruction STD 1-4.3 was issued on April 19, 1979, approximately three months before this inspection. 1978- 79 CCH Developments Binder ¶ 11,678. Its purpose was to "clarify the compliance procedures for determining an effective respirator program for the coke oven emissions standard." This Instruction states in part:

1. At this time any employee in the regulated area must wear a respirator except in the lunch rooms or in filtered air locations and except as provided below.

a. Employees in the regulated area need not wear a respirator in clearly delineated areas that have been shown by air sampling to be consistently below the permissible exposure level (PEL) of 150 ug/m3 (8 hour TWA). Such locations may include large areas, such as the push side bench or small areas, such as the bench level between batteries.

The instruction also states that due to the discomfort and inconvenience associated with wearing a respirator, wearers could remove respirators for a "brief rest period" or for "essential work conversations" in areas that were not below the PEL so long as the respirator was worn for a sufficient period to reduce exposure below the PEL. Finally, the instruction states the following regarding "battery ends":

Battery ends include, but are not limited to, the coal loading area between batteries on topside and bench level (and not just pinion wall to pinion wall). In general, all parts of the battery above ground level are within the regulated area.

[[5]]Based on this record, it is far from clear whether the PEL was consistently exceeded in the cited areas. Relying on Exhibit C-22, the judge stated that no sampling results were produced for either the door repair or coal hin areas but that samples taken in the north and south lunchrooms "could" and did exceed the PEL. Contrary to what the judge found, there are sampling results in evidence for the north and south door repair areas. See Exhibit R-70. These results show that on four separate dates in the latter part of 1979, the door repair facilities were sampled. Of the 16 samples reported, none exceed the 150 ug/m3 PEL--the highest being 123 ug/m3. These records also show that the north and south lunch rooms were sampled 24 times between April, 1979 and December, 1979. Although a sample taken at the south lunchroom was 250 ug/m3, as found by the judge, the remaining 23 samples were below the 150 ug/m3 PEL with 16 of this total below 50 ug/m3.

[[6]]The vast majority of the standards adopted under the Act were drafted by private organizations rather than by OSHA. OSHA was required by section 6(a) of the Act to adopt privately-drafted standards without substantive change. See note 12 infra and accompanying text. Many of the standards that had been drafted by OSHA or the old Bureau of Labor Standards and adopted under section 6(a) of the Act as established federal standards were also derived largely from privately- drafted standards. See generally Dun-Par Engineered Form Co., No. 79-2553 (July 30, 1986) (slip op. at 11, 14 & n.10, surveying the history and derivation of OSHA standards).

[[7]]Section 1910.1029(g)(3) provides:

§ 1910.1029 Coke oven emissions.

(g) Respiratory protection.

(3) Respiratory program. The employer shall institute a respiratory protection program in accordance with § 1910.134 of this part.

[[8]]Section 7.5 of ANSI Z88.2-1969, entitled "Practices for Respiratory Protection," explains how to test for facepiece leakage with a positive or negative pressure test. It states:

(1) Positive Pressure Test. Close the exhale gently into the facepiece. The face fit is considered satisfactory if a slight positive pressure can be built up inside the facepiece without any evidence of outward leakage of air at the seal. For most respirators, this method of leak testing requires that wearer first remove the exhalation valve cover and then carefully replace it after the test.

(2)Negative Pressure Test. Close off the inlet opening of the canister or cartridge(s) by covering with the palm of the hand(s) or by replacing the seal(s), inhale gently so that the facepiece collapses slightly and hold the breath for ten seconds. If the facepiece remains in its slightly collapsed condition and no inward leakage of air is detected, the tightness of the respirator is probably satisfactory.

[[9]]A test atmosphere is "an enclosure in which (1) the user can enter with the equipment on, and (2) a 'test' contaminant (of low toxicity) can be placed." NIOSH, Respiratory Protection...An Employee Manual, at 76 (1978).

[[10]]A second sentence in section 1910.1029(g)(4)(i) had provided that the quantitative fit tests shall be performed annually for each employee who uses a non-powered, particulate filter respirator. This provision was struck down by the AISI court and was deleted by the Secretary after the AISI litigation. 50 Fed. Reg. 37352 (1985). It has not been repromulgated by the Secretary.

[[11]]The successor to ANSI Z88.2-1969, ANSI Z88.2-1980, requires for the first time that wearers of negative pressure respirators be given either a qualitative fit test, such as a banana oil test (see ANSI Z88.2-1980, Appendix § A5.2), or a quantitative fit test, which tests fit by numerical measurement with instruments that compare contaminant levels inside and outside the respirator. See ANSI Z88.2-1980, § 6.11 and Appendix § A.6.

[[12]]Section 1910.134(e)(5) was adopted under section 6(a) of the Act without regard to the comment and notice rulemaking provisions of section 6(b) and the Administrative Procedure Act, 5 U.S.C. § 553. For this reason it cannot be substantially modified from its source. Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1442-43, 1982 CCH OSHD ¶ 25,956, pp. 32,530-31 (No. 76-647, 1982).

[[13]]The compliance officer did not cite section 1910.1029(g)(4)(i) because it was his "understanding" that after the quantitative fit test provision was stricken by the AISI court, an agency policy statement directed inspectors not to enforce section 1910.1029(g)(4)(i). The compliance officer's belief, however, was erroneous. The compliance officer apparently based his belief on OSHA's Program Directive 300-10 (revision No. 1 dated October 30, 1978). This directive states:

(7)Respirator Fit Test (g)(4)(1). Coke oven employers are required to perform respirator fit tests annually for each employee who uses a non-powered, particulate filter respirator. The preamble of the standard incorrectly describes the procedure for quantitative fit test. Since the record does not support the requirement for annual quantitative respirator fit testing, OSHA intends to conduct a separate rulemaking on that issue in the near future. In the interim, only a requirement for qualitative fit testing will apply.

The directive does not state that the first sentence of section 1910.1029(g)(4)(i), which requires that employers assure that respirators are "properly fitted," is not to be enforced. In any event, the first sentence of the standard had not been struck down by the AISI court. It therefore continued to be in effect when the citations in this case were issued and the directive indicates that it continued to require qualitative fit testing.

[[14]]The Secretary has taken inconsistent positions regarding the interpretation of section 1910.134(e). In the 1979 version of OSHA's Industrial Hygiene Field Operations Manual, Ch. XII, section E (text as of January 1, 1979), reproduced in CCH Employment Safety & Health Guide, OSHA Field Operations Manual and Industrial Hygiene Field Operations Manual, ¶ 4488.40 (1979), OSHA instructed its compliance officers that "respirator fit" can be checked by one of the following methods:

(i) Positive Pressure Test:....[Detailed instructions omitted.]

(ii) Negative Pressure Tests:....[Detailed instructions omitted.]

(iii) Manufacturer's Instructions. Follow the directions provided by the respirator manufacturer. The [compliance officer] is not permitted to used irritating chemicals to test facepiece fit.

(iv) Chemicals. Some employers may use irritant smoke or isoamyl acetate [banana oil] for the respirator fitting test....Although OSHA does not recommend using chemicals, it is a common practice and no standard directly prohibits it unless the permissible exposure limits are exceeded.

The Manual instructed the compliance officer that when he observes employees to determine proper fitting, he is to see if fitting "is done by either negative or positive pressure test or other methods as used by the employer as described in paragraph (2)(b)(iii) and (iv)...."

After the hearing in this case, the Secretary, prompted in part by "a request for compliance procedures" and what he characterized as "litigation activities," issued a policy directive on section 1910.134(e)(5) to "clearly establish enforcement policy on the fit-testing issue." That directive is Instruction CPL 2-2.29 (Oct. 27, 1980), reproduced at 1980-81 CCH Developments ¶ 12,107. It states that "[a] 'test atmosphere' must be applied to assess the quality of fit." Id., § F.2.

[[15]]Since the parties did not expressly or impliedly consent to try a violation of section 1910.1029(g)(4), we conclude it would be improper to amend to allege a violation of this standard. See McWilliams Forge Co., 84 OSAHRC_/_, 11 BNA OSHC 2128, 1984 CCH OSHD ¶ 26,979 (No. 80-5868, 1984).

[[16]]The Secretary did not petition for review of the judge's partial vacation of the item.

[[17]]The union cites the following language from the preamble in support of its claim that more extensive training was required:
"A major portion of the effort in the control of coke oven emissions involves work practices. These include repair inspection, maintenance, cleaning and repair of all the equipment and strict adherence to prescribed schedules. Employees must be properly trained in such work practices and their importance. The proper training of all employees will require time."

41 Fed. Reg. at 46,761 (emphasis supplied by union).

"Such a written program assures that all the elements are considered and can be used not only to evaluate the effectiveness of the program but also to train employees. For example, in implementing the cleaning requirement, the written program could specify job assignments, cleaning tools and a checkoff or reporting system for the operating crew depending on the needs of that particular plant."

41 Fed. Reg. at 46,767 (emphasis supplied by union).