SECRETARY OF LABOR,

Complainant,

v.

SMITH STEEL CASTING COMPANY,

Respondent.

OSHRC Docket Nos. 80-2069 & 80-2322

DECISION

BEFORE:  FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.
BY THE COMMISSION:


These consolidated cases involve issues under the Secretary's standard governing exposure to air contaminants, 29 C.F.R. 1910.1000.  The Secretary alleges in item 2F of citation 1 and item 2 of citation 2 that Smith Steel Casting Company ("Smith Steel") violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act"), because its employees were exposed, respectively, to silica dust and copper fume in excess of the limits set forth in that standard.  In item 2G of citation 1 the Secretary alleges that Smith Steel had not implemented feasible engineering or administrative controls required by the standard to reduce the excessive silica dust exposure.  The questions before us are whether 1910.1000 is unenforceable for having been invalidity promulgated and whether the record supports the judge's finding on the economic feasibility of the engineering controls sought by the Secretary. [[1/]]


In his initial decision on the merits of the alleged violations, Administrative Law Judge Edwin G. Salyers affirmed the Secretary's citations.  Smith Steel Casting Co., 83 OSAHRC 1/A2 (ALJ, 1982).  Following subsequent decisions by both the Commission and the Court of Appeals for the Fifth Circuit on an issue no longer before us relating to the Secretary's inspection warrant, the Fifth Circuit issued a further decision remanding these cases for consideration of Smith Steel's argument that 1910.1000 was invalidity promulgated.  The court also set aside Judge Salyers' decision ordering Smith Steel to implement engineering controls.  Finding the evidence on economic feasibility to be insufficient to support the judge's conclusion that controls were economically feasible, the court remanded for additional evidence.  Smith Steel Casting Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986).  The Commission in turn remanded these cases to the judge for action in accordance with the court's remand.  Smith Steel Casting Co., 12 BNA OSHC 2200, 1986-87 CCH OSHD 27,758 (Nos. 80-2069 & 80-2322, 1986).  In his decision now before us, Judge Salyers found the standard valid and, after receiving additional evidence on economic feasibility, found that "without further input from respondent [the financial data in the record does] not establish that implementation of the proposed controls [is] beyond respondent's financial reach or would result in forcing respondent into bankruptcy."  For the reasons that follow, we affirm the judge's decision.


I. Background


The standard at issue in these cases is a generic standard setting forth permissible exposure limits ("PEL's") for a large number of substances.  At the time these cases arose, [[2/]] the standard included three separate listings designated as Tables Z-1, Z-2, and Z-3. Table Z-1 prescribed short-term exposure limits ("ceiling values") for some substances and 8-hour time-weighted average exposure limits for other substances.  The PEL for copper fume was an 8-hour time-weighted average of .1 mg/m3. Table Z-3, entitled "Mineral Dusts," prescribed exposure limits for silica dust that varied depending upon the amount of quartz present in the dust in question.  That table also contained separate limits on total airborne silica dust and on respirable silica dust.[[3/]]  For respirable dust, which is at issue here, the formula for determining the PEL for silica was 10mg/M3 divided by "SiO2 + 2," that is, 10 milligrams per cubic meter of air divided by the sum of two plus the percentage of all respirable dust that is silica.  To achieve the specified exposure limits, the standard also required the employer to implement administrative or engineering controls "whenever feasible."[[4/]]


Industrial Hygiene Compliance Officer Jack M. Matthews, Jr., testified, and it is undisputed, that silica dust emanates from the sand which Smith Steel uses to form "cores" that it places in the molds from which it makes castings.  Sand is mixed in three machines known as "sand mullers," which are essentially metal tanks about 3 1/2 feet in diameter, open at the top, and unventilated. Employees referred to as "sand bin attendants" use wheelbarrows to bring the sand from the bins in which it is stored and then load the sand into the mullers.  Matthews also observed an employee operating the electric arc-welder, or "arc air gouger," which removes flaws from finished castings.  Because the electrode of this welder was coated with copper to improve conductivity, operation of the welder produced copper fume.


Matthews conducted personal sampling of six employees for exposure to respirable dust, using a "cyclone separator," a device which employs air velocity to separate respirable from non-respirable particles.  He sent the samples to the OSHA Laboratory in Salt Lake City for analysis of the percentage of silica in each sample.  Once the percentage of silica was determined, Matthews applied the formula specified in the standard to compute the permissible exposure limit (PEL) for each employee.  He then compared that limit to the employee's actual time-weighted average exposure.  He determined that three employees, i.e. , two muller operators and one sand bin attendant, had eight-hour time-weighted average exposures between 1.43 and 3.24 times greater than the PEL calculated under the formula set forth in the standard for respirable silica dust.   In addition, Matthews sampled one operator of the arc air gouger for exposure to copper fume.  After the OSHA lab determined the amount of copper collected in the samples, Matthews computed the employee's 8-hour time-weighted average exposure. The result showed that the employee had been exposed to .143 mg/m3 of copper fume, 43 percent above the PEL of .1 mg/m3.[[5/]]

II. Validity of the Standard


Smith Steel does not deny that its employees were exposed to excessive levels of silica dust and copper fume.  Rather, Smith Steel challenges the Secretary's citations on a threshold legal issue-whether 1910.1000 was properly promulgated in accordance with the requirements of the Act.  It is to this issue that we now turn.


The standard cited in these cases was promulgated under section 6(a) of the Act, 29 U.S.C. 655(a).  That provision authorized the Secretary, during the first two years after the Act took effect (1971-73), to adopt existing occupational safety and health standards issued by either other Federal agencies or private standards-setting organizations.   Because Congress presumed that these existing standards were issued in accordance with procedures that allowed those affected by such standards to participate in their formulation, section 6(a) authorized the Secretary to forego notice and an opportunity for comment when adopting these standards. [[6/]]  General Motors Corp., 9 BNA OSHC 1331, 1337, 1981 CCH OSHD 25,202, p. 31,124 (No. 79-4478, 1981).  For this reason, when adopting standards under section 6(a) of the Act, the Secretary was not empowered to make substantive modifications in their content.  While the Secretary did not have to promulgate the source standard literally word-for-word, Simplex Time Recorder Co., 12 BNA OSHC 1591, 1593 n.4, 1984-85 CCH OSHD 27,456, p. 35,569 n.4 (No. 82-12, 1985), she could not make any material alteration from the source document in adopting the standard under section 6 (a).  Senco Products, Inc., 10 BNA OSHC 2091, 2093, 1982 CCH OSHD 26,304, p. 33,269 (No. 79-3291, 1982).  Changes from a source standard that did not affect or heighten the employer's duties or obligations were permissible.  Deering Milliken, Inc., 6 BNA OSHC 2143, 2146, 1978 CCH OSHD 23,191, p. 28,039 (No. 12597, 1978), aff'd, 630 F.2d 1094, 1100 (5th Cir. 1980); American Can Co. 10 BNA OSHC 1305, 1311-13, 1982 CCH OSHD 25,899, pp. 32,414-15 (Nos. 76-5162 et al., 1982).


Smith Steel contends that the cited standard is invalid because its language differs from that of its source.  Smith Steel also argues that the standard is invalid for additional reasons not associated with specific language variations.  We reject these contentions.


A. History of the Cited Standard


The Secretary's air contaminant standard was originally promulgated on May 29, 1971, when it was codified as 29 C.F.R. 1910.93.  36 Fed. Reg. 10466, 10503 (1971).  The source for 1910.93 was 41 C.F.R. 50-204.50, a standard entitled "Gases, vapors, fumes, dusts, and mists," which the Secretary had previously adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45, on May 20, 1969.  34 Fed. Reg. 7953 (1971).  See Senco Products, 10 BNA OSHC at 2092-93, 1982 CCH OSHD at pp. 33,268-69.


The Walsh-Healey source standard limited exposure to hazardous substances according to the following provision:

(a) Exposures by inhalation, ingestion, skin absorption, or contact to any material or substance (1) at a concentration above those specified in the "Threshold Limit Values of Airborne Contaminants for 1968" of the American Conference of Governmental Industrial Hygienists, except for the USASI Standards listed in Table I of this section and except for the values of mineral dusts listed in Table II of this section, and (2) concentrations above those specified in Table I and II of this section, shall be avoided, or protective equipment shall be provided and used.


41 C.F.R. 50-204.50(a).  Thus, the Walsh-Healey standard, in part, required that an employer comply with the exposure levels set forth in a health code developed by a private standards-setting organization, the American Conference of Governmental Industrial Hygienists ("ACGIH").  The 0.1 mg/m3 exposure limit for copper fume appeared in this publication, whereas an exposure limit for silica was set forth in Table II, entitled "Mineral Dusts."

The Walsh-Healey standard also imposed a requirement that "feasible" controls be used to bring exposure to within the limits prescribed in paragraph (a):

(b) To achieve compliance with paragraph (a), feasible administrative or engineering controls must first be determined and implemented in all cases.  In cases where protective equipment, or protective equipment in addition to other measures[,] is used as the method of protecting the employee, such protection must be approved for each specific application by a competent industrial hygienist or other technically qualified source.
41 C.F.R. 50-204.50(b).


When the Walsh-Healey standard was adopted as 1910.93 on May 29, 1971, its reference to the 1968 edition of the ACGIH Threshold Limit Values ("TLV") pamphlet was changed to refer to the 1970 edition.  Furthermore, while the Walsh-Healey standard simply incorporated by reference the TLV values contained in the ACGIH publication, 1910.93 expressly set forth the 1970 TLV's in a new list labeled "Table G-1."   Tables I and II as they appeared in the Walsh-Healey standard were renumbered as Tables G-2 and G-3.  Table G-1 included the same numerical limit for copper fume (0.1 mg/m3) that appeared in the 1968 ACGIH TLV publication to which the Walsh-Healey standard referred.  As in the 1968 ACGIH list, this figure was not preceded by the letter "C," indicating that the limit was an 8-hour time-weighted average exposure limit and not a ceiling value.  The formula for determining the limit value for respirable silica also was identical in Tables II (Walsh-Healey standard) and G-3 (29 C.F.R. 1910.93).


On August 13, 1971, the Secretary revised 1910.93.  36 Fed. Reg. 15101 (1971).   She eliminated the phrase "by inhalation, ingestion, skin absorption, or contact" that modified "exposures" in paragraph (a) of the Walsh-Healey standard and the first version of 1910.93 and also deleted the phrase "or protective equipment shall be provided and used" from the standard's initial paragraph. Furthermore, the references to the various tables were considerably revised, and the provision relating to administrative and engineering controls was slightly rewritten.  However, the exposure limits themselves for copper fume and respirable silica dust were not changed.  When the Secretary subsequently recodified 1910.93 as 1910.1000, she redesignated Tables G-1, G-2, and G-3 as Tables Z-1, Z-2, and Z-3, respectively.  40 Fed. Reg. 23073 (1975).

B. Summary of Smith Steel's Arguments


Smith Steel challenges the change in reference from the 1968 edition of the ACGIH code in the original Walsh-Healey standard to the 1970 edition of the ACGIH code in the first version of 1910.93 and also argues that the changes in phrasing between the May and August versions of 1910.93 render it invalid.  Smith Steel has the burden to demonstrate that modifications to the standard on which it relies are substantive in nature.  George C. Christopher & Sons, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD 25,956, p. 32,531 (No. 76-647, 1982).  In examining whether Smith Steel has sustained this burden, we will address the specific differences Smith Steel cites only as they bear on the issues in this case.[[7/]]

In essence, there are four major themes to Smith Steel's argument:

1) The Secretary impermissibly substituted the 1970 ACGIH TLV values for the 1968 version;
2) The Secretary improperly deleted an "option," available to employers under the Walsh-Healey standard and the original version of 1910.93, to protect employees by respirators alone, without first implementing engineering or administrative controls;
3) The Secretary improperly converted the TLV'S of the ACGIH into permissible exposure limits ("PEL's"); and
4) The Secretary added time-weighted average limits for copper fume and silica dust that did not appear in the source standard.
Judge Salyers rejected Smith Steel's arguments without discussing them individually.   The judge summarily concluded that the validity of 1910.1000 had previously been upheld both by the Fifth Circuit, where these cases arise, in Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094 (5th Cir. 1980) and by the Commission in several decisions.   Smith Steel disputes the judge's reliance on these cases, and we agree.

In a prior decision in these cases, the Fifth Circuit plainly stated that its precedents are binding on the Commission in cases arising in that circuit.  Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035 (5th Cir. 1984).  Deering Milliken, however, disposes only of some and not all of Smith Steel's arguments.  As for the Commission decisions Judge Salyers cites, they do not address any of the particular contentions Smith Steel raises.[[8/]]

Accordingly, we affirm the judge's decision that 1910.1000 is valid, but for the reasons that follow.


C. Analysis of Smith Steel's Claims


1. Change from 1968 to 1970 TLV's


There are two aspects to this argument.  First, Smith Steel contends that the substitution of the 1970 ACGIH TLV's for the 1968 values was a substantive change because the 1970 values differ from those the ACGIH adopted in 1968.


We reject this claim.  As Smith Steel asserts, a comparison of the 1968 edition of the ACGIH publication with Table G-1 of 1910.93 does reveal differences in exposure limits for some substances.  However, as previously indicated, the limit for copper fume is the same in both the 1968 ACGIH list and Table G-1.  Therefore, insofar as the cited exposure limit is concerned, no substantive change was made to Smith Steel's obligation to protect its employees against copper fume.[[9/]]  Other changes in uncited exposure limits are simply not relevant to these proceedings.  See Senco Products, 10 BNA OSHC at 2095, 1982 CCH OSHD at p. 33,271 (if employer's compliance responsibilities are not altered, the standard is valid as to that employer).


The second facet of Smith Steel's argument is not based on any substantive differences between 1910.93 and its Walsh-Healey source but rather on perceived irregularities in the promulgation of the Walsh-Healey standard.  Smith Steel argues that even if the OSHA standard had set forth the 1968 ACGIH TLV's rather than the 1970 limits, the standard would still have been invalid.  In Smith Steel's view, the Secretary could not have merely republished the 1968 values without notice-and-comment rulemaking because the incorporation by reference of the 1968 TLV's in the Walsh-Healey standard did not conform to the requirements for incorporation by reference prescribed by the office of the Federal Register.[[10/]]  In other words, Smith Steel in effect contends that the Secretary could not have adopted any ACGIH list of TLV's under section 6(a) because she could not have properly used the Walsh-Healey standard as the source for such a list.   Smith Steel alludes to section 3(10) of the Act, which defines an "established Federal standard" as any "operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act."  Because the Walsh-Healey standard did not validly incorporate the ACGIH table, Smith Steel contends that there was no "operative" source for Table G-1 that was "in effect" when the Secretary promulgated 1910.93.


The Commission has previously ruled that the procedural validity of the promulgation of a standard under the Walsh-Healey Act may not be challenged in an enforcement proceeding before the Commission.  General Motors, 9 BNA OSHC at 1337, 1981 CCH OSHD at p. 31,124.  Because Congress made an explicit determination that established Federal standards, including standards issued under the Walsh-Healey Act, are valid and enforceable occupational safety and health standards under the Act, the Commission reasoned that reviewing the promulgation process occurring under another Federal statute would be tantamount to questioning the judgment of Congress.  In the same vein, the Commission concluded that to regard a Walsh-Healey standard as not "operative" under section 3(10) because of some defect in its promulgation under the Walsh-Healey Act would likewise disregard the plain intent of Congress.  Id. at 1335 & n.11, 1981 CCH OSHD at p. 31,122 & n.11.  See American Can, 10 BNA OSHC at 1310, 1982 CCH OSHD at p. 32,413 (Commission will not consider argument that a source standard lacked a statement of basis and purpose when it was adopted under the Walsh-Healey Act). [[11/]]  Accordingly, we reject this portion of Smith Steel's argument.


2. Deletion of Protective Equipment "Option" as a Means of Compliance


Smith Steel contends that when the standard was originally promulgated, it allowed personal protective equipment (respirators) as an equally acceptable alternative to engineering or administrative controls as a means of compliance.  Thus, in Smith Steel's view, the Secretary substantively modified the standard by removing the phrase "or protective equipment shall be provided and used" from paragraph (a) when she revised 1910.93 in August 1971. See Part II.A, supra.  Similarly, Smith Steel asserts that the substitution of the phrase "an employee's exposure to any material listed in [the tables] shall be limited in accordance with the requirements of [paragraphs (a), (b), and (c)]" for the phrase exposures by inhalation, ingestion, skin absorption or contact to any material or substance above [the specified concentration] shall be avoided" (emphasis added) also improperly eliminated respirators as an alternative means of compliance.


In Deering Milliken, the Commission rejected a similar argument based on the premise that the original version of 1910.93 did not require administrative or engineering controls as the preferred means of compliance with exposure limits.   While conceding that paragraph (a) of that version might have been ambiguous, the Commission ruled that any ambiguity was cured by the specific requirement of paragraph (b) that "feasible administrative or engineering controls must first be determined and implemented in all cases."  The Commission found this language indistinguishable from the requirement of paragraph (e) of the August 1971 amended version that controls are to be determined and implemented "whenever feasible."  Therefore, the Commission held that when read in its entirety, the original 1910.93 imposed the same duty on employers to comply by using controls to the extent possible as does the August 1971 standard.  6 BNA OSHC at 2145-46, 1978 CCH OSHD at p. 28,039.


The court of appeals affirmed the Commission.  In rejecting the same argument made here, that the deletion of the disjunctive "or protective equipment shall be provided and used" was a substantive change, the court specifically held that "feasible engineering and administrative controls were mandatory under Walsh-Healey; protective equipment, when used, was not a substitute for feasible alternative means of air contaminant control, but rather a means of compliance available when engineering or administrative controls were infeasible, or only partially effective."  630 F.2d at 1101.


However, Deering Milliken is not dispositive of the issue before us now because it focuses only on the "or protective equipment . . . " language.  Neither the court nor the Commission decisions explicitly address Smith Steel's additional contention that the Walsh-Healey phrase "shall be avoided" and the modifier "by inhalation, ingestion. . . " also provide an option to comply by using protective equipment alone that was deleted when this language was changed in the August 1971 revision of 1910.93.  We reject the argument because there is nothing in this terminology that is inconsistent with a preference for engineering controls as the primary method of compliance.  In any event, Smith Steel's argument that this language allowed an employer to comply by using respirators alone would render superfluous the explicit statement in paragraph (b) of the Walsh-Healey standard and the first version of 1910.93 that controls must be implemented "first."  It is a basic rule of construction that a standard must be read as a harmonious whole, with every word or phrase given meaning to the extent possible.  Simplex, 12 BNA OSHC at 1594 n.6, 1984-85 CCH OSHD at p. 35,569 n.6.  Accordingly, we conclude that the specific language changes Smith Steel cites did not alter the employer's basic duties of compliance under the standard.


3. Conversion of TLV's Into PEL's


Smith Steel contends that the threshold limit values established in the Walsh-Healey standard through its adoption of the ACGIH TLV list do not constitute legally binding and enforceable exposure limits.  Smith Steel acknowledges that in Deering Milliken the Fifth Circuit characterized the TLV's adopted in the Walsh-Healey standard as "specified exposure limits," 630 F.2d at 1101, but asserts that the court erred.   Smith Steel claims that the Commission subsequently distinguished a TLV from a PEL in Bunge Corporation, 12 BNA OSHC 1785, 1986-87 CCH OSHD 27,565 (Nos. 77-1622 et al., 1986) and therefore contends that the Commission should not follow Deering Milliken.


Smith Steel plainly misreads Bunge.  The Commission simply observed in that case that the phrase "threshold limit value" has no specific meaning in law but rather is an industrial hygienist's term referring to the concentration of an airborne contaminant to which an employee may be exposed without adverse effect.  The decision does not in any way suggest that the Secretary was required to provide notice and an opportunity for comment in order to promulgate a TLV as an enforceable exposure limit in a section 6(a) standard.  On the contrary, the Commission specifically held that when the Secretary incorporated the ACGIH TLV's into 1910.1000, she "thereby transformed the TLV's into legally enforceable PEL's."  12 BNA OSHC at 1788 n.10, 1986-87 CCH OSHD at p. 35,803 n.10.  Accordingly, Smith Steel's argument that the Secretary could not properly adopt a TLV as a PEL is contrary to Commission precedent, as well as the case law in the Fifth Circuit.

4. Addition of Time-Weighted Average Limits for Copper Fume and Silica


The ACGIH publication incorporated by reference in the Walsh-Healey standard distinguishes exposure levels measured over the period of an entire day (time-weighted average concentrations) from immediate, short-term exposures (ceiling values).  As the preface to the 1968 TLV list states:

The values not given a "C" listing refer to time-weighted average concentrations for a conventional 7 or 8 hour workday.

Time-weighted average concentrations permit excursions above the limit, provided they are compensated by equivalent excursions below the limit during the work day....

Ceiling vs. Time-Weighted Average Limits.  Although the time-weighted average concentration provides the most satisfactory, practical way of monitoring air-borne agents for compliance with the limits, there are certain substances for which it is inappropriate.  In the latter group are substances which are predominantly fast acting and whose threshold limit is more appropriately based on this response.   Substances with this type of response are best controlled by a ceiling "C" limit that should not be exceeded.


Smith Steel contends that the Walsh-Healey standard did not establish a time-weighted average limit for either copper fume or silica dust and that the Secretary therefore substantively amended the Walsh-Healey standard when she adopted such exposure limits in 1910.93.


We conclude, however, that because the entry in the ACGIH list for copper fume is not accompanied by a "C" notation, it therefore establishes an 8-hour time-weighted average limit.  Smith Steel does not expressly dispute that the ACGIH listing prescribes a time-weighted average limit for exposure to copper fume but asserts that because the Walsh-Healey source standard did not properly incorporate the ACGIH limits, it failed to set forth the time weighted average limit for copper fume that appears in the ACGIH list.  Since this argument challenges the procedural validity of the Walsh-Healey standard, we decline to address it for the reasons given previously.


Smith Steel's contention that the Walsh-Healey standard did not establish a time-weighted average limit for silica dust presents a more substantial issue.  As previously indicated, the silica dust limit in Table II of the Walsh-Healey standard is not taken from the ACGIH TLV list.  And as Smith Steel correctly points out, the term "time-weighted average" or any other words indicating a time limitation do not appear in Table II.  Thus, the question before us is whether the silica TLV formula is a time-weighted average limit even though the standard lacks specific language to that effect.


A review of the history of the Walsh-Healey standards reveals that the Walsh-Healey exposure limit for silica dust has always been a time-weighted average limit.  When the Walsh-Healey standards were originally promulgated on December 28, 1960, they included a provision then codified at 50-204.275, which required employees to use respirators when exposed to air contaminants above the limits specified in another provision, 50-204.276, "on an average basis for an eight-hour workday."  Exposures exceeding such limits "temporarily, without exceeding them on a daily average basis" required an industrial hygienist's approval in lieu of respirators. Section 50-204.276 prescribed limits for mineral dust containing various percentages of silica.   25 Fed. Reg. 13809, 13823-24 (1960).  Therefore, at the very outset the Walsh-Healey standards distinguished time-weighted average from ceiling limits and provided a time-weighted average limit for silica.


On September 20, 1968, the Secretary proposed to revise Part 50-204, adding a new section, 50-204.50, consisting of two tables, Table I labeled "Threshold Limit Values" and Table II labeled "Ceiling Values."  A portion of Table I entitled "Respirable Dusts Evaluated by Count" included a formula for determining the limit for silica dust.  As proposed, 50-204.50(b) described the limits prescribed in Table I as 8-hour time-weighted averages:

Excursion of concentration above these levels may be permitted provided that they are compensated by equal excursions below the listed levels and that in any one day the sum of all the products of concentration multiplied by time in minutes does not exceed the product of the listed concentration multiplied by 480.

33 Fed. Reg. 14258, 14268-70 (1968).  When 50-204.50 was adopted in its final form, it was restructured, and the portion of Table I that included the respirable silica dust exposure limit was redesignated as Table II, entitled "Mineral Dusts."   Therefore, while Table II did not expressly state that its exposure limits were time-weighted average limits, it originated from a provision of the proposed 50-204.50 that clearly did set forth time-weighted average limits.  There is nothing in the preamble accompanying the adoption of 50-204.50 to indicate that the Secretary intended to change the nature of the exposure limits as set forth in the proposal.   Accordingly, we conclude that the sliding-scale PEL for respirable silica dust is and always was a time-weighted average limit.  We therefore reject Smith Steel's contention that the Walsh-Healey standard did not establish a time-weighted average limit for exposure to silica dust.


Having disposed of Smith Steel's challenges to the validity of the standard, we turn to the remaining issue before us.


III. Feasibility of controls for Silica Dust


A. Background


The Secretary's witness, Robert A. Ressl, an environmental engineering consulting firm engineer with experience designing ventilation control systems, testified regarding feasible engineering and administrative controls based on his inspection of Smith Steel's plant and on his subsequent report.  Essentially, he proposed two alternative methods of engineering controls:  a fairly comprehensive modification of Smith Steel's entire system for storing and handling sand and a less complex addition of only a ventilation system.  Since Ressl regarded the mullers and sand-handling system to be the major source of the dust in the plant, he testified that his first proposal would decrease the amount of ambient dust to "very, very low levels."  He also stated that either of his proposals would be able to reduce the employees' exposure to a level within the PEL for silica dust.


Because Ressl's first proposal would allow Smith Steel to move sand by mechanical means, he testified that Smith Steel could eliminate the position of sand bin attendant and operate the mullers with only 5 rather than the 10 workers it then employed in those duties.  He estimated the capital cost of this system at $281,300, which he amortized over a period of 20 years, the life span customarily assumed for this type of equipment.   The total annual cost, including the amortized portion of the initial capital expense, would be $74,100.  Factoring in the reduction in payroll costs, he projected annual savings of $66,300.  This system would therefore have a net annual cost of $7800.


Ressl' s less elaborate alternative proposal would have an installation cost of $145,300, again amortized over 20 years, with a total annual cost of $41,100.  This proposal would not reduce the number of employees and therefore would not provide any savings in labor costs.


Ressl stated that although he was neither an economist nor an accountant by profession, he had received some training in "economic evaluation," as is customary for engineers.  He had also performed a "fair amount of costing type work to develop costs of systems."  Judgments as to cost recovery and interest rates are a typical part of this work.  In developing his cost estimates, he used figures for interest rates similar to those he or his company had applied on other projects.   Ressl conceded that in actuality a business would not amortize capital investment in "exactly" the way he proposed.  Although he was not asked what the differences might be, he did say that a business might not be able to borrow money at the interest rate he projected.
  Furthermore, he did not consider Internal Revenue Service rules for writing off equipment purchases.  However, he emphasized that his figures are based on the methodology normally used by engineers for estimating capital costs and insisted that he had established economic feasibility "from an engineering evaluation standpoint."

Also relevant to the issue of economic feasibility are Smith Steel's answers to the Secretary's interrogatories regarding Smith Steel's financial condition, which were introduced into evidence.  Smith Steel's answers establish that it had gross revenue of $7,096,499.55 and a net profit before taxes of $480,316.85 for 1979, the year preceding the inspection.


In his first decision on the merits of the citations, Judge Salyers found that either of the two systems Ressl proposed would "significantly reduce the exposure of employees to silica dust perhaps, as indicated by the expert, to a level within the limits permitted by the standard."  83 OSAHRC 1/A2 at 22.  Since Ressl's testimony was undisputed, the judge concluded that the Secretary had shown that controls to reduce silica exposure were technologically feasible.  See Continental Can Co., 4 BNA OSHC 1541, 1546, 1976-77 CCH OSHD 21, 009, p. 25,255 (Nos. 3973 et al. , 1976) (controls are technologically feasible when the technology exists to accomplish a significant reduction in exposure levels).  In addition, the judge noted that in Continental Can and Samson Paper Bag Co. 8 BNA OSHC 1515, 1980 CCH OSHD 24,555 (No. 76-222, 1980), the Commission had ruled with respect to the Secretary's noise exposure standard, 29 C.F.R. 1910.95, that feasibility also requires consideration of the costs of controls in relation to the expected reduction in exposure levels.  As the Commission stated in Samson Paper Bag, "the cost of controls must bear a reasonable relationship to the benefits to be achieved."  8 BNA OSHC at 1521, 1980 CCH OSHD at p. 30,045 (lead opinion). [[12/]]


While noting that the Secretary presented no evidence to establish economic feasibility other than Smith Steel's gross income and net profit for 1979, the judge also observed that Smith Steel made no showing that it was "unable to afford the controls."   The judge concluded that "[i]n the absence of a showing that implementation of the controls [is] beyond the financial means of the Respondent and, in view of the obvious benefits to be derived by reducing to a significant degree the exposure of employees to toxic substances the Secretary has carried her burden."  83 OSAHRC 1/A2 at 23.   In short, the judge held both that the costs of the controls Ressl proposed were reasonable in light of the improvement to employee health that those controls would achieve and that Smith Steel could afford to pay the costs of the controls.


B. The Court's Method for Determining Economic Feasibility


In its review of this decision, the Fifth Circuit held that the Secretary had not met her burden of proof on the economic feasibility issue.  First, the court briefly commented that the content of Ressl's report describing his recommendations and their costs, together with his responses on cross-examination, left "doubt" as to the accuracy of his cost figures, which the court characterized as "preliminary guesstimations."  Second, it concluded that the record did not present a sufficiently "complete" picture of Smith Steel's financial condition.  The court stated as follows:


Without a more complete picture of Smith's financial condition, we cannot uphold Judge Salyers's conclusion that the Secretary has proven economic feasibility as supported by substantial evidence.  Our problem is not so much insubstantial evidence as insufficient evidence.  We have no way of knowing whether these gross income and net profit figures represent a typical year for Smith.  For all we know, Smith may have operated at a loss for the three preceding years or for the three succeeding years.   We are vitally concerned with the health of the three out of 250 Smith employees who are over-exposed to silica dust, but we are unwilling to risk putting Smith Steel out of business or into our overcrowded bankruptcy courts by forcing Smith to revamp its sand handling system completely without any real idea whether Smith can survive such a costly renovation.  If it cannot, the law as it presently stands allows Smith to protect its employees from the harmful silica dust in the foundry by implementing an effective respirator program. Therefore, we remand Items 2F and 2G of Citation 1 to the Commission for the receipt of additional evidence on the issue of economic feasibility.


800 F.2d at 1339 & n.9.  The court's order did not dispute the judge's conclusion that Ressl's testimony and report met the Secretary's burden of proving that there were available technologically feasible controls capable of producing significant reductions in the exposure of Smith Steel's employees to silica dust, and that question is not before us.[[13/]]

After the Commission in turn remanded to the judge for further proceedings in accordance with the court's order, the parties agreed that a further evidentiary hearing would not be necessary.  Instead, the Secretary sent Smith Steel a second set of interrogatories regarding its gross revenue and net profit before taxes for the years 1976-1978 and 1980-1982.  In answering these interrogatories, Smith Steel also supplied the same information for three additional years, 1983-1985.  The following chart summarizes Smith Steel's answers:


Year Gross Revenue Net Profit Before Taxes

1976 $5,301,887.35 $89,957.16
1977 $4,842,199.76 $70,710.06
1978 $6,331,728.37 $441,864.70
1980 $9,703,537.56 $662,351.47
1981 $12,888,298.88 $1,072,935.31
1982 $6,789,075.28 $87,972.08
1983 $1,143,074.75 $(-632,581.09)
1984 $2,678,126.86 $(-547,890.70)
1985 $2,660,152.00 $269,352.00


The judge rejected Smith Steel's contention that he could not consider these answers as part of the record because the Secretary had not moved to admit them into evidence.   He further faulted Smith Steel for not presenting evidence pertaining to its financial circumstances.  Based on the data presented by Smith Steel for the 1976-1985 period, Judge Salyers concluded that without further input from respondent [these figures] do not establish that implementation of the proposed controls [is] beyond respondent's financial reach or would result in forcing respondent into bankruptcy."   The judge did not address the court's concern regarding the accuracy of Ressl's cost data.  The judge's decision on remand is now pending before us for review.


C. The Cost of Engineering Controls


At the outset, we find Ressl's projections for the cost of his suggested controls to be adequately supported.  Both his testimony and his written report describe in some detail the methodology he used to arrive at his cost estimates.  While Ressl conceded on cross-examination that in practice an employer might not apply the same cost factors he described or might apply them in a different way, Smith Steel made no attempt to establish how much of an effect these differences might have on the cost figures themselves. Furthermore, Smith Steel did not challenge Ressl's basic methodology either on cross-examination or with evidence of its own.  In our view, the Secretary did not have the burden to establish Smith Steel's costs of compliance to a definitive degree of certainty; rather, absent rebuttal evidence, the Secretary was only obligated to adduce enough evidence to support a prima facie case.  See American Petroleum Inst. v. OSHA, 581 F.2d 493, 503 (5th Cir. 1978), aff'd sub nom. on other grounds, Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980) (court holds that Secretary's estimate of costs based on analysis by a consulting firm adequately establishes the cost of compliance with a standard regulating exposure to benzene).  Considering that Ressl had training and experience in developing engineering cost projections and that he testified, without rebuttal, that he applied generally accepted principles in arriving at his estimates, we find his testimony sufficient to satisfy the Secretary's burden of proving the cost of her suggested controls.  We further note that the court did not vacate the judge's decision on the ground that Ressl's cost figures were unpersuasive; rather, the court remanded these cases, and it limited its remand to the matter of Smith Steel's financial condition.


D. The State of the Evidentiary Record


The only evidence adduced on remand concerning the issue of Smith Steel's financial condition is the second set of interrogatories and answers.  We agree with Judge Salyers that these interrogatories and answers may be considered evidence of record.   As a general rule, answers to interrogatories are not evidence unless they are formally offered and admitted.  4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice 33.29 [1.-2] (2d ed. 1988).  See Jones v. Diamond, 519 F.2d 1090, 1098 & n.13 (5th Cir. 1975).  However, for all practical purposes, the parties have treated these interrogatories and answers as part of the evidentiary record.[[14/]]

Smith Steel initially raised the issue of the admission into evidence of its answers to the Secretary's interrogatories when it objected that the Secretary's brief before the judge on remand improperly relied on those answers.[[15/]]  In response, the judge wrote to the parties as follows:


After receipt of the remand, this matter was discussed with the parties, and a consensus was reached that no further hearing was needed and that the record would be supplemented by means of interrogatories.  Thereafter, interrogatories seeking respondent's gross sales and net profits for the fiscal years 1976 through 1982 were propounded and have been answered.  However, this information without further explanation or development appears inadequate to resolve the issue of economic feasibility.


I Plan to conduct a further hearing in this case and will place a conference call to the parties on July 10, 1987, to determine a time, date, and place mutually convenient to the parties.  [emphasis added].


Nevertheless, Smith Steel opposed a further hearing, reminding the judge that the parties had already decided to submit the remanded issues for disposition without an additional hearing.  Significantly, Smith Steel expressed no objection to the judge's statement that the second set of interrogatories would be part of the record to be considered on remand and that the parties had so agreed.  Furthermore, both the interrogatories and answers were filed directly with the judge, at the same time the filing party served a copy on the opposing party.  Since the filing of interrogatories and answers with the judge is not required by the Commission's rules, the fact that the parties followed this procedure supports our conclusion that they regarded those documents as part of the record.


E. Compliance with the Court's Remand Order


In view of this conclusion, the question before us is whether the limited information presented in Smith Steel's answers to the Secretary's interrogatories is sufficient to satisfy the requirements of the court's remand order.  The court could not determine whether fiscal year 1979 was a representative or typical year for Smith Steel; hence it could not be sure that Smith Steel could "survive" the renovations required.   The court stated that Smith Steel "may have operated at a loss for the three preceding years or for the three succeeding years" and was concerned that Smith Steel not be forced into a financially untenable position.

While the additional figures the Secretary presented show a wide variation from year to year in Smith Steel's gross revenue and net profit before taxes, it is clear that Smith Steel had positive earnings for several years preceding the inspection and that Smith Steel had its highest earnings in 1980 and 1981, the year of the inspection and the year immediately thereafter.  Its net profit before taxes in those years exceeded Ressl's cost figure for the more expensive control system by a wide margin.  Subsequently, in 1982, Smith Steel's net profit dropped dramatically but still exceeded the cost of those controls.  The two succeeding years of negative profit before taxes were followed by a sharp rebound to a profit of approximately $269,000 in 1985, the last year of the period covered by the Secretary's interrogatories.  That figure is about 360 percent greater than the cost of the more expensive controls.  Furthermore, Smith Steel's average annual net profit over the entire 10-year period comes to approximately $250,000, only slightly less than its net profit for 1985.  In his decision on remand, Judge Salyers examined this financial data and found that the cost of the controls would not exceed Smith Steel's ability to pay for them and would not force Smith Steel into bankruptcy.   We conclude that these findings are supported by a preponderance of the record evidence and fully comply with the court's remand order.  We therefore affirm the judge's decision on the economic feasibility issue.


We emphasize, however, that our holding is based on the limited scope of the court's remand order.  The court did not take issue with Judge Salyers' conclusion that the costs of controls were not unreasonable in light of the amount of reduction in exposure they would achieve.  Rather, the court focused on the question of whether the evidence establishes that Smith Steel could afford those costs.  An employer's ability to afford the cost of controls may be among the relevant factors for determining economic feasibility under the air contaminant standard at issue here.  However, it may be appropriate for other elements, including but not necessarily limited to the reasonableness of the costs in light of their expected benefit to be taken into consideration as well.  We need not decide now what test for economic feasibility should be applied under this standard.  That is because the Fifth Circuit's remand order is binding on the Commission as the law of the case and does not require us to make that determination at this time.  See Schuylkill Metals Corp., 13 BNA OSHC 2174, 2176 n.4, 1989 CCH OSHD 28,520, p. 37,844 n.4 (No. 81-856, 1989), on remand from United Steelworkers v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987); Mountain States Tel. & Tel. Co., 9 BNA OSHC 2151, 2153 n.2, 1981 CCH OSHD 25,597, p. 31,931 n.2 (No. 13266, 1981), on remand from 623 F.2d 155 (10th Cir. 1980).


IV. The Commission's Order on Remand


We have concluded that the provisions of 29 C.F.R. 1910.1000 at issue here were validly promulgated and that the Secretary has demonstrated the economic feasibility of engineering controls for silica dust, applying the test for economic feasibility stated by the court.  We therefore affirm item 2F of citation 1 and item 2 of citation 2 alleging excessive exposure to copper fume and silica dust, as well as item 2G of citation 1 alleging that feasible controls were not used to reduce the silica dust exposure. [[16/]]


The violations alleged in citation 1 were characterized as serious violations, and the violations charged in citation 2 were alleged as other than serious.[[17/]]  The Secretary proposed an aggregate penalty of $640 for the entirety of item 2 of citation 1, which also includes violations of the respirator standard, 29 C.F.R. 1910.134, not involved in these proceedings.  The Secretary did not propose any penalty for citation 2.  In his earlier decision, Judge Salyers affirmed the other allegations of item 2 of citation 2, as well as the allegations at issue here.  He accepted the Secretary's characterizations and penalty proposals, and no issue is presented before us now with respect to either the characterization of the violations or the amount of penalty to be assessed.  Since there is no basis on which to disturb the judge's findings, we adopt that portion of his decision assessing an aggregate penalty of $640 for the serious violations set forth in item 2 of citation 1 and assessing no penalty for the other than serious violation in citation 2.


Edwin G. Foulke, Jr.

Chairman

Velma Montoya
Commissioner

Donald G. Wiseman

Commissioner

Dated: April 24, 1991


SECRETARY OF LABOR,

Complainant,

v.

SMITH STEEL CASTING COMPANY,

Respondent.

OSHRC Docket Nos. 80-2069 and 80-2332


DECISION AND ORDER


SALYERS, Judge:  This case, which arises out of respondent's contest of citations issued by the Secretary pursuant to the Occupational Safety and Health Act (29 U.S.C. 651, et seq.) following a 1980 inspection of respondent's foundry in Marshall, Texas, is presently before this tribunal on remand from the Fifth Circuit.  Smith Steel Castings Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986).  The court remanded items 2F and 2G, Citation No. 1, and item 2, Citation No. 2, for consideration of respondent's argument that 29 C.F.R. 1910.1000 is invalid and unenforceable because it was improperly promulgated.  The court also remanded items 2F and 2G of Citation No. 1 for the receipt of additional evidence on the issue of economic feasibility.

Validity of 1910.1000

Respondent contends that 29 C.F.R. 1910.1000 was not adopted pursuant to the rulemaking procedure provided for in 29 U.S.C. 655(b).  The history of this standard is recited in Deering-Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1097 (5th Cir. 1980):

On May 29, 1971, acting pursuant to section 6(a), the Secretary of Labor promulgated 29 C.F.R. 1910.1000 as an OSHA requirement.  This regulation, dealing with permissible levels of exposure to air contaminants . . . was based upon 41 C.F.R. 50-204.50, an established federal standard under the Walsh-Healy Public Contracts Act.   Subsequently, on August 13, 1971, the Secretary published a revision of 29 C.F.R. 1910.1000 stating that "Section 1910.93 (air contaminants) [presently designated as 29 C.F.R. 1910.1000 . . . .] has been revised in its entirety, in the interest of greater intelligibility and accuracy.  36 Fed. Reg., 15101 (August 13, 1971).   This revision was achieved pursuant to section 6(a) and thus without regard to the Administrative Procedure Act or to the notice and comment procedures of section 6(b) of OSHA.  (Footnotes omitted)


In Deering-Milliken, supra, the court found that the Secretary did not materially alter the provisions of the standard and that the standard's revision was not new and was not improperly promulgated.  The court expressly rejected the argument that respondent now makes, as did the Review Commission in the following cases:  Fieldcrest Mills, Inc., 2 BNA OSHC 1143, 1974-75 CCH OSHD 18,471 (No. 5625, 1974); Hermitage Concrete Pipe Co., 76 OSAHRC 2/C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD 20,298 (No. 4678, 1976); Senco Products, Inc., 82 OSAHRC 59/E9, 10 BNA OSHC 2091, 1982 CCH OSHD 26,304 (No. 79-3291, 1982).


Accordingly, respondent's argument that 1910.1000 was improperly promulgated is without merit and is rejected.


Economic Feasibility


Section 1910.1000(e) provides in pertinent part:  "To achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible."  This standard contemplates that exposure to excessive levels of toxic substances will be abated primarily by administrative or engineering controls and that personal protective equipment will be employed only in the event that such controls are not "feasible."   The meaning of the term "feasible" has been the subject of controversy in the Review Commission among the various circuit courts of appeal and in the Supreme Court, but there is a consensus that this term encompasses both technological and economic feasibility.  See United Steelworkers v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1980), cert. denied, 453 U.S. 913, 101 S. Ct. 3148; Diversified Industries Division, Independent Stave Co. v. OSHRC, 618 F.2d 30, 32 (8th Cir. 1980); American Iron and Steel Institute v. OSHA, 577 F.2d 825, 832 (3d Cir. 1978).


In this case the Secretary established in the initial proceeding that two proposed engineering plans were "technologically feasible." One of these plans would cost $281,300 to purchase and install with annual operating costs of approximately $74,100.   The other system would cost approximately $145,300 to install with a yearly operating cost approximating $41,100.  The engineer who designed these systems was convinced that the implementation of these plans would significantly reduce employee exposure to respirable quartz.  It was his considered opinion that the controls when implemented "would reduce employee exposure to within the OSHA permissible exposure limit for respirable quartz" (Tr. 723-724).  The testimony of the Secretary's expert was sufficient to establish "technological feasibility," was not countered by any evidence offered by respondent, and was not challenged on review by the Review Commission or the Fifth Circuit.


The crucial question remaining in this case is whether the engineering controls recommended by the Secretary under section 6(b)(5) [[1/]] of the Act are "economically feasible" as that term is now construed by the Review Commission and the courts.  On this issue, neither party has rendered substantial assistance to the undersigned during the remand process.


In its remand order, the Circuit expressed its concern that the evidence offered in the initial proceedings [[2/]] was insufficient to support a finding that the plans proposed by the Secretary were economically feasible and commented that the "problem is not so much insubstantial evidence as insufficient evidence."  The Circuit further observed:


We have no way of knowing whether these gross income and net profit figures represent a typical year for Smith.  For all we know, Smith may have operated at a loss for the three preceding years or for the three succeeding years.  We are vitally concerned with the health of the three out of 250 Smith employees who are over-exposed to silica dust, but we are unwilling to risk putting Smith Steel out of business or into our overcrowded bankruptcy courts by forcing Smith to revamp its sand handling system completely without any real idea whether Smith can survive such costly renovation.   If it cannot, the law as it presently stands allows Smith to protect its employees from the harmful silica dust in the foundry by implementing an effective respirator program.  800 F.2d at 1339


Following receipt of the remand order, this Judge conducted a conference call with the parties and was advised additional evidence required by the remand order would be adduced by means of interrogatories.  The record now contains the following information (Ex. J-41, J-45) [[3/]] reflecting respondent's gross sales and net profits for the corresponding years:

Year Gross Sales Net Profit
1976 $ 5,301,887 $ 89,957
1977 4,842,199 70,710
1978 6,331,728 441,864
1979 7,096,499 480,316
1980 9,703,537 662,351
1981 12,888,298 1,072,935
1982 6,789,075 87,972


In addition, respondent has volunteered information for subsequent years as follows:

Year Gross Sales Net Profit
1983 $ 1,143,074 $ 632,581 (Loss)
1984 2,678,126 547,890 (Loss)
1985 2,660,152 269,352


The Secretary's interrogatories and respondent's answers thereto constitute the entire effort made by the parties to comply with the dictates of the remand order.  This scant information did not resolve the questions still pending for determination and leaves the record in this case in much the same posture as before.  Accordingly, this Judge, by letter dated June 30, 1987 (Ex. J-55), advised the parties of his intention to conduct a further hearing in the matter.  Contrary to assumptions made in respondent's reply letter of July 7, 1987 (Ex. J-56), that this action was intended to provide the Secretary an opportunity to correct deficiencies in his case, the purpose of this letter was to afford respondent the opportunity to supplement the record by showing the impact these proposals would have upon respondent's economic health, or to suggest alternative, but less expensive, methods of abatements.


In a telephone conference call conducted with the parties on July 10, 1987, this Judge discussed his concern that the interrogatories and answers did not provide an adequate basis for resolving the issue of economic feasibility and specifically directed the attention of the parties to the burden of proof question as set forth in Sherwin-Williams Company, 84 OSAHRC 28/A2, 11 BNA OSHC 2105, 1984-85 CCH OSHD 26,986 (No. 14131, 1984) (which will be discussed infra).  However, this effort was met with resistance by both parties (Ex. J-57).  In view of this development, this case will be decided on the record as presently constituted.


"Economic feasibility" was first addressed by the Review Commission in Continental Can Company, 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD 21,009 (No. 3973, 1976), wherein the Commission vacated a citation which charged an employer with failure to institute feasible engineering controls to reduce noise levels, holding that the Secretary failed to prove these controls were economically feasible.  This case required that expected benefits must be weighed against costs.  Succeeding cases, all of which involved the noise standard, reached similar results.  Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD 21,854 (No. 10925, 1977); West Point Pepperell, Inc., 77 OSAHRC 48/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD 21,751 (No. 8255, 1977); Carnation Company, 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD 22,837 (No. 8165, 1978); Sampson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD 24,555 (No. 76-222, 1980).


In 1981 the Supreme Court decided American Textile Mfgrs. Institute, Inc. v. Donovan (ATMI), 101 S. Ct. 2478, a case challenging the validity of the cotton dust standard promulgated under section 6(b)(5) of the Act on the grounds that the Act required the Secretary to show a reasonable relationship between the costs of implementing the requirements of the standard and the expected benefits to employees.  After reviewing the language of the Act and its legislative history, the court concluded that the term "feasible," as used in section 6(b)(5) of the Act, means "capable of being done" or "achievable" and held that Congress did not intend to require cost-benefit analysis in promulgating standards dealing with toxic substances or harmful physical agents.  The court observed:

Congress specifically chose in 6(b)(5) to impose separate and additional requirements for issuance of a subcategory of occupational safety and health standards dealing with toxic materials and harmful physical agents:  it required that those standards be issued to prevent material impairment of health to the extent feasible. (Emphasis in original) Id. at 2492

* * *

The congressional Reports and debates certainly confirm that Congress meant "feasible" and nothing else in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment.  Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard.  The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business.  Id. at 2493

Not only does the legislative history confirm that Congress meant "feasible" rather than "cost-benefit" when it used the former term, but it also shows that Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment. Id. at 2496

* * *

When Congress passed the Occupational Safety and Health Act in 1970, it chose to place pre-eminent value on assuring employees a safe and healthful working environment, limited only by the feasibility of achieving such an environment.  We must measure the validity of the Secretary's actions against the requirements of that Act.  Id. at 2506


Following ATMI, the Review Commission reconsidered its previous position on cost-benefit in Sun Ship, Inc., 83 OSAHRC 49/D1, 11 BNA OSHC 1775, 1983 CCH OSHD 26,353 (No. 16118, 1983), another noise case involving a standard promulgated under section 6(a) of the Act, and adopted the position that Congress did not intend to require cost-benefit analysis in dealing with toxic substances or harmful physical agents except in those cases where implementation of controls "would seriously jeopardize the cited employer's long-term financial profitability and competitiveness."  1983 OSHD at 33,422.   It further reasoned that while "the Supreme Court decided only the meaning of section 6(b)(5) and not whether cost-benefit analysis might be required for standards promulgated under other sections (of the Act)," it would employ the same reasoning in a section 6(a) case since "the identical question of legislative intent is presented in interpreting the noise standard."  Id. at 33,420.


In the opinion of this Judge, the Supreme Court opinion in ATMI is controlling in the case at bar, dealing as it does with a standard promulgated under section 6(b)(5) of the Act.   I do not read the Review Commission decision in Sherwin-Williams, supra, as requiring a contrary result.


In Sherwin-Williams, supra, the Secretary proceeded under section 6(a) of the Act and 29 C.F.R. 1910.95(b)(1) to require the abatement of excessive noise levels.   In overruling Sun Ship, supra, and reinstating a cost-benefit requirement for actions pursued under section 6(a) of the Act, the Commission was careful not to expand its ruling into the realm of section 6(b)(5) cases.  The Commission noted its reliance on the Ninth Circuit decision in Castle & Cooke Foods, 692 F.2d 641 (9th Cir. 1982), which observed that the ATMI decision limited its construction of "feasible" to standards promulgated under section 6(b)(5)of the Act "a distinct 'species of the genus of standards governed by the basic requirements' of the Act," 692 F.2d at 648, quoting Industrial Union Department v. American Petroleum Institute, 448 U.S. 627, 642 (1980).  I find nothing in either of these decisions nor in any other decisions emanating from the Review Commission [[4/]] or the circuit courts subsequent to ATMI which conflicts with the view that section 6(b)(5) cases do not require a cost-benefit test.


Despite the holding in ATMI, however, it is reasonable to conclude that neither the Secretary nor the courts would impose the implementation of controls where such action would clearly result in forcing an employer out of business or into bankruptcy.  This concern was articulated in the circuit's remand order and requires treatment in this decision.


The respondent did not present any evidence bearing on its financial circumstances during the initial hearing or on remand despite the clear admonition in the remand order that such evidence was germane to a resolution of the issue.  This passive, unresponsive approach was maintained even after this Judge specifically indicated a need for such evidence in a conference call to the parties and called respondent's attention to the following quote from Sherwin-Williams, supra:


To prove a violation, therefore, the Secretary must prove that proposed engineering and administrative controls are both technologically and economically feasible.  As the Ninth Circuit recognized in Castle & Cooke, "realism and common sense should dictate how the Secretary may meet his burden of providing substantial evidence of feasibility."  692 F.2d at 650 [10 OSHC at 2175].  After the Secretary proves that controls are technologically feasible, the burden of producing evidence shifts to the employer who may raise the issue of economic feasibility and go forward with evidence of the cost of controls and personal protective equipment.  The burden of producing evidence then returns to the Secretary "who must establish that the benefit of the proposed engineering controls justifies their relative cost in comparison to other abatement methods."  Id.  The ultimate burden of persuasion on the feasibility issue nevertheless remains with the Secretary.  11 OSHC 2110.  (Emphasis supplied)


While the Secretary may bear "the ultimate burden of persuasion on the issue of feasibility," it is clear that this burden is not foisted solely on his shoulders even in a case brought pursuant to section 6(a).  This point was made clear in the Ninth Circuit's decision in Castle & Cooke Foods, supra, cited by both parties and relied upon by the Review Commission in Sherwin-Williams, supra, as follows:


We therefore hold that when the Secretary seeks enforcement of a citation alleging a violation of 29 C.F.R. 1910.95(b)(1), he bears an initial burden of showing that technologically feasible engineering controls are available to the cited employer.   Although the Secretary will generally have access to information on the average development and installation cost of the proposed controls, he will not have knowledge of the specific economic impact implementation of the controls will have on the cited employer.  Therefore, once the Secretary meets his initial burden, the burden must shift to the employer, who may raise the issue of economic feasibility.  The employer may satisfy this burden of production with evidence of the relative cost to him of various methods of noise control.  That is, the employer may compare the costs of implementing engineering controls, administrative controls, or personal protective equipment at a specific employment location.  If the employer raises the question of economic feasibility in this manner, the burden of proof returns to the Secretary, who must establish that the benefit of the proposed engineering controls justifies their relative cost in comparison to other abatement methods.  692 F.2d at 650.


In this case the Secretary has provided information relative to respondent's gross sales and net profits.  The record now reflects gross sales for the period 1976 through 1985 approximate $59,000,000.  Net profits (after taking into account losses reflected during 1983 and 1984), approximate $2,600,000. [[5/]]  The record does not contain respondent's current sales and profits for 1986 or 1987.  These figures on their face, and without further input from respondent, do not establish that implementation of the proposed controls are beyond respondent's financial reach or would result in forcing respondent into bankruptcy.  While the costs of effectuating controls are considerable in this case, they are not exorbitant when viewed in light of the damage they seek to prevent.

The difficulty with this case, as expressed in this Judge's initial decision, results from respondent's failure to come forward with any evidence to show a responsible recognition of, or concern for, the hazardous circumstances existing in its foundry or the steps it has taken or proposes to take to rectify a serious, life-threatening condition.  This continued silence leads to a presumption that respondent has either taken no action to cope with the reality of silica exposure or that it has no evidence to present that would be favorable to its case.  Under these circumstances, items 2F and 2G of Citation No. 1 are affirmed.


ORDER

In keeping with the foregoing, it is hereby ORDERED:


Respondent will immediately evaluate the hazard of silica dust exposure as it relates to employees working in its sand handling and muller operations with a view to reducing this exposure by means of engineering controls to a level within the limits set by 29 C.F.R. 1910.1000, Table Z-1.  Implementation of appropriate engineering controls will be effectuated within a three-month period from the date of this order.


EDWIN G. SALYERS

Judge

Date: November 18, 1987


FOOTNOTES:
[[1/]] Feasible engineering or administrative controls are only in issue with respect to the silica dust exposure.  The Secretary previously withdrew an allegation that Smith Steel had failed to use feasible controls to reduce the levels of copper fume.   Another allegation, that the employee exposed to copper fume was not wearing the proper kind of respirator, was affirmed by the Fifth Circuit and is no longer before us.   Therefore, the only issue with respect to copper fume is whether 1910.1000, which prescribes the exposure limit, is a valid standard.

[[2/]] The standard has since been substantially amended.  54 Fed. Reg. 2332 (1989).

[[3/]] Regardless of whether the sampling is for total airborne silica dust or respirable silica dust, the sampling device will collect all kinds of airborne particulate matter, not just silica.  However, if the sampling is for respirable silica dust, only particles 10 microns or less in length will be collected.  See Bunge Corp., 12 BNA OSHC 1785, 1786 n.4, 1986-87 CCH OSHD 27,565 at p. 35,801 n.4 (Nos. 77-1622 et al., 1986).

[[4/]] At the time these citations were issued, the relevant provisions of the cited standard read as follows:

1910.1000 Air contaminants.

An employee's exposure to any material listed in table Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.
(a) Table Z-1:
(1) Materials with names preceded by "C"-"Ceiling Values.  An employee's exposure to any material in table Z-1, the name of which is preceded by a "C" (e.g., C Boron trifluoride), shall at no time exceed the ceiling value given for that material in the table.
(2) Other materials--8-hour time-weighted averages.  An employee's exposure to any material in table Z-1, the name of which is not preceded by a "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time-weighted average for that material given in the table.
. . . .
(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 paragraphs (a) through (d) of this citation, administrative or engineering controls must first be determined and implemented whenever feasible . . . .

[[5/]] Table Z-1 allows a higher exposure level, 1 mg/m3, for copper "dusts and mists."  Matthews explained that copper "fume" consists of very small particles, less than one micron in "size," whereas "mist" refers to a "liquid aerosol" or liquid medium containing copper.  He did not define copper "dust," but stated that a welding operation normally would produce fume and not dust or mist.

[[6/]] Section 6(a) provides, in pertinent part:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety and health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. . . .

Section 3 (9) of the Act defines a "national consensus standard" as any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

Section 3(10) of the Act defines an "established Federal standard" as "any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act."

[[7/]] When review was directed, the statement of issues to be considered on review was expressly limited to the economic feasibility issue discussed infra and validity challenges that are directly related to the facts of these cases.  The direction for review itself cited DeKalb Forge Co., 13 BNA OSHC 1146, 1151, 1986-87 CCH OSHD 27,842, p. 36,449 (No. 83-299, 1987), in which the Commission indicated that it would consider arguments that a standard is invalid only as they relate to the citation items in question.  Thereafter, when it requested briefs, the Commission directed that briefs be filed "with respect to the issues stated in the direction for review."   Despite these express limitations on the scope of the validity issue to be considered on review and the explicit citation to DeKalb Forge in the direction for review, Smith Steel's review briefs discuss language changes to the Walsh-Healey standard that have no relationship to the alleged violations.  To the extent Smith Steel's arguments are unrelated to the specific violations charged in these cases, we decline to consider them.

[[8/]] The judge cited Senco Products, Inc., 10 BNA OSHC 2091, 1982 CCH OSHD 26,304 (No. 79-3291, 1982); Hermitage Concrete Pipe Co., 3 BNA OSHC 1920, 1975-76 CCH OSHD 20,298 (No. 4678, 1976), rev'd and remanded on other grounds, 584 F.2d 127 6th Cir. 1978); and Fieldcrest Mills, Inc., 2 BNA OSHC 1143, 1974-75 CCH OSHD 18,471 (No. 5625, 1974). Senco involved a provision of 1910.1000 concerning mixtures of air contaminants that is not in question here.  In Hermitage Concrete Pipe Co., 76 OSAHRC 2/D1 (ALJ, 1974), and Fieldcrest Mills, Inc., 2 BNA OSHC 1143 (ALJ, 1974) (excerpt), two Commission judges generally concluded that the changes made in the August 1971 revision were substantive in nature.  However, with one exception dealing with a respirator requirement that is not at issue here, neither judge specified the language changes he considered to be substantive.  Without any discussion, the Commission summarily reversed the judges' decisions in both cases. Therefore, Smith Steel is correct that these prior cases cannot be construed as stating the Commission's position on the issues now before us.

[[9/]] Smith Steel's argument that the 1970 ACGIH TLV's differ from those in the 1968 list relates only to the copper fume citation. The PEL's for silica dust did not originate in the ACGIH TLV list incorporated by reference in the Walsh-Healey standard but rather were set forth in a separate table both in the Walsh-Healey standard and in 1910.93.   Therefore, any changes to the TLV list the Secretary may have made when she issued 1910.93 have no bearing on the silica dust allegations.

[[10/]] These regulations, which have been amended since these cases arose, now appear in 1 C.F.R. Part 51.  Smith Steel contends that the Walsh-Healey standard did not contain the proper statement of incorporation by reference, did not properly identify the referenced material, and did not describe its availability.  See George C. Christopher & Sons, 10 BNA OSHC 1436, 1441, 1982 CCH OSHD 25,956, p. 32,529 (No. 76-647, 1982).

[[11/]] Smith Steel further challenges the validity of the incorporation of the ACGIH TLV values into the Walsh-Healey standard on the grounds that the incorporation violates the ACGIH's copyright and ignores an admonition in the preface to the TLV publication that if its values are used in legislative codes, they should be kept current.  It is not clear whether these are procedural or substantive challenges to the validity of the Walsh-Healey standard.  See National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048, 1052 (8th Cir. 1978) (distinguishing compliance with procedural requirements for promulgating a standard from the reasonableness or feasibility of the standard).  Nevertheless, regardless of how they are classified, we do not consider Commission review of these arguments in these proceedings to be appropriate.  The general proposition expressed in General Motors that Congress mandated the adoption of Walsh-Healey standards indicates that the Commission should not consider the contention that the incorporation of an ACGIH TLV list in a Walsh-Healey standard was inconsistent with conditions or stipulations set forth by the ACGIH.

[[12/]] The Commission has since reaffirmed the principle that the relative costs and benefits of controls must be taken into account in determining feasibility under the noise standard.  Sherwin Williams Co., 11 BNA OSHC 2105, 1984-85 CCH OSHD 26,986 (No. 14131, 1984).

[[13/]] On review, Smith Steel contends that the evidence does not support Judge Salyers' findings regarding the amount of reduction in exposure.  The issue of the technological feasibility of Ressl's proposed controls was not raised either in the Fifth Circuit's remand order to the Commission, the Commission's subsequent remand order to the judge, or the Commission's direction for review of the judge's decision.  In the absence of any compelling reason to address this issue at this stage in the proceedings, we decline to do so.  See Commission Rule 92(a), 29 C.F.R. 2200.92(a) (Commission has authority to limit the issues considered on review).

[[14/]] This holding is strictly limited to the circumstances of these cases.   No party should assume that answers to interrogatories will automatically be considered part of the record.  Ordinarily, the party seeking to use answers to interrogatories as evidence must formally move for their introduction into the record.   Power Fuels, Inc., No. 85-166 (April 17, 1991).

[[15/]] Smith Steel raises and objection to the procedures that were followed on remand when the parties filed their briefs before the judge.  The Secretary's opening brief addressed only the validity of the standard and not the feasibility issue.  The Secretary claimed that she was waiting to receive Smith Steel's answers to her interrogatories before presenting arguments on feasibility.  When the Secretary failed to respond even after Smith Steel filed its answers, the judge requested the Secretary to state her position on the feasibility question.  The Secretary replied that she had not intended to abandon the feasibility issue, and the judge allowed the Secretary and additional period of time to present arguments of feasibility.

We reject Smith Steel's argument that the judge acted improperly by alerting the Secretary to the incompleteness of her opening brief and affording the Secretary an opportunity to file a second brief.  Smith Steel was partially responsible for the delay in the completion of briefing because it did not file its answers to the interrogatories until the very last day of the briefing period.   While we do not excuse the lack of diligence on the part of the Secretary's counsel in failing to request an extension of time to file her brief, we do not find that the judge demonstrated bias in favor of the Secretary, as Smith Steel claims.  In any event, Smith Steel has neither argued nor established that it was prejudiced by the fact that the parties' briefs on the feasibility question were not simultaneous.

[[16/]] Smith Steel objects to a provision of Judge Salyers' decision directing it to "evaluate" the hazard and implement "appropriate" engineering controls within a three-month period.  Smith Steel claims that this instruction violates the court's remand order and deprives it of due process because the judge states no criteria for determining what may be "appropriate."  In addition, Smith Steel argues that there is no evidence to support the three-month requirement.


We agree with Smith Steel that the remand order precluded the judge from considering any potential abatement methods other than Ressl's proposed controls.  To the extent the judge instructed Smith Steel to investigate other means of reducing the silica dust exposure, we set aside his order.  However, Smith Steel is not precluded from using other means of engineering or administrative controls if it so chooses, so long as those means reduce the level of silica dust at least to the same extent as Ressl's proposed controls.  We further note that the only evidence as to the time needed to accomplish abatement is Ressl's estimate that the methods he described could be installed in six to eight weeks.  We therefore establish an eight-week abatement period, beginning with the date of entry of this order.  Should Smith Steel require additional time to install controls, it may file for an extension of the abatement date under section 10(c) of the Act.


[[17/]] Section 17(k) of the Act, 29 U.S.C. 666(k), defines a serious violation as one presenting "a substantial probability that death or serious physical harm could result."

[[1/]] This section provides:

(5) The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.  Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate.   In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws.  Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.

[[2/]] In the initial proceedings, the only evidence bearing on this issue was respondent's gross income ($7,096,499.55) and net profit ($480,316.85) for 1979, the year preceding the Secretary's inspection.

[[3/]] Respondent, by letter dated June 1, 1987 (J-54), objects to consideration of this information on the grounds that the interrogatories and answers have not been offered or received in evidence.  This tactical maneuver by respondent may be technically correct but hardly serves to aid in a resolution of the issue.  Accordingly, under Rule 102 of the Federal Rules of Evidence, the interrogatories and answers are received by the court "to the end that the truth may be ascertained and proceedings justly determined."  Furthermore, the interrogatories were answered by respondent without objection.  Considering the fact that these answers constitute the only new information received by this Judge after this case was remanded with an order to receive additional evidence on the issue of economic feasibility, respondent's objection is disingenuous.

[[4/]] The Review Commission has held employers to a higher duty to protect employees from the effects of toxic substances (which lead to serious or death-dealing consequences) as opposed to hazards created by noise which do not present a life-threatening risk.   Harmony Blue Granite Co., 83 OSAHRC 45/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD 26,467 (No. 14189, 1983).

[[5/]] It is significant to note that gross sales during the period 1979 through 1982 (the period immediately preceding and following the 1980 inspection) approximate $36,000,000 with net profits in excess of $2,000,000.