HYDRATE BATTERY CORPORATION

OSHRC Docket No. 2311

Occupational Safety and Health Review Commission

March 19, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: The only issue remaining in this case is whether Judge William E. Brennan erred by modifying a citation for an alleged serious violation of the Occupational Safety and Health Act (29 U.S.C. 651 et seq. ) to other than serious on the ground that Complainant failed to prove to a substantial probability that excessive concentrations of air borne lead existing in Respondent's workplace n1 would produce serious physical harm. He based his decision on the nature of the evidence produced by the Secretary. That evidence comprised the testimonial statements of a chemical engineer and an analytical chemist and certain hearsay comprising an article by one Doctor Kehoe and the engineer's statement concerning a supposed guideline issued by the National Institute of Occupational Safety and Health. n2 Judge Brennan found this evidence incompetent on the issue of the physiological effect of the levels of air borne lead existing in Respondent's (Hydrate) workplace on its employees.

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n1 29 C.F.R. 1910.93(b) Table G-2 prescribes a time weighted limit value of 0.2 milligrams per cubic meter for lead and its inorganic compounds.

n2 The guideline is not of record except as it is represemted by the testimonial statement of its content. According to that statement NIOSH expressed an opinion that exposures above 0.6 milligrams per cubic meter are serious.

[*2]

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I ordered review because of an apparent conflict with our decision adopting Judge Brennan's report in American Smelting and Refining Co., Dkt. 10, BNA 1 OSHC 1256, CCH E.S.H.G. para. 16,456 (1973), pet. denied, 501 F.2d 504 (8th Cir., 1974). In view of the judge's specific reasons for disposition herein I requested submissions on whether the citation for serious violation in this case may be affirmed by officially noticing facts not of record and I requested that facts considered appropriate for such notice be identified.

In reply, the Secretary argues that we may take official notice of legislative facts including those that are of record in other cases involving other parties. He therefore asks us to take notice that according to scientific studies including a NIOSH criteria document, entitled Occupational Exposure to Inorganic Lead (1972) exposure to dangerous levels of air borne lead causes serious physical harm.

We do not suppose any reasonable person can take issue with the fact that excessive exposure to dangerous levels of air borne lead can cause serious physical harm. [*3] But even if we assume the fact, that does not prove the Secretary's case before us.

Here, he measured the exposure of Hydrate's employees for one eight hour period. He obtained the following results:

Employee

Exposure in mg/M<3>

Wright, C.

0.926

Wright, D.

0.206

Russell, G.

0.624

Morrell, D.

0.513

Saunders, R.

1.088

No evidence was adduced upon which we could conclude that Hydrate's employees were exposed to excessive lead concentrations for any period greater than eight hours. On the contrary, Hydrate adduced evidence of air samples and blood tests taken in 1967 and 1972 that militate against a conclusion that its employees were exposed to excessive lead on a chronic basis.

We deem the distinction between acute and chronic exposure to be significant. The recommendations of the NIOSH criteria document mentioned above are predicated on long term or chronic exposure. The record in the American Smelting case demonstrated exposure to excessive airborne lead on a chronic basis.

But here all we have is a record demonstrating excessive exposure on a short term or acute basis. And there is no evidence that such exposure will most likely result in serious physical [*4] harm.

Accordingly, the judge's report is adopted for the reasons assigned by him and for the reasons assigned herein. It is so ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I believe Judge Brennan correctly decided this case and I join in the affirmative of his decision for the reasons given therein.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent. The majority ignores the well-documented hazards of exposure to airborne lead, and overlooks the realities of health hazard enforcement under the Act.

I.

Judge Brennan held that the Secretary failed to prove that the levels of airborne lead in respondent's workplace constituted a serious violation of the Act. This decision was based largely on the Judge's refusal to give any weight to the Secretary's references to materials on lead issued by the National Institute for Occupational Safety and Health (NIOSH) and an article by Dr. Robert A. Kehoe, a recognized expert on industrial lead poisoning. In addition, the Judge refused to admit into evidence three articles on lead offered by respondent, one of which was the article by Dr. Kehoe. Judge Brennan termed the articles "three grand hearsay documents, [*5] . . . not competent evidence . . . as well as lacking sufficient relevancy and materiality."

Regarding the Secretary's testimony that relied on the NIOSH documents and Kehoe article, the Judge wrote in his decision that they were "hearsay, which, although admissible, cannot be used to support a finding unless otherwise supported by competent evidence." n3 The Judge's reliance on the residuum rule was apparently adopted sub silentio by the majority. I disagree with this holding.

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n3 The paradox created by the Judge's admitting the hearsay testimony, but refusing to admit the hearsay articles introduced by respondent is not resolved by the record or the Judge's decision. One possible explanation is that the Judge differentiated between documentary and testimonial hearsay. Nevertheless, assuming there is a meaningful distinction, and that one type of hearsay should be excluded, the Judge's decision is erroneous. See infra.

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The admissibility of hearsay evidence in administrative adjudications is well [*6] recognized. Copperweld Steel Co., No. 5110 (February 8, 1975) (concurring opinion); 2 K. Davis, Administrative Law Treatise 14.08 (1958). The only issue is whether uncorroborated hearsay alone may support an evidentiary finding. The older cases hold that hearsay evidence alone cannot support an evidentiary finding, but that there must be a "residuum" of "competent" evidence. See Bridges v. Wixon, 326 U.S. 135 (1945); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 230 (1938); Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916).

In recent years, the trend in the federal courts has been toward an unqualified rejection of the residuum rule. See K. Davis, Administrative Law Text 14.08 at 281 (1972). In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court held that reliable and probative hearsay testimony alone may support an evidentiary finding. In Perales, the hearsay was in the form of written medical reports. The Court "clarified" Chief Justice Hughes' famous remark in Consolidated Edison, supra, that "[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence." The [*7] court stated:

The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material 'without a basis in evidence having rational probative force.' This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case. (402 U.S. at 407.)

In my view, reliable and probative hearsay alone may be sufficient to support an evidentiary finding. See Copperweld Steel Co., supra (concurring opinion); B & K Paving Co., No. 59 (September 5, 1974) (concurring opinion).

In the present case, Judge Brennan erred by not giving greater weight to the Secretary's testimonial evidence. That evidence reflected expert opinion to the effect that exposure to airborne lead in the amounts detected at respondent's workplace could result in serious physical harm.

The Judge also erred in refusing to admit into evidence the written articles on lead that were offered by respondent. The Kehoe article was not objected to by the Secretary. The Judge was therefore bound to accept it into evidence and [*8] accord it its natural probative weight. Cf. Opp Cotton Mills v. Administrator of Wage & Hour Div., Dept. of Labor, 312 U.S. 126, 154-55 (1941). In any event, all of the written articles could have been admitted under the learned treatises exception to the hearsay rule. See 6 Wigmore on Evidence 1690-93 (3d ed. 1940); McCormick's Handbook of the Law of Evidence 321 (2d ed. 1972). As the District of Columbia Circuit stated in Dolcin Corp. v. F.T.C., 219 F.2d 742, 749 (D.C. Cir. 1954), cert. denied, 348 U.S. 981 (1955): "We think authoritative scientific writings can -- and should -- be freely used by administrative agencies" (footnote omitted).

II.

In his brief before the Commission, the Secretary argues that the Commission should take official notice that airborne lead in the quantities measured at respondent's workplace could cause death or serious physical harm. Even though conceding that "excessive exposure to dangerous levels of airborne lead can cause serious physical harm," the majority refused to take official notice of recognized scientific writings that detail the seriousness of airborne lead exposure. I disagree with this position. [*9] I believe the Commission is compelled to take official notice of such documents.

Official notice is more expansive than judicial notice. In enacting the APA, Congress adopted the view:

that 'the permissible area of official notice be extended' so as to avoid 'laborious proof of what is obvious and notorious'. . . .

Attorney General's Manual on the Administrative Procedure Act 79 (1947). In addition, even as to judicial notice the Second Circuit in Continental Can Co., Inc. v. United States, 272 F.2d 312, 315 (2d Cir. 1959), stated:

In reaching their decisions, neither Courts nor administrative bodies should ignore the realities of life and disregard common knowledge even though such knowledge may not have achieved a place within the purview of judicial notice.

This is especially true of matters "which the agency by reason of its functions is presumed to be expert, such as technical or scientific facts within its specialized knowledge." Attorney General's Manual, supra at 80. n4

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n4 Agencies may take official notice of facts at any stage in a proceeding -- even in the final decision -- but the matters thus noticed should be specified and 'any party shall on timely request be afforded an opportunity to show the contrary.'

Attorney General's Manual on the Administrative Procedure Act 80 (1947).

The majority's holding in this case, however, makes it unnecessary to discuss the procedure that would be available to respondent to object to the noticed information.

[*10]

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Inhalation and ingestion of inorganic lead in excess concentrations can lead to anemia, colic, kidney disease, brain damage, and cardiorespiratory disorders, to name but a few. See NIOSH, Criteria for a Recommended Standard . . . Occupational Exposure to Inorganic Lead at III-3 et seq. (1972). The Secretary's air sampling tests indicated readings substantially above the maximum permissible limits. These facts, together with the well documented hazards of lead poisoning, are sufficient to find a serious violation. Cf. American Smelting & Refining Co. v. O.S.H.R.C., 501 F.2d 504 (8th Cir. 1974). For the majority to hold differently is to "eviscerate the import of the regulation and flout the purposes of the enabling legislation." Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498, 501 (5th Cir. 1974).

III.

In connection with hearsay and official notice, it must be noted that the majority opinion ignores the realities of enforcement under the Act. In fiscal 1974, citations were issued for 11,284 health violations. This number is expected to increase [*11] dramatically in fiscal 1975 and future years. It is unrealistic to expect that in every hearing involving a health hazard that the Secretary will have the testimony of an expert witness. This may be impossible. Official notice by the Commission and the receiving into evidence of authoritative scientific documents are the only solutions.

The use of written scientific information is strongly urged in 6 Wigmore, supra 1691 at 5:

Costly litigation is the parasite of justice; and we pay too high a price when we refuse to accept our information from a competent source ready at hand. Moreover, there are certain matters upon which the conclusions of two or three leaders in the scientific world are always preeminently desirable; and it is highly unsatisfactory that, except in the region where they may happen to live, the opinions of world-famous investigators should have no standing of their own. Whether such persons are legally unavailable, or whether it is merely a question of relative expense, the principle of Necessity . . . is equally satisfied; and we should be permitted to avail ourselves of their testimony in the printed form in which it is most convenient (footnote [*12] omitted).

A greater use of official notice would also benefit private parties such as the employer and affected employees.

IV.

During the inspection of respondent's workplace, the Secretary measured the exposure of five of respondent's employees to airborne lead for an eight hour period. The tests were performed by an experienced compliance officer and the results were determined by an expert analytical chemist. The testing procedure of using air pumps attached to various workers was specifically approved by the Eighth Circuit in American Smelting, supra.

The test results indicated that all five employees were exposed to concentrations of airborne inorganic lead in excess of the threshold limit value (TLV) of two-tenths milligrams of lead per cubic meter of air (.2mg/M<3>) prescribed by the standard at 29 CFR 1910.93(b). n5 In fact, one employee's exposure level was measured at 1.088 mg/M<3>, more than five times the allowable limit.

n5 Although the present limit is .2mg/M<3>, NIOSH has proposed that the maximum level be set at .15 mg/M<3>. See NIOSH, Criteria for a Recommended Standard . . . . Occupational Exposure to Inorganic Lead (1972). Moreover, as noted by the Eighth Circuit in American Smelting & Refining Co. v. O.S.H.R.C., 501 F.2d 504, 513 n.19 (8th Cir. 1974), other countries have set lower limits, including: Soviet Union, .01 mg/M<3>; Czechoslovakia, Poland, and Japan, .05 mg/M<3>; and Great Britain and Yugoslavia, .15 mg/M<3>. [*13]

The majority states that these tests are inconclusive to establish a serious violation and that prolonged exposure on a "chronic" basis is required to prove a serious violation. The majority relies on air samples and blood tests taken in 1967 and 1972 by the company to conclude that the excess exposure was not chronic. The majority makes a distinction between "chronic," or long term, and "acute" exposure to lead. The majority is making a distinction which may have severe consequences. I strongly disagree. The majority is saying in effect that workers must be exposed to the harmful effects of lead poisoning for a prolonged period of time before the exposure levels at their workplace may be considered a serious violation. This may invite casuistry in compliance with the standard.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq. (hereinafter the Act) to review one Citation for Serious Violation and one Citation for Non-Serious Violations consisting of three Items, and a Notification of Proposed Penalty issued [*14] pursuant to Sections 9(a) and 10(a) of the Act on February 12, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Richmond, Virginia (hereinafter Complainant) to the Hydrate Battery Corporation, 3220 Odd Fellows Road, Lynchburg, Virginia (hereinafter Respondent).

The Citations herein, issued as a result of an inspection conducted on January 10 and 11, 1973, at Respondent's battery manufacturing plant located at the above address (hereinafter workplace), set forth the following information:

I Citation For Serious Violation

Standard Allegedly Violated -- Description of Alleged Violation -- Abatement Date

29 CFR 1910.93(a) n1 -- On or about January 10, 1973, employer did allow the following unsafe conditions to exist: The employer allows employees working in the plate stacking and burning area, in the pasting machine area, and on the battery assembly line to be exposed to airborne lead in excess of the 8-hour time weighted average limit given in Table G-1. -- March 14, 1973

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n1 The Citation for Serious Violation alleged a violation of the Standard set forth at 29 CFR 1910.93(a), which was amended by the Secretary's Complaint to 29 CFR 1910.93(b).

[*15]

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II Citation for Non-Serious Violations

29 CFR 1910.133(a)(1) -- On or about January 10, 1973, employer did allow the following unsafe conditions to exist: The employer allows employees to work in the paste mixing area and in the battery charging room without eye protective equipment. Workers in these areas are, thereby, unnecessarily exposed to eye hazards due to splashing sulfuric acid. -- February 27, 1973

29 CFR 1910.151(c) -- The employer does not provide suitable facilities for quick drenching or flushing of the eyes and body in either the battery charging room or the paste mixing area. Employees working in these areas are exposed to sulfuric acid. -- March 14, 1973

29 CFR 1910.107(d)(2) -- The employer does not provide the battery spray painting station on the assembly line with mechanical exhaust ventilation. -- March 14, 1973

The Secretary proposed a $600.00 penalty for the alleged serious violation, $45.00 for each of Items numbered 1 and 2 and $35.00 for Item number 3 of the alleged non-serious violations, totalling $725.00.

Pursuant to Section 10(c) of the Act, Respondent, through a [*16] letter from its President, Robert L. Grunwell, gave notice of its intention to contest the Citations and proposed penalties.

After this case was referred to the Review Commission, the Secretary's Complaint and Respondent's Answer were duly filed, and a trial was held as scheduled on May 30, 1973 at Richmond, Virginia. Both the Secretary and Respondent were represented by counsel and no other person appeared or expressed any desire to participate as a party. Both parties filed their posttrial briefs by August 15, 1973.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.

The following matters were stipulated to by the parties.

The Respondent is incorporated in the Commonwealth of Virginia and maintains its principal place of business, a battery manufacturing plant, at 3220 Odd Fellows Road, Lynchburg, Virginia.

Respondent conceded that it is engaged in a business affecting commerce within the meaning of the Act. Respondent's [*17] total sales for 1972 were approximately $720,000 and it employs eleven production workers in its plant. There are two battery manufacturing plants in Virginia, Respondent's production being estimated to be only 1/20th the volume of the other producer. Respondent has no known history of prior violations of the Act.

Citation for Serious Violation

The Standard allegedly violated, appearing at 29 CFR 1910.93(b), provides as follows:

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

Table G-2

Material

8-hour time weighted average

Lead and its in-

0.2mg./m<3>

organic compounds

(z 37.11-1969).

On January 11, 1973, continuing an inspection begun the preceeding day, Compliance Officer Starkey conducted air sampling tests for lead contaminants in Respondent's workplace. Beginning at about 8:00 a.m. at the start of that day's shift, this officer placed air sampling devices on five of Respondent's employees, each located in the following plant areas; the paste mixing area, [*18] the paste machine, the battery plate stacking area, the plate burning or welding area and the battery assembly line.

The testing devices used were essentially a battery operated air suction pump affixed to an employee's person, which was connected by a length of hose to a cassette or filter holder which was affixed to the employee's lapel as close to his breathing zone as practical. In operation, the pump is started which pulls the air at a predetermined rate through the cassette and over the filter, the filter trapping any air contaminants present. The flow rate of air being pumped is checked hourly throughout the test period.

The test herein was conducted for essentially the full eighthour work shift on each of the five employees. Sample identification sheets were filled out for each employee, one for the morning test period, one for the afternoon test period, identifying the air pump used, the filter, the employee and his work task, the laboratory analysis required -- in this case lead, and other identifying information, and provided space for the identity of the analyzing chemist, the date of analysis, the analytic results as well as other pertinent information. [*19]

Upon completion of the air sampling, Officer Starkey brought the cassettes, in a sealed condition, back to the Virginia Department of Health Laboratory, for analysis, having earlier obtained the cassettes in a sealed condition from the same facility.

The evidence of record conclusively establishes that the air sampling tests concerning the five employees of Respondent, were very carefully conducted by Mr. Starkey, a thoroughly competent inspector experienced in the requirements and techniques of such tests, and the method of conducting this test is unassailable on this record.

Upon delivery of the cassettes containing the filters to the laboratory, Mr. John Conover, a highly experienced analytical chemist with the Virginia Department of Health, using an atomic absorption spectrophotometer, identified and measured the lead on the milipore filters, and recorded the results of his analysis on the appropriate sample identification sheet for each filter. On the evidence of this record, as conceded by Respondent, the laboratory handling and analytical results obtained are valid and unassailable.

The sample identification sheets were admitted into evidence as Exhibits C2A, 2B through [*20] C6A, 6B.

After obtaining the sample identification sheets back from the laboratory with the analytical results noted thereon, Officer Starkey, on Exhibit C-7 summarized these results, noting for each employee, the lead exposure for the morning shift of approximately four hours, the afternoon shift of the same approximate length, and the "cumulative exposure for an 8-hour shift."

This exhibit, admitted into evidence, reveals the following analytical results:

Cumulative exposure

to lead for 8-hour

Employee

Work task

shift -- mg.pb/M<3>

1. C. Wright

Burning (welding) battery

0.926

plates

2. D. Wright

Burning (welding) battery

0.206

connections

3. G. Russell

Mixing battery paste

0.624

4. D. Morrell

Paste machine operator

0.513

5. R. Saunders

Stacking battery plates

1.088

These scientifically valid analytical results of the air sampling test made at Respondent's plant on January 11, 1973, which are unrebutted in this record, conclusively establish that the five employees involved were exposed to airborne lead during the 8-hour work shift on that day, in excess of the limit set forth in Table G-2 of the pertinent Standard, 0.2 mg./M<3>. Indeed, [*21] 3 employees were exposed to over 3 times this limit, employees C. Wright, G. Russell and R. Saunders.

A violation of the Standard set forth at 29 CFR 1910.93(b) is therefore established by this evidence.

By his Citation for Serious Violation and paragraph VI of his Complaint, the Secretary alleges that the violation supra ". . . was a serious violation within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result therefrom.

In this case, the Secretary has not proven by competent and substantial evidence, that the violation is serious.

Section 17(k) of the Act provides:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The Commission has interpreted this provision [*22] of the Act and differentiated between "serious" and "non-serious" violations as follows:

Serious and non-serious violations are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to result when an accident (or condition) does arise from a particular set of circumstances.

. . . serious and non-serious violations are differentiated on the basis of the degree of probable injury.

(Parenthetical material supplied)

Secretary of Labor v. Standard Glass & Supply Co.;

Docket No. 585, 473

See also;

Secretary of Labor v. Natkin & Co. Mechanical Contractors;

Docket No. 401, 5/27/73.

Thus, as I read these Commission decisions, in relation to this case, in order to prove a serious violation of the Act, the Secretary must establish that there is a reasonable likelihood that the observed condition will result in probable death or serious physical harm. That is, that the observed condition, alleged to be a violation, may reasonably be expected to produce a result, which result, to a substantially probable degree, will be death or serious physical harm.

The Secretary has not met this burden in this case. He has failed to prove, [*23] by competent evidence that the levels of airborne lead found at Respondent's workplace in excess of the maximum allowable 0.2 mg./M<3> set forth in the Standard, will result in death or serious physical harm.

The Compliance Officer, Mr. Starkey, testified that he arrived at the conclusion that the lead conditions he discovered at Respondent's workplace constituted a serious violation of the Act based upon some type of instruction or guideline from the National Institute for Occupational Safety and Health (hereinafter NIOSH), established by Section 22 of the Act, to the effect that:

Any weighted eight (hour) average in excess of three times the standard to be a serious violation. They felt when that value reached that level there was a substantial probability of the employee being harmed.

Thus, because the samples of three of Respondent's employees, exceeded 0.6 mg.pb/M<3>, he concluded the violation was serious.

He further testified as followed:

Q Backing up to lead contaminants, could death occur immediately or soon from exposure to say the limits or the amount shown in Complainant's Exhibit No. 2 for Carroll Wright that was 1.074?

A No, sir, I doubt that death could [*24] occur in a short period of time.

Q What harm could occur?

A Well, I think over a long exposure to this type of contamination of lead there would be a -- well, I feel there could be a serious shortening of the employee's lifespan.

THE COURT: What do you base that opinion on?

THE WITNESS: I base that on the NIOSH criteria documents that we were referring to earlier that recommends the lowering of the standards.

It states through studies of other battery plants where they manufacture lead batteries, the employees to experience a high rate of mortality compared to the average citizen that was not exposed to these values.

Now, whether there is a specific example of employees exposed to the level I found here, I am not sure.

THE COURT: Your opinion as to the information you have in relation to any adverse effect caused by exposure to the elevated lead concentrates comes from this NIOSH publication as well as what other information?

THE WITNESS: Well, that and also the book by Patty contains an article by Kehoe.

BY MR. CONLIN:

Q Do you respect the article by Kehoe?

A Yes.

Q Do you generally recognize that article as an official and proper position on lead problems?

A I think [*25] it would be considered so, yes.

Neither the statement or guideline issued by NIOSH nor the article by Doctor Kehoe alluded to by the witness were introduced into evidence by the Secretary and of course were hearsay, which, although admissable, can not be used to support a finding unless otherwise supported by competent evidence ( Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 230 (1938)). Additionally, there was no showing in this record that this NIOSH guideline has been published in the Federal Register, which publication would accord affected persons at least the minimal legal notice required.

Further, the opinion of Mr. Starkey based upon the NIOSH guideline, and Doctor Kehoe's article, is incompetent. This witness is a highly educated chemical engineer holding both a Bachelor and Master's Degree in this science, as well as an experienced industrial inspector. He was produced however, essentially as a fact witness to testify to the inspection he conducted at Respondent's workplace on January 10 and 11, 1973. He was not qualified nor was he produced, as an expert witness to testify to the physiological effects of various levels of lead in the atmosphere [*26] upon human beings. Thus his opinions on this precise subject are neither substantial nor competent.

The only other evidence of this record as to this point suffers from the same deficiency. Mr. John Conover, the Secretary's other witness was produced as the analytical chemist who analyzed the air samples taken at Respondent's workplace, and as such, was highly experienced and competent However, his testimony, based upon his reading of the "literature," including Doctor Kehoe's article, that the lead levels found at Respondent's workplace are "high," does not establish what the physiological effect of such "high" levels may be.

There is a lack of competent and substantial evidence in this record to establish that ". . . there is a substantial probability that death or serious physical harm could result from a (the) condition which exist(ed)," at Respondent's workplace (Section 17(k) of the Act). I specifically do not hold that the concentrations of airborne lead found at Respondent's workplace will not result in death or serious physical harm, only that there is a failure of proof on this point in this record.

This record does conclusively establish however a non-serious violation [*27] of Section 5(a)(2) of the Act by failure to comply with the Standard set forth at 29 CFR 1910.93(b).

There remains the question of what, if any, penalty should be assessed.

Section 17(j) of the Act vests exclusive authority in the Commission to assess all civil penalties under the Act, giving due consideration to the size of Respondents business, the gravity of the violation, Respondent's good faith and history of previous violations.

The record herein establishes that this Respondent is a relatively small manufacturer of lead acid storage batteries produced mainly for mine and industrial use, employing 11 production workers in its plant. It is by far the smaller of two such battery producers in Virginia with total sales in 1972 of $720,000.

Mr. Grunwell, Respondent's President since 1967, testified to joining this company in 1963 as an officer. For several years, during his early association he worked in the plant performing most of the manufacturing steps except operating the "casting machine." Although employed in production during this period, he also participated in management decisions and became President in 1967 upon the death of his partner. He testified [*28] to Respondent's membership in the Independent Battery Manufacturers Association (IBMA), and the Battery Council International. Mr. Grunwell testified to being the recording secretary for IBMA and to holding the position of assistant chairman for IBMA's Committee on Plant Hygiene and Maintenance. He additionally stated that he makes a point of reading the trade literature concerning plant safety relative to his type of manufacturing process and to attending industry meetings and seminars on this subject.

Mr. Grunwell also testified that during the construction of one building of their present plant sometime prior to 1967, he had built and installed exhaust ventilation systems at those points of manufacture where he thought it necessary to give adequate ventilation. Then, he requested the Virginia Department of Health to come in and take air samples, which was accomplished. The report of this air sampling inspection was sent to Respondent by a letter from that Department dated February 3, 1967. n2 Of seven samples taken, all but one were below the Threshold Limit Value (TLV) for lead of 0.2 mg./M<3> (Exh. R-7). The State recommended that "Proper mechanical controls should be installed [*29] at this location to lower this lead concentration" (Exh. R-7). Mr. Grunwell testified that the recommendation was implemented.

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n2 The method of taking air sampling utilized by the State in 1967 was not the same as used by the OSHA Inspector herein. The accuracy of the State method however, in this proceeding, is not material vis a vis the Federal method, as Respondent had the right in 1967, and did rely upon the validity of the State tests.

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He additionally testified that when Respondent built its second building in 1965, the State came in and conducted a number of unspecified tests. Additional recommendations were made which Respondent implemented at various other unspecified times. The State, according to Mr. Grunwell's testimony, conducted other tests, including blood samples, which initially were elevated above the level he believes is accepted by industry as a safe level, 0.8 mg. Pb/100 g. blood. Throughout this period Mr. Grunwell stated that Respondent fully cooperated with the State Health Department [*30] people, adopting their recommendations and making alterations within his plant. Finally in June of 1972, Mr. Grunwell testified to conducting a blood sampling program on his own initiative, under which a qualified nurse came into his plant, drew blood samples from 13 of his plant employees, which samples were analyzed by the Virginia Bureau of Industrial Hygiene. The results of these tests, set forth in Exhibit R-2, reveal that no employee tested had a level in his blood exceeding the 0.8 mg. Pb/100g. safety level. From this report Mr. Grunwell felt that he had corrected all conditions which were partially the cause of earlier elevated blood samples, and that these results established to his satisfaction that there was no health hazard from lead in his plant. This State report, as were earlier reports, was posted for the inspection of his employees.

The evidence of record additionally establishes that since at least the State report of February 3, 1967 (Exh. R-7), Mr. Grunwell was aware of the TLV for lead in the atmosphere of 0.2 mg. Pb/M<3>. However, he testified that it was his opinion, from his readings in the literature, that an atmospheric lead reading in excess of this [*31] 0.2 mg. figure, did not necessarily mean that a health hazard existed. Thus, based upon this understanding, and his implementation of all of the various and numerous State recommendations, and with the State report of the blood analysis of samples taken in June of 1972, he firmly believed that there was no health hazard in his plant.

This witness also testified that approximately one year prior to the OSHA inspection, the Respondent had begun the installation of a closed system of handling the lead oxide powder, one raw material used in the manufacture of his product. This system in which Respondent has invested approximately $20,000, and the installation of which was about 50% completed at the time of the OSHA inspection, eliminates the employee handling of this powder. At the time of the trial herein, this system was approximately 95% completed with only the necessary electrical connections to be made. Exhibit R-3A, a photograph taken about 10 days before trial, depicts the bottom of the holding tank section of this system and a workman working on the airlock and vibrator parts of the tank. Mr. Grunwell testified that he expected this system to be operational within [*32] two weeks.

This witness also testified, that when the results of OSHA's inspection were telephoned to him by Inspector Starkey, reflecting elevated airborne levels, he immediately installed new and additional suction ventilation ducts at the high level areas, which were operational at the time of the hearing. Exhibits R-3B, 3C and 3D are photographs depicting these new ventilation ducts.

Although much of the foregoing evidence was offered by Respondent as proof that it had exercised "reasonable diligence" and therefore could not ". . . know of the presence of the violation," and thus had not committed a serious violation under Section 17(k) of the Act, it is not necessary in this case and I do not decide this question on this record. It is my view that all of the foregoing evidence was clearly admissable as it relates to the "good faith" of this Respondent, an element which the Commission must consider in assessing any penalty under Section 17(j) of the Act.

This record conclusively establishes that this Respondent exercised a very high degree of good faith in attempting to deal with airborne lead dust in its plant.

As to any history of previous violations, the Secretary concedes [*33] that the Respondent has no known history of prior violations of the Act.

As to the last element to be considered relative to an appropriate penalty, ". . . the gravity of the violation, . . ." the evidenciary record in this case is inadequate to support any conclusion. This record does establish levels of lead significantly higher than the 0.2 mg./M<3> listed in the standard violated, Table G-2, 29 CFR 1910.93(b), (Exhs. C-2A - 6B; C-7). As pointed out supra however, there is a failure of competent evidence to establish the significance of such elevated levels as they may affect employee health or safety. Such a failure thus precludes any determination as to the gravity of the violation. Therefore there is insufficient evidence upon which any appropriate penalty may be arrived at and assessed.

Citation for Non-Serious Violations

The Standard allegedly violated in Item No. 1 of this Citation, appearing at 29 CFR 1910.133(a)(1) provides as follows:

1910.133 Eye and face protection. (a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers [*34] shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

The Secretary alleges in this Item that Respondent -- ". . . allows employees to work in the paste mixing area and in the battery charging room without eye protective equipment. Workers in these areas are, thereby, unnecessarily exposed to eye hazards due to splashing sulfuric acid." (Citation -- Non-Serious Violations).

Compliance Officer Starkey testified that on the first day of his inspection, January 10, 1973, he observed one employee working in the battery charging or forming room, without eye protection. In that area, newly manufactured battery cells are placed in a sulfuric acid bath. He testified that the employees duties involve considerable use and handling of sulfuric acid in varying strengths. He did not measure or have measured the strength of the dilute sulfuric [*35] acid being used and readily admitted that his conclusion as to the strength was speculation. He also testified that on January 11, 1973, he observed one other employee in the paste mixing area without eye protection. In this area, lead oxide is mixed with "sulfuric acid and a number of other ingredients to form the paste." The employee ". . . must dilute the acid in a vat and take readings with a hydrometer to make sure he has the correct strength introducing it into a mixing pan." Again, the strength of the sulfuric acid either before or after dilution was not scertained by the inspector.

Mr. Grunwell testified that the sulfuric acid used in the battery charging area, is of very low concentration, being diluted to a 2 or 3 per cent solution. Further, that this dilute solution is siphoned into the batteries from holding tanks by gravity, so that the flow is under very low pressure, amounting to a trickle. The plates within the batteries also operate as baffels, so that there is a minimal risk of splashing.

There is no clear evidence as to the strength of the sulfuric acid used in the paste mixing area.

Thus, there is a lack of substantial evidence in this record to [*36] establish that the use of the sulfuric acid in dilute solution, in either the battery charging area or paste mixing area, will result in a "reasonable probability of injury" (1910.133(a)(1)).

There is evidence however that if any splashing does occur, although none was observed by the inspector, it has never resulted in any acid burns of employees. Further, Respondent's foreman for five and one half years, who at times has personally worked in these two areas, has never been splashed himself not has he ever seen any splashing.

It is therefore concluded that there is a lack of substantial evidence of record to establish a violation of the Standard set forth at 29 CFR 1910.133(a)(1).

The Standard allegedly violated in Item No. 2 of this Citation, appearing at 29 CFR 1910.151(c) provides as follows:

(c) Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.

In this Item the Secretary alleges that Respondent ". . . does not provide suitable facilities for quick drenching or flushing of the eyes and body in either [*37] the battery charging room or the paste mixing area. Employees working in these areas are exposed to sulfuric acid" (Ciration -- Non-Serious Violation).

The Secretary's proof under this Item suffers the same insufficiency as under Item No. 1. In order to sustain his burden under this Standard the Secretary must prove employee exposure ". . . to injurious corrosive materials. . . ." This record establishes only exposure to either a very low, 2 or 3 per cent dilute solution, of sulfuric acid, or to an unknown strength of sulfuric acid solution. This evidence is insufficient to support a conclusion that this material is injuriously corrosive.

It is therefore concluded that there is a lack of substantial evidence of record to establish a violation of the Standard set forth at 29 CFR 1910.151(c).

The Standard allegedly violated in Item No. 3 of this Citation, appearing at 29 CFR 1910.107(d)(2) provides as follows:

(2) General. All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered. Mechanical ventilation [*38] shall be kept in operation at all times while spraying operations are being conducted and for a sufficient time thereafter to allow vapors from drying coated articles and drying finishing material residue to be exhausted.

Under this Item, the Secretary alleges that Respondent ". . . does not provide the battery spray painting station on the assembly line with mechanical exhaust ventilation" (Citation -- Non-Serious Violations).

The Compliance Officer testified to observing one paint spray area on the assembly line, where the newly completed batteries are given a final coat of black laquer, which was not provided with mechanical ventilation. One employee at any given time is involved with painting the batteries. A considerable accumulation of paint residue was observed on the floor around this paint station.

Mr. Grunwell readily admitted the foregoing facts, and although Respondent several years ago asked one of its suppliers to attempt to find a suitable paint booth, the supplier did not locate one, and, ". . . we had not tackled it diligently."

However, as soon after Mr. Starkey's inspection as possible, Respondent built their own spray booth, equipped with mechanical exhaust [*39] ventilation, which was fully operative and in use at least a short time prior to the hearing therein. Exhibit R-3H is a photo of this booth.

It is therefore concluded that the substantial evidence of this record does establish the violation charged in Item No. 3 of the Non-Serious Citation.

As to the penalty, if any, to be assessed: -- Considering the substantial evidence of Respondent's overall good faith, lack of any known prior violations of the Act, the very low order of gravity of this violation and size of Respondent's business, and pursuant to the principal announced by the Commission that small monetary penalties coupled with the low level of gravity of a violation does little to effectuate the purpose of the Act, ( Secretary of Labor v. J.E. Chilton Millwork and Lumber Co., Inc.; Docket No. 250), it is concluded that no civil penalty for this violation should reasonably be assessed.

At all times involved in this case, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof and the Commission has jurisdiction of the parties and the subject [*40] matter herein pursuant to the provisions of Section 10 thereof.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c), 12(j) and 17(j) of the Act, it is hereby ORDERED: that,

1. The amended Citation for Serious Violation dated February 12, 1973 is modified to reflect a Non-Serious Violation, and as modified, is AFFIRMED. No penalty is assessed.

2. Items numbered 1 and 2 of the Citation for Non-Serious Violations dated February 12, 1973, are VACATED. Item number 3 of said Citation is AFFIRMED. No penalty is assessed.