BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 77-1807

Occupational Safety and Health Review Commission

May 28, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Jack Shoffner, Senior Labor Attorney, Bethlehem Steel Corporation, for the employer

Murphy M. Thornton, President, I.U.M.S.W.A., AFL-CIO, Local #33, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Henry F. McQuade is before the Commission pursuant to 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"). Judge McQuade found that Respondent, Bethlehem Steel Corporation ("Bethlehem"), was in serious violation of 29 C.F.R. 1910.252(f)(4) and (f)(5) n1 or 1916.31(a) and (b) n2 because its workers were exposed to excessive levels of fluorides.

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n1 29 C.F.R. 1910.252(f)(4) and (f)(5) provide in pertinent part:

1910.252 Welding, cutting, and brazing.

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(f) Health protection and ventilation --

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(4) Ventilation in confined spaces -- (i) Air replacement. All welding and cutting operations carried on in confined spaces shall be adequately ventilated to prevent the accumulation of toxic materials or possible oxygen deficiency. This applies not only to the welder but also to helpers and other personnel in the immediate vicinity. All air replacing that withdrawn shall be clean and respirable.

(ii) Airline respirators. In such circumstances where it is impossible to provide such ventilation, airline respirators or hose masks approved by the U.S. Bureau of Mines for this purpose shall be used.

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(5) Fluorine compounds - (1) General. In confined spaces, welding or cutting involving fluxes, coverings, or other materia's which contain fluorine compounds shall be done in accordance with paragraph (f) (4) of this section. A fluorine compound is one that contains fluorine, as an element in chemical combination, not as a free gas.

(ii) Maximum allowable concentration. The need for local exhaust ventilation or airline respirators for welding or cutting in other than confined spaces will depend upon the individual circumstances. However, experience has shown such protection to be desirable for fixed-location production welding and for all production welding on stainless steels. Where air samples taken at the welding location indicate that the fluorides liberated are below the maximum allowable concentration, such protection is not necessary.

The term "confined space" under these standards is defined at 29 C.F.R. 1910.252(e)(4) as follows:

(4) Work in confined spaces - (i) General. As used herein confined space is intended to mean a relatively small or restricted space such as a tank, boiler, pressure vessel, or small compartment of a ship.

n2 29 C.F.R. 1916.31(a) and (b) provide:

1916.31 Ventilation and protection in welding, cutting and heating.

(a) Mechanical ventilation; requirements. (1) For purposes of this section, mechanical ventilation shall meet the following requirements:

(i) Mechanical ventilation shall consist of either general mechanical ventilation systems or local exhaust systems.

(ii) General mechanical ventilation shall be of sufficient capacity and so arranged as to produce the number of air changes necessary to maintain welding fumes and smoke within safe limits.

(iii) Local exhaust ventilation shall consist of freely movable hoods intended to be placed by the welder or burner as close as practicable to the work. This system shall be of sufficient capacity and so arranged as to remove fumes and smoke at the source and keep the concentration of them in the breathing zone within safe limits.

(iv) Contaminated air exhausted from a working space shall be discharged into the open air or otherwise clear of the source of intake air.

(v) All air replacing that withdrawn shall be clean and respirable.

(vi) Oxygen shall not be used for ventilation purposes, comfort cooling, blowing dust or dirt from clothing, or for cleaning the work area.

(b) Welding, cutting and heating in confined spaces. (1) Except as provided in paragraphs (b)(3) and (c)(2) of this section, either general mechanical or local exhaust ventilation meeting the requirements of paragraph (a) of this section shall be provided whenever welding, cutting or heating is performed in a confined space.

(2) The means of access shall be provided to a confined space and ventilation ducts to this space shall be arranged in accordance with 1916.46(b)(1) and (2).

(3) When sufficient ventilation cannot be obtained without blocking the means of access, employees in the confined space shall be protected by air line respirators in accordance with the requirements of 1916.82(a), and an employee on the outside of such a confined space shall be assigned to maintain communication with those working within it and to aid them in an emergency.

The definition of "confined space" under this standard is found in 29 C.F.R. 1916.2(m), which provides:

(m) The term "confined space" means a compartment of small size and limited access such as a double bottom tank, cofferdam, or other space which by its small size and confined nature can readily create or aggravate a hazardous exposure.

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This case presents the questions of whether the general industry standards in Part 1910 or the maritime standards in Part 1916 should apply to the alleged violative condition and whether the violations, if any, were serious or nonserious. n3 The Commission must also decide whether the tests performed by the compliance officer were accurate and whether the Secretary withdrew his original charge under 29 C.F.R. 1910.1000, the general standard covering exposure to air contaminants.

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n3 Commissioner Cottine directed review on all issues raised by the petition, including the following:

Whether the judge erred in finding the Respondent in serious violation of 29 C.F.R. 1910.252(f)(4) and (f)(5) and 1916.31(a) and (b), based on the exposure of an employee of fluorides for an 8-hour time weighted average of 5.3 mg/M3.

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I

Pursuant to an employee complaint, compliance officers from the Occupational Safety and Health Administration ("OSHA") [*3] inspected Bethlehem Steel's shipyard facility at Sparrows Point, Maryland. During this inspection, the compliance officers noted that welders, working in triangular 6-foot by 7-foot areas, were not wearing respirators despite the fact that the welding being pierformed created a bluish-gray, smoky haze typical of fluoride particle contamination.

Several days later, the compliance officers returned to the shipyard to obtain a measurement of the fluoride exposure level of the welders. The officers clipped a sampling cassette on the shirt collar of a Bethlehem welder, Mr. Hancock. On this day, Mr. Hancock was working in a triangular bulkhead of a ship. The bulkhead was approximately 239 cubic feet and had a small 15-inch by 23-inch opening. Ventilation was provided by two small mechanical blowers. The compliance officers and Bethlehem welders testified that the blowers were unable to ventilate the area completely and the bulkhead filled with a bluish haze.

Mr. Hancock was wearing a Wilson 1200 negative pressure respirator. However, despite the respirator, Mr. Hancock discharged black nasal mucus at the end of his eight-hour shift. This, according to the compliance officers, [*4] indicated that the seal of the respirator was ineffective. The tests performed by the OSHA officials indicated that Mr. Hancock was exposed to a time weighted level of 5.3 mg/M<3> of fluorides, more than twice the allowable level for fluoride exposure set forth in 29 C.F.R. 1910.1000(a)(2), Table Z-1 n4.

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n4 29 C.F.R. 1910.1000(a)(2) requires employee exposure to air contaminants to be limited to the time weighted average given in Table Z-1. 29 C.F.R. 1910.1000(e) provides:

To achieve compliance with paragraphs (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any 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/or technical measures used for this purpose must 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 1910.134.

[*5]

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The Secretary alleged that Bethlehem committed a serious violation of 29 C.F.R. 1910.1000(a)(2) and 1910.1000(e), the general standards for exposure to toxic substances. The complaint also cited Bethlehem for serious violations of 29 C.F.R. 1916.31(a) and (b). The complaint was subsequently amended to include serious violations of 29 C.F.R. 1910.252(f)(4) and (5).

Judge McQuade found that the Bethlehem employees had been exposed to more than twice the allowable level of fluoride. Therefore, he held that Bethlehem had violated section 1910.1000(a)(2). He also found that Bethlehem had violated sections 1910.252(f)(4) and (5) or, alternatively, sections 1916.31(a) and (b) because Bethlehem had failed to provide adequate ventilation for the employees welding in a confined area. Judge McQuade assessed $700 for the violation.

Judge McQuade's decision became a Review Commission final order when no Commissioner directed the case for review. Bethlehem Steel Corp., 78 OSAHRC 70/A2 (No. 77-1807, 1978). However, Bethlehem appealed the Review Commission's final order to the Court of Appeals for [*6] the Third Circuit.

The court remanded the case to the Commission for further proceedings. Bethlehem Steel Corp. v. OSHRC, 607 F.2d 1069 (3rd Cir. 1979). In its decision, the court vacated that piart of Judge McQuade's decision which held that Bethlehem had violated section 1910.1000(a)(2). The court determined that when the Secretary had amended his complaint he had withdrawn the charges under sections 1910.1000(a)(2) and (e).

Next, the court held that Judge McQuade had made insufficient findings to support his conclusion that the violations of sections 1916.31(a) and (b) and 1910.252(f)(4) and (5) were serious. The court held that Judge McQuade's findings did not meet the minimum standards of the Administrative Procedure Act, 5 U.S.C. 551-706. The court stated,

At a minimum, the ALJ's findings in this case should have indicated the evidentiary basis for his conclusion that the possible accumulation of excess fumes and smoke due to inadequate ventilation in Hancock's workspace created a substantial probability of death or serious physical injury to him, and that Bethlehem with reasonable diligence could have known of the violation. Yet, examination of the ALJ's decision [*7] reveals that absolutely no findings were made with respect to the alleged seriousness of the violation. The ALJ simply concluded that the violation was serious.

607 F.2d at 1073. Accordingly, the court remanded the case for the following determinations:

[W]hether the allegations in the complaint may be read to permit the Government to introduce evidence concerning the company's practices prior to the date of the inspection, to consider whether Hancock's activities prior to the date of inspection may have warranted a finding that the conduct in issue constituted a serious violation, and to make any further findings of fact that may be appropriate in the circumstances.

607 F.2d at 1074. The Commission remanded the case to Judge McQuade and, in a very brief hearing on June 17, 1980, both sides declined to present any new evidence.

In his second decision, Judge McQuade again found that the facts supported findings that Bethlehem had failed to comply with both the general industry and maritime standards. Judge McQuade also said that the court had erred in holding that the Secretary had withdrawn the allegation of violation of section 1910.1000(a)(2). According to Judge McQuade, [*8] when he considered the Secretary's proposed amendment, he had treated the amendment as a request to proceed as an alternative to the original allegation of violation of 29 C.F.R. 1910.1000(a)(2). Therefore, he reasoned that this charge was still before him, and he reaffirmed his prior finding that the standard had been violated.

Judge McQuade also stated that the court misconstrued Commission law when it stated,

Our threshold inquiry must be whether Bethlehem's alleged noncompliance may be deemed 'serious,' for we need not reach the question of whether the substantive requirements of the standards were violated if such violations may not be characterized as serious.

Judge McQuade went on to observe that, under Commission precedent, a determination is made whether a violative condition existed before the classification of the violation is considered. A violation is serious if it is substantially probable that the result of an incident could be serious injury or death.

Judge McQuade found the violations in this case to be serious. n5 The judge quoted extensively from Dr. Houten's expert testimony on the chronic effects of fluoride exposure. The judge found that a single exposure [*9] to excess fluoride could constitute a serious violation.

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n5 Judge McQuade made the following findings of fact:

1. Respondent had knowledge or with the exercise of reasonable diligence should have had knowledge of the conditions present in that they assigned an employee, whose normal job function was welding, to work in a confined space without adequate ventilation where the fluoride levels exceed those permitted by regulation.

2. As testified to by Dr. Lorne Houten, exposure to excessive levels of fluorides may acutely affect respiratory, gastrointestinal, and neurological systems causing serious physical harm such as shortness of breath, burning of the nasal passages and buccal cavity, coughing, vomiting, diarrhes, abdominal cramps, headaches and faintness.

3. As testified to by Dr. Houten, short term exposure to fluorides may cause chronic serious physical effects on dentition and the skeletal system. This can cause increased growth of many of the bone elements with possible crippling effects on those exposed to the fluorides.

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II

Bethlehem argues that the shipbuilding, rather than general industry, standards apply to the operaton in question but Bethlehem contends that it did not violate any of the cited standards. First, Bethlehem argues that the space in which the employees were welding was not a confined space in that Mr. Hancock had ample room in which to move. In any event, Bethlehem contends that the term "confined space" is unconstitutionally vague.

Bethlehem also objects to the method by which the compliance officer conducted the tests, contending that the testing cassette should have been clipped under the employee's welding hood and not on the lapel of his work shirt. Bethlehem argues that placement of the cassette under the hood which the employee wore while welding would have more closely approximated the actual breathing zone of the employee.

Bethlehem also contends that the Secretary never demonstrated that a feasible means of ventilation existed which would have brought Bethlehem into compliance with the standards. Bethlehem states that the Secretary never presented evidence on this point because there was no feasible means of ventilation to assure compliance [*11] with the standards.

Finally, Bethlehem takes issue with the characterization of the alleged violations as serious because ventilation had been provided and the employee was wearing a respirator. Bethlehem also states that the Secretary never produced evidence concerning the number of employees similarly exposed, the length of employee exposure, or actual harm to exposed employees.

The Secretary argues that Judge McQuade's decision should be affirmed. However, the Secretary, like Bethlehem, takes the position that the maritime standards and not the general industry standards are the applicable standards.

III

Both parties agree that the maritime standards rather than the general industry standards apply. n6 The welding was being performed inside a swash bulkhead on Table 12 at the Sparrows Point Shipyard. The unit being worked on was to become part of a Liquid Natural Gas tanker. This constitutes "shipbuilding or a related employment." See 29 C.F.R. 1910.14. Moreover, the requirements of the maritime and the general industry standards, charged in the alternate, are basically the same. Accordingly, we apply the maritime standards in Part 1916. n7

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n6 We set aside the judge's decision to the extent he found that Bethlehem violated 29 C.F.R. 1910.1000(a)(2). The Third Circuit unequivocally held that this charge had been withdrawn. Following judicial review under section 11(a) of the Act, 29 U.S.C. 660(a), the decision of the reviewing court is the law of the case, see Briggs v. Pennsylvania R.R., 334 U.S. 304, 306 (1948). The Commission and its administrative law judges are required to comply with remand orders of the courts of appeals. Butler Lime and Cement Co. v. OSHRC, 658 F.2d 544 (7th Cir. 1981); Frank Irey, Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2031, 1977-78 CCH OSHD P22,283 (No. 701, 1977).

n7 Because both parties agree that the maritime standards apply to the facts of this case, Chairman Rowland believes it is unnecessary for the Commission to independently determine that the maritime standards apply. Chairman Rowland therefore expresses no opinion on whether the work being done at the time of the alleged violation was "shipbuilding or a related employment."

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A

Bethlehem's "confined space" argument is governed by Commission precedent. Sections 1916.31(a) and (b) forbid welding in a "confined space" without proper ventilation. In Dravo Corp., 80 OSAHRC 2/B10, 7 BNA OSHC 2095, 1980 CCH OSHD P24,158 (No. 16317, 1980), pet. denied without opinion, No. 80-1267 (3rd Cir. 1980), the Commission held that a compartment on a barge with a cubic area sixty times the cubic area of the bulkhead in this case was a "confined space" under section 1916.2(m). n8 The Commission reasoned that the compartment had very limited access and no natural ventilation, thereby aggravating workers' exposure to welding fumes. The area in this case exhibited these characteristics. The bulkhead was very small and only had a small access hole. There was little or no natural ventilation. Accordingly, we conclude that the cited area was a "confined space" within the meaning of section 1916.31(b).

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n8 The Commission also held in Dravo Corp., supra, that the definition of a "confined space" under the maritime standards was not unconstitutionally vague. While acknowledging that the standard requires an employer to use his judgment and experience to determine whether a space is a confined space, the Commission noted that the standard is not unconstitutionally vague simply because judgment must be exercised in determining its application. A standard must be read in light of the conduct to which it is addressed.

[*14]

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The artificial ventilation provided by Bethlehem was clearly inadequate. Section 1916.31(a) requires that ventilation be provided that is of sufficient capacity to maintain welding fumes and smoke "within safe limites." Several employees testified that a bluish-gray, smoky haze developed and lingered throughout welding operations. The inadequacy of the artificial ventilation was further demonstrated by the results of the atmospheric testing. Based on the monitoring results, Dennis Hancock was exposed to more than twice the permissible level of fluorides. Accordingly, fumes and smoke were not maintained within safe limits. n9

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n9 Although the maritime standards require that welding fumes and smoke be maintained "within safe limits," the term is not specifically defined. All three Commissioners find 2.5 mg/M<3> to be a proper reference for determining employee exposure to fluorides under the maritime standards. However, the Commissioners differ on their reasons for this finding.

In the circumstances of this case, Chairman Rowland and Commissioner Cleary find that the unrebutted expert testimony indicates that 2.5 mg/M<3> is an appropriate reference for determining whether an employee's exposure to fluorides in welding fumes is "within safe limits" within the meaning of 1916.31(a).

Commissioner Cottine notes that the maritime standards do not contain threshold limit values for harmful substances. However, the general industry air contaminant standard at 29 C.F.R. 1910.1000(a)(2), Table Z-1, lists 2.5 mg/M<3> as the maximum 8-hour time weighted average for employee exposure to fluoride. Commissioner Cottine would hold that in the absence of a specifically applicable maritime standard, the general industry time weighted average is an appropriate reference for determining whether welding smoke and fumes are within safe limits.

[*15]

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We are not convinced, from Bethlehem's strenuous argument, that the test results indicating that Mr. Hancock was exposed to twice the permissible level of fluorides were invalid. First, Mr. Hancock testified that he buttoned his collar in such a way that the cassette was located under the hood during welding operations. Second, the cassette was within several inches of Hancock's nose and mouth and therefore within his "breathing zone." Finally, measurements made by Bethlehem on the same day as the Secretary's tests yielded results that are not inconsistent with the Secretary's. We affirm Judge McQuade's finding of fact that the test results were valid.

Bethlehem's argument that the citation should be vacated because the Secretary failed to establish the feasibility of additional ventilation is without merit. Commissioners Cleary and Cottine conclude that the Secretary does not have the burden of proving the feasibility under this specific duty standard. See Marion Power Shovel, 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 2247, 1980 CCH P24,915 at p. 30,729 (No. 4114, 1980). Nevertheless, an industrial [*16] hygienist testifying on behalf of the Secretary described several methods for improving the ventilation in the confined space. n10

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n10 Chairman Rowland agrees that the record demonstrates the feasibility of additional ventilation and therefore finds it unnecessary to determine which party has the burden of proof on the issue. Chairman Rowland does not agree that the standard is a "specific duty standard" in all respects. See note 9 supra.

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Under the explicit terms of the standard, if the work is being performed in a confined space and adequate ventilation is not supplied, the employees are to be protected by airline respirators in accordance with section 1916.82(a). Bethlehem failed to comply with this requirement. It only provided a Wilson 1200 negative pressure respirator that was inadequate to filter the fluoride particles. Since the space in which the work was being performed was a confined space and since the ventilation and the respirator were inadequate, Judge McQuade's finding that Bethlehem violated [*17] sections 1916.31(a) and (b) is affirmed. n11

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n11 Chairman Rowland finds a violation of these standards based solely on the inadequacy of the existing ventilation. The Chairman does not join in this decision to the extent it concludes that Bethlehem is required under these standards to provide airline respirators. He notes that the only reference to such respirators appears at section 1916.31(b)(3), which is limited to situations where sufficient ventilation cannot be provided. Since the evidence demonstrates that Bethlehem could feasibly have provided adequate ventilation, the Chairman would not impose on Bethlehem any obligation to use a type of respirator other than that which its employee was wearing.

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B

The final question is whether the violation is a serious violation. In order to establish a serious violation, the Secretary must establish that Bethlehem knew or should have known of the violative condition and that the violation gave rise to a substantial probability of death or serious physical harm. 29 [*18] U.S.C. 666(j). In this case, testimony established that Bethlehem knew that the welding involved fluorides. Accordingly, Bethlehem's knowledge was established. With respect to the health effects of excessive fluoride exposure, the record establishes that long-term exposure can result in permanent harmful effects on the skeletal and neurological systems, as well as permanent discoloration of the teeth. However, even though the expert stated that continued exposure to fluorides at the levels to which Hancock was exposed could result in serious chronic effects, the evidence in this case indicates only one instance of exposure. The expert testimony establishes that acute reactions to fluoride exposure include nonserious problems such as shortness of breath, nausea, and vomiting. n12 However, the testimony indicates that the levels to which employees may be exposed varies greatly depending on weather conditions, ventilation, where the welding is performed and whether a respirator is used. Although Mr. Hancock had been a welder for eleven years, the record before us does not establish the length or level of his exposure to fluorides for times other than the inspection involved in [*19] this case.

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n12 Judge McQuade found that short term exposure to fluorides may have chronic serious effects on a person's teeth and skeleton. See note 5 supra. We do not believe this finding is supported by a preponderance of the evidence. Specifically, Dr. Houten, the Secretary's expert witness testified,

A . . . the literature is consistent with saying that a five to ten-year exposure could produce noticeable effects, and a longer exposure would be more likely to produce noticeable effects.

Q And what effect would that be, in five to ten years?

A Well, one would find radiographic changes in the bone, which could have the effect of limiting joint motion, arthritic changes. It could in severe cases even ultimately lead to loss of use of joints, through pain and stiffness, . . .

The witness also stated that radiographic evidence of fluoride exposure has been noted with as little as six months exposure. Therefore, the record establishes only that serious chronic effects from the exposure to fluorides would require more than the short-term exposure involved in this case.

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We reverse Judge McQuade and find the violation was nonserious. Evidence that exposure could vary greatly according to weather conditions, location and other factors is sufficient to rebut a presumption that the employee's exposure on the day of the inspection was typical of the level of long term exposure. See Hermitage Concrete Pipe Co., 82 OSAHRC   , 10 BNA OSHC 1517, 1982 CCH OSHD P25,975 (No. 4678, 1982). Moreover, the record does not establish that short term exposure to fluorides at the levels shown to exist in this case gives rise to a substantial probability of death or serious physical harm. Under the circumstances, the exposure must be considered short term and the violation nonserious. n13 After considering the factors enumerated in section 17(k) of the Act, 29 U.S.C. 661(j), we assess a penalty of $500.

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n13 Chairman Rowland does no agree with the Commission's analysis in Hermitage Concrete Pipe Co., supra, and would hold that the Secretary has not proven that the employee was exposed to a level of fluorides which was likely to cause death or serious harm. See Hermitage, supra (Rowland, Chairman, dissenting).

[*21]

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SO ORDERED.