TODD SHIPYARDS CORPORATION

OSHRC Docket No. 77-2545

Occupational Safety and Health Review Commission

June 26, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William E. Hester III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James D. Burroughs 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"). The Secretary of Labor ("the Secretary") alleged that Respondent, Todd Shipyards Corporation ("Todd Shipyards" or "the company"), permitted its employees to be exposed to excessive levels of iron oxide fumes and failed to protect these employees by determining and implementing feasible administrative and engineering controls. The Secretary further alleged that the company failed to provide these employees with respirators capable of protecting against the fumes. The citation alleged noncompliance with the standards at 29 C.F.R. 1910.1000(a) and (e) n1 and 29 C.F.R. 1910.134(e)(2). n2 Judge Burroughs affirmed the citation as to sections 1910.1000(a) and (e) but, because he concluded that section 1910.134(e)(2) does not apply where engineering controls are feasible and required by section [*2] 1910.1000(e), he vacated the citation as to section 1910.134(e)(2). We hold that section 1910.134(e)(2) applies in this case, and therefore we reverse this portion of the judge's decision. n3

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n1 Section 1910.1000 pertains to air contaminants. In pertinent part, the cited provisions state:

(a) Table Z-1:

* * *

(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material in table Z-1, . . . in any 8-hour work shift in any 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

* * *

(e) To achieve compliance with paragraph (a) . . ., 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. . . . Whenever respirators are used, their use shall comply with 1910.134.

Table Z-1 gives and 8-hour time weighted average of 10 mg./M<3> for iron oxide fumes.

n2 Section 1910.134(e) pertains to the use of respirators and paragraph (2), the cited provision, states that "[t]he correct respirator shall be specified for each job. . . ."

n3 The Secretary filed a petition for review, taking exception to the judge's disposition of the 1910.134(e)(2) item. Commissioner Cottine granted the petition. Todd Shipyards has not taken exception to the judge's affirmance of the citation insofar as it alleged noncompliance with 1910.1000(a) and (e), and that aspect of the case is not before us for review.

[*3]

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Todd Shipyards is engaged in ship repair. The company operates a shipyard in New Orleans, Louisiana, which was inspected in June 1977 by two Occupational Safety and Health Administration ("OSHA") compliance officers. At that time, employees were inside a ship removing the interior supports of ballast tank compartments using carbon arc gouging. The OSHA compliance officers sampled for iron oxide fumes in the breathing zones of two employees and found that the two employees were exposed to excessive levels of iron oxide fumes. Specifically, the 8-hour time weighted averages for the two employees were 19.89 mg./M<3> and 20.7 mg./M<3>.

A 36-inch fan on the deck of the ship was used to exhaust air from the compartment in which the employees were working. However, the 14-inch flexible tube through which the fan drew air from the compartment terminated approximately eight feet above the heads of the workers, and this arrangement did not reduce the iron oxide fumes in the employees' breathing zones to permissible levels. A different type of local exhaust ventilation system, placed in front of the employees [*4] and in close proximity to the gouging operation, would have reduced the concentration of iron oxide fumes in the breathing zones of the employees to the level permitted by section 1910.1000.

The two employees were wearing respirators under their welding shields. However, the MSA 8710 respirators were approved for dust and mist only, not for fumes.

II

Section 1910.134(e)(2) requires "[t]he correct respirator . . . for each job . . .," and the respirators Todd Shipyards' employees were wearing were not approved for fumes. Nevertheless, Judge Burroughs declined to hold the company in noncompliance with this standard. The judge found that engineering controls to reduce the employees' exposure to permissible limits were feasible and noted that section 1910.1000(e) requires that respirators complying with section 1910.134 must be used "[w]hen such controls are not feasible to achieve full compliance" (emphasis added). Judge Burroughs therefore concluded that only engineering controls were required. The judge indicated that, since the Secretary was alleging that engineering controls were feasible, Todd Shipyards would not have been cited under section 1910.134 if the employees [*5] were not wearing any type of respirator. He also noted that the respirators in use provided at least some protection to the employees. Thus, the judge concluded that finding Todd Shipyards in violation of section 1910.134(e)(2) would penalize the company "for trying to reduce exposure by supplemental means in those instances where it has failed to fully comply by feasible engineering controls."

A

On review, Todd Shipyards argues that Judge Burroughs' decision is correct. In addition to section 1910.1000(e) on which Judge Burroughs relied, Todd Shipyards refers to section 1910.134(a), which states:

(a) Permissible practice. (1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators [*6] shall be used pursuant to the following requirements.

Todd Shipyards argues that this provision of section 1910.134 to which section 1910.1000(e) refers makes it clear that respirators are required only "when effective engineering controls are not feasible" or while feasible controls are being installed. The company contends that the absence of a specific requirement for respirators when controls are feasible but not used indicates there is no such requirement.

B

The Secretary argues on review that Judge Burroughs incorrectly interpreted section 1910.1000(e). The Secretary contends that when an employer first determines under the standard that administrative or engineering controls are not feasible, the employer is required to use respirators meeting the requirements of section 1910.134. Whether there is such a requirement does not depend on a judge's determination that administrative or engineering controls are not feasible.

The Secretary emphasizes that "[t]he simple obligation imposed upon the employer by the standard . . . is to limit the exposure of its employees to certain air contaminants," and the Secretary argues that, in view of this purpose, section 1910.1000(e) [*7] must be read to require the use of personal protective equipment when, for whatever reason, compliance is not achieved through the use of feasible administrative or engineering controls. Thus the Secretary argues that where, as in this case, feasible controls capable of achieving full compliance are available but are not used, "it is not inconsistent for the Secretary to maintain both that engineering controls are feasible and that respirators must be correctly used." In sum, the Secretary states, "Judge Burroughs' interpretation of [s]ection 1910.1000[(e)] fails to recognize an employer's full obligation to limit exposure to air contaminants." In the Secretary's view, the judge "converts the standard's expression of a preference for engineering controls as a method of abatement into an excuse for the failure to provide proper respirators." The Secretary notes that he included the allegations regarding respirators and feasible controls as separate items of a single citation, with a single penalty proposed for the entire citation. This procedure, asserts the Secretary, assures that Todd Shipyards receives notice of its entire abatement duty without separately penalizing the company [*8] for failing to protect against a single hazard.

III

Section 1910.1000(e) prescribes the actions an employer must take "to achieve compliance with paragraph (a)." This paragraph, note 1 supra, proscribes employee exposure to certain air contaminants above specified levels. Thus, the stated purpose of the section is limitation of employee exposure to air contaminants.

To this end, section 1910.1000(e) requires administrative controls, engineering controls, personal protective equipment, or "any other protective measures." the preference is for administrative or engineering controls: "administrative or engineering controls must first be determined and implemented whenever feasible." Personal protective equipment or other measures are required when administrative or engineering controls "are not feasible to achieve full compliance."

Todd Shipyards would have us give this last-quoted language a narrower meaning than is suggested by its plain terms. Todd Shipyards argues that "[o]nly when the implementation of engineering controls is not feasible does the secondary duty to provide personal protective equipment arise. An employer may have the duty to do one or the other, [*9] but not both," (emphasis by Todd Shipyards). That is, if feasible controls are not used, personal protective equipment need not be used either. This interpretation ignores and frustrates the stated purpose "to achieve full compliance" with the specified exposure levels for the employees. Moreover, it distorts the requirements of section 1910.1000(e) read as a whole. The section prescribes a comprehensive scheme of protective measures -- the employer must make a determination about the feasibility of administrative or engineering controls, implement such controls as are feasible, and use personal protective equipment if compliance levels still are not achieved. In short, the employer must use one or more of the specified measures to assure full protection for the employees, whatever the circumstances or the nature of the employer's operations.

As happened in this case, an employer may initially fail to implement existing feasible administrative or engineering controls capable of achieving compliance. In light of the stated purpose of section 1910.1000(e) -- to prevent overexposure to air contaminants -- and the scheme of protection set up in the section to assure that there [*10] is no overexposure, the fact that feasible controls are later shown to exist does not mean that the employer never had a duty to use personal protective equipment. Cf. Daniel Construction Co., 81 OSAHRC    , 9 BNA OSHC 1854, 1860, 1981 CCH OSHD P25,385 at p. 31,627 (No. 12525, 1981) (fact that preferred means of protection could have been used does not excuse inadequate use of the secondary means of protection permitted by a standard). The employer's failure to determine and implement administrative or engineering controls that are feasible to achieve compliance gives rise to the duty to use personal protective equipment under the terms of section 1910.1000(e).

Because Todd Shipyards' employees were exposed to excessive levels of iron oxide fumes, and the respirators furnished by the company to its employees were not approved for fumes, the company failed to comply with section 1910.134(e)(2) requiring "[t]he correct respirator . . . for each job . . . ." Accordingly we reverse the judge's decision as to section 1910.134(e)(2) and affirm the citation in this respect. Upon consideration of the factors in section 17(j) of the Act, 29 U.S.C. 666(i), we assess no additional [*11] penalty for this item. SO ORDERED.