HERMITAGE CONCRETE PIPE COMPANY

OSHRC Docket No. 4678

Occupational Safety and Health Review Commission

March 23, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Marvin Tincher, Reg. Sol., USDOL

R. Robert Kassem, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In a prior decision, n1 a divided Commission concluded that although Respondent, Hermitage Concrete Pipe Co. ("Hermitage"), had violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), by failing to comply with the health standard at 29 C.F.R. 1910.1000(c), n2 the violation was not "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). The case is now before the Commission on remand by the United States Court of Appeals for the Sixth Circuit. Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978). In that decision, the Sixth Circuit rejected a Commission majority's conclusion that the violation was not "serious" because the Secretary of Labor ("the Secretary") had failed to prove that death or serious harm "would" result from exposure to the levels of respirable silica dust in Hermitage's workplace. The court held that the proper test to be applied in determining whether a violation of the Act is serious under [*2] section 17(k) of the Act n3 is whether death or serious physical harm "could" result from the violative condition. 584 F.2d at 131-132. The court remanded the case for the Commission to re-examine whether the violation was serious.

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n1 Hermitage Concrete Pipe Co., 76 OSAHRC 2/C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD P20,298 (No. 4678, 1976).

n2 After the judge's decision in this case was issued, the cited standard, 29 C.F.R. 1910.93(c), was recodified at 29 C.F.R. 1910.1000(c). 40 Fed. Reg. 23072 (1975). Because the recodification consisted only of renumbering the standard, the new number will be used.

29 C.F.R. 1910.1000(c) provides:

Table Z-3: An employee's exposure to any material listed in Table Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.

n3 Section 17(k), 29 U.S.C. 666(j), 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.

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Most of the facts are not in dispute. The Secretary's industrial hygienist took air samples at Hermitage's plant, and the samples indicated that Hermitage's employees were exposed to respirable silica dust in excess of the threshold limit values (TLV) set out at 29 C.F.R. 1910.1000(c), Table Z-1. The samples showed concentrations of up to 7 times the permitted levels. Hermitage conceded the existence of levels in excess of the TLV. It also conceded that silicosis was a serious disease and that silica dust is dangerous to health. However, Hermitage contended that it did not know or have any reason to know of the presence of silica dust in its workplace. In his decision, the Review Commission's administrative law judge found that the Secretary had failed to show that Hermitage and knowledge of the presence of silica dust. He therefore characterized the alleged violation as other than serious before vacating the citation on other grounds.

On review, a Commission majority (Commissioner Cleary dissenting) found that the Secretary had failed to introduce evidence to establish that the levels of silica [*4] dust to which Hermitage's employees were exposed "would" cause death or serious physical harm. The Commission affirmed the violation as other than serious and did not reach the issue of knowledge.

On remand, we are charged with determining whether the Secretary has proven that the violation by Hermitage was serious. In order to establish a serious violation of the Act, the Secretary must establish that (1) death or serious physical harm could result if the standard is violated, and (2) that the employer has actual or constructive knowledge of the violative condition. n4 See Niagara Mohawk Power Corp., 76 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

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n4 In his brief on remand, the Secretary does not address the knowledge issue. Hermitage did not submit a brief on remand. Both parties did, however, address the knowledge issue both before the judge and on review before the Commission.

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On review, Hermitage had argued that the Secretary had not shown that it had "knowledge or imputed [*5] knowledge" that its employees were exposed to silica dust. Hermitage's superintendent and general manager, who had a combined total of thirty-six years experience in the manufacture of conduit pipe, testified at the hearing that they had never encountered a problem with silica dust.

On review, the Secretary had contended that various exhibits that he had attempted to introduce at the hearing would have demonstrated that "there was sufficient material . . . available to [Hermitage], so that it knew, or with the exercise of reasonable diligence could have known of the presence of the violation." Citing to American Smelting and Refining Co. v. Brennan, 501 F.2d 504 (8th Cir. 1974), the Secretary had contended that Hermitage could not rely on self-serving declarations that it did not know of the violative levels, when it was clear that Hermitage had a duty to discover the hazard and protect its employees from it.

We conclude that Hermitage could have known of the presence of respirable silica dust with the exercise of reasonable diligence. Both of the operations cited in this case involve the discharge of sand into the atmosphere. In the batch area, sand and cement were poured [*6] into pipe and conduit casting machines. In the finishing area, dried conduit was chipped, ground, and cleaned using compressed air. Even if these operations had not raised visible clouds of dust, they did send particles of sand or cement into the air. An employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure. Automatic Sprinkler Corp. of America, 79 OSAHRC 102/A2, 7 BNA OSHC 1957, 1979 CCH OSHD P24,077 (No. 76-5271, 1979). It is our judgment that a reasonably diligent employer who knows that his employees chip, grind and blow particles of sand and cement from pipe into the air would conduct tests to discover what substances its employees are exposed to, whether the particles are respirable, and in what concentrations they are present. Had Hermitage been reasonably diligent it would have discovered what the Secretary's industrial hygienist discovered, even if it had no idea that any particular disease or substance might be associated with its operations.

In its brief on remand to the Commission, the Secretary argues that exposure to the levels of silica dust in Hermitage's [*7] plant could cause death or serious physical harm. The Secretary contends that in order to establish that a violation is serious he need only show an exposure or exposures to excessive levels of respirable silica dust that if continually experienced could cause death or serious physical harm. The Secretary relies on the industrial hygienist's "unrebutted expert testimony that regular exposure to free silica at the levels Hermitage employees inhaled daily could result in contraction of silicosis." He also points out that the TLV for respirable silica dust is consistent with the epidemiological data demonstrating the upper limits of exposure for studied employees who did not contract silicosis. He cites from the concluding statement in the publication of the American Conference of Governmental Industrial Hygienists (ACGIH), which contains the documentation for the TLV:

The margin of safety of the quartz [free silica] TLVs is not known. In the documented examples of virtual silicosis elimination, concentrations have averaged well below the TLV. It is suggested that quartz concentrations be maintained as far below the TLV as current practices will permit.

ACGIH, Documentation [*8] of the Threshold Limit Values for Substances in Workroom Air, 230 (3d ed. 1971). n5

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n5 The text the Secretary relies on was published in 1971. The TLV for respirable silica dust was derived from a recommended limit proposed by the American Conference of Governmental Hygienists ("ACGIH") in 1968. This TLV was adopted by the Secretary as a standard under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45, and was codified at 41 C.F.R. 50-204.50 34 Fed. 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), and was codified originally at 29 C.F.R. 1910.93, Table G-1 (recodified at 29 C.F.R. 1910.1000(c), Table Z-1). 36 Fed. Reg. 10466 (1971); 36 Fed. Reg. 15101 (1971). Because the 1971 ACGIH recommended limit was identical to the 1968 version, we think it reasonable to conclude, in the absence of evidence to the contrary, that the basis for the recommendation in 1971 was the same as it was in 1968. See Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1471 n.28, 1981 CCH OSHD P25,300, p. 31,344 n.28 (No. 13102, 1981).

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The Secretary also contends that the precise causal link between levels and durations of exposure and the contraction of the disease is a question on the frontiers of scientific knowledge and is incapable of precise scientific proof. To require proof of a causal link in addition to proof that the required levels and durations existed would, in his view, limit serious citations to situations in which the possibility of contracting a disease is shown by its actual occurrence. The Secretary argues that the violation in this case is serious because Hermitage's employees were exposed to a toxic substance at levels that, assuming chronic exposure, could cause a disease from which a substantial probability of death or serious harm arises. The Secretary claims that he is not arguing that every violation of a TLV is automatically a serious violation; he acknowledges that serious physical harm is possible only at "sufficiently high levels" of many regulated substances. He directs us to the OSHA Substance Toxicity Table, in Chapter II of the Industrial Hygiene Field Operations Manual, at II-31 (OSHA Instruction [*10] CPL 2-2.20). That table recommends to the Secretary's enforcement personnel that a violation of the TLV for silica be classified as serious.

In sum, the Secretary argues that (1) regular exposure to free silica at levels proven to exist on at least one occasion could result in the contraction of silicosis and (2) the readings taken at Hermitage's plant can be taken as representative of conditions there in the absence of a showing by Hermitage that they were exceptional.

There is no evidence here that the overexposures measured by the Secretary's industrial hygienist were typical of the exposure of Hermitage's employees. The Secretary also does not claim that the measured overexposures, by themselves, could have caused death or serious physical harm. The Secretary, and the supporting ACGIH documents, focus instead on the effects of long-term exposure to silica dust. This case, therefore, is unlike those in which a single exposure could cause death or serious physical harm, e.g., a single exposure to cyanide gas or an unshored trench. Accordingly, we must consider whether a serious violation can be found in these circumstances. In particular, we must consider whether to presume [*11] that the measured overexposures were representative of long-term exposures.

In some cases, the evidence clearly will demonstrate that the exposures measured during the inspection of a workplace are representative of the usual exposures in that workplace. In other cases, such as this one, whether the exposures were representative may not be apparent from the evidence. The Secretary, whose presence in a workplace is necessarily occasional, is usually not in a position to chronicle long-term exposure to a toxic substance at a worksite. The Secretary is also unlikely to be able to obtain information on this point through discovery if, as here, the emplover has not kept records of employee exposures. Yet, where, as here, the same objects are manufactured regularly, a realistic estimate of the probabilities suggests that workplace conditions tend to remain the same. See generally McCormick, Law of Evidence, 337 at 787-789 (2d Ed. 1972). It is also evident that the employer is in the most favorable position to show that normal exposure differs from the exposure measured by the Secretary. See Trinity Industries, Inc., 81 OSAHRC 30/A2, 9 BNA OSHC 1515, 1981 CCH OSHD [*12] P25,297 (No. 77-3909, 1981). Finally, the presumption is not so far-reaching as to unfairly burden employers. Because we are dealing only with the characterization of a violation, the only consequence of the presumption to employers is to make it somewhat more likely that the Commission will be required to assess a penalty of up to $1,000; for nonserious violations, the assessment of a penalty of up to $1,000 is discretionary. Compare section 17(b) of the Act, 29 U.S.C. 666(b), with section 17(c), 29 U.S.C. 666(c). We therefore presume that the exposures measured by the Secretary are, for the purpose of determining seriousness, representative of typical exposures. An employer may rebut this evidentiary presumption by showing that the exposures or work conditions on the day of the measured exposure were not representative of normal exposures or work conditions.

Here, Hermitage has not argued that the exposures or work conditions on the day of the inspection were in any way unrepresentative, nor did it present rebuttal evidence on the issue. However, because Hermitage has not had an opportunity to meet or rebut the presumption, we will afford Hermitage an opportunity [*13] to present evidence challenging the representative nature of the exposures. We will therefore presume that the readings taken by the Secretary accurately reflect the amounts of respirable silica dust to which Hermitage's employees are usually exposed unless Hermitage requests within ten days an opportunity to present evidence on the representative nature of the exposures.

A serious violation of the Act is not necessarily established by proof that workers are exposed to a concentration of a toxic material in excess of the levels set out in 29 C.F.R. 1910.1000(c). However, in Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1477, 1981 CCH OSHD P25,300, p. 31,349 (No. 13102, 1981), a case involving exposure to coal tar pitch volatiles, the Commission held that if the purpose in limiting exposure to a particular substance is to protect against contraction of a life-threatening disease, then an employer's failure to reduce employee exposure to that substance to within the limits specified by the standard is a serious violation. It is undisputed in this case that Hermitage's employees were exposed to levels of respirable silica dust in excess of the permissible limit. [*14] The documentation for the selection of the recommended limit reveals that the possibility of contracting silicosis was the central factor in setting the TLV. n6 ACGIH, Documentation of the Threshold Limit Values, at 227-30. In short, the limit was set with the intention of preventing the contraction of silicosis, a life-threatening disease. n7 See Urie v. Thompson, 337 U.S. 163, 180 (1948). Accordingly, we find Hermitage to be in serious violation of the Act for failing to comply with 29 C.F.R. 1910.1000(c).

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n6 In this case, the unrebutted testimony of the industrial hygienist establishes that Hermitage's employees were exposed to dangerous levels of silica dust -- exposures which could result in the contraction of silicosis.

n7 A review of the Act's legislative history reveals a congressional recognition of the seriousness of silicosis. In discussing what he described as the "silent killers in the form of . . . debilitating dust particles that have become commonplace ingredients of the manufacturing process," Congressman Udall noted that "[s]ilicosis is another major crippling and deadly respiratory disease common to industry." Remarks of Congressman Udall, SEN. COMM. ON LABOR & PUBLIC WELFARE, 92d CONG., 1st SESS., LEGISLATIVE HISTORY OF THE OCCUPATONAL SAFETY AND HEALTH ACT OF 1970, at 1044-5 (1971).

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In our previous decision, we found Hermitage in other-than-serious violation of the Act for failing to comply with 29 C.F.R. 1910.1000(c). We assessed a penalty of $100. Although we now find the violation to be serious, we conclude that $100 is still an appropriate penalty.

Accordingly, we affirm a serious violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for Hermitage's failure to comply with the standard at 29 C.F.R. 1910.1000(c) and assess a $100 penalty unless within ten days of this decision Hermitage requests an opportunity to present evidence on the representative nature of the exposures.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the majority's characterization of the violation as "serious" and from the assessment of a $100 penalty.

In my view, the Secretary has failed to show that Hermitage's employees were exposed to levels of silica dust that could cause death of serious physical harm. The majority, relying on Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1981 CCH OSHD P25,300 (No. 13102, 1981), holds that exposure to levels [*16] of silica dust above the threshold limit value (TLV) constituted a serious violation of the Act because the TLV for silica dust was set with the intention of preventing the contraction of silicosis, a life-threatening disease.

It is not necessary for me to decide here whether the Anaconda approach is correct, for although it is probably the most expansive interpretation of section 17(k) that could be adopted, the evidence relied on by the majority does not satisfy it. In concluding that the TLV for silica dust was set to prevent silicosis, the majority relies on the documentation that evidently supported the selection of the TLV, American Conference of Government Industrial Hygienists ("ACGIH"), Documentation of the Threshold Limit Values for Substances in Workroom Air (3d ed. 1971). The ACGIH states there that the margin of safety of exposure to silica dust is unknown and that when concentrations of silica dust have averaged well below the TLV, silicosis has been virtually eliminated. However, the documentation does not show levels at which employees could contract silicosis, nor does it show that the ACGIH set the TLV to prevent silicosis, rather than to prevent less [*17] severe health effects. Moreover, in the preface to the ACGIH publication that was the source for the TLV for silica dust and other substances, the reader is cautioned against absolute reliance on the TLV's. See ACGIH, Threshold Limit Values of Airborne Contaminants for 1968 (1968). There the ACGIH notes that the TLV's represent levels under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect. Id. at 1. It emphasizes that TLV's "should be used as guides in the control of health hazards and should not be regarded as fine lines between safe and dangerous concentrations." Id. The ACGIH further notes that "[t]he basis on which the values are established may differ from substance to substance; protection against impairment of health may be the guiding factor for some, whereas reasonable freedom from irritation, narcosis, nuisance or other forms of stress may dominate the basis for others." Id. Although the ACGIH states that in its opinion "limits based on physical irritation should be considered no less binding than those based on physical impairment," it states that these limits "are not intended for use, [*18] or for modification for use . . . as a relative index of toxicity, . . . in estimating the toxic potential of continuous uninterrupted exposures, . . . [or] as proof or disproof of an existing disease or physical condition." Id. at 2. Nevertheless, the majority has found the TLV to be just such a dividing line. Although Hermitage's employees were exposed to silica dust up to 7 times the permissible level, the ACGIH documents caution against using the TLV as a basis for estimating safe and dangerous concentrations. I am therefore unable to say that silicosis could result from such exposures. For this reason, I conclude that serious violation of the Act has not been shown.

Although it is not clear that exposures to respirable silica dust in excess of the TLV could lead to death or serious physical harm, the Secretary nevertheless argues that it would be preferable to err on the side of greater rather than less caution. See Titanium Metals Corp. v. Usery, 579 F.2d 536 (9th Cir. 1978). However, a conclusion that an employer did not commit a serious violation of the Act would not leave his employees without protection. If an employer violates the Act by exposing his [*19] employees to levels of a toxic substance above the TLV, he is required to abate those excessive levels in the same manner he would have had to abate them had the violation been characterized as serious.

Because I do not find that the Secretary has shown that conditions at Hermitage's plant could cause death or serious physical harm, it is unnecessary for me to determine whether Hermitage knew or, with the exercise of reasonable diligence, could have known of the presence of excessive levels of respirable silica dust at its workplace. I do note, however, that my approach to knowledge in such cases has differed from that of the majority. See Mahone Grain Corp., 81 OSAHRC      , 10 BNA OSHC 1275, 1982 CCH OSHD P25,836 (No. 77-3041, 1981) (Rowland, Chairman, dissenting). While knowledge is also a part of the Secretary's burden of proof as to nonserious violations of the Act, Hermitage did not file a petition for review of the previously-affirmed citation with the Court of Appeals. Thus, whether a violation occurred is not before us on remand. The Commission is limited to determining whether the violation was serious.

Finally, I have considered the evidence on the appropriate [*20] penalty. See 3 BNA OSHC at 1922, 1975-76 CCH OSHD at p. 24,201 (lead opinion). In view of Hermitage's good faith, lack of a history of previous violations, medium size, and the low gravity of the violation, I would assess no penalty.