BROWN & ROOT, INC.

OSHRC Docket No. 76-190

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Blythe concluded that Respondent violated section 5(a)(2) of the Act n1 by failing to comply with the standard at 29 C.F.R. 1910.134(d)(2)(ii) n2 in that Respondent did not frequently test the breathing air produced by two oil-lubricated air compressors for the presence of carbon monoxide and allowed one of the filters installed on one of the compressors to become dirty and in need of cleaning or replacement. We affirm the judge's holding with respect to Respondent's infrequent tests for carbon monoxide, but reverse on the issue of Respondent's alleged inadequate maintenance of one filter on one of the compressors. n3

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n1 Section 5(a)(2) states: "Each employer -- (2) shall comply with occupational safety and health standards promulgated under this Act."

n2 The cited standard provides:

1910.134 Respiratory protection.

(d) Air quality.

(2) Breathing air may be supplied to respirators from cylinders or air compressors.

(ii) The compressor for supplying air shall be equipped with necessary safety and standby devices. A breathing airtype compressor shall be used. Compressors shall be constructed and situated so as to avoid entry of contaminated air into the system and suitable in-line air purifying sorbent beds and filters installed to further assure breathing air quality. A receiver of sufficient capacity to enable the respirator wearer to escape from a contaminated atmosphere in event of compressor failure, and alarms to indicate compressor failure and overheating shall be installed in the system. If an oil-lubricated compressor is used, it shall have a high-temperature or carbon monoxide alarm, or both. If only a high-temperature alarm is used, the air from the compressor shall be frequently tested for carbon monoxide to insure that it meets the specifications in paragraph (d)(1) of this section.

n3 Respondent was issued one citation containing two items. Item one of the citation was withdrawn by the Secretary of Labor at the hearing, and the judge accordingly vacated it. Item two of the citation alleged that 29 C.F.R. 1910.143 (d)(2)(ii) was violated in three respects. The judge affirmed the violation in two respects but held that Respondent did not violate the standard by failing to provide "suitable in-line air purifying sorbent beds and filters, to further assure air quality." Respondent petitioned the Commission for review of the judge's decision as to the aspects of the citation that were affirmed, and former Commissioner Moran directed review "for error" without specifying any issues. Before us neither party seeks review of item one of the citation or of the portion of the judge's decision holding Respondent not to have violated the standard by failing to provide suitable in-line air purifying sorbent beds and filters. Since there is no party interest in review of these dispositions and they do not present questions of compelling public interest, we affirm them 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 OSHD P20,428 (No. 9507, 1976). Those parts of the judge's decision are accorded the precedential value of an unreviewed judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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I

Five hundred and fifty employees of Respondent, Brown & Root, Inc., were engaged in the construction of an addition to a Celanese Chemical and Plastics Co. plant in Bishop, Texas, when the construction site was inspected by OSHA industrial hygienist Raymond Skinner. As a result of the inspection, Respondent was issued a citation alleging, among other things, an other than serious violation of 29 C.F.R. 1910.134(d)(2)(ii) for failure either to equip two Quincy air compressors with carbon monoxide alarms or to perform frequent tests of the breathing air produced by the compressors for the presence of carbon monoxide, failure to provide suitable in-line air purifying sorbent beds and filters to further assure the quality of the breathing air produced by the compressors, and failure to properly maintain a filter on one of the compressors.

On the day of the inspection, some of Respondent's employees were sandblasting iron in preparation for painting it. n4 The employees performing the sandblasting operation wore sandblasting hoods. The hoods had two purposes: they protected each employee's face from [*3] the sand being blasted onto the iron, and they supplied the sandblasting employees with breathing air from a source outside of the hoods. The breathing air for the employee in each hood came from a "breathing air type compressor." There were two compressors in use on the job, a Quincy Model 600D and a Quincy Model 800D. Each compressor supplied breathing air to the employee in the hood and supplied air for blasting the iron with sand in preparation for paint. The compressor was the only source of breathing air for the employee in each hood. About one percent of the air produced by each compressor was filtered for breathing purposes; the remaining air was used for sandblasting.

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n4 The nature of the iron objects was not specified.

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Brown & Root's safety supervisor, Richard Deanda, described the production of breathing air in each compressor as a system which routed air through piping, into a "sorbent bed air filter," n5 then out to the sandblasting hood for breathing purposes. Each compressor had an in-line filtering [*4] system that removed particles of coal and dust from the air before the air went to the sandblasting hood. Compliance officer Skinner testified that the filtering system also removed water, scale, and organic vapors. The breathing-air systems did not contain any filters to remove carbon monoxide.

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n5 Compliance officer Skinner testified that "a sorbent is something you pass the air through." He added that a "sorbent is any chemical that would absorb or remove any contaminant from the . . . air supply. . . . [T]he air that is laden with contaminants passes through this sorbent bed and comes out in a purified form."

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Each compressor also had a high-temperature automatic shutdown device that shut off the entire compressor and caused the air flow to stop if the engine on the compressor overheated, if the oil pressure became too low, or if the air produced by the compressor became too hot. Compliance officer Skinner testified that the high-temperature shutdown device was an adequate substitute for the high-temperature [*5] alarm required by the cited standard.

Deanda testified that prior to the inspection he periodically tested for the presence of carbon monoxide in the sandblasting hoods, but no record of the tests was made. Deanda stated that during the six to eight months preceding the inspection, he tested for the presence of carbon monoxide three times, the last test being made 30 days before the inspection. Deanda admitted that he did not consider testing for the presence of carbon monoxide three times in six to eight months to be frequent testing. On cross examination by Respondent, Deanda stated that although testing three times in a six to eight month period was not frequent testing, it was adequate testing.

Compliance officer Skinner noted that the general industry standard at 29 C.F.R. 1910.134(d)(2)(ii) requires frequent monitoring for carbon monoxide when a compressor lacks a carbon monoxide alarm. Skinner testified that when he asked some of Respondent's employees if Respondent monitored for carbon monoxide, they stated, "we used to." Skinner said he was told that Respondent last monitored for carbon monoxide in October 1974, eleven months before the inspection. Skinner's opinion [*6] was that Respondent's testing was not frequent. Skinner stated that to be adequate Respondent's tests should have ensured that there was "absolutely never" any carbon monoxide present in the hoods. The minimum acceptable level of monitoring would be once a day, stated Skinner, while the safest method would be continuous monitoring. How frequently carbon monoxide monitoring should occur would vary somewhat according to the age and condition of the air compressor. Skinner labeled "absurd" Brown & Root's practice of monitoring only three times over the six to eight months prior to the inspection.

Carbon monoxide can cause death or serious bodily injury, according to the compliance officer. Carbon monoxide is odorless, colorless, and has 200 to 300 times greater affinity for hemoglobin in the blood than does oxygen. Exposure to carbon monoxide may render employees unconscious. Exposure to 50 parts per million can cause damage to the muscle tissue of the heart. Exposure to more than 15 parts per million impairs one's ability to think, discern, and make rational decisions.

Skinner testified that there are a number of ways that carbon monoxide could reach an employee wearing a [*7] sandblasting hood. There would be some natural contamination of the breathing air from the compressor's own exhaust fumes being drawn into the compressor's in-take valve. If the compressor were parked near an idling vehicle's exhaust, carbon monoxide similarly could be drawn into the in-take valve. Also, any organic matter drawn into the hot inner workings of the compressor could burn and give off carbon monoxide. Finally, the bearings in the compressor could become so hot that the air-oil mixture in the compressor could ignite and emit carbon monoxide.

Skinner took a sample of the air in the hoods during inspection and found no measurable amount of carbon monoxide.

The compressors were equipped with in-line filtering systems that removed substances such as dust, coal, water, scale, and organic vapors from the air, although they did not remove carbon monoxide. Skinner testified that he opened one of the in-line filters and found it in need of replacement. Skinner stated that such in-line sorbing bed activated charcoal filters must be changed every two to three months. Depending on the conditions under which it is being used, the filter may have to be changed more often. Skinner [*8] stated that he was told the filter he had opened was last changed six months prior to the inspection. He was informed by Frank Montalvo, Respondent's sandblasting foreman, that there was no replacement filter on the job. Skinner noted that had the filter been inspected and cleaned, it would not have been in the poor, dirty, broken down condition in which he had found it.

Leroy Forrester, the owner and president of Air and Pump Company, the firm that supplied the compressors, stated that each compressor containe no filtration system, but breathing air filters for placement between the compressor and the hood were available. According to Forrester, the manufacturers recommended that such a filter has a life of four to eight months, depending on the condition of the input air, if used continuously eight hours a day. Compliance officer Skinner challenged the testimony of Mr. Forrester, stating that "I actually . . . wonder if [Forrester] understood the type ilter we were refering to". Skinner stated that there is a difference between an "intake" filter and an "in-line" filter. Refering to Forrester's estimate that the filter should be changed every four to eight months, Skinner [*9] stated that Forrester was not qualified to give an opinion on when to change the filter.

Frank Montalvo, Brown & Root's sandblasting foreman on the worksite, testified that the filters were cleaned once a month and replaced every six months. He stated that he "inspected or cleaned" the dirty filter in question one or two months before the inspection.

The parties disputed whether construction industry standards or general industry standards applied to the breathing air system by which the compressors supplied air to the sandblasting hoods. Safety supervisor Deanda testified that Respondent followed the 29 C.F.R. Part 1926 construction standards when performing the sandblasting operation. Deanda stated that the construction standard on respiratory protection, 29 C.F.R. 1926.103 (see Appendix), constituted Respondent's written procedure for using respirators during a sandblasting operation. Deanda did not consider it his responsibility to follow the 29 C.F.R. Part 1910 general industry standards unless the Part 1926 construction standards referred him to Part 1910. Even if the Part 1926 construction standards were silent on a given operation, and a Part 1910 general industry [*10] standard was violated by one of Respondent's operations, Deanda stated he did not believe he was in violation of a standard. Deanda testified that he knew before the inspection that a Part 1910 general industry standard applied to sandblasting operations. He also knew that Part 1926 contained no standards that referred to compressors for use in respiratory protection and that such standards did exist in Part 1910. He also knew before the inspection that the compressors in use were oil-lubricated.

Compliance officer Skinner testified that the heading for both the general industry standard at 29 C.F.R. 1910.134 and the construction industry standard at 29 C.F.R. 1926.103 was "respiratory protection." Skinner stated that the Part 1926 construction standard applied to exposure to carbon monxide in the general atmosphere but not to carbon monoxide exposure inside a sandblasting hood. He emphasized that Table E-4 in the construction standard at 29 C.F.R. 1926.103 did not apply to the potential exposure to carbon monoxide from breathing air produced by an oil-lubricated compressor. He noted that there were specific Part 1910 requirements covering "compressors supplying air for [*11] breathing," while there were no similar Part 1926 standards. Skinner explained that since nothing in the Part 1926 construction standards applied directly to the potential carbon monoxide hazard observed, he cited Respondent for a violation of the general industry standard in Part 1910. Skinner noted that the Part 1910 standard addressed this particular hazard.

Skinner stated, finally, that he characterized the alleged violation as nonserious because he did not detect carbon monoxide in the sandblasting hoods, the compressors were equipped with high-temperature shutdown devices, and many of Respondent's employees were available at the site to aid, if necessary, an employee overcome by exposure to carbon monoxide. He also noted that Brown & Root had a safe operation overall, was very cooperative on safety matters, and did an excellent job of controlling the silica exposure from the sandblasting. A $35 penalty was recommended for this violation.

II

According to the judge, the central issue in this case is whether sandblasting in the construction industry is "regulated solely by 29 C.F.R. 1926.103 . . . or is subject also to 29 C.F.R. 1910.134." The judge resolved the issue [*12] by holding that the Part 1910 general industry standard applied because the Part 1926 construction industry standards did not cover the cited hazard in this case. The judge noted that the particular Part 1926 construction standard advocated by Respondent, 29 C.F.R. 1926.103, contained no provisions relevant to breathing-air compressors. Since the Part 1910 general industry standard advanced by the Secretary of Labor ("Secretary") and the Part 1926 construction industry standard advanced by Respondent did not cover the same subject matter, accepting Respondent's contention that it was required to comply only with the Part 1926 construction standard would exempt Respondent from the specific Part 1910 general industry requirements pertaining to breating-air compressors, the judge reasoned. This would result in unsafe working conditions for Respondent's employees, who at the time of the inspection were potentially exposed to carbon monoxide. Additionally, the judge found that the regulation at 29 C.F.R. 1910.5(c)(2) made applicable to oil-lubricated compressors the Part 1910 general industry requirements "to the extent that none of the [Part 1926 construction standards] applies." [*13] n6

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n6 29 C.F.R. 1910.5 provides, in pertinent part as follows:

Applicability of standards.

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. For example, 1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas. Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in 1915.23(c)(3).

(2) On the other hand, any standard shall apply according to its terms to any emploment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in 1910.95 applies to employments and places of employment in pulp, paper, and paperboard mills covered by 1910.261.

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On the issue of whether Respondent failed to equip its compressors with high-temperature alarms, the judge found that Respondent's compressors lacked such alarms. However, the judge accepted compliance officer Skinner's opinion that the high-temperature shutdown devices on the compressors were equivalent to high-temperature alarms.

The judge rejected Respondent's argument that 29 C.F.R. 1910.134(d)(2)(ii) is unenforceably vague in requiring "frequent" monitoring for the presence of carbon monoxide emitted by an oil-lubricated compressor that lacks a carbon monoxide alarm. Determination of whether a given method of testing is "frequent" under the cited standard is governed by a reasonable man test, stated the judge, citing Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974), and McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). The judge held Respondent's practice of monitoring for carbon monoxide three times in the six to eight months preceding the inspection not to be frequent enough. "Frequently [in this context] means much more often than Respondent tested," ruled the [*15] judge. Also, the judge noted that Respondent's safety supervisor twice admitted that such testing was not frequent.

Finally, concerning Respondent's alleged failure to properly maintain a filter on one of the compressors, the judge held that the duty in the general industy standard at 29 C.F.R. 1910.134(d)(2)(ii) to install "suitable" filters implied a duty to keep the filters clean and serviceable. Otherwise Respondent could simply install filters, allow them to become dirty, and still comply with the standard. The judge stated that, on the basis of the record, he could not make a finding that Brown & Root did or did not adhere to a reasonable filter inspection schedule. However, he inferred from Skinner's discovery of a dirty filter that Respondent's inspections were too infrequent under the circumstances.

For these reasons the judge affirmed item two of the citation, finding a violation in two of the three respects alleged, n7 and assessed a penalty of $35.

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n7 See note 3 supra.

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III

A.

Respondent argues [*16] on review that the controlling issue in this case is the proper interpretation of 29 C.F.R. 1910.5(c). Section 1910.5(c) notwithstanding, Respondent claims that it has no "parameters," "guidelines," or "objective criteria" indicating whether a construction industry standard or a general industry standard applies to a given construction operation. Respondent cites Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), as requiring the Secretary to indicate in his standards what an employer must do to avoid a hazardous condition. Respondent notes that it suggested to the judge guidelines to be used in deciding whether a general industry or a construction industry standard applies to a given construction operation, but the judge ignored these suggestions.

Respondent argues that under 29 C.F.R. 1910.5(c) application of a specific standard is the rule, while application of a general standard is the exception. When a specific Part 1926 construction industry standard addresses a hazard, Respondent asserts, it should control. Respondent maintains that under Hoffman Construction Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD P19,275 (No. 644, 1975), rev'd, [*17] 546 F.2d 281 (9th Cir. 1976), the Secretary is permitted to apply a general industry standard in Part 1910 to a construction operation only when no construction industry standard in Part 1926 exists relating to the working conditions in question. If a construction industry standard effectively addresses a hazard then it, and not the general industry standard, should apply. In the instant case Respondent maintains that the construction industry standard at 29 C.F.R. 1926.55 covers exposure of employees to a potential carbon monoxide hazard. n8 That standard envisions engineering or administrative controls to limit exposure to certain substances, including carbon monoxide. If such controls are not feasible, Respondent asserts that it is directed by 29 C.F.R. 1926.55 to comply with the respiratory equipment requirements in Table E-4 of the construction industry standard at 29 C.F.R. 1926.103 (see Appendix). Thus, under these construction industry standards, Respondent alleges that it was required to use controls or respirators during its sandblasting operation. However, rather than apply these more specific standards, the judge applied the general standard at 29 C.F.R. 1910.134, [*18] Respondent argues. Respondent contends that the judge also erred in finding section 1910.134 applicable to the in-line filters on the air compressors, because a construction standard, 29 C.F.R. 1926.103(c)(2), requires inspection and maintenance of respiratory protective equipment. According to Respondent, the judge's ruling violated the "Congressional directive" at 29 C.F.R. 1910.12, n9 which requires application of the Part 1926 standards to construction. Respondent further asserts that the judge's ruling contravened the regulatory scheme envisioned in the Act, since the standards are not sufficiently clear so as to give employers notice of the applicability of the general industry standards to construction work.

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n8 That standard provides:

1926.55 Gases, vapors, fumes, dusts, and mists.

(a) Exposure of employees to inhalation, ingestion, skin absorption, or contact with any material or substance at a concentration above those specified in the "Threshold Limit Values of Airborne Contaminants for 1970" of the American Conference of Governmental Industrial Hygienists, shall be avoided.

(b) To achieve compliance with paragraph (a) of this section, administrative or engineering controls must first be implemented whenever feasible.

When such controls are not feasible to achieve full compliance, protective equipment or other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and technical measures used for this purpose must first be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1926.103.

(c) Paragraphs (a) and (b) of this section do not apply to the exposure of employees to airborne asbestos dust. Whenever any employee is exposed to airborne asbestos dust, the requirements of 1910.1001 of this title shall apply.

n9 29 C.F.R. 1910.12 provides in pertinent part:

Construction work.

(a) Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in 1926.13 of this title.

[*19]

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B.

Respondent's argument lacks merit. As Respondent correctly notes, 29 C.F.R. 1910.5(c)(1) governs the application of general industry standards to construction work. Western Waterproofing, Inc., 79 OSAHRC 50/C13, 7 BNA OSHC 1499, 1979 CCH OSHD P23,692 (No. 14523, 1979). This regulation states that "[i]f a particular standard is specifically applicable to a[n] . . . operation, . . . it shall prevail over any different general standard which might otherwise be applicable to the same . . . operation. . . ." Despite Respondent's arguments to the contrary, the most particular and specifically applicable standard which could be applied to the facts in this case is the general industry standard Respondent is alleged to have violated, 29 C.F.R. 1910.134(d)(2)(ii). That standard specifically regulates compressors used for supplying breathing air. The relevant construction standards, advanced by Respondent as applicable, do not address the subject of air compressors that supply air for breathing.

"Preemption [of a general industry atandard] occurs only if a construction standard is addressed to [*20] a particular hazard arising from the cited conditions," Western Waterproofing, Inc., 7 BNA OSHC at 1502, 1979 CCH OSHD at p. 28,727. Both the construction industry standards and the general industry standards contain rules governing respiratory protection. However, Respondent has not cited anything in the construction standards addressed at the specific hazard presented by this case: contamination of breathing air supplied by air compressors. Although Respondent cites construction a standards at 29 C.F.R. 1926.55 and 1926.103 as applicable to its use of the air compressors, these standards do not possess the specificity of focus on the cited hazard envisioned by 29 C.F.R. 1910.5(c) and Western Waterproofing. The standard at 29 C.F.R. 1926.55 requires employers to limit employee exposure to a number of harmful substances that are present in the workplace and mandates that administrative or engineering controls take precedence over personal protective equipment. It is broad in nature and does not address the specific hazard posed by the potential of air compressors, used to supply air to sandblasting hoods, to emit carbon monoxide. Similarly, the standard at 29 [*21] C.F.R. 1926.103 addresses in general the selection of respirators and requires their use, but it does not confront the particular problem of air compressors emitting carbon monoxide when used to supply air to sandblasting hoods. Additionally, the requirement of section 1926.103 that respiratory protective equipment be inspected and maintained is addressed to filters attached to respirators and does not cover filters on air compressors. Therefore, neither of these standards preempts application of the cited general industry standard to Respondent's air compressors. n10 Indeed, Respondent's safety supervisor acknowledged that he knew a general industry standard addressed the use of air compressors supplying air to respirators, while no construction industry standard mentioned this operation.

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n10 Although not bearing on our decision, it is noteworthy that two years after this case was tried, the Secretary issued Program Directive No. 200-88, which listed general industry standards applicable to construction. The list included the standard in dispute in this case, 29 C.F.R. 1910.134. The Secretary subsequently published a compilation of the general industry standards applicable to construction work, which also included this standard. 44 Fed. Reg. 8577 (Feb. 9, 1979).

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IV

A.

Respondent argues on review that the record does not support a finding of a violation of 29 C.F.R. 1910.134(d)(2)(ii). Respondent asserts that the Secretary did not prove that Respondent failed to frequently test for carbon monoxide, that it failed to maintain one of the filters, or that it knew of the existence of a dirty filter on one of the compressors.

On the issue of whether Respondent failed to test its compressors frequently for the presence of carbon monoxide, Respondent maintains that the compliance officer was unable to define "frequent testing." Under National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), Respondent asserts that the Secretary was required to show what feasible steps Respondent could have taken to make its workplace safe. Respondent further contends that the judge applied the wrong criteria in determining whether the tests for carbon monoxide were "frequent." The judge, according to Respondent, only ruled what was not frequent.

On the issue of whether Respondent failed to properly maintain a filter on one of the compressors, Respondent [*23] argues on review that the compliance officer's testimony on this issue was uncorroborated. Respondent maintains that it cleaned its filters once a month and replaced them every six months. According to the testimony, the filters are only required to be replaced every two to eight months, argues Respondent. Therefore, Respondent maintains that it exercised continued diligence in its maintenance and replacement schedule, which amounted to compliance with the standard. Furthermore, Respondent contends that the record only shows that one filter may have needed maintenance, which is insufficient proof to sustain a violation of the cited standard. Respondent also contends that the Secretary made no showing that Respondent knew the filter in question was improperly maintained.

B.

Contrary to Respondent's contentions, the Secretary succeeded in proving a nonserious violation of 29 C.F.R. 1910.134(d)(2)(ii). The standard Respondent is alleged to have violated in the instant case, 29 C.F.R. 1910.134 (d)(2)(ii), requires, among other things, that: "If an oil-lubricated compressor is used, it shall have a high-temperature or carbon monoxide alarm, or both. If only a high-temperature [*24] alarm is used, the air from the compressor shall be frequently tested for carbon monoxide. . . ." Since Respondent's oil-lubricated compressors did not have carbon monoxide alarms, Respondent was required to test the air from the compressor frequently. However, even accepting as true Respondent's safety supervisor's testimony concerning the frequency of testing, Respondent's testing for the presence of carbon monoxide three times in the six to eight months immediately preceding the inspection was not frequent. n11 Respondent's safety supervisor admitted this. Moreover, the severe effects that inhalation of carbon monoxide, even in relatively low concentrations, can cause warranted that tests be done more often than once every two months. Additionally, Respondent clearly had knowledge of the frequency of the tests performed by its own safety supervisor.

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n11 It is not certain that Respondent even tested as often as three times in the six to eight months immediately preceding the inspection. The compliance officer was told by some of Respondent's employees that "we used to" monitor for carbon monoxide and that Respondent last tested for carbon monoxide eleven months before the inspection.

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Contrary to Respondent's contention, the compliance officer did define frequent testing as testing which would be adequate to ensure that there was no carbon monoxide present in the hoods. He stated that the minimum acceptable frequency of monitoring would be once a day, that monitoring just before every sandblasting operation began would be more adequate, and that the safest frequency of monitoring would be continuous monitoring by use of a carbon monoxide gauge, alarm, or similar device mounted directly on the compressor.

We agree with the judge's conclusion that the cited standard is not impermissibly vague as to how frequently Respondent was required to test for the presence of carbon monoxide. Commission precedent holds that "a standard should not be evaluated for vagueness solely by its own terms, but instead the standard should be considered as it applies to the facts of the case." Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1859, 1980 CCH OSHD P24,205 at p. 29, 443 (No. 76-2049, 1979). The test for determining the vagueness of a standard is "the external and objective test" of [*26] whether "a reasonable person responsible for the safety of employees, after considering the standard . . . and the factual situation, would be able to apply the language of the standard to the situation in order to identify the hazard and eliminate it." Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1715, 1974-75 CCH OSHD P19,443 at p. 23,216 (No. 510, 1975). See United States v. National Dairy Products Corp., 372 U.S. 29 (1963). n12 Considering the standard as it applies to the facts of this case, a reasonable employer aware of the facts would have been able to determine that a requirement of frequent testing for carbon monoxide clearly meant testing more often than three times in six to eight months.

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n12 The Commission and the courts, in ruling on broad or undefined terms in standards, apply a reasonable man test. See, e.g., Plessey, Inc., 74 OSAHRC 77/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD P18,907 (No. 946, 1974) ("clean" and "orderly" not unenforceably vague); M-CO Equip. Co. 75 OSAHRC 37/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD P19,394 (No. 3811, 1975) ("accessible" and "available" not unenforceably vague); Pratt & Whitney Aircraft, supra ("size," "occupancy," and "arrangement" not unenforceably vague; a reasonable person knowing both the standard and the facts would be able to identify the hazard); Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869 (10th Cir. 1974), ("near proximity" not unreasonably vague; a reasonable person could see what was required); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir, 1974), (in considering the claimed vagueness of the standard, an external and objective reasonable man test is inherent in the standard).

[*27]

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Respondent's argument that the Secretary failed to show what feasible steps Respondent could have taken to comply with the standard is inapposite. The case Respondent relies on, National Realty & Construction Co. v. OSHRC, supra, concerns the general duty clause, section 5(a)(1) of the Act. n13 The citation here, however, alleged a violation of a specific standard under section 5(a)(2) of the Act, not a violation of the general duty clause. Moreover, the cited standard by its terms does not require a showing of feasibility. n14 Thus, proof of the feasible steps Respondent could have taken to avoid citation is not a required element of the Secretary's case. Ace Sheeting & Repair, 75 OSAHRC 23/C13, 3 BNA OSHC 1868, 1975-76 CCH OSHD P20,256 (No. 5284, 1975), aff'd, 555 F.2d 439 (5th Cir. 1977). "Instead . . . the burden of proving the impossibility of complying with the standard rests on the employer as an affirmative defense." Amforge Division, Rockwell International, 80 OSAHRC 46/A2, 8 BNA OSHC 1405, 1407, 1980 CCH OSHD P24,439, p. 29,815 (No. 76-3488, 1980). Respondent has not [*28] asserted the defense of impossibility.

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n13 Section 5(a)(1) of the Act states: "Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

n14 S & H Riggers & Erectors, Inc., 79 OSAHRC at 23/C2-C8, 7 BNA OSHC at 1269-1271, 1979 CCH OSHD at pp. 28,441-28,443, Acting Chairman Barnako concluded that the Secretary has the burden of proving the feasibility of a means of complying with another standard under 5(a)(2) of the Act, 29 C.F.R. 1926.28(a). Acting Chairman Barnako reasoned that 1926.28(a) is a broadly worded standard similar to 5(a)(1) of the Act. Since in the present case, the cited standard, 29 C.F.R. 1910.134(d)(2)(ii), is not a broadly worded standard akin to 5(a)(1), Acting Chairman Barnako would not require that the Secretary prove feasibility.

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In sum, Respondent failed to test frequently for carbon monoxide in the breathing [*29] air produced by its oil-lubricated compressors, it had knowledge of how frequently it tested for carbon monoxide, its employees wearing the sandblasting hoods were exposed to the hazard of breathing carbon monoxide, and it has established no affirmative defense. Accordingly, we affirm the portion n15 of the citation alleging that Respondent committed an other than serious violation of 29 C.F.R. 1910.134(d)(2)(ii) by not frequently testing the breathing air generated by the compressors. n16 We affirm as appropriate under section 17(j) of the Act, 29 U.S.C. 666(i), the $35 penalty assessed by the judge.

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n15 As to the portion of the citation alleging that a filter on one of Respondent's compressors was not properly maintained, Acting Chairman Barnako disagrees with the judge and finds that, since the standard does not expressly require filters to be maintained, Respondent cannot be held to have violated the standard for alleged inadequate maintenance of the already installed filter. As explained in his separate opinion, Commissioner Cleary would not apply the cited general industry standard to this construction operation, so he agrees with Acting Chairman Barnako in vacating this part of item 2 of the citation. Commissioner Cottine also finds no violation. In his view, the Secretary has failed to show that the filters were inadequately maintained. Therefore, the portion of the citation that alleged violation of 29 C.F.R. 1910.134(d)(2)(ii) for improper maintenance of one of the filters on the compressor is vacated.

n16 Respondent also argues that the judge's decision violated the Administrative Procedure Act at 5 U.S.C. 557(c) by failing to specifically find that no Part 1926 construction industry standard applied to its breathing-air compressors, by failing to address in its entirety Respondent's argument that Part 1926 standards were applicable, and by failing to address whether Respondent had knowledge of the alleged violative conditions. However, shortcomings of this nature in the judge's decision, if any, are remedied by our discussion and disposition of the parties' arguments and the factual and legal issues. American Package Co., 80 OSAHRC 102/E12, 8 BNA OSHC 2167, 1980 CCH OSHD P24,871 (No. 76-2349, 1980).

[*30]

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SO ORDERED.

APPENDIX

29 C.F.R. 1926.103(a) and (b) provides:

1926.103 Respiratory protection.

(a) General. (1) In emergencies, or when controls required by Subpart D of this part either fail or are inadequate to prevent harmful exposure to employees, appropriate respiratory protective devices shall be provided by the employer and shall be used.

(2) Respiratory protective devices shall be approved by the U.S. Bureau of Mines or acceptable to the U.S. Department of Labor for the specific contaminant to which the employee is exposed.

(b) Respirator selection. (1) The chemical and physical properties of the contaminant, as well as the toxicity and concentration of the hazardous material, shall be considered in selecting the proper respirators.

(2) The nature and extent of the hazard, work requirements, and conditions, as well as the limitations and characteristics of the available respirators, shall also be factors considered in making the proper selection.

(3) The following table lists the types of respirators required for protection in dangerous atmospheres:

Table E-4. - Selection of Respirators

Hazard

Respirator (See Note)

Oxygen deficiency

Self-contained breathing apparatus.

Combination air-line respirator with

auxiliary self-contained air supply or

an air-storage receiver with alarm.

Gas and vapor contaminants

Self-contained breathing apparatus. Hose

immediately dangerous to

mask with blower. Air-purifying, full

life and health.

facepiece respirator with chemical

canister (gas mask). 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-line respirator.

to life and health.

Hose mask without blower.

Air-purifying, half-mask or mouthpiece

respirator with chemical cartridge.

Particulate contaminants

Self-contained breathing apparatus.

immediately dangerous

Hose mask with blower.

to life and health.

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 mouthpiece

to life and health.

respirator with filter pad or cartridge.

Air-line respirator.

Air-line abrasive-blasting respirator.

Hose-mask without blower.

Combination gas, vapor, and

Self-contained breathing apparatus.

particulate contaminants

Hose mask with blower.

immediately dangerous to

Air-purifying, full facepiece respirator

life and health.

with chemical canister and appropriate

filter (gas mask with 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-line respirator.

to life and health.

Hose mask without blower.

Air-purifying, half-mask or mouthpiece

respirator with chemical cartridge and

appropriate filter.

[*31]

Note: For the purpose of this part, "immediately dangerous to life and health" is defined as a condition that either poses an immediate threat to life and health or an immediate threat of severe exposure to contaminants, such as radioactive materials, which are likely to have adverse delayed effects on health.

(c) Selection, issuance, use and care of respirator. (1) Employees required to use respiratory protective equipment approved for use in atmospheres immediately dangerous to life shall be thoroughly trained in its use. Employees required to use other types of respiratory protective equipment shall be instructed in the use and limitations of such equipment.

(2) Respiratory protective equipment shall be inspected regularly and maintained in good condition. Gas mask canisters and chemical cartridges shall be replaced as necessary so as to provide complete protection. Mechanical filters shall be cleaned or replaced as necessary so as to avoid undue resistance to breathing.

(3) Respiratory protective equipment which has been previously used shall be cleaned and disinfected before it is issued by the employer to another employee. Emergency rescue equipment shall be cleaned [*32] and disinfected immediately after each use.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, concurring in part, dissenting in part:

There are extensive occupational safety and health standards governing the construction industry, codified at 29 C.F.R. Part 1926, with which employers in that industry must comply. Therefore, as I stated in Western Waterproofing, Inc., 79 OSAHRC 50/C13, 7 BNA OSHC 1499, 1979 CCH OSHD P23,692 (No. 14523, 1979) (Cleary, Commissioner, separate opinion), I would not hold a construction industry employer responsible to familiarize itself with and selectively comply with the standards covering general industry, 29 C.F.R. Part 1910, when there are voids in the construction standards, unless the Secretary of Labor clearly indicated the general industry standards that applied to the construction work. The Secretary had not done so at the time the citation in the case before us was issued. * Therefore, I concur with my colleagues in vacating one aspect of the citation issued to Respondent for violation of the standard at 29 C.F.R. 1910.134(d)(2)(ii) and I dissent from their affirmance of another aspect of the same citation.

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* The Secretary published an "Identification of General Industry Safety and Health Standards (29 C.F.R. Part 1910) Applicable to Construction Work," 44 Fed. Reg. 8577 (Feb. 9, 1979), long after the citation was issued in this case. That document includes the standard at issue here, 29 C.F.R. 1910.134, as one of the general industry standards applicable to construction work.

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