ANACONDA ALUMINUM COMPANY

OSHRC Docket No. 13102

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Reg. Sol., USDOL

Leon R. Timmons, Staff Atty., Anaconda Aluminum Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge John J. Morris is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, n1 29 U.S.C. 661(i). The issues on review n2 concern questions arising under OSHA health standards dealing with coal tar pitch volatiles ("CTPV"), asbestos, and noise. Judge Morris concluded that Respondent, Anaccnda Aluminum Company ("Anaconda"), violated the Act by failing to comply with the standards at 29 C.F.R. 1910.134(a)(2) and 1910.1000 n3 in that it did not provide its employees exposed to excessive airborne CTPV with suitable respirators, but determined that the violation was not serious in nature. He found Anaconda in noncompliance with sections 1910.1001(j)(2), (j)(3), and (j)(4) for failing to provide medical examinations to employees exposed to airborne asbestos, and he concluded that the noncompliance with section 1910.1001(j)(3) [*2] was willful in nature. The judge determined, however, that Anaconda did not fail to comply with section 1910.1001(c)(2)(iii) by not providing suitable respirators and special clothing to employees engaged in the removal of asbestos coverings, and he found that Anaconda did not fail to comply with section 1910.95(b)(1) by not implementing feasible administrative controls to eliminate exposure of its employees to excessive noise.

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n1 29 U.S.C. 651-678 ("the Act").

n2 Both parties petitioned for review of the judge's decision. I granted both petitions in part, and Commissioner Barnako granted Anaconda's petition in its entirety. Former Commissioner Moran also directed review of the judge's decision "for error." Thus, the various directions for review place before us all the issues for which the parties have taken exception to the judge's decision.

The parties have not taken exception to a number of other alleged violations resolved by the judge. As there is no compelling public interest in Commission review of the issues to which the parties have not taken exception, we will affirm those parts of the judge's decision without review. Water Works Installation Corp., 76 OSAHRC 61/ B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/ A2, 3 BNA OSHC 2032, 1975-76 CCH OSHC P20,428 (No. 9507, 1976). Those parts of the judge's decision are accorded the precedential value of an unreviewed judge's decision. Leone Const. Co., 76 OSAHRC 12/ E6, 3 BNA OSHC 1979, 1975-76 CCH OSHC P20,387 (No. 4090, 1976).

n3 All references to standards in this opinion will be to those in Part 1910 of Volume 29, Code of Federal Regulations.

[*3]

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We conclude that the judge properly disposed of the alleged violations involving sections 1910.1000(j)(2), (j)(3), and (j)(4). We reverse his decision insofar as he vacated the citations for noncompliance with sections 1910.1001(c)(2)(iii) and 1910.95(b)(1), and affirm those citations. We modify his ruling concerning the citation for noncompliance with sections 1910.134(a)(2) and 1910.1000.

I

Anaconda employs nine hundred workers in producing metallic aluminum at its aluminum reduction plant in Columbia Falls, Montana. The reduction process involves passing electric current through a bath of molten alumina (aluminum oxide) in a number of furnaces, referred to as "pots." The shell of a pot serves as the cathode or negative terminal of the electrical circuit. Each cathode is lined with carbon blocks held together by a pasty substance containing coal tar pitch.

An inspection of Anaconda's plant was conducted between January 21 and February 27, 1975 by David DiTommaso, an industrial hygienist representing the Secretary of Labor ("Secretary"). DiTommaso took samples of the airborne contaminants in [*4] the breathing zone of various employees for the purpose of measuring their exposure to CTPV. n4 All of the employees so sampled wore some type of respirator. The case primarily involves the accuracy of the CTPV measurements resulting from DiTommaso's samples and the adequacy of the respirators worn by Anaconda's employees. n5

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n4 Section 1910.1002 defines coal tar pitch volatiles as follows:

As used in 1910.1000 (Table Z-1), coal tar pitch volatiles include the fused polycyclic hydrocarbons which volatilize from the distillation residues of coal, petroleum, wood, and other organic matter.

n5 The citation alleged a violation of 1910.134(a)(2), which provides:

1910.134 Respiratory protection.

(a) Permissible practice.

* * *

(2) Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protective program which shall include the requirements outlined in paragraph (b) of this section.

The citation was amended by the complaint to incorporate 1910.93 and Table G-1 therein, now recodified as 1910.1000 and Table Z-1. Subsection (a)(2) of 1910.1000 requires that employee exposure to any material listed in Table Z-1 shall not exceed, in any 8-hour work shift of a 40-hour week, the 8-hour time weighted average ("TWA") given for that material in Table Z-1. Table Z-1 lists CTPV's thus:

Substance

mg/M<3>

Coal tar pitch volatiles

(benzene soluble fraction)

anthracine, BaP, phenanthrene,

acridine, chrysene, pyrene

0.2

[*5]

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The employees sampled included a briquette trucker, an ore trucker, n6 a member of the vent crew, and three members of the cathode reline crew. The briquette trucker's function is to drive a truck around the rim of the pot and discharge briquettes, which melt and form part of the anode, into the pot. The ore trucker drives a truck around the pot to discharge ore into the pot when necessary. The vent crew is responsible for, among other things, changing asbestos cloth coverings on gooseneck tubes leading from the pots. The cathode reline crew (also referred to as the "pit crew") is responsible for reconditioning the cathodes on a regular basis. This involves removing a cathode from a pot to an area known as the cathode reline area or "pit." There, the crew replaces deteriorated portions of the cathode with new carbon blocks.

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n6 The same ore trucker was sampled twice, on two different days.

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A thick, pasty substance containing coal [*6] tar pitch is used in reconditioning a cathode. Some crew members work above the pit, shovelling this substance, which has been heated to 160 degrees Celsius, into buckets for transfer into the pit. Others work in the pit, using pneumatic hammers to pound the substance between the carbon blocks that line the cathode. The pasty substance, when heated, emits heavy, visible fumes containing CTPV. Exhaust ducts located on the east and west edges of the pit remove some of these fumes. However, some fumes remain in the breathing zones of the crew members.

A

The samples that DiTommaso took were sent to the Occupational Safety and Health Administration ("OSHA") laboratory in Salt Lake City for a determination of the amount of CTPV they contained. There, chemists Lucero and Kenison measured the benzene soluble fraction n7 of the material on the filters by a method known as the Parma 1013 method or Soxhlet extraction. Their procedure included the following steps:

(1) The filters are exposed to the air overnight in order that any water they contain may evaporate. This process is referred to as equilibration;

(2) The filter containing the sampled contaminants is weighed;

(3) The filter [*7] is placed in a stirrup apparatus underneath a container of benzene;

(4) The benzene is heated and allowed to drip through the filter, dissolving and extracting the material on the filter that is soluble in benzene;

(5) The benzene extraction is poured back through the filter to collect any extracted material that did not dissolve in the benezene;

(6) The filter, containing the contaminants that did not dissolve in benzene, is weighed;

(7) A blank filter, containing no contaminants, is run through the same extraction process as a control. The weight differential between pre-extraction and post-extraction for the blank is subtracted from the original weight reading of the sample filter; n8

(8) After blank correction, the benzene soluble fraction is calculated as the difference between the original weight (pre-extraction filter plus all contaminants) and the final weight (post-extraction filter plus nonsoluble contaminants).

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n7 The benzene soluble fraction is that part of the total material on the filter that dissolves in benzene. The exposure limit for CTPV contained in Table Z-1 of 1910.1000 is stated in terms of the benzene soluble fraction of total CTPV. See note 5 supra.

n8 The blank analyzed by Lucero lost 0.06 milligrams, and Kenison's lost 0.1 milligrams.

[*8]

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Lucero and Kenison also analyzed the samples for their content of benzo-alpha-pyrene ("BaP"), one of the constituent compounds of CTPV, by a process employing thin-layer chromatography.

The following chart summarizes the amount of the benzene soluble fraction of CTPV and BaP that were measured, together with the respective 8-hour time-weighted averages ("TWA") calculated from the measurements. n9

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n9 Each sample was taken over a time period ranging from 274 to 400 minutes. In calculating the TWA's it was assumed that each employee had zero exposure for the remainder of an 8-hour workday.

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TABLE I

Total

TWA

TOTAL

TWA

SAMPLE n10

CTPV *

CTPV

BaP **

BaP

Pit Man #1

0.97

0.46

59.87

34.01

Pit Man #2

1.20

0.72

15.00

9.09

Pit Man #3

1.30

0.78

15.00

9.06

Ore Trucker #1

2.1

1.74

2.3

1.90

Ore Trucker #2

3.0

2.5

1.5

1.25

Briquette Trucker

0.3

0.2

4.9

3.39

Vent Crewman

0.5

0.34

1.6

1.09

South Edge (Stationary)

8.8

4.30

87.57

45.1

North Edge (Stationary)

2.6

1.21

41.48

21.0

[*9]

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n10 In addition to the employees who were sampled, DiTommaso also took stationary samples at the north and south edges of the pit. Kenison analyzed these samples as well as the sample for Pit Man #1. Lucero analyzed the remainder. It was established at the hearing that the results Kenison reported were not corrected for the weight loss of the blank. He testified, however, as to the proper correction, and the figures given in the chart reflect this correction.

* Coal Tar Pitch Volatiles expressed in milligrams per cubic meter.

** BaP expressed in micrograms per cubic meter.

[1 milligram = 1,000 micrograms]

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These results, if accurate, demonstrate that all the sampled employees were exposed n11 to airborne concentrations of CTPV equal to or exceeding the 0.2 milligram/m<3> TWA established in section 1910.1000. Anaconda vigorously contends, however, that these results do not accurately represent the levels of airborne CTPV to which its employees were exposed. Its objections were the subject of testimony by its [*10] expert witness, Dr. Seim, the manager of analytic research for Kaiser Aluminum. In Seim's opinion, the Parma 1013 method contains two basic defects. First, Seim testified that the method was inaccurate because particles on the filter, and even part of the filter itself, could be lost during the analytic process and thereby be counted as part of the benzene soluble fraction, thus inflating the reported value of the benzene soluble fraction. Seim postulated a number of means by which such particle losses could occur. Seim's second objection to the Parma 1013 method was that the method did not specifically measure CTPV, but would also measure material on the filter that was not CTPV but was nonetheless soluble in benzene. If this occurred, a higher value for the benzene soluble fraction of CTPV than actually existed would be reported.

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n11 In speaking here of the exposure of employees to CTPV, we are referring only to the airborne concentration of CTPV in the locations where the employees work. The amount that the employees actually breathe will depend on the effectiveness of the respirators they wear, and this subject will be addressed later in this opinion.

[*11]

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Seim conducted experiments using the Parma 1013 method to test his hypothesis that particulate that was nonsoluble in benzene could be lost and reported as part of the benzene soluble fraction. First, he subjected two inorganic particulates similar to those present in aluminum smelters but known to contain no benzene soluble material to benzene extractions. Weight losses were nonetheless obtained. In Seim's opinion, such losses are logically only attributable to mechanical losses during the extraction process. Next, Seim performed repeated extractions on two actual samples of particulate from an aluminum reduction plant. Both the second and third extractions resulted in additional weight loss, even though theoretically the first extraction should have removed all of the benzene soluble material. n12 Seim's experience with the Parma 1013 method led him to introduce an alternative technique for measuring the benzene soluble fraction at Kaiser Aluminum's laboratory. n13

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n12 In some of his experiments, Seim observed weight losses only slightly less than the highest total weight loss measured by Lucero and Kenison on any of the samples taken by DiTommaso.

n13 The alternative technique is referred to as the direct gravimetric method, in which the repeated handlings during the extraction phase of the Parma 1013 method are replaced by an ultrasonic method of benzene extraction. Midway through the trial of this case, the OSHA laboratory at Salt Lake City began using this alternate technique. However, the parties stipulated that the change in technique was "not because of any question as to accuracy of results, but because the second method was found more acceptable to certain people in industry." (Tr. 1065).

[*12]

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Seim also testified that water itself is soluble in benzene, and that part of the reported amount of benzene soluble material could be water and not CTPV. This possibility was enhanced in an aluminum reduction plant, in which much of the airborne particulate is alumina. Alumina particulate, more than other types of particles, tend to absorb water, and water absorbed in alumina will not readily equilibrate in a laboratory. Although water will give benzene a hazy appearance, Seim testified that the amount of water necessary to significantly affect the measurements obtained by the OSHA chemists would not make the solution hazy and produce a visual indication that water was present in the solution.

The OSHA chemists who performed measurements on the samples taken from Anaconda's plant testified that, in their opinion, their measurements were valid to within the limits of accuracy of the Parma 1013 method. Lucero estimated that this limit was plus or minus 0.1 to 0.2 milligrams per cubic meter of air, while Kenison placed the margin for error at plus or minus 0.1 to 0.15 milligrams per cubic meter. [*13] Both testified that they had used extreme care in conducting the tests, and that they did not believe that any significant amount of particulate was lost that would have affected the results beyond the limits of error they estimated.

Dr. Madsen, the director of the OSHA Salt Lake City laboratory, testified that lost particulate and interferences due to the presence of alumina particulate would not affect the results of the Parma 1013 method beyond the built-in margin for error, which he placed at 0.1 to 0.2 milligrams per cubic meter. In his opinion, the procedure could be performed with sufficient care to eliminate any loss of particulate sufficient to affect the accuracy of the results beyond this margin for error.

Judge Morris concluded that the results obtained by the Parma 1013 method accurately reflected the level of contaminants to which Anaconda's employees were exposed. In so doing, he credited the testimony of the OSHA chemists that, notwithstanding the possibilities for particulate losses discussed by Seim, the tests could be and were conducted so as to render such losses negligible. The judge also noted that, despite its allegations that the results obtained by OSHA [*14] were inaccurate, Anaconda had not itself conducted any tests to determine the airborne concentration of CTPV in its facility. In the judge's view, this failure significantly weakened Anaconda's challenge to the results obtained by the OSHA chemists.

In addressing Anaconda's argument that the nonspecific nature of the Parma 1013 method may result in materials that are not CTPV being reported as part of the benzene soluble fraction, the judge construed the argument as an attack on the wisdom of the standard, noting that the standard itself specifies the exposure limit for CTPV in terms of the benzene soluble fraction. He rejected the argument on the basis that the Commission has no authority to question the wisdom of the Secretary's standard. n14

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n14 The judge cited Cornish Dress Mfg. Co., 75 OSAHRC 22/ C2, 3 BNA OSHC 1850, 1975-76 CCH OSHD P20,246 (No. 6765, 1975)

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Anaconda makes essentially the same arguments before us that it made before the judge. For the reasons that follow, we adopt the judge's findings. [*15]

The judge rejected Anaconda's objections to the accuracy of the analyses largely on the basis of his crediting the testimony of the chemists who performed the tests. In so doing, the judge considered each mechanism by which Seim had testified that particulate could be lost during the tests, evaluated the testimony of the OSHA chemists in light of Seim's testimony, and concluded that the tests were accurately performed and the results reliable. Anaconda offers no compelling reason why we should evaluate the evidence in a different manner than did the judge. Accordingly, and in view of the deference we normally pay to a judge's well-explained credibility determinations, we accept the judge's evaluation of the evidence concerning the results the OSHA chemists obtained from the Parma 1013 method. See Heath & Stich, Inc., 80 OSAHRC 8 BNA OSHC 1640, 1980 CCH OSHD P24,580 (No. 14188, 1980), pet. for review filed, No. 80-1927 (5th Cir. Aug. 26, 1980). We also agree with the judge's observation that Anaconda's failure to offer, in refutation of the OSHA chemists' measurements, any results obtained through its own testing, seriously diminishes the weight that should [*16] be accorded to its objections to the OSHA tests.

We turn now to Anaconda's contention that the results obtained by the OSHA chemists should be rejected because the Parma 1013 method does not distinguish between CTPV and other material on the filter that is soluble in benzene but is not CTPV. The judge considered this argument to be an attack on the wisdom of the standard in that the standard itself specifies an exposure limit in terms of the benzene soluble fraction of total CTPV. Anaconda disagrees with the judge's characterization of its argument as being an attack on the wisdom of the standard, contending instead that the issue is an evidentiary one. The company contends that, because some of the benzene soluble material measured by the OSHA chemists may not have been CTPV, the Secretary failed to satisfy his burden of proving how much of the measured benzene soluble fraction of the contaminants on the filters was actually CTPV. Anaconda suggests that much of the measured material may have been nothing more than water, pointing to Seim's testimony that alumina particles, which are present in an aluminum smelter, readily absorb water vapor, and that such absorbed water does [*17] not readily equilibrate in a laboratory. Anaconda relies on our decision in Spring Air Mattress Co. of Colorado, 74 OSAHRC 90/ B12, 2 BNA OSHC 1416, 1974-75 CCH OSHD P19,146 (No. 1422, 1974) ("Spring Air Mattress"), and on a decision of the Safety and Health Review Board of North Carolina, Aluminum Co. of America, Docket No. OSHANC-41 (August 25, 1976)

In Spring Air Mattress, the Secretary alleged that employees were exposed to excessive cotton dust. The allegation was based on a sample taken by placing personal samplers on the employees and measuring the total amount of dust collected. The Commission concluded that the Secretary had failed to prove exposure to excessive cotton dust because he had failed to determine how much of the material collected on the filters was cotton dust and how much was ordinary dust.

The Aluminum Co. of America case, as does this case, involved an allegation of excessive employee exposure to CTPV. The standard involved was the same as in this case. Measurements similar to those made here indicated employees were exposed to benzene soluble material in excess of the standard's limit of 0.2 milligrams/m<3>. The Review Board concluded, [*18] however, that the results did not sufficiently prove a violation because the evidence did not negate that materials other than CTPV that are soluble in benzene were collected on the filters. The Board noted that the tests were made in the springtime, when pollen might be in the air, but that no pollen counts were made to eliminate that as a possible source of inaccuracy. The Board also noted that the possibility of deliberate contamination by employees or of contamination by cigarette smoke had not been eliminated.

Although these cases support Anaconda's position, we think they were wrongly decided. n15 To meet his burden of proof, the Secretary need not establish a fact with absolute certainty. Instead, he must prove the existence of that fact by the preponderance of the evidence. Armor Elevator Co., 73 OSAHRC 54/ A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (No. 425, 1973). In other words, the evidence must establish that the existence of the fact the Secretary seeks to prove is more likely than not. McCORMICK, LAW OF EVIDENCE P339 at 794 (2d Ed. 1972).

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n15 Spring Air Mattress also involved the question whether the cotton dust standard contemplated the measurement of the total dust present in a cotton dust environment or whether it required the dust to be separated into its cotton and non-cotton components. The Commission has since held that the standard is a total dust standard, overruling Spring Air Mattress to the extent it implied the contrary. Deering-Milliken, Inc., 78 OSAHRC 101/ A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), aff'd, 630 F.2d 1094 (5th Cir. 1980). We now overrule the general holding of Spring Air Mattress that the Secretary, in order to prove that employee exposure to an air contaminant exceeds the limit provided in a standard setting forth a nonspecific method of measurement, must negate or quantify the presence of other possible contaminants in order to establish a prima facie case.

[*19]

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In this case, the Secretary has demonstrated that Anaconda's plant contained hot coal tar pitch, and that airborne CTPV was therefore present. Anaconda has suggested that the samples the Secretary took may have contained water, which is also soluble in benzene, and would have us reject the Secretary's tests because the Secretary failed to negate the presence of water in the samples. Considering the record as a whole, however, we conclude it is more likely than not that the Secretary's measurements accurately represent the levels of airborne CTPV to which Anaconda's employees were exposed. Where, as here, the Secretary has established the presence of a particular air contaminant, and conducts a nonspecific test to measure the level of that contaminant, we do not think that a mere suggestion that the test may have measured something in addition to that contaminant is sufficient to disregard the results of the tests. Instead, the burden shifts to the one challenging the tests to show that the other substance is present in sufficient quantity to render the Secretary's measurements unreliable. Although [*20] Seim testified that alumina particulate would be present and would capture and hold water, Anaconda presented no evidence showing the levels of alumina particulate present in its plant, or showing how much water absorbed by any such particulate would remain after the equilibration process to which the OSHA chemists subjected the samples. Again, Anaconda's failure to conduct any tests of its own significantly detracts from the weight we attach to its objections to the measurements obtained by the Secretary. We find that the figures in Table I supra accurately reflect the amounts of CTPV and BaP to which Anaconda's employees were exposed.

B

As noted above, all of the employees sampled by DiTommaso were wearing respirators. n16 The pit crew, ore truc'er, and briquette trucker wore MSA Comfo half mask respirators fitted with an organic vapor cartridge and overlaid with a static-web dust filter. The vent crew wore American Optical quarter mask respirators fitted with a vapor-gas absorption cartridge and a dust filter. Both types of respirator cover the wearer's mouth and nose. The half mask, however, covers more of the user's face than does the quarter mask. Additionally, the [*21] half mask is stabilized with two straps connected at four different points while the quarter mask is held by two straps connected to the same two points. Because it is stabilized at four points rather than two, the half mask is better stabilized against the wearer's face than the quarter mask.

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n16 Section 1910.1000 requires that before respirators can be used as a permanent means of reducing employee exposure to air contaminants below the limits specified, feasible engineering and administrative controls must first be implemented to reduce the level of contaminants. Here, however, there is no allegation that Anaconda failed to implement feasible engineering or administrative controls; the Secretary's sole allegation is that the respirators Anaconda provided were inadequate.

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The quarter mask respirators worn by the vent crew were fitted with facelets, which are cotton cloths worn between the respirator and the workers' face to cushion the contact of the respirator. Although the Comfo half mask did not come with [*22] an attached facelet, some members of the reline crew, as well as the ore and briquette truckers, wore facelets when using these respirators.

The respirators that Anaconda's employees were using are referred to as negative pressure air-purifying respirators. As an employee inhales, the air pressure in the zone between the respirator facepiece and the user's face becomes lower than the outside pressure. This pressure differential draws ambient air through the respirator's filtering media into the breathing zone of the employee. If, however, the seal between the respirator and the wearer's face is imperfect, then unfiltered air can leak in around this seal, also drawn in by the differential between the inside and outside pressure. If such leakage occurs, then the employee breathes a combination of filtered air and unfiltered air that has leaked in around the seal.

Because of the leakage problem inherent with negative pressure respirators, greater protection against breathing air contaminants is provided by respirators that maintain a higher pressure inside the respirator facepiece than outside. The pressure differential associated with such respirators prevents leakage of unfiltered [*23] ambient air into the employee's breathing zone. Such respirators are referred to as positive pressure respirators. The record contains references to two types of positive pressure respirators: the powered air-purifying respirator and the air-supplied, or airline respirator. With the former, ambient air is drawn through a hose, passed through a filtering system, and blown into the wearer's breathing zone. Thus, as with the negative pressure air-purifying respirator, the wearer breathes filtered ambient air. However, the higher pressure maintained inside the facepiece minimizes leakage of unfiltered air into the breathing zone. With the airline respirator, the wearer does not breathe ambient air. Instead, air is blown into the employee's breathing zone through a hose from a remote source. At the time of the hearing, some of Anaconda's employees were using airline respirators on an experimental basis.

The overall effectiveness of a respirator is represented by a "protection factor." The protection factor is defined as the ratio of the outside or ambient concentration of the air contaminant to the concentration in the employee's breathing zone when the respirator is worn properly. [*24] For example, assuming that a particular contaminant is present in the ambient air in a concentration of 10 milligrams/m<3>, a respirator with a protection factor of 10 would expose the wearer to an inside concentration of 1 milligram/m<3>, and one with a protection factor of 5 would expose the wearer to an inside concentration of 2 milligrams/m<3>. Stated another way, the outside concentration is divided by the protection factor to find the concentration of the contaminant in the air the employee actually breathes.

Industrial hygienist DiTommaso testified that the half mask respirators worn by Anaconda's employees offered a protection factor of approximately 10 if worn without a facelet. A facelet, however, would adversely affect the seal between the respirator and the wearer's face, resulting in a protection factor of less than 10. Additionally, because the quarter mask was not as well stabilized against the wearer's face as the half mask, it would produce a protection factor of only 5.

DiTommaso thought that the half mask respirators worn by the reline crew were inadequate to protect them against CTPV. In addition to the added potential for leakage caused by the use of facelets, [*25] he noted that these workers used pneumatic tools that generated a great deal of vibration and believed that this vibration would adversely affect the seal between the respirator and the wearer's face, thereby diminishing the protection the wearer received.

In concluding that the respiratory protection afforded the reline crew was inadequate, DiTommaso also relied on his opinion that CTPV and its BaP component were recognized carcinogens, i.e. cancer causing substances. He based this belief on a passage from a textbook published in 1971 by the American Conference of Government Industrial Hygienists ("ACGIH"), which contains recommended concentration limits for various airborne contaminants. For the benzene-soluble fraction of CTPV, the ACGIH text recommends a limit of 0.2 milligrams/m<3>, giving the following reason for the recommendation:

Since no "safe" limit of exposure can be established for carcinogens and because of instability in the composition of volatiles from coal tar pitch a limit of 0.2 milligrams of benzene-soluble components of coal tar pitch volatiles per cubic meter of air is recommended. A limit of 0.2 mg/m<3> of the total components present should minimize exposure [*26] to these carcinogens.

DiTommaso was concerned about the employees' exposure to BaP as well as to CTPV. He testified that the air in many heavily industrialized cities contains between 0.1 and 0.2 micrograms/m<3> of BaP, and based on this he believed 0.2 micrograms/m<3> was recognized as a level that should not be exceeded. As Table I supra shows, the measurements of BaP in the ambient air exceeded this amount.

DiTommaso emphasized that there is no known "safe" limit for any carcinogen, and therefore believed that a positive pressure type respirator, which would provide the maximum possible protection against breathing an air contaminant, should be used by the reline crew to protect them against CTPV and BaP. In DiTommaso's opinion, this conclusion was supported by a standard published by the American National Standards Institute, American National Standard Practices for Respiratory Protection, Z88.2 - 1969 ("the ANSI standard"). n17 Section 6.2 of this standard states, in pertinent part:

The multiplicity of hazards that may exist in a given operation requires careful and intelligent respirator selection. This selection is made even more complex by the many types of respirators [*27] available. Each type has its limitations, areas of application, and operational and maintenance requirements.

The selection of a proper respirator for any given situation requires consideration of the following factors: 1) nature of the hazard (see Section 4); 2) extent of the hazard; 3) work requirements and conditions; and 4) characteristics and limitations of available respirators (see Section 5). . .

When there is doubt about the concentration of oxygen or hazardous material present in the atmosphere, only those respirators listed as suitable for respiratory protection against oxygen deficiency shall be used. Any erring in the selection of respirators shall be on the safe side.

DiTommaso stressed that several of the factors listed in the ANSI standard suggested that the respirators used by the reline crew were inadequate. The nature of the hazard, breathing a carcinogen, was such that respirators providing the maximum possible protection should be used. The work requirements and conditions under which the reline crew worked, particularly the vibrations caused by their pneumatic tools, which would affect the seal obtainable, dictated against the use of a negative pressure [*28] type respirator. DiTommaso also noted that Table 4 of the ANSI standard stated that a facelet should only be used with a half mask respirator in atmospheres of coarse dust and mists of low toxicity, n18 and he did not think that an atmosphere containing carcinogens could be considered of low toxicity.

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n17 Section 1910.134(c) mandates reference to the ANSI standard in selecting proper respirators. This section provides:

1910.134 Respiratory Protection.

* * *

(c) Selection of Respirators. Proper selection of respirators shall be made according to the guidance of American National Standard Practices for Respiratory Protection Z88.2 -1969.

n18 Table 4 of the ANSI standard is entitled "Capabilities and Limitations of Respirators" and provides as follows with respect to half mask respirators:

Shall not be used in atmospheres immediately dangerous to life or health. A fabric covering on the facepiece is permissible only in atmospheres of coarse dusts and mists of low toxicity.

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Because the ore trucker, briquette [*29] trucker, and vent crew were not exposed to the vibrations from pneumatic equipment that confronted the reline crew, DiTommaso believed they could have been adequately protected by half mask respirators if the respirators were used without facelets and were properly worn and maintained. However, because these employees did use facelets with their respirators at the time of the inspection, DiTommaso believed that their respiratory equipment was unsuitable. n19

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n19 DiTommaso was also critical of various aspects of Anaconda's program for maintaining respirators and for instructing employees in the proper use and limitations of the respirators they wore. These conditions, however, were the subject of other citations that the judge affirmed and concerning which Anaconda has not sought review. As Anaconda points out, because these conditions were cited separately, they should not be considered in determining the question of whether the respiratory equipment provided by Anaconda was applicable and suitable for use by its employees.

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Dr. Magnante, manager of product development for the safety products division of the American Optical Company, testified for Anaconda. Magnante stated that the half mask respirators used by Anaconda could provide an ideal protection factor as high as 100 if there was no leakage around the seal, but he assigned the conservative protection factor of 10, which he said is generally accepted by experts in the field. Magnante also thought that the quarter mask respirators worn by the vent crew should be assigned a protection factor of 10, but he noted that some experts placed the protection factor for that type of respirator at 5.

Magnante was of the opinion that the respirators provided by Anaconda were applicable and suitable to combat CTPV exposure where the particulate concentration inside the respirator does not exceed the threshold limit value established in section 1910.1000. Even the fact that CTPV contains BaP, which Magnante agreed was a carcinogen, did not change his opinion that the negative pressure respirators could provide adequate protection, as the presence of BaP was considered in establishing the CTPV exposure limit. Magnante also thought that the half [*31] mask, used in conjunction with a dust filter and vapor cartridge, conformed to the criteria established by the ANSI standard. In this regard, he noted that the hazard is not immediately dangerous to life and health, that the hazard is a dust and particulate hazard, and that Table 6 of the ANSI standard approves the half mask under such circumstances. n20 Magnante further observed that Table 3 of the ANSI standard recognizes the use of a cotton facelet to decrease discomfort. n21

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n20 Table 6 is entitled "Guide for Selection of Respirators" and provides in pertinent part:

PARTICULATE CONTAMINANTS

Immediately dangerous to

Self contained breathing appartus

life or health (See Note 2)

Hose mask with blower

Air-purifying, full facepiece

respirator with appropriate filter

Self-rescue mouthpiece respirator

(for escape only)

Combination air-line respirator

with auxiliary self-contained

air supply or an air-storage

receiver with alarm.

Not immediately dangerous

Air-purifying, half-mask or

to life or health

mouthpiece respirator with filter

pad or cartridge

Air-line respirator

Air-line abrasive-blasting respirator

Hose mask without blower

n21 Table 3 is entitled "Classification and Description of Respirators by Mode of Operation." It is divided into two categories of respirators: atmosphere-supplying and air-purifying. Under the section captioned "particulate-removing respirators", the half-mask is described thus:

(2) Half-Mask Respirator

Normally equipped with one or two dust, mist or fume filters designed to protect against nuisance and low to moderate toxicity dusts, fumes, and mists, an exhalation valve, and (normally) inhalation valves. A knitted fabric cover is sometimes worn on dust respirators to decrease discomfort. (emphasis added)

[*32]

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Magnante rejected the suggestion that the vibrations caused by running a pneumatic hammer would decrease the assigned protection factors. He emphasized that the protection factor of 10 for the half mask is a "very conservative number" and said that bodily vibrations such as might result from a pneumatic tool would already have been taken well into account in reducing the assigned protection factor from an ideal of 100. Similarly, Magnante did not think that the use of a facelet should significantly reduce the protection factor that should be assigned Anaconda's respirators. Although a facelet would reduce the effectiveness of the fit to some extent, even with a facelet a much greater volume of air moves through the filtering apparatus into the breathing zone than is drawn in through leakage around the facepiece. Therefore, the protection factor would not be significantly reduced.

Magnante was also questioned with respect to the ANSI provision limiting the use of facelets with the half mask to atmospheres of coarse dusts and mists of low toxicity. He testified that the particulate size would range [*33] from 20 microns to approximately 0.1 microns, but could not give an opinion as to whether the dust was "coarse" or the mists "of low toxicity" within the meaning of the ANSI standard. In the same vein, Magnante refused to offer an opinion on the toxicity of BaP. He did, however, opine that the work environment did not constitute an atmosphere "immediately dangerous to life or health" within the meaning of the applicable ANSI standard. n22

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n22 See note 20 supra.

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In rebuttal, the Secretary produced Dr. Hyatt, who, while employed at the Los Alamos Scientific Laboratory, had supervised a project for the National Institute of Occupational Safety and Health ("NIOSH") to determine the protection factors that should be assigned to various classes of respirators. Hyatt noted that the protection factor that an air-purifying respirator could achieve would depend on both the amount of leakage around the seal into the breathing area and the efficiency of the filtering medium itself. He conducted his tests with high-efficiency [*34] dust filters, n23 worn by a panel of sixteen individuals with facial features representative of a cross section of the male population, employing different facial expressions to simulate a typical work environment. An atmosphere containing a known concentration of a standard sodium chloride aerosol was produced, and a sampling probe inside the respirator facepiece placed in the general area of the wearer's breathing zone measured the amount of contaminant inside the respirator. This would be divided into the known concentration of the sodium chloride outside the respirator to obtain the protection factor obtained by that particular wearer. After comparing the protection factors obtained for all the individuals and respirators being tested, a protection factor was assigned under which all, or almost all, individuals in the test would achieve at least that protection factor using that type of respirator. n24 Most tested individuals would therefore receive protection significantly greater than the assigned protection factor would indicate.

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n23 A high-efficiency filter, Hyatt explained, has an efficiency of at least 99.97% against a mist of 0.3 micron dioctyl-phthalate, or DOP. Hyatt testified that, in general, the filters used by Anaconda would permit greater penetration of contaminants than the high efficiency filters he tested. He noted, however, that the actual penetration would depend on many factors, and he could not directly compare the efficiency of Anaconda's filters against CTPV with the high efficiency filters he used in his tests. Moreover, Hyatt was not questioned concerning the relative penetration of the high efficiency filter he used in his tests compared to the combination of dust filter and chemical cartridge elements used by Anaconda.

n24 Hyatt's tests covered respirators manufactured by a number of different companies. Wide variations in the results obtained with respirators of different manufacturers were observed. However, no attempt was made to distinguish between the protection provided by different brands; instead, the observed variations were considered in assigning protection factors to the various classes of respirators. Hyatt stated that protection factors were not assigned to respirators according to the name of the manufacturer because of objections raised by the industry to such a procedure.

[*35]

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Based on the results of his studies, Hyatt recommended that protection factors of 10 be assigned to the half mask respirator, 5 or 10 for the quarter mask respirator, with the higher factor being used when the respirator is equipped with a high efficiency filter, 1000 for the powered air-purifying respirator, n25 and 2000 for the airline respirator.

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n25 Hyatt stressed that a protection factor of this magnitude could only be achieved with a high efficiency filter. He noted that the American Iron and Steel Institute had recommended a protection factor of 30 for the powered air-purifying respirator when used to combat coke-oven emissions.

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As did the other witnesses, Hyatt noted that the possibility for leakage when wearing a negative pressure respirator depends on the quality of seal obtained by individual wearers. Since these respirators are manufactured in only one size by each maker, the adequacy of the seal will vary in accordance [*36] with such factors as the wearer's face size and structure. On the other hand, leakage when using the positive pressure type of respirator is negligible. Hyatt thought that the use of a facelet could increase penetration of contaminants into the breathing zone by "a very small amount," thereby lowering the protection factor, but did not think this would render such a respirator unsuitable for use in a CTPV contaminated atmosphere. In the same vein, Hyatt testified that the respirators Anaconda used would, with one exception, be suitable against the level of CTPV to which they were exposed. The one exception was the ore trucker, who was exposed to an ambient concentration of 2.5 milligrams/m<3> and for whom a protection factor of 10 would not reduce his exposure below the TLV of 0.2 milligrams/m<3>. Assuming a TLV of 0.2 micrograms/m<3> for BaP, Hyatt testified that the respirators used by the reline crew and briquette trucker were inadequate. Therefore, for these employees, Hyatt recommended the use of either an airline respirator or powered air-purifying respirator with high-efficiency filter. Hyatt also thought that the vent crew members were adequately protected by the quarter [*37] mask respirators they were using, as a protection factor of 5 would bring their CTPV exposure to within 0.2 milligrams/m<3> and their BaP exposure, in round figures, to 0.2 micrograms/m<3>.

Judge Morris found that Anaconda had failed to provide adequate respirators to all of the employees sampled. He initially found that the following protection factors were established for the various respirators in use:

Respirator

Protection Factor

Quarter mask

 5

Half mask

10

Half mask with facelet

less than 10

Judge Morris did not attempt to adjust the measured concentrations to which the various employees were exposed for the protection factors of the respirators they wore. n26 Instead, he found that the work conditions rendered the respirators inadequate, noting particularly the use of pneumatic tools by the reline crew.

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n26 These figures will, however, prominently bear on our subsequent discussion of this issue. The following chart represents the exposures of CTPV and BaP of the various employees both before and after correction for the protection factors of the respirators they wore. In arriving at these figures, a protection factor of 5 has been used for the quarter mask, and one of 10 has been assigned to the half mask regardless of whether or not a facelet was worn, inasmuch as the record does not permit a quantitative effect to be assigned to the effect of the facelet. We will consider the significance of the use of facelets in our subsequent discussion of this issue.

Employee

Respirator

TWA CTPV

TWA CTPV

TWA BaP

TWA BaP

(ambient)

(corrected

(ambient)

(corrected

for PF)

for PF)

Pit Man #1

half mask

0.46

0.046

34

3.4

Pit Man #2

half mask

0.72

0.072

 9

0.9

Pit Man #3

half mask

0.78

0.078

 9

0.9

Ore Trucker #1

half mask

1.74

0.174

1.9

0.19

Ore Trucker #2

half mask

2.5

0.25

1.25

0.125

Briquette Trucker

half mask

0.2

0.02

3.39

0.339

Vent Crewman

quarter mask

0.34

0.068

1.09

0.245

The figures for CTPV are in milligrams/m<3>. Those for BaP are in micrograms/m<3>. [*38]

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Anaconda contends that, even accepting the accuracy of the Secretary's measurements of CTPV and BaP, the respirators it provided were applicable and suitable within the meaning of section 1910.134(a)(2). Applying protection factors found by the judge, Anaconda notes that the respirators provided sufficient protection to bring its employees under the 0.2 milligram/m<3> threshold limit value for CTPV in all cases except for the second sampling of the ore trucker. Anaconda argues that the protection factors should not be reduced below 10 for the half mask and 5 for the quarter mask because of the use of facelets or vibrations due to the use of pneumatic tools, as these protection factors are already very conservative and take well into account the possibility of considerable leakage around the seals between the respirators and the employees' faces. Indeed, Anaconda contends that the protection factors are so overly conservative that even in the case of the ore trucker, for whom the concentration adjusted for the protection factor is only slightly in excess of the 0.2 milligram/m<3> TLV, n27 the respirator was adequate. Anaconda notes that a protection factor of 12.5 would [*39] be sufficient to bring this employee's exposure within the 0.2 milligram/m<3> limit prescribed for CTPV.

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n27 See note 26 supra.

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Anaconda further contends that the Secretary's evidence concerning the carcinogenicity of CTPV and BaP does not require an opposite result. Even assuming that the substances are carcinogens, Anaconda argues that it is entitled to rely on the threshold limit value for CTPV designated in Table Z-1 of section 1910.1000, so that the evidence showing the levels to BaP to which it employees were exposed is irrelevant. It notes that there is no separate threshold limit governing BaP, and that the treatment of CTPV in Table Z-1 specifically contemplates the inclusion of BaP since BaP is one of the six constitutent components specifically identified in the table.

The Secretary argues that the judge properly found the respirators to be inadequate. He emphasizes that Anaconda's employees were exposed to excessive levels of BaP, a known carcinogen, and that the 0.2 milligram/m<3> level established [*40] for CTPV is inapplicable when determining a safe level of exposure for any one of the numerous constituents of the CTPV family. The Secretary urges us to discount the fact that the standards do not establish a separate limit for BaP exposure, arguing that Anaconda should not be permitted to exceed what he characterizes as the 0.2 microgram/m<3> "recognized limit" for BaP. Indeed, the Secretary further argues thas since there is no known safe limit for any carcinogen, the nature of the hazard to which Anaconda's employees were exposed dictates the use of the respirator that affords the best possible protection - the airline respirator.

The Secretary also argues that the protection factors for the respirators Anaconda employed are an unsatisfactory measure of whether the respirators were adequate. He first contends that the normal protection factors assigned for those classes of respirators cannot be used here because of factors tending to increase the leakage into such respirators, such as the vibrations to which the reline crew was subjected and the use of facelets. The Secretary further argues, however, that the suitability of a respirator does not turn on its assigned protection [*41] factor, but instead on the considerations governing the selection of respirators set forth in the ANSI standard. Under the ANSI standard, the Secretary argues, the adequacy of respiratory protection involves more than merely dividing the outside concentration of a contaminant by the protection factor. Instead the protection factor is merely one of many considerations in determining suitability and in any event can never be taken to be an amount greater than that assigned by expert testimony. Although the Secretary concedes that a straight division of the CTPV concentrations by the protection factors would demonstrate adequate protection for all employees except the ore trucker, he urges us to reject that criterion, particularly in light of the high degree of BaP exposure.

For the reasons that follow, we conclude that Anaconda only violated the standard with respect to the ore trucker. We reject the Secretary's argument that we should look to the employees' BaP exposure in determining whether their respirators were adequate and also reject his contention that the standard requires the most effective available respirator for protection against a carcinogen. We conclude that it [*42] is appropriate, with some qualifications, to measure the adequacy of Anaconda's respirators by determining whether the amount of CTPV breathed by the employees, after adjustment for the protection factors found by the judge, exceeds the limit for CTPV established by Table Z-1 of section 1910.1000.

First, we cannot agree that the adequacy of the respirators should be measured by the employees' exposure to BaP. As Anaconda points out, BaP is one of many compounds present in CTPV. Indeed Table Z-1, in setting forth the time weighted average exposure permitted for CTPV, specifically lists BaP. Therefore in establishing a limit for CTPV in the standard at section 1910.1000, the Secretary must be considered to have taken into account the fact that BaP is present. This is borne out by the Secretary's own evidence. As noted above, DiTommaso relied on an ACGIH text in concluding that CTPV and BaP are carcinogenic. However, although recognizing that BaP was carcinogenic, the ACGIH nevertheless recommended an exposure limit in terms of the benzene soluble fraction of total CTPV, saying that the limit of 0.2 milligrams/m<3> of "the total components present should minimize exposure to these [*43] carcinogens." This is particularly significant, because an earlier version of the ACGIH recommendation served as the basis for the present exposure limit codified in section 1910.1000. n28

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n28 The text on which DiTommaso relied was published in 1971. A 1968 ACGIH publication, however, also recommended 0.2 milligrams/m<3> as the appropriate limit for the benzene soluble fraction of total CTPV. This latter recommendation was adopted by the Secretary as a standard under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35 - 45. 34 Ed. Reg. 788-96 (1969). The Walsh-Healey standard was subsequently adopted as an established Federal standard under 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 655(a). 36 Fed. Reg. 1046 (1971); 36 Fed. Reg. 15101 (1971). Since the 1971 ACGIH recommended limit was identical to the 1968 version, we think it reasonable to infer, in the absence of evidence to the contrary, that the basis for the recommendation was the same in 1971 as it was in 1968. Accordingly, the intent of the present standard, based on the ACGIH rationale underlying the standard, is to include the total hazard presented by all the components of CTPV, including BaP, within the single 0.2 milligram/m<3> exposure limit for CTPV.

[*44]

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It is also significant that, in promulgating a standard dealing with one class of CTPV, coke oven emissions, n29 the Secretary specifically rejected the use of BaP as an indicator substance in determining the appropriate exposure limit. Instead, the Secretary decided to retain an exposure limit measured in terms of the benzene soluble fraction of total particulate emissions. Although reasons such as the relative ease of analysis entered into his decision, the Secretary also noted that "there is evidence that it (the benzene soluble fraction of total particulate matter) more specifically estimates the mixture of potential carcinogenic compounds in coke oven emissions than do measurements of any single compound." 41 Fed. Reg. at 46752. He further stated that "[BaP] might not, however, reflect total carcinogenic activity of coke-oven emissions. It has been characterized as both a good and bad indicator of carcinogenicity in coke-oven emissions." 41 Fed. Reg. at 46753 (citations to record omitted). These observations indicate that the hazard presented by CTPV is better characterized by the total benzene [*45] soluble fraction rather than the amount of BaP present. This detracts from the Secretary's argument that we should pay special attention to the amount of BaP in Anaconda's plant in determining the hazard to which its workers were subjected.

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n29 The coke oven standard was promulgated at 41 Fed. Reg. 46742 (1976). Prior to its promulgation, coke oven emissions were regulated under the standard for CTPV found in Table Z-1 of 1910.1000. See United States Steel Corp., 77 OSAHRC 12/ D14, 2 BNA OSHC 1343, 1974-75 CCH OSHD P19,047 (No. 2975, 1974). Thus, coke oven emissions are a specific category of CTPV.

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In any event even if we agree with the Secretary that the adequacy of the respirators should be measured by the employees' exposure to BaP, the record fails to establish the Secretary's contention that 0.2 micrograms/m<3> is a recognized limit for BaP. When questioned on this point on direct examination, DiTommaso responded as follows:

Q. Are you aware of whether there is a recognized threshold limit value [*46] for that substance (BaP) separate and apart from coal tar pitch volatiles?

A. To my knowledge in trying to assess some kind of safe exposure to benzo-pyrene, the decision was to suggest a level of 0.2 micrograms per cubic meter of benzo-pyrene as a safe level, and that is based on the fact that the concentration of the substance in the urban air in many heavily industrialized cities tends to run around 0.1 to 0.2 micrograms per cubic meter.

However, the position of course is that there is no and there can never be any safe exposure limit to a carcinogen.

Q. When you say that that figure has been suggested, do you mean to imply that it has not been adopted as such by an organization like the one that published this book (the ACGIH text)?

A. No, it has not been adopted.

DiTommaso later referred to an "advisory committee" as the group that recommended the 0.2 microgram/m<3> limit for BaP, but did not further identify this committee. Magnante also referred to a proposed standard for BaP but did not say who had proposed the standard or what limit was proposed. Although Hyatt testified that the respirators Anaconda used were inadequate to protect against BaP if the safe limit [*47] for exposure to BaP was 0.2 micrograms/m<3>, he did not testify that this was indeed an appropriate limit. He was simply asked to assume that it was.

Thus, the record shows only that an unidentified advisory committee has proposed that 0.2 micrograms/m<3> is an approprate limit for exposure to BaP. This is not sufficient evidence on which to base a finding that such a limit should be considered a recognized safe limit.

Nor can we conclude, as the Secretary urges, that the presence of a carcinogenic air contaminant in Anaconda's plant necessarily dictates the use of better respirators than Anaconda provided. n30 Although we agree in principle that exposure of employees to any carcinogen should be reduced as much as possible, an employer's duty under the Act, where a specific applicable standard exists, is to comply with that standard. Here, Table Z-1 of section 1910.1000 permits employee exposure to CTPV so long as the eight hour TWA for such exposure is within 0.2 milligrams/m<3>. It would be illogical to say that employees may be exposed to this concentration of CTPV as long as the airborne concentration does not exceed this figure, but that if the airborne concentration exceeds [*48] this figure, respirators that reduce the amount employees breathe to under this amount are unsuitable. Accordingly, we conclude that any respirator capable of assuring that the amount of CTPV an employee breathes is less than 0.2 milligrams/m<3> is applicable and suitable within section 1910.134(a)(2).

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n30 The Secretary's argument in this regard is primarily directed at the presence of BaP in Anaconda's plant. As discussed above, we have concluded that BaP should not be accorded special significance. Nevertheless, as discussed later in this opinion, CTPV is itself carcinogenic. Accordingly, the Secretary's argument that exposure of Anaconda's employees to a carcinogen dictates their use of better respirators must still be addressed.

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This conclusion is reinforced by the Secretary's rulemaking actions taken with respect to other dust and particulate contaminants known to be carcinogenic. We have referred above to the Secretary's standard for coke oven emissions, which are a specific type of CTPV. That standard [*49] establishes a permissible 8 hour TWA of 150 micrograms/m<3>, n31 and permits the use of "any particulate filter respirator for dust and mist except single-use respirator" whenever the concentration does not exceed 10 times this amount. n32 A similar provision is found in the standard governing asbestos. n33 Moreover, even the testimony of the Secretary's expert witnesses does not establish that negative pressure respirators are per se inadequate to protect against CTPV. Although DiTommaso testified that the carcinogenic nature of the hazard dictated the use of better respirators, his criticism of the use of the respirators Anaconda was using was largely directed at the use of facelets and at the effect the vibrations to which the pit crew were subjected would have on the seals achieved with their respirators. However, he testified that the negative pressure respirators being worn could have provided adequate protection to all employees except the pit crew. Similarly, Hyatt testified that the negative pressure respirators could have provided adequate protection so long as they had protection factors high enough to reduce the amount of CTPV actually breathed to less than [*50] the limit provided in the standard. His opinion that the respirators were inadequate was based solely on his being asked to assume that an acceptable level for BaP was 0.2 micrograms/m<3>. Since we have concluded that the presence of BaP should not be considered in determining whether Anaconda violated the standard, Hyatt's opinion concerning the adequacy of respirators with respect to BaP must be disregarded.

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n31 Section 1910.1029(c).

n32 Section 1910.1029(g)(2). Of course, as with 1910.1000, the coke oven standard only permits the use of respirators to achieve the permissible exposure level when feasible engineering or administrative controls cannot achieve the required concentration or during the interim period when such controls are being implemented. Section 1910.1029(g)(1)(i).

n33 Section 1910.1001(d)(2)(i).

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Accordingly, Anaconda did not violate the standard solely because it did not provide the most effective available respirators to protect its employees against CTPV. However, the nature of the hazard [*51] is still an important consideration in determining the adequacy of the respirators Anaconda did provide. The fact that the hazard is life-threatening, and involves a disease having effects that are largely nonreversible, mandates that an adequate respirator must have characteristics assuring, with virtual certainty, that each employee is exposed to no more CTPV than the standard permits.

The record reveals that the amount of protection that a respirator affords a particular individual will depend on a number of factors and will vary widely from individual to individual. This is particularly true of negative pressure respirators, where the protection is significantly affected by the quality of the seal between the respirator and the user's face. Therefore, in evaluating respirators, it is appropriate, indeed necessary, to conservatively estimate the amount of protection the respirator provides in order to assure that even a relatively ill-fitting respirator will adequately protect each employee.

The testimony of DiTommaso, Magnante, and Hyatt supports the judge's finding that protection factors of 10 for the MSA half mask and 5 for the American Optical quarter mask are generally [*52] appropriate. Magnante testified that both respirators were capable of achieving an ideal protection factor of 100, and that the reduction to 10 and 5 contemplated that wearers could attain this degree of protection even if there was considerable leakage around the seal. Hyatt's testimony was consistent with Magnante's. His quantitative measurements of the protection factors that a representative sampling of wearers actually achieved, conducted with a number of respirators supplied by different manufacturers, demonstrated that different individuals will indeed achieve considerably different levels of protection from the same respirator. His studies showed that most wearers achieved considerably better protection using the half and quarter masks than the protection factors of 10 and 5 would suggest. With only isolated exceptions, all the individuals tested achieved at least these protection factors. Thus, in ultimately assigning the protection factors of 10 and 5, Hyatt's criterion was essentially the same we have decided is appropriate to apply here: to assure with virtual certainty that all respirator users will obtain protection at least equal to that indicated by those protection [*53] factors.

Assuming protection factors of 10 for the half mask and 5 for the quarter mask, the only employee whose exposure to CTPV would not have been reduced below 0.2 milligrams/m<3> was the ore trucker. n34 As to him, Anaconda contends that we should take into account the conservative nature of the protection factors and should conclude that his exposure was probably within the allowed limits. We decline to do so. Although it is true that the protection factors are conservatively assigned, we have stated above that such conservatism is necessary in dealing with the hazard of exposure to a carcinogen. To assume that a particular individual will obtain better protection than these factors indicate would be speculating with the life and health of that employee, and would be inconsistent with the objective of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. 651(b) (emphasis added). We therefore conclude that Anaconda failed to comply with sections 1910.134(a)(2) and 1910.1000 with respect to the ore trucker.

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n34 As noted above, the same ore trucker was sampled twice on two separate days. For the first sampling, his exposure adjusted for the protection factor of his respirator is slightly less than 0.2 milligrams/m<3>. For the second day, it exceeds this limit. Since the standard proscribes exposure to a TWA in excess of 0.2 milligrams/m<3> for any day, then the fact a violation may not have existed on the first day does not affect whether one occurred on the second day.

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On the other hand, we conclude that the respirators worn by the employees other than the ore trucker were suitable to protect them against excessive CTPV exposure. n35 Applying the protection factors of 10 and 5 for the two types of respirators, the maximum exposure of any of the employees other than the ore trucker is the 0.078 milligrams/m<3> for Pit Man #3. See note 26 supra. This is less than half the TWA limit provided in the standard. Thus, even assuming that the actual protection factors for these other employees are half those found by the judge, i.e. 5 for the half mask and 2.5 for the quarter mask, [*55] these employees would still have been protected against being exposed to a greater level of CTPV than 0.2 milligrams/m<3>. Although the record indicates that the use of facelets would slightly decrease the protection factors associated with the respirators, there is no evidence that the facelets would reduce the protection to less than half that which could be achieved without the facelets. Similarly, we cannot conclude that the vibrations to which the pit crew were subjected would reduce the protection by this magnitude. In this regard, we note that Hyatt's experiments encompassed each subject employing a number of different facial expressions to simulate a variety of working conditions. Thus, the protection factors he obtained at least partially take into account defects in the seal between the respirator and the wearer's face caused by facial movements similar to those vibrations might cause. Based on this record, we cannot conclude that the vibrations to which the pit crew members were subjected, even combined with their use of facelets, would reduce the protection factors of their respirators to less than half that they would achieve with no vibrations and without facelets. [*56]

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n35 We stress that we are concerned here only with the suitability of the types of respirators used, and not with any alleged deficiencies in Anaconda's program for maintaining respirators and instructing employees in their proper use. As noted in note 19 supra, these latter subjects were the subject of citation items that are not before us for review.

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In summary, we conclude that Anaconda failed to comply with sections 1910.134(a)(2) and 1910.1000 by not providing an applicable and suitable respirator to the ore trucker, but did not fail to comply with the standards with respect to the pit crew, vent crew, and briquette trucker.

C

Section 17(k) of the Act n36 defines a serious violation as follows:

[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious harm could result . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. [*57]

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n36 29 U.S.C. 666(j).

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The record establishes that Anaconda had the requisite knowledge for a serious violation. Anaconda knew of the presence of airborne CTPV in its plant, and knew of the type of respirator the ore trucker was using. Had it exercised reasonable diligence and measured the level of airborne CTPV to which the ore trucker was exposed, it would have known that the respirator was inadequate. See Borg-Warner Corp., 78 OSAHRC 18/ A2, 6 BNA OSHC 1393, 1978 CCH OSHD P22,555 (No. 10757, 1978). n37

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n37 Anaconda's argument that it lacked the requisite knowledge because it could not have known that the presence of BaP in its plant presented a substantial probability of death or serious harm is inapposite. As discussed above, the violation is not based on the presence of excessive BaP, but on the inadequacy of the ore trucker's respirator to protect against CTPV. Moreover, the knowledge necessary for a serious violation is knowledge only of the violative condition, and not of whether that condition presents a substantial probability of causing death or serious harm. See Shaw Constr., Inc., 78 OSAHRC 9/ B6, 6 BNA OSHC 1341, 1978 CCH OSHD P22,524 (No. 3324, 1978).

[*58]

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Thus, the question whether the violation was of a serious nature turns on whether it gave rise to a "substantial probability of death or serious harm." The parties dispute whether this criterion was met. The dispute encompasses two issues: whether excessive CTPV presents any carcinogenic risk to workers in an aluminum reduction plant and, if so, whether the record establishes such a risk under the facts of this case.

Before addressing these issues, it is useful to summarize prior Commission decisions distinguishing serious from other than serious violations. In cases involving safety hazards, the Commission has consistently held that the "substantial probability" requirement in section 17(k) concerns only the result of an accident that arises from a violation, and not the probability that an accident will occur. Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/ B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978); Crescent Wharf and Warehouse Co., 73 OSAHRC 15/ A2, 1 BNA OSHC 1219, 1971-73 CCH OSHD P15,687 (No. 1, 1973). This interpretation has received judicial approval. [*59] Dorey Electric Co. v. OSHRC, 553 F.2d 357 (4th Cir. 1977); Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975).

The Commission has only infrequently addressed the question whether a violation of an air contaminant standard has presented a substantial probability of death or serious harm. In two cases, however, the Commission found that this criterion was not satisfied. In Hermitage Concrete Pipe Co., 76 OSAHRC 2/ C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD P20,298 (No. 4678, 1976) n38 ("Hermitage Concrete"), the Commission concluded that a silica dust violation was other than serious rather than serious as the Secretary alleged. Although noting that diseases associated with excessive silica exposure constituted serious physical harm, the Commission concluded that evidence did not establish that the nature, amount, and duration of exposure at Hermitage's plant would lead to such diseases. The Commission also noted that there was no evidence Hermitage's employees had already suffered serious harm or demonstrated symptoms of any impairment that could lead to serious harm. [*60]

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n38 Rev'd, 584 F.2d 127 (6th Cir. 1978).

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In Hydrate Battery Corp., 75 OSAHRC 39/ C11, 2 BNA OSHC 1719, 1974-75 CCH OSHD P19,429 (No. 2311, 1975) ("Hydrate Battery"), the Commission determined that the Secretary had not proven that a violation involving overexposure to lead was serious in nature. While the Commission agreed that lead poisoning was serious physical harm, it noted that the evidence showing overexposure of Hydrate's employees to lead encompassed only one eight-hour period. Since the record showed that serious physical harm would only result from chronic, or long-term, overexposure to lead, the Commission concluded that seriousness was not proven by the evidence showing overexposure for a single day.

In this case, there is no dispute that contraction of cancer is properly termed serious physical harm. The parties do dispute, however, whether the evidence demonstrates a possibility that the violation could result in cancer to Anaconda's employee. n39 Although the parties presented extensive evidence [*61] on this question, much of this evidence is of little use to us in resolving the question, and we shall therefore only briefly summarize it.

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n39 In arguing the seriousness question, the parties have referred to all the employees allegedly exposed to excessive CTPV or BaP. Since we find a violation only with respect to the ore trucker, our discussion of the issue relates only to him.

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As discussed above, DiTommaso testified that CTPV and BaP were known carcinogens, basing his opinion on the 1971 ACGIH text, part of which is quoted supra. Magnante also testified that BaP, one of the constitutent compounds of CTPV, was a known carcinogen.

The evidence on carcinogenicity, however, principally revolved around a paper entitled, "Inhalation of Benzpyrene and Cancer in Man," prepared by Dr. Irving J. Selikoff and others, and presented on March 26, 1975 at the New York Academy of Sciences Conference on Occupational Carcinogens. The paper discussed the results of a mortality study of roofers who had been exposed to fumes [*62] from not pitch containing BaP. The purpose of the study was to determine whether such exposure increased the roofers' risk of contracting cancer. The study determined that roofers showed elevated death rates from lung cancer and other types of cancer and concluded that the increase in cancer was related to occupational exposures associated with roofing work. While noting that this observation was consistent with other studies showing increased mortality due to occupational exposure to BaP, n40 the authors did not draw a firm conclusion that BaP was the cause of the increased cancer risk to roofers, stating "fumes from hot pitch contain various agents in addition to BaP; and the findings in this study could be due to one or more of the other factors or to the combined effect of BaP and one or more of the other factors." (Exhibit C-72 at p. 6). The authors also observed that they had been unable to obtain smoking histories on the workers included in the study, so were not able to determine the effect this might have on the roofers' increased risk of lung cancer.

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n40 The paper cites studies dealing with gasworkers and coke oven workers.

[*63]

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Anaconda presented as an expert witness Dr. Dinman, the corporate safety director of the Aluminium Company of America. Dr. Dinman, who possesses impressive credentials in the field of occupational health, was critical of certain of the methodology and conclusions of the Selikoff study. His main point, however, was that one could not extrapolate from studies of mortality among roofers or workers in other industries to determine whether workers in an aluminum reduction plant environment were exposed to an increased risk of cancer. He stated that the mixture of airborne contaminants would vary widely from industry to industry depending on the particular materials, processes, and temperatures involved, and that the hazards to workers in any particular environment could depend on the interaction in the body of a variety of substances. As an example, he testified that investigators had not been able to induce lung cancer in animals by having them breathe pure BaP. Lung tumors were, however, produced when animals breathed a combination of BaP and sulfur dioxide, apparently because the sulfur dioxide damaged [*64] the lung's clearance mechanism and permitted the BaP particles to remain in the lung sufficiently long to cause the tumors. Dinman therefore concluded that the only manner of determining whether aluminum reduction workers were exposed to an increased risk of cancer was to perform a mortality study covering such workers, and he noted that such a study sponsored by the aluminum industry was presently underway. n41

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n41 In his reply brief, the Secretary states that this study has now been completed and requests that the Commission, if it determines that this study is critical to the resolution of the seriousness issue, remand the case for the limited purpose of receiving the study in evidence. We do not consider the study to be critical.

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Judge Morris concluded that the record failed to demonstrate the carcinogenicity of BaP, primarily based on Dinman's testimony indicating that conclusions regarding a cancer risk to aluminum workers could not be drawn from studies in other industries. The Judge also cited Hermitage [*65] Concrete in reducing the classification of the violation to other than serious.

The Secretary argues that the judge erred in finding the violation to be other than serious. He contends that he need prove only that the violation gives rise to the possibility that an employee may contract cancer, and not the probability of such an illness occurring. He maintains that he has made the necessary showing because the record establishes that employees in other industries have an increased possibility of contracting cancer, relying on the Selikoff study of roofers and the undisputed evidence that workers in the coke oven industry are subject to an increased cancer risk. The Secretary also relies on DiTomasso's testimony that the hazard against which the standard was directed was cancer.

The Secretary recognizes that his arguments are inconsistent with our prior decisions in Hermitage Concrete and Hydrate Battery. He contends, however, that those cases were wrongly decided and asks that they be overruled. He asserts that, in view of the limited state of scientific knowledge concerning the causes and developmental stages of cancer, it is unreasonable to require him to [*66] prove the exposure levels and the duration those levels must exist in order to result in cancer. The Secretary contends that, if the Commission requires such proof, it will significantly hamper his enforcement actions directed at serious health hazards.

Anaconda argues that the judge's finding that seriousness was not proven is correct. It relies on Hermitage Concrete and Hydrate Battery, asserting that the facts tending to show seriousness here are less compelling than in those cases since, unlike here, there was no dispute in those cases that at least chronic exposure to the hazardous substance would produce serious harm. Anaconda contends the evidence fails to establish that even chronic exposure of aluminum workers to CTPV would increase their risk of contracting cancer. It further asserts that the absence of any BaP standard indicates that there is not even a possibility of harm from that substance.

The Commission's decisions in Hermitage Concrete and Hydrate Battery required the Secretary to prove the duration and extent of exposure to an air contaminant necessary to cause a disease. However, as the Sixth Circuit pointed out in reversing our decision in [*67] Hermitage Concrete, the Commission's test was more stringent than that set forth in the Act, for the Commission required the Secretary to prove the degree of exposure to the contaminant that would lead to a serious disease, while section 17(k) of the Act requires a showing only that a substantial probability of death or serious harm could result from a violation. We agree with the court that our decision in Hermitage Concrete misconstrued section 17(k), and overrule that decision, As Hydrate Battery applied the same incorrect test, we overrule that decision as well.

We conclude that the violation was proven to be serious. The question of whether an environmental contaminant poses an increased risk of cancer to humans is an extremely difficult and controversial one. n42 However, it is not the Commission's function to determine whether a particular substance should be regulated as a carcinogen. Instead, we must interpret and apply the standards the Secretary has promulgated in a manner consistent with the intent underlying that promulgation. See GAF Corp., 75 OSAHRC 3/ A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d [*68] 913 (D.C. Cir. 1977). Accordingly, in deciding whether a violation is serious, we must look to the hazard against which the standard is intended to protect. As noted in note 28 supra, the source of the Secretary's CTPV standard in section 1910.1000 was the ACGIH recommended limit, which in turn was based on the ACGIH's determination that CTPV contained carcinogens. Thus, the standard's purpose in limiting exposure to CTPV is to protect employees against contracting a life-threatening disease, and Anaconda's failure to provide the ore trucker with a respirator suitable to reduce his CTPV exposure to within the limits provided in section 1910.1000 is a serious violation.

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n42 The problem of determining the quantum of proof necessary before a substance should be regulated as a potential human carcinogen is dealt with in a regulation promulgated by the Secretary entitled "Identification, Classification, and Regulation of Potential Occupational Carcinogens." 29 C.F.R. Part 1990. The Preamble to this regulation contains a detailed discussion of the scientific evidence on which the regulation is based. 45 Fed. Reg. 5002 (1980).

[*69]

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The judge assessed a penalty of $1000. His assessment was based on his finding that the violation occurred with respect to all the sampled employees. Although we find a violation only with respect to the ore trucker, we conclude that his penalty assessment is appropriate. First, we have found the violation to be serious while the judge did not. We also agree with the judge's finding that Anaconda's good faith is questionable. Although Anaconda knew of the presence of CTPV in its plant, both from an earlier citation and from its knowledge of its own work processes, the record indicates that it took a rather lackadaisical approach to protecting the health of its employees against excess exposure to CTPV. Although it did provide its employees with respirators, there is no evidence that it monitored their exposure to assure that the respirators were adequate.

II

Associated with each pot is a gas collection system connected to the pot by a tube known as a "gooseneck." An asbestos cloth covers the junction of the anode and the gooseneck. The cloth deteriorates after a period of time in use. One of [*70] the duties of the vent crew is to periodically replace the cloths and dispose of the used ones. Each replacement requires approximately five minutes, and a member of the vent crew replaces coverings three to eight times per day. Samples of asbestos fibers taken in the breathing zone of the vent crew members showed that the concentration of asbestos fibers to which they were exposed when changing the cloths ranged from 0.05 fibers/cc to 0.42 fibers/cc. n43

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n43 All references to asbestos fibers in the asbestos standard and in this decision encompass only fibers longer than five micrometers. Section 1910.1001(a)(2).

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At the time the inspection took place, the asbestos standard proscribed the exposure of employees to concentrations of asbestos fibers greater than 5 fibers/cc on an 8-hour time-weighted-average basis, and 10 fibers/cc for any period of time. n44 Anaconda's plant thus did not contain excessive concentrations, and the Secretary does not argue otherwise. The Secretary did, however, charge Anaconda with [*71] noncompliance with other provisions of the asbestos standard.

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n44 At the time of the alleged violations, the asbestos standard was codified at 1910.93a. It has since been recodified at 1910.1001, and we shall use the latter designation in referring to the standard. The standard presently provides for an 8-hour TWA exposure limit of 2 fibers/cc, superseding the 5 fiber/cc limit that was in effect at the time the alleged violations in this case occurred. The standard also provides for a ceiling concentration of 10 fibers/cc, the same limit in effect at the time this case arose. Section 1910.1001(b).

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The Secretary cited Anaconda for allegedly failing to comply with standards requiring that an employer provide medical examinations "to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers." The citations alleged Anaconda's noncompliance with sections 1910.1001(j)(2), n45 1910.1001(j)(3), n46 and 1910.1001(j)(4) n47 The violation dealing with annual examinations was alleged [*72] to be willful in nature, and the others were alleged to be other than serious. It is undisputed that Anaconda did not provide the members of the vent crew with medical examinations meeting the requirements of the various cited standards.

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n45 This standard provides:

1910.1001 Asbestos.

* * *

(j) Medical examinations -

* * *

(2) Preplacement. The employer shall provide or make available to each of his employees, within 30 calendar days following his first employment in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination, which shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 1.0).

n46 This standard provides:

1910.1001 Asbestos.

* * *

(j) Medical examinations -

* * *

(3) Annual examinations. On or before January 31, 1973, and at least annually thereafter, every employer shall provide, or make available, comprehensive medical examinations to each of his employees engaged in occupations exposed to airborne concentrations of asbestos fibers. Such annual examinations shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 1.0).

n47 This standard provides:

1910.1001 Asbestos.

* * *

(j) Medical examinations -

* * *

(4) Termination of employment. The employer shall provide, or make available, within 30 calendar days before or after the termination of employment of any employee engaged in an occupation exposed to airborne concentrations of asbestos fibers, a comprehensive medical examination which shall include, as a minimum, a chest roentgenogram (posterior-anterior 14 X 17 inches), a history to elicit symptomatology of respiratory disease, and pulmonary function tests to include forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV 1.0).

[*73]

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1

In the rulemaking proceeding leading to the promulgation of the asbestos standard, the Secretary first proposed a standard that would have required employers to provide medical examinations only to those employees exposed to concentrations of asbestos fibers exceeding the limits permitted by the standard. n48 As promulgated, however, the standard specified that the examinations were required for employees exposed to any concentration of fibers. Thus, under the standard as promulgated, exposure to excessive concentrations of asbestos is not a precondition for the employer to provide the medical examinations. Anaconda contends that, because the promulgated version differs from that originally proposed, the standard was invalidly promulgated because interested persons did not have notice and an opportunity to comment on the promulgated version. This argument was rejected in GAF Corp. v. OSHRC, 561 F.2d 913 (D.C. Cir. 1977). The court pointed out that "the requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment simply because the rule [*74] promulgated by the agency differs from the rule it proposed." Id. at 919. Exercising the Commission's authority to review the validity of the promulgation of standards under the Act, Rockwell International Corp., 80 CSAHRC    , 9 BNA OSHC 1092, 1981 CCH OSHD P24,979 (No. 12470, 1980), we conclude that the court's ruling is correct and therefore reject Anaconda's contention that the standard is invalid.

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n48 Section 6 of the Act, 29 U.S.C. 655, provides procedures the Secretary must follow in promulgating occupational safety and health standards. Among other things, when the Secretary proposes to promulgate a new standard, he must publish the proposed standard in the Federal Register and afford interested parties an opportunity to comment on the proposal. 29 U.S.C. 655(b)(2).

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2

As noted above, Anaconda did not provide either annual, preplacement, or termination medical examinations to the members of the vent crew. It contends, however, that the standard does not require it to provide the examinations [*75] because its employees were not exposed to "concentrations" of asbestos within the meaning of the standards. In Anaconda's view, the amount of airborne asbestos in the vicinity of the vent crew, being no higher than 0.42 fibers/cc, is too low to be considered a "concentration."

We do not agree.

3

Anaconda had previously been cited for noncompliance with section 1910.1001(j)(3) by failing to provide annual medical examinations to employees exposed to asbestos. The earlier citation was not contested, and therefore became a final order of the [*76] Commission by operation of law. n49 Based on Anaconda's knowledge of the standard acquired through the earlier citation, the Secretary alleged that the violation of section 1910.1001(j)(3) now under review was willful in nature. Judge Morris agreed, observing that "[n]o exculpatory evidence appears to explain or mitigate the lack of action by respondent."

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n49 29 U.S.C. 659(a).

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On review, Anaconda argues that the violation was not willful because it had a good faith belief that the standard did not require medical examinations for workers who were not exposed to excessive concentrations. It cites the fact that the Commission was divided on this question in GAF Corp., supra, which was decided after the violations charged here allegedly occurred, implying that its interpretation of the standard must have been held in good faith since one member of this Commission later agreed with that interpretation. It therefore contends that the violation did not result from an obstinate refusal to comply with the standard, [*77] the test for willfulness established in Frank Irey Jr., Inc. v. OSHRC, 519 F. 2d 1200 (3rd Cir. 1974). n50

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n50 Aff'd on other grounds sub nom Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977).

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We reject Anaconda's argument. The Commission does not agree with the Third Circuit's definition of willfulness set forth in Frank Irey, supra. Instead, we consider a violation to be willful if it is done consciously and intentionally. Kent Nowlin Construction, Inc., 77 OSAHRC 22/ A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (No. 9483, 1977), aff'd, 593 F. 2d 368 (10th Cir. 1979), and cases cited therein. Accord, Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378 (6th Cir. 1978); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978), cert. denied, 99 S.Ct. 452 (1978). n51 Here, Anaconda knew from the earlier citation that the Secretary interpreted the standard [*78] to require it to provide the medical examinations. Anaconda consciously chose not to do so, hoping that its own interpretation of the standard would ultimately prevail. Having taken that course, Anaconda ran the risk that its interpretation would prove to be wrong and cannot now complain that it must bear the consequences of that risk and be subjected to increased penalties for noncompliance. The violation is properly classified as willful.

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n51 We note, however, that the Third Circuit has expressed the belief that there is no significant difference between the test it announced in Frank Irey, supra, and that applied by the Commission and the other courts of appeals that have considered the question. Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980).

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B

When changing the asbestos wrappings, the vent crew members wore their normal work clothing and the negative-pressure half-mask respirators discussed in connection with the citation involving CTPV. The Secretary cited Anaconda for allegedly [*79] failing to comply with section 1910.1001(c)(2)(iii), which provides:

1910.1001 Asbestos.

* * *

(c) Methods of compliance -

* * *

(2) Work practices -

* * *

(iii) Spraying, demolition, or removal. Employees engaged in the spraying of asbestos, the removal or demolition of pipes, structures, or equipment covered or insulated with asbestos, and in the removal or demolition of asbestos insulation or coverings shall be provided with respiratory equipment in accordance with partagraph (d)(2)(iii) of this section and with special clothing in accordance with paragraph (d)(3) of this section.

The standards referenced in section 1910.1001(c)(2)(iii) provide:

1910.1001 Asbestos.

* * *

(d) Personal protective equipment -

* * *

(2)(iii) Type "C" supplied-air respirators, continuous flow or pressure-demand class. A type "C" continuous flow or pressure-demand, supplied-air respirator shall be used to reduce the concentrations of airborne asbestos fibers in the respirator below the exposure limits prescribed in paragraph (b) of this section, when the ceiling or the 8-hour time-weighted average airborne concentrations of asbestos fibers are reasonably expected [*80] to exceed 100 times those limits.

* * *

(3) Special Clothing: The employer shall provide, and require the use of special clothing, such as coveralls or similar whole body clothing, head coverings, gloves, and foot coverings for any employee exposed to airborne concentrations of asbestos fibers, which exceed the ceiling level prescribed in paragraph (b) of this section.

Judge Morris noted that paragraphs (d)(2)(iii) and (d)(3) both refer back to the exposure limits established in section 1910.1001(b). See note 44 supra and accompanying text. Since the levels to which the vent crew were exposed did not exceed those limits, he concluded that the requirements for respirators and special clothing in section 1910.1001(c)(2)(iii) were not triggered and that Anaconda's failure to provide the employees with the type of equipment described in paragraphs (d)(2)(iii) and (d)(3) did not fail to comply with section 1910.1001(c)(2)(iii).

The Secretary takes exception to the judge's ruling, contending that section 1910.1001(c)(2)(iii) establishes special categories of activity that always require the types of respirator and clothing referred to therein regardless of the asbestos concentrations [*81] existing. Anaconda argues in support of the judge's rationale and also contends that the standard does not apply because it was not engaged in the spraying, demolition, or removal of asbestos within the meaning of the standard.

We reject Anaconda's argument that the vent crew's activity is not passed within the standard. The "removal . . . of asbestos insulation or coverings," the specific activity the vent crew was performing, is among the activities to which the standard explicitly applies.

We also conclude that the judge erred in limiting the applicability of section 1910.1001(c)(2)(iii) to those situations in which the exposure limits referred to in paragraphs (d)(2)(iii) and (d)(3) are exceeded. The judge's analysis renders section 1910.1001(c)(2)(iii) superfluous, for when the exposure limits in paragraphs (d)(2)(iii) and (d)(3) are exceeded, the types of respirators and clothing mentioned in those subsections are required regardless of the operation being performed. There would therefore be no need to have a separate subsection dealing with the spraying, demolition, or removal of asbestos. It is a well-established principle of statutory construction that each separate [*82] provision of a statutory enactment should, if possible, be given independent meaning. Weinberger v. Hynson, Westcott, and Dunning, Inc., 412 U.S. 609, 633 (1973). We therefore interpret the reference in section 1910.1001(c)(2)(iii) to paragraphs (d)(2)(iii) and (d)(3) to refer only to the types of equipment listed in those subsections rather than to the exposure limits as well. Thus, all employees performing spraying, demolition, or removal of asbestos must use type "C" supplied-air respirators and special clothing. Since Anaconda did not provide the vent crew with such equipment, we conclude that it failed to comply with section 1910.1001(c)(2)(iii). We also conclude that the penalty of $95 proposed by the Secretary is appropriate.

III

As indicated at the outset, some employees who work at reconditioning deteriorated portions of the cathode use pneumatic hammers to pound a thick, pasty substance between the carbon blocks that line the cathode. These pneumatic hammers generate noise. Industrial hygienist DiTommaso used a sound level meter to measure the noise levels to which the employees were exposed. He measured noise levels as high as 103 dBA and, from readings obtained [*83] throughout an eight-hour shift, he calculated that the employees were exposed to 190% of the permissible daily exposure. n52 DiTommaso also had one employee wear a noise dosimeter for a four-hour period during the day, and the dosimeter reading revealed that the employee received 110% of the allowed daily dose in four hours. DiTommaso interpreted these measurements to mean that the employees received the permitted daily dose in approximately four hours of their eight-hour workday. n53

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n52 Permissible noise exposures are established by 1910.95(b)(1), the standard with which Anaconda allegedly failed to comply. This provides:

1910.95 Occupational noise exposure.

* * *

(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

TABLE G-16 - PERMISSIBLE NOISE EXPOSURES n1

Duration per day, hours

Sound level dBA slow response

8

 90

6

 92

4

 95

3

 97

2

100

    1 1/2

102

1

105

  1/2

110

  1/4

115

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C[1]/T[1] + C[2]/T[2] C[n]/T[n] exceeds unity, then, the mixed exposure should be considered to exceed the limit value. C[n] indicates the total time of exposure at a specified noise level, and T[n] indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

n53 Because the noise levels measured by DiTommaso fluctuated throughout the day, the permissible noise exposure must be determined by use of the cumulation formula in footnote 1 to Table G-16. As that footnote states, the permissible exposure is exceeded whenever the sum of the fractions representing the different noise levels exceeds unity. The percentages to which DiTommaso referred equate unity with 100%. Thus, an eight-hour exposure of 190% would mean that employees received slightly less than twice the permitted daily dose during an entire eight-hour shift.

[*84]

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DiTommaso testified that Anaconda could comply with the standard by limiting the amount of time each employee spent in the pit area to four hours per day. n54 Specifically, he suggested that the employees who worked in the reline area could be permitted to work there four hours each day and then be assigned jobs in quieter areas of the plant for the remainder of their shift. As to the feasibility of this suggestion, DiTommaso was able to determine that Anaconda employed two sets of pit crews, each of which worked an eight-hour day on alternate days. He indicated that an acceptable daily exposure could be achieved by having each crew work four hours each day instead of eight hours every other day. Anaconda did not present any evidence to rebut the feasibility of this suggested administrative control.

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n54 The employees DiTommaso observed were wearing Swedish wool earplugs for protection against the noise. As with the CTPV standard discussed above, however, the noise standard requires that feasible engineering or administrative controls be implemented before the use of personal protective equipment is sufficient to comply. Samson Paper Bag Co., 80 OSAHRC 60/ A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980); Continental Can Co., 76 OSAHRC 109/ A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977).

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Judge Morris vacated the citation, holding that the Secretary had not satisfied his burden of establishing that the administrative controls DiTommaso had suggested were feasible. The judge stated that DiTommaso "did not suggest what effect his recommendation would have on the workers or on the work process," and he also stated that the record did not establish DiTommaso's qualifications to offer the recommendation.

The Secretary contends that the judge erred. Asserting that DiTommaso's testimony was sufficient to establish a prima facie case that administrative noise controls were feasible, the Secretary argues that, because Anaconda did not present any evidence to rebut the feasibility of DiTommaso's recommendations, the citation should be affirmed.

We agree with the Secretary. To establish noncompliance with section 1910.95(b)(1), the Secretary must show that the employer failed to use feasible administrative or engineering controls when the employer's employees are exposed to noise levels exceeding those set forth in Table G-16 of the standard. See Love Box Co., 76 OSAHRC 45/ D5, 4 BNA [*86] OSHC 1138, 1975-76 CCH OSHD P20,588 (No. 6286, 1976). The record here establishes that the members of Anaconda's pit crews are exposed to approximately twice the noise dosage permitted by the standard in their regular eight-hour shift. n55 DiTommaso's suggestion that Anaconda could comply with the standard by rotating the employees so that they are only exposed to the excessive noise levels for four hours per day is, on its face, a feasible administrative control. If implementing this control would have an adverse effect on the workers or the work processes, Anaconda is in the best position to know what those effects would be and to introduce such evidence. Yet, Anaconda presented no evidence tending to rebut the feasibility of DiTommaso's proposal. We conclude, therefore, that the Secretary established a prima facie case through DiTommaso's testimony and that, in the absence of any contrary evidence, the Secretary has carried his burden of proving a violation by the preponderance of the evidence. Armor Elevator Co., supra. We also conclude that the $115 penalty proposed by the Secretary is appropriate. [*87]

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n55 We note that the measurements DiTommaso made with the sound level meter indicate that Anaconda's employees would receive slightly less than a permissible noise exposure in four hours, while the four-hour measurement with the dosimeter showed a slight overexposure. DiTommaso was not asked about this apparent inconsistency, and it may be that he thought the two results were consistent within the range of accuracy of the equipment. In any event, the measurements show that the employees' exposure over a four-hour workday will be on the borderline between permissible exposure and overexposure.

This does not affect our inquiry into whether the administrative control recommended by DiTommaso is feasible. An engineering control that will significantly reduce noise exposure may be feasible even if that control will not achieve full compliance with the standard. Continental Can Co., supra note 54, 4 BNA OSHC at 1545-6, 1976-77 CCH OSHD at p. 25,254-55. The control suggested by DiTommaso would halve the employees' daily noise exposure and would thus achieve a significant reduction.

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IV

Accordingly, the judge's decision is reversed insofar as it vacated the citations alleging noncompliance with sections 1910.1001(c)(2)(iii) and 1910.95(b)(1). We affirm those citations and assess penalties of $95 and $115. We modify the judge's decision concerning the citation involving sections 1910.134(a)(2) and 1910.1000 to find that Anaconda failed to comply with those standards only with respect to the ore trucker. As so limited, we affirm that citation as a serious violation and assess a penalty of $1000. In all other respects, the judge's decision is affirmed. SO ORDERED.

CONCURBY: BARNAKO (In Part); COTTINE (In Part)

DISSENTBY: BARNAKO (In Part); COTTINE (In Part)

DISSENT:

BARNAKO, Acting Chairman, concurring in part and dissenting in part:

I agree with the lead opinion's discussion and disposition of the citations involving coal tar pitch volatiles and asbestos. I dissent, however, from the affirmance of the citation alleging Anaconda's noncompliance with the noise standard, 29 C.F.R. 1910.95(b)(1). n1 I would vacate that citation because the Secretary did not meet his burden of proving that Anaconda failed to use feasible engineering or administrative controls to reduce the noise [*89] exposure of its employees.

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n1 The standard is quoted at note 52 of the lead opinion.

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In order to prove a violation of section 1910.95(b)(1), the Secretary must prove that employees were exposed to noise in excess of the limits specified in Table G-16 and that a method that is technologically and economically feasible exists to achieve a substantial reduction in their noise exposure. Samson Paper Bag Co., 80 OSAHRC 60/ A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980); Continental Can Co., 76 OSAHRC 109/ A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977).

In this case, the Secretary established that the members of the cathode reline crew were exposed to approximately twice the permitted daily noise exposure as a result of their use of pneumatic hammers. The Secretary's industrial hygienist, DiTommaso, the only witness who testified concerning the alleged noise violation, stated that he knew of no feasible engineering control [*90] that would reduce the noise produced by the pneumatic hammers so as to achieve compliance with the standard. DiTommaso suggested, however, that administrative controls could be used. Noting that that employees were exposed to approximately twice the permissible daily exposure, DiTommaso opined that compliance could be achieved simply by cutting the daily exposure time of the employees in half. In testifying on direct examination, DiTommaso suggested one possible way in which this could be done:

So as far as administrative controls are concerned, it would entail each individual spending only half as much time in the ramming procedure, and then possibly being transferred to some other kind of operation around the plant where the noise levels were not in excess of the standards.

On cross examination, DiTommaso put forth an entirely different suggestion:

[T]here are two crews that ram these pots and one crew works one day and then they're off the next day, and then they work the third day, so the crew actually works every other day. . . . Administratively it would seem to me there would be no problem in having -- instead of working every other day, have them work half days.

Judge [*91] Morris recognized that DiTommaso's testimony consisted of casual suggestions rather than probative evidence of feasibility. The judge noted that the suggestions would obviously have a major impact on Anaconda's workers and work processes and that DiTommaso had evidently not considered these effects in making his suggestions. Thus, the judge found DiTommaso's testimony inadequate to prove the feasibility of noise controls. My colleagues reverse the judge's ruling. They conclude that Anaconda is in a better position than the Secretary to present evidence on the impact of DiTommaso's suggestions on Anaconda's workers and work processes. Because Anaconda has not presented such evidence, they conclude that Anaconda has not rebutted the Secretary's "prima facie case." My colleagues find that prima facie case made out because, in their view, reducing the daily work shifts of employees from eight hours to four hours is "on its face, a feasible administrative control."

It is true, of course, that compliance with the standard can be achieved by limiting the time employees are exposed to a certain noise level to less than the time permitted at that level by the standard. Samson Paper [*92] Bag Co., supra, 8 BNA OSHC at 1520, 1980 CCH OSHD at p. 30,043. That is no basis for concluding, however, that such a procedure is feasible. The Secretary cannot meet his burden of proving a violation of section 1910.95(b)(1) by showing the existence of a general means of noise reduction but, instead, must prove that the suggested method would be feasible in the cited employer's operations. Great Falls Tribune Co., 77 OSAHRC 86/ B7, 5 BNA OSHC 1443, 1445, 1977-78 CCH OSHD P21,844 at p. 26,305 (No. 6632, 1977), pet. for review filed, No. 77-2566 (9th Cir. July 14, 1977).

DiTommaso made two distinct suggestions. He first said that employees could be "possibly" assigned to other jobs in the plant after the four hours in which they receive a permissible daily noise exposure. The feasibility of this suggestion would depend on a number of factors, including the availability of other productive jobs in quiet areas of the plant. DiTommaso's use of the word "possibly" indicates that he did not know whether such jobs existed. When asked to elaborate on this suggestion on cross examination, DiTommaso substituted an entirely different proposal: that the members [*93] of Anaconda's two reline crews work four hours each day instead of eight hours every other day. This would be such a drastic change in the working conditions for Anaconda's employees that it would undoubtedly encounter serious employee resistance. n2 The mere suggestion that it is possible certainly does not render it feasible "on its face."

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n2 The effect on employees is a proper consideration in determining whether an administrative control is feasible. Samson Paper Bag Co., 8 BNA OSHC at 1521, 1980 CCH OSHD at p. 30,044.

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I do not dispute my colleagues' observation that Anaconda is in a better position than the Secretary to know the effects the suggested controls would have on its employees or its business. But the burden of proof lies with the Secretary, and this burden cannot be shifted simply because an employer knows more about the subject than the Secretary. All of our cases involve alleged violations in employer's workplaces, and employers will often have more knowledge than the Secretary on certain [*94] issues relevant to our proceedings. The Secretary does, however, have various means at his disposal to meet his burden of proof. The Secretary can gather evidence of alleged violations through careful inspections and investigations of employers' workplaces. n3 When an enforcement action is contested, the Secretary can obtain information in the possession of the employer through discovery n4 or through issuing subpenas compelling witnesses to testify on to produce documents. n5

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n3 See 8(a) of the Act, 29 U.S.C. 657(a).

n4 See Commission Rules 52 and 53, 29 C.F.R. 2200.52 and 53; Owens-Illinois, Inc., 78 OSAHRC 105/ C8, 6 BNA OSHC 2162, 1978 CCH OSHD P23,218 (No. 77-648, 1978).

n5 See Commission Rule 55, 29 C.F.R. 2200.55.

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The Secretary has failed to prove that feasible controls exist in Anaconda's plant, and the citation alleging noncompliance with 29 C.F.R. 1910.95(b)(1) should be vacated.

COTTINE, Commissioner, concurring in part and dissenting in part:

I join in the majority's decision [*95] except Part IB concerning Anaconda's alleged noncompliance with 1910.134(a)(2) and 1910.1000. In my view the evidence establishes that the respirators furnished by Anaconda to most of the exposed employees failed to satisfy the requirement of 1910.134(a)(2) that these respirators be "applicable and suitable for the purpose intended," i.e., protection from exposure to carcinogenic fumes of coal tar pitch volatiles ("CTPV") and benzo(a)pyrene ("BaP"). The levels of CTPV measured by the compliance officer were in excess of the limitations of $1910.1000 for all employees except the briquette trucker. n1 Thus, Anaconda was shown to be in violation of both 1910.134(a)(2) and 1910.1000 as to the other exposed employees. The majority escapes this conclusion by the application of a hypothetical protection factor, so that the legally significant exposure levels are five to ten times less than the levels actually monitored at the worksite. n2 However, the application of a protection factor is permissible only where the respirators are applicable and suitable within the meaning of $1910.134(a)(2) and all the requirements of 1910.134 have been satisfied, including the proper selection [*96] of respirators. That is not the case here. In addition, the majority analysis ignores the carcinogenic potential of CTPV and BaP (Part I) in terms of the suitability of the respirators required under 1910.134(a)(2)(Part II).

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n1 See note 11 infra.

n2 A "protection factor" is a mathematical formulation of the protection afforded by a particular respirator if properly fitted and worn. A further definition is given in Part IB of the lead opinion.

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I

This case requires a threshold analysis of the occupational health hazard created by employee exposure to CTPV n3 and BaP, n4 an important constituent of the CTPV mixture. n5 The threshold limit value for CTPV was originally established by the American Conference of Governmental Industrial Hygienists ("ACGIH") n6 and was premised on the finding that CTPV was a carcinogenic mixture. ACGIH, Documentation of the Threshold Limit Values, supra note 4. n7

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n3 Coal tar pitch is a black to brown tarry mass containing numerous hydrocarbons, including benzene, toluene, napthylamine, anthracene, xylene, and BaP. This pitch emits highly toxic fumes when heated and is a recognized carcinogen of the skin, scrotum, lip, larynx and lungs. N. Sax, Dangerous Properties of Industrial Materials 508 (5th ed. 1979).

n4 Benzo(a)pyrene is a polycyclic aromatic hydrocarbon produced from the incomplete combustion of carbonaceous materials, in this case coal tar pitch. See generally Toxicology: The Basic Science of Poisons 338 (L. Casarett & J. Doull, eds. 1975). It has the following chemical characteristics: Molecular Formula: C[20]H[12]. Molecular Weight: 252.3. It may be identified as follows:

Chemical Abstracts Service Registry No. 000050-32-8.

RTECS Accession No. DJ 36750000.

n5 See Amer. Conf. Gov't Ind. Hygienists, Documentation of the Threshold Limit Values 57-58 (3d ed. 1971).

n6 Amer. Conf. Gov't Ind. Hygienists, Threshold Limit Values of Airborne Contaminants for 1968. That threshold limit value was later adopted in 1969 as a standard under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45 (1970). 41 C.F.R. 50-204.50, 34 Fed. Reg. 788 at 795 (1969). It was promulgated as an "established federal standard" under section 6(a) of the Occupational Safety and Health Act, 29 U.S.C. 655(a). 29 C.F.R. 1910.93, Table G-1 (later recodified at 29 C.F.R. 1910.1000, Table Z-1), 36 Fed. Reg. 10466, 10503 (1971); American Iron & Steel Inst. v. OSHA, 577 F.2d 825, 829 (3d Cir. 1978).

n7 CTPV has been the subject of considerable scientific investigation, including experimental tests and eipdemiological studies dating from as early as the 18th century. In 1775, Sir Percivall Pott first identified the increase in scrotal cancer among chimney sweeps as being peculiar to that occupation. See Preamble: Final Standard on Coke Oven Emissions, 41 Fed. Reg. 46,742, 46,744 (1976). In the 1930's, Sir Ernest Kennaway demonstrated that benzo(a)pyrene, a component of chimney soot, was a causative agent in producing this form of cancer. See 13 Courtroom Medicine: Cancer 17.00, 17.30 (A. Frank ed. 1980). Workers exposed to CTPV at coke ovens have been the most extensively studied. See 41 Fed. Reg. at 46, 745-47; See also Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 100 S.Ct. 2844 at 2871-72, n. 64 (1980). The Third Circuit summarized the finding of carcinogenicity as follows:

Evidence of carcinogenicity has been derived from chemical analysis and various epidemiological studies. Such studies indicate a significantly higher rate of mortality among coke oven workers than the general population. For example, the rate of mortality for lung cancer among employees working on top of the coke oven batteries for five or more years is ten times greater than normal.

American Iron & Steel Inst. v. OSHA, supra note 6, at 829.

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In addition, BaP is properly considered a carcinogen for the purpose of assessing the significance of employee exposure to CTPV. Experimental studies indicate that BaP has produced a significant carcinogenic response in several organs of nine animal species tested by various routes of administration. 41 Fed. Reg. at 46,745 (1976). n8 In fact, the known carcinogenic potential of BaP led to its serious consideration as an indicator substance for the coke oven emissions standard. See Id. at 46,753. n9

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n8 See also Nat'l Inst. for Occupational Safety & Health ("NIOSHc), U.S. Dep't of Health, Education & Welfare, Tumorigenic, Teratogenic & Mutagen Citations: Subfiles of the Registry of Toxic Effects of Chemical Substances 0002/M15, N15 (October, 1979) (microfiche). In addition, the International Agency for Research on Cancer (IARC) classifies BaP as an experimental carcinogen. 3 IARC Monographs 115 (1973).

n9 See also U.S. Dep't of Labor, Report of the Standards Advisory Committee on Coke Oven Emissions (May 24, 1975) (unpublished).

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As to the classification of the hazard in this case, employee exposure to CTPV as a mixture and BaP as a constituent compound is properly considered a cancer hazard. n10 This classification of the hazard requires a specific course of action with respect to the respiratory protection required by 1910.134.

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n10 The ACGIH noted that "no 'safe' level of exposure can be established for carcinogens," ACGIH Documentation, supra note 5, at 58, thus reinforcing its classification of the hazard. See also American Iron & Steel Inst. v. OSHA, supra note 6, at 831-32; See generally U.S. Dep't of Labor, Occupational Safety and Health Administration, Identification, Classification and Regulation of Potential Occupational Carcinogens, 45 Fed. reg. 5002, 5118-38 (1980). In implementing its conclusion that CTPV was a carcinogen, the ACGIH proceeded to establish a numerical exposure limit of 0.2 mg/M<3> (200 micrograms/M<3>) for the benzene soluble fraction of CTPV. ACGIH Documentation, supra note 5, at 58.

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II

A.

Under 1910.134(a)(2), an employer is required to provide applicable and suitable respirators whenever necessary to protect employee health. This requirement applies to the cited conditions, where the levels of air contaminants in the work atmosphere in many cases exceeded those permitted in Table Z-1 of 1910.1000 n11 and Anaconda did not have in place engineering and/or administrative controls capable of reducing employee exposure to the required levels. See 1910.1000(e).

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n11 The following chart contains the measurements of airborne CTPV and B present in the work area of each of the employees involved here, as obtained by the compliance officer. Also given are the hypothetical levels to which each employee would be deemed exposed inside his respirator if standard protection factors were applicable. These protection factors are inapplicable, in my view, for the reasons set forth in this opinion. (All measurements in this chart are given in micrograms/M<3>).

COAT TAR PITCH VOLATILES: MONITORED & RESPIRATOR LEVEL (EST.)

(Permissible 8-hour TWA per 29 C.F.R. 1910.1000:

0.2 milligrams/M<3> or 200 micrograms/M<3>)

SAMPLE

MONITORED LEVEL

RESPIRATOR LEVEL (EST.)

(micrograms/M<3>)

(micrograms/M<3>)

A. Pit Man #1

 460.0

 46

B. Pit Man #2

 720.0

 72

C. Pit Man #3

 780.0

 78

D. Ore Trucker (Sample #1)

1740.0

174

E. Ore Trucker (Sample #2)

2500.0

250

F. Briquette Trucker

 200.00

 20

G. Vent Crew Man

 340.0

 68

3, 4 BENZOPYRENE: MONITORED & RESPIRATOR LEVEL (EST.)

SAMPLE

MONITORED LEVEL

RESPIRATOR LEVEL (EST.)

(micrograms/M<3>)

(micrograms/M<3>)

A. Pit Man #1

34.0

3.4

B. Pit Man #2

 9.0

0.9

C. Pit Man #3

 0.9

0.09

D. Ore Trucker (Sample #1)

 1.9

0.19

E. Ore Trucker (Sample #2)

 1.25

0.125

F. Briquette Trucker

 3.39

0.339

G. Vent Crew Man

 1.09

0.218

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The requirement of 1910.134(a)(2) to provide applicable and suitable respirators includes the proper selection of respirators under 1910.134(b)(2):

1910.134 Respiratory protection

* * *

(b) Requirements for a minimal acceptable program

* * *

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

Thus, the fact that the work atmosphere contains carcinogenic fumes is a factor to be considered in respirator selection, along with the level of those fumes.

Edwin C. Hyatt, an independent respiratory protection consultant, testified that protection factors may only be applied when the employer's respirator program meets all the requirements of the respirator standard, including proper selection, fit, use, and maintenance. This principle was not controverted at the hearing. If Anaconda was not using applicable and suitable respirators under 1910.134(a)(2), it could not rely on the protection factors applied by the majority. n12

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n12 As the majority notes in part IB (see notes 23-25 and accompanying text), Hyatt testified regarding the proper protection factors to be assigned to various types of respirators, including the ones used here. However, this testimony assumed compliance with all the requirements of 1910.134. Hyatt also testified that Anaconda's respirators were not applicable and suitable for the conditions as required by 1910.134(a)(2).

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Thus, the issue is whether Anaconda properly selected the respirators provided to its employees. n13 A review of the record establishes that the respirator selection was inappropriate for several reasons. First, the compliance officer testified that members of Anaconda's vent crew wore fabric facelets on their quarter-mask respirators. The ore truckers wore them on their half-mask respirators, as did some of the cathode reline ("pit") crew. Section 1910.134(c) specifically provides that "[p]roper selection of respirators shall be made according to the guidan of American National Standard Practices for Respiratory Protection Z88.2-1969," which states that when half-mask respirators are used for removing particulates, "[A] fabric covering on the facepiece is permissible only in atmospheres of coarse dusts and mists of low toxicity." n14

The ANSI standard specifically rules out the use of facelets with respirators in an atmosphere that contains toxic fumes such as CTPV or BaP. n15 Accordingly, the vent crew, the ore truckers, and some of the pit crew members were not adequately protected. n16 [*102]

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n13 The judge also affirmed violations regarding Anaconda's program for maintaining respirators and instructing employees in their use. However, on review both the Secretary and Anaconda have stated that, for purposes of deciding whether Anaconda violated 1910.134(a)(2) in this case and determining the appropriate protection factors to be assigned to its respirators, those violations concerning maintenance and instruction should not be considered. Since I would find that Anaconda did not select proper respirators for any of the employees who were shown to require one, I would not apply the protection factors urged by Anaconda to any of them, regardless of whether other violations existed. Accordingly, those other violations will not be considered.

n14 American National Standards Institute ("ANSI"), American National Standard Practices for Respiratory Protection, Z88.2-1969, Table 4 (1969) (hereinafter cited as "the ANSI standard" or "ANSI Z88.2-1969").

n15 Table 3 of the ANSI standard is not to the contrary. See lead opinion at note 21 and accompanying text. Table 3 notes that facelets sometimes are worn on half-mask dust respirators, but does not state that they are permissible for fumes, which are involved here, or even for dust of other than low toxicity. See lead opinion at Part IB.

n16 Hyatt testified that he had "no evidence to indicate that [facelets] shouldn't be used for . . . coal tar pitch volatiles." See lead opinion at Part IB. Although this testimony seemingly is inconsistent with the Secretary's position, Hyatt's testimony reflects an apparent unfamiliarity with the specific language regarding facelets in Table 4 of the ANSI standard, and cannot change the clear prohibition stated in that Table.

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Second, other deficiencies in Anaconda's selection of respirators were pointed out by the compliance officer. He testified that in the case of the pit crew, the inadequacy of the respirators was aggravated by the fact that those workers used pneumatic hammers. He testified that this created a great deal of vibration and a sufficient problem of leakage around the facepiece to render the employees' respirators wholly unsuitable. He also testified that half-mask respirators with their known leakage allowance do not furnish adequate protection against carcinogenic air contaminants.

Finally, the compliance officer testified that the chemical cartridges used by all the employees were not suitable in atmospheres containing CTPV and BaP because those substances have inadequate warning properties, i.e., the wearer cannot determine when there is an excessive amount of CTPV or BaP inside the respirator. n17 This testimony was not rebutted. Thus, the filters on all the respirators concerned were inadequate for the exposure encountered by the employees.

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n17 In addition, the chemical cartridge was not approved for use with Anaconda's American Optical respirators.

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As the majority notes in Part IB, Hyatt testified that the types of respirators Anaconda provided were not per se inadequate except as to the ore trucker, who was exposed on the second day to 2.5 mg/M<3> of CTPV (8 hr. TWA). See note 11 supra. However, Hyatt was not asked about the warning properties of the chemical cartridges worn by the employees. Also, he was not asked how pneumatic hammering would affect the facepiece seal of the particular respirators worn by Anaconda's employees. He testified only that the effect of those vibrations would depend on the mask used. Therefore, his testimony apparently concerned merely the theoretical adequacy of the types of respirators involved, not the adequacy of their filters or the actual effect of external conditions such as pneumatic hammering on the particular respirators in use.

Thus, the evidence indicates a number of deficiencies in the respirators selected by Anaconda. The respirators were shown [*105] not to be applicable and suitable in the circumstances for any of the employees involved except the briquette trucker, whose measured exposure was not in excess of the permissible atmospheric level under 1910.1000.

B.

The Secretary argues that the exposed employees should have been issued positive pressure respirators, i.e., those equipped with an independent air supply such as self-contained breathing apparatus (SCBA), hose masks with blowers, or respirators with air lines. Section 1910.134(c) requires the selection of respirators to be made according to the guidance of ANSI Z88.2-1969. See note 14 supra. Accordingly, it is necessary to analyze the selection criteria of the ANSI standard in light of the evidence concerning the particular contaminants in the workplace in order to determine whether the employer would be required to select positive pressure respirators on the facts of this case. Under the ANSI standard,

The selection of a proper respirator for any given situation requires consideration of the following factors: 1) nature of the hazard (see Section 4); 2) extent of the hazard; 3) work requirements and conditions; and 4) characteristics and limitations [*106] of available respirators . . . .

ANSI Z-88.2-1969, 6.2.

Section 4 of the ANSI standard contains a brief description of various categories of respiratory hazards but advises employers that they are responsible for keeping abreast of the developing scientific knowledge of toxic substances and their control.

Management . . . will find it necessary to consult references on industrial hygiene and toxicology and perhaps expert individuals to develop the necessary comprehensive information on specific airborne contaminants.

Id. 4.1. Thus, the proper selection of respirators under the ANSI standard requires consideration of a wide variety of factors concerning the workplace hazard. An assessment of the nature and extent of the hazard resulting from any airborne contaminant necessarily requires an understanding of the constituent compounds of a particular contaminant. In the case of CTPV, one constituent requiring consideration is BaP. The fact that BaP is mentioned as a constituent of CTPV under Table Z-1 of 1910.1000 but is not regulated independently in that standard does not mean an employer can ignore BaP as a specific factor in selecting respirators under 1910.134. [*107]

In addition, the ANSI standard emphasizes the selection of the most effective respiratory protection available when exposure levels are uncertain:

When there is doubt about the concentration of oxygen or hazardous material present in the atmosphere, only those respirators listed as suitable for respiratory protection against oxygen deficiency shall be used. Any erring in the selection of respirators shall be on the safe side.

Id. 6.2 (emphasis added). n18 Specifically, the respirators required for oxygen-deficient atmospheres are certain types of positive pressure respirators. Id. 6.3.1.

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n18 The Supreme Court recently reaffirmed the Secretary's authority to use conservative assumptions in setting standards regulating exposure to carcinogens, risking error on the side of over-protection rather than under-protection. Industrial Union Dep't v. American Petroleum Inst., supra note 7, at 2870 (plurality opinion); See also Id. at 2900-2901 and n. 29 (dissenting opinion). The ANSI provisions incorporated by reference in 1910.134(c) properly apply the conservative approach needed to deal effectively with toxic atmospheric contaminants.

[*108]

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Positive pressure respirators also are required for conditions immediately dangerous to life or health. Id. 6.3.2. The record in this case does not reveal immediately dangerous conditions. However, even where immediately dangerous atmospheres are not present and will not occur, the ANSI standard also indicates that positive pressure should be used where there is a need to keep inward leakage to a minimum. Id. 6.3.3. n19 The standard states that in atmospheres not immediately dangerous, factors such as convenience, cost, comfort, and wearer acceptance can be emphasized:

However, long term protection should be given priority over all other factors.

Long term protection is determined primarily by the amount of inward leakage of atmospheric contaminants during normal usage of the respirator. The various types of respirators are grouped below according to the increasing amount of inward leakage one might expect during their routine use.

Id. The ANSI standard then lists seven groups of respirators. The first five groups consist of positive pressure respirators. Group six is comprised [*109] of a hose mask without blower and an air-purifying full facepiece respirator without blower. Group seven includes a mouthpiece respirator and an air-purifying half mask without blower. The standard notes that inward leakage for the first five groups normally will be minute, but that in practice the respirators in groups 6 and 7 usually will have greater inward leakage due to fit problems and adverse wearing conditions such as face movements and beard growth. "It is, therefore, important (particularly for devices in groups 6 and 7) that due consideration be given to potential inward leakage in selecting devices." Id.

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n19 The term "should" in ANSI Z88.2-1969 indicates an advisory recommendation rather than a mandatory requirement. Thus, the problem of inward leakage is only one of the factors to be considered in respirator selection under 6.2 and it must be considered in the factual context of each case.

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Taking into account the particular carcinogenic mixture in this case, for which no safe level of exposure [*110] is known, n20 and the admonition of ANSI that any erring in respirator selection shall be on the safe side, it is clear that positive pressure respirators should be considered for the exposed employees. However, the evidence does not establish that positive pressure respirators are required for any of the exposed employees in this case. The compliance officer testified that the pit crew required positive pressure because of the peculiar conditions of their work, particularly the vibrations caused by the use of pneumatic hammers. Although Hyatt was not asked about the effect of pneumatic hammering on the particular respirators in use, he testified that those respirators were not inadequate per se. His only testimony regarding the need for positive pressure respirators for the pit crew was based on the suggested 0.2 micrograms/M<3> limit for exposure to BaP, which was recommended by the Secretary's Standards Advisory Committee on Coke Oven Emissions in 1975. n21 Since that standard has not been adopted it does not provide an independent basis for a finding with respect to the applicable and suitable form of respiratory protection in this case. Thus, the evidence of record does [*111] not support a requirement of positive pressure respirators for the pit crew.

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n20 See note 10 supra.

n21 See Report of the Standards Advisory Committee on Coke Oven Emissions, supra note 9, at 21.

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Similarly, though Hyatt testified that the ore trucker had an inadequate respirator, the compliance officer testified that the employee's respirator would be sufficient if administrative controls and other abatement steps were undertaken. Also, neither of the Secretary's witnesses testified that positive pressure respirators were required for the other employees involved. Thus, in weighing the various factual considerations relevant to determining which respirators would be applicable and suitable there was no consistent support for positive pressure respirators, even among the Secretary's witnesses.

However, serious consideration must be given to the use of positive pressure respirators whenever employees work in an atmosphere containing excessive levels of carcinogens such as CTPV and BaP. The determination [*112] of which respirators are applicable and suitable must be made on a case-by-case basis in light of the nature of the contaminants involved and the other factors mentioned in ANSI Z88.2-1969, 6.2. n22

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n22 It should be noted that Table 6 of the ANSI standard does not permit the use of negative pressure half-mask respirators for all conditions that are not immediately dangerous to life or health. Table 6 states that for conditions not immediately dangerous an "[a]ir purifying, half-mask or mouthpiece respirator with filter pad or cartridge" may be used. However, 6.2 of the ANSI standard warns that Table 6 is to be read with caution:

Table 6 is a quick reference guide for the selection of respiratory protection appropriate to the type and degree of hazard. The Table provides minimal guidance, however, and shall be used along with other information, such as that given in this standard and in directions provided by respirator manufacturers.

Thus, Table 6 does not sanction the use of negative pressure devices for all conditions other than immediately dangerous conditions. Negative pressure respirators are permitted only where they are applicable and suitable under the entire ANSI standard.

[*113]

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C.

My colleagues' reliance on the respirator provisions of the coke oven and asbestos standards is unwarranted. See lead opinion at notes 31-33 and accompanying text. Those provisions do not support the majority's conclusion that all the employees except the ore trucker had adequate respirators. The respirator provisions of the coke over standard, 29 C.F.R. 1910.1029(g), are directed toward the specific working conditions involved in coke oven operations. The explanation accompanying the promulgation of the standard details some of the limitations on respirators designed specifically for coke oven use:

Coke oven work is strenuous and the increased breathing resistance of the respirator reduces their [sic] acceptability (2-121, p. 245; TR 864). Heat stress also limits the wearability of respirators at coke ovens (TR 398). Safety problems presented by respirators must be considered. Respirators limit vision (2-18); this can be significant on a coke battery where numerous mechanical hazards exist and the employee's ability to see is important.

U.S. Dep't of Labor, Occupational Safety and Health [*114] Administration, Preamble: Final Standard on Coke Oven Emissions, supra note 7 at 46,773 (1976). Thus, the respiratory protection provided coke oven workers is dependent on the unique conditions of coke oven operations and may not be extended by analogy to Anaconda's operations.

Also, the coke oven standard granted the employers the option of providing "[a]ny particulate filter respirator for dust and mist except single-use respirator" until January 20, 1979. As of that date, the employer was to select respirators from among those approved by the National Institute for Occupational Safety and Health (NIOSH) for protection against coke oven emissions. 29 C.F.R. 1910.1029(g)(2)(i), (iii). Thus, the coke oven standard did not approve the use of negative pressure devices indefinitely. Furthermore, an employee had the option to demand a positive pressure device even for low level exposures (below 1500 micrograms/M<3>) as of January 20, 1978. Section 1910.1029(g)(2)(ii). n23

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n23 Even if the coke oven respirator provisions applied here, the ore trucker would be found to require a positive pressure respirator based on both the samples taken. Both samples indicated an ambient CTPV level in excess of 1500 micrograms/M<3> (see note 11 supra). Any exposure in excess of 1500 micrograms/M<3> must be abated by means of a positive pressure respirator under the coke oven standard. Section 1910.1029, Table I.

[*115]

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The respirator provisions included in the asbestos standard, 29 C.F.R. 1910.1001(d)(1)-(2), also are not pertinent here. Asbestos is a fibrous material, a form of silicate dust, rather than a fume like CTPV and BaP. Different filters are used to control employee exposure to asbestos fibers. See U.S. Dep't of Health, Education & Welfare, NIOSH Certified Equipment List 36 (1978). Thus, the fact that the asbestos standard permits the use of any particulate filter respirator for dust and mist except single-use respirators does not show that CTPV and BaP fumes can safely be controlled by the same method. Neither the coke oven or asbestos standards support the majority's position regarding the suitability of Anaconda's respirators.

III

I join the majority in overruling Hermitage Concrete Pipe Co., 76 OSAHRC 2/ C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD P20,298 (No. 4678, 1976), rev'd, 584 F.2d 127 (6th Cir. 1978), and Hydrate Battery Corp., 75 OSAHRC 39/ C11, 2 BNA OSHC 1719, 1974-75 CCH OSHD P19,429 (No. 2311, 1975), and in finding that violations of the respirator standard with respect [*116] to CTPV are serious within the meaning of section 17(k), 29 U.S.C. 666(j). Based on the same analysis, I conclude that violations of exposure limitations for CTPV under Table Z-1 of 29 C.F.R. 1910.1000 are serious. The regulatory intent underlying the CTPV standard clearly includes protection against the carcinogenic potential of CTPV. However, the reliance on regulatory intent in this case does not preclude the Secretary from demonstrating in other cases that presently available evidence indicates that other hazards have been identified since the promulgation of a standard regulating exposure to a toxic substance. For example, new data might include evidence of carcinogenicity, mutagenicity, or teratogenicity. n24 This progressive approach to hazard classification is consistent with the preventive purposes of the Act. See 29 U.S.C. 651(a)(2); Hermitage Concrete Pipe Co., 584 F.2d at 131-32 (6th Cir. 1978), quoting California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975). It also is consistent with the Congressional directive to rely on the best available evidence regarding the hazards of exposure to toxic substances. See 29 U.S.C. [*117] 655(b)(5); Industrial Union Dep't v. American Petroleum Inst., supra note 7, at 2870.

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n24 See generally Nat'l Inst. for Occupational Safety & Health, U.S. Dep't of Health & Human Services, Registry of Toxic Effects of Chemical Substances (rev. ed. 1979); U.S. Council on Environmental Quality, Executive Office of the President ("CEQ"), Toxic Chemicals and Public Protection 146-66 (1980); CEQ, Chemical Hazards to Human Reproduction (1981).

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