UNITED STATES STEEL CORPORATION

OSHRC Docket No. 77-3378

Occupational Safety and Health Review Commission

November 4, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY, Commissioner. *

* Commissioner Cottine took no part in the consideration or decision of this case.

COUNSEL:

Council for Regional Litigation, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

James T. Carney and W. L. White, Law Department, United States Steel Corporation, for the employer

Mary-Win O'Brien, United Steelworkers of America, for employees

John Foley, Staff Representative, District 7, USWA, for employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge William E. Brennan is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (the "Act"). In his decision, Judge Brennan ruled on the issues raised in five separate citations issued by the Secretary of Labor (the "Secretary") after the Secretary's inspection of United States Steel Corporation's ("USS") coke oven facility at Fairless Hills, Pennsylvania. The inspection began on March 22, 1977, two months and two days after the effective date of the coke oven emissions standard at 29 C.F.R. 1910.1029. The citations issued as a result of the [*2] inspection mainly contain allegations of noncompliance with that standard. The judge affirmed nearly all the cited instances of alleged noncompliance and assessed penalties totaling $33,250. We affirm in part and reverse in part, as outlined below.

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n1 29 U.S.C. 661(i).

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I

Coke is a porous, cellular by-product of the destructive distillation or carbonization of coal. n2 It is used primarily by the steel producing industry as a fuel for its blast furnaces and foundries A coke oven battery is a large, generally rectangular structure, typically 200 or more feet long, 40 to 60 feet wide, and up to 50 feet in height. The battery is divided by refractory brick walls into a series of narrow ovens or coking chambers, about 18 inches wide and from 13 to 20 feet high, extending the full width of the battery and separated from the adjoining ovens by a heating chamber. Heating and oven chambers alternate with each other so that there is a heating chamber on either side of an oven. This heating process causes the carbonization [*3] of the coal within the ovens and results in the production of coke and various distillates.

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n2 This description of the coke production process is largely taken from the judge's decision and from the preamble to the coke oven emissions standard. 41 Fed. Reg. 46742-44 (1976).

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Coke production consists of three basic operations: "charging," "coking," and "pushing." The charging cycle begins with the loading of coal into the individual ovens to a predetermined level (the coal line) which allows free space above the coal so that the gases may be removed from the oven and collected. This charging procedure is done with the use of a large, mechanical "larry car" which operates on rails on the top of the battery. The larry car has three or four hoppers which are fed a premeasured load of coal obtained from a coal bunker located at the end of the battery. The number of hoppers in a larry car corresponds to the number of charging holes in the roof of the ovens. The loaded larry car moves away from the coal bunker and is [*4] positioned over the oven to be charged. The charge hole lids are removed and the larry car hoppers are emptied into the oven through its charging holes. After the coal is in the oven, a small door called a "chuck" door, is opened through which a leveler ram is inserted into the oven to level the coal within the predetermined coal line. During this charging process, the oven is placed under steam "aspiration" (forced or induced draft) by the use of steam jets located in vertical pipes called standpipes. This aspiration system is designed to induce a draft within the oven to increase the exhausting effect and thus reduce or limit the escape of volatile gases from the oven into the ambient air during the charging process and is called "charging on the main." The gases are removed from the ovens through the vertical standpipes and through" gooseneck" pipes to one or two large, horizontal ducts called "collector mains." After the charging is completed, the charging lids and chuck doors are closed, the aspiration is shut off and the "coking" operation begins.

There are a number of variables which determine the desired coking time, such as width of the ovens, the ovens' condition, coal [*5] moisture, and the nature of the coal used. The time varies from about 16 to 20 hours. Coking time is selected so that the coke adjacent to the oven walls has a temperature from 1900 degrees F. to 2000 degrees F. The heating chamber temperatures range from about 2600 degrees F. to 2800 degrees F.

When the coal is sufficiently coked, doors on each side of the oven, known as the "push side doors" and "coke side doors," are removed by mechanical door machines (the door machines run on rails at what is called the "bench level" of the battery). With both doors removed, a mechanically operated ram, mounted on a pusher door car, pushes the incandescent coke out through the coke side of the oven into a large boxcar called a "quench car". The coke-filled quench car then moves on rails to the quench tower where the coke is cooled with water and then dumped onto the coke wharf. When the oven doors are put back onto the oven, the procedure begins over again.

At Fairless Hills, USS maintains a steel mill which includes coke oven batteries numbered 1 and 2. The batteries were built in 1952 and were manufactured by the Wilputte Company. Each battery consists of 87 coke ovens. The ovens [*6] are each 12 feet 2 inches high, 40 feet 7-5/8 inches long and 18 inches wide. Each oven has three charging holes. Approximately 16 tons of coal are dropped into each oven and heated to an average temperature of 2000 degrees F. The average coking time at the time of the OSHA inspection was 16-1/2 hours.

USS's ovens are operated 24 hours a day, seven days a week and are manned by three eight-hour shifts, called "turns," of coke oven employees. Eighty-one ovens are normally pushed during each turn.

The larry cars for the batteries were built by Wilputte in 1952. In 1976, the larry car for battery no. 1 was modified to include new drop sleeves, new volumetric controls and a new drive for its central turntable. Both larry cars have three hoppers, each of which is filled with coal from a coal bunker located between the batteries.

The pusher and coke side door machines for both batteries were built in 1952 by Wilputte (each battery has one push side and one coke side door machine), as was the quench car which services both batteries. There were no significant modifications to either the push side door machine, the coke side door machine, the quench car, or the larry car for battery [*7] no. 2 between 1952 and the time of the Secretary's inspection in this case.

II

A major hazard to coke oven employees is the risk of certain types of cancer and other diseases caused by exposure to coke oven emissions. The primary hazards are briefly presented in the following quotation from the preamble to the coke oven emission standard (29 C.F.R. 1910.1029):

The evidence in the record conclusively supports the finding that coke oven emissions play a causal role in the induction of cancer of the lung and genito-urinary tract in the exposed population. Constituents of coke oven emissions and coal tar, a by-product of the coking process, are known animal skin carcinogens and have been related to increased skin cancer mortality in human populations similar to coke oven workers. This information is sufficient to warrant protective measures designed to reduce employee exposure to coke oven emissions.

41 Fed. Reg. 46748 (1976).

Coke oven emissions can leak out of coke ovens at any unsealed point, such as charging holes, doors, door frames, standpipes and goosenecks. Emissions also result whenever the gas-tight integrity of coke ovens is necessarily disturbed, like during the [*8] charging and pushing procedures. Emissions are released into the air as well while coke is in the quench car, prior to being cooled.

Because of the hazards inherent in coke oven operations, employee exposure to coke oven emissions has been, and is, regulated. The Secretary promulgated the first "coke oven" standard in 1969 under the Walsh-Healey Act, 41 U.S.C. 35-45. That standard adopted a 1967 recommendation of the American Conference of Governmental Industrial Hygienists and set an exposure limit of 200 micrograms of coal tar pitch volatiles per cubic meter of air (200 ug/m<3>) for an eight-hour work day. In 1971, the standard was adopted as an "established Federal standard" n3 under section 6(a) of the Act, 29 U.S.C. 655(a). Section 1910.93 provided that feasible engineering and administrative controls be used to reach the standard's limits but did not specify particular controls.

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n3 The standard was published at 29 C.F.R. 1910.93 and will subsequently be referred to as the 1971 standard. It has since been redesignated section 1910.1000:

1910.1000 Air contaminants.

An employee's exposure to any material listed in tables Z-1, Z-2, or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table-Z-1:

* * *

(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material in table Z-1, the name of which is not preceded by "C", in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table [Table Z-1 assigns coal tar pitch volatiles (which material is not preceded by a "C") a time weighted average of 200 ug/m3]. [ 1910.98 provided that the effective date of 1910.93 was August 27, 1971.]

* * *

(e) To achieve compliance with paragraph (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.

[*9]

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Later in 1971, the American Iron and Steel Institute (AISI), of which USS in a member, petitioned the Secretary for a standard specifically directed at coke ovens. Also that year the United Steelworkers of America petitioned the Secretary for a more stringent standard directed at coke oven emissions. Although the Secretary denied both petitions, he did request the National Institute of Occupational Safety and Health (NIOSH) to expedite research relating to employee exposure to coke oven emissions. In February of 1973, NIOSH issued a report recommending the use of specific engineering controls and operating procedures, supplemented by respiratory protection programs, for coke oven plants.

In 1974, the Secretary empanelled a standards advisory committee on coke oven emissions to review the NIOSH report and make recommendations for a new coke oven emissions standard. That committee submitted a 3,500-page report to the Secretary in 1975.

The Secretary published his proposed standard for coke oven emissions in the Federal Register on July 31, 1975. From November 4, 1975 to January 8, 1976, and from [*10] May 4, to May 14, 1976, hearings were held on the proposed standard pursuant to section 6(b) of the Act, 29 U.S.C. 655(b).

On October 22, 1976, the Secretary published the new coke oven emissions standard, to become effective on January 20, 1977, 41 Fed. Reg. at 46742-90. The standard lowered the permissible exposure level limit for coke oven emissions to 150 micrograms per cubic meter of air (150 ug/m3) averaged over an eight-hour period. 29 C.F.R. 1910.1029(c). To attain the new permissible exposure limit, the standard mandated an extensive list of particular engineering and work practice controls to be implemented '. . . at the earliest possible time, but not later than January 20, 1980. . . ." 29 C.F.R. 1910.1029(f)(1)(i)(a).

III

As mentioned earlier, this case involves the issuance of five citations by the Secretary to USS in September 1977. Citations 1 and 2, both designated serious, were directed at USS's coke oven batteries 1 and 2, respectively. Each citation charged employee exposure to excessive amounts of coke oven emissions, as well as USS's failure to provide numerous controls mandated by section 1910.1029(f). Citation 3, also designated serious by the [*11] Secretary, included allegations of noncompliance with sections 1910.1029(g) (respirators), 1910.1029(h) (cleaning of protective clothing), and 1910.1029(i) (hygiene practices), and with provisions of section 1910.1029 dealing with written procedures and schedules required to be included in USS's training program. Citation 4 was alleged to be repeated and citation 5 other than serious. The latter two citations include allegations of noncompliance with certain requirements for respirators and with the requirement that hot and cold, or tepid, running water should be provided in lavatories. Before discussing the merits of the individual citation items, we must first address an overriding legal issue common to many of the items.

A

Certain of the items in citations 1 and 2 involve allegations that USS failed to implement various specific controls required by section 1910.1029(f). USS contends that it did not have time and was therefore not required to implement some of these controls in the two months between the 1977 standard's effective date and the inspection. n4 The Secretary does not dispute that two months was an insufficient time to install these controls but contends that [*12] USS was obligated to implement the controls under the 1971 standard and that this obligation continued under the 1977 standard. According to the Secretary, USS had sufficient time to implement the controls under the 1971 standard and may be found in violation of the 1977 standard for not doing so. The United Steelworkers of America and its Local 4889 ("the Union") have elected party status in these proceedings, and support the Secretary's reasoning on this issue.

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n4 The citation items to which this issue pertains are: Citation 1, item 2, and Citation 2, item 2 (absence of stage charging); Citation 1, item 3, and Citation 2, item 3 (steam aspiration system did not provide sufficient negative pressure and flow volume); Citation 1, item 4, and Citation 2, item 5 (absence of mechanized gooseneck and standpipe cleaners); Citation 1, item 5, and Citation 2, item 6 (inadequate spare push side and coke side doors); Citation 1, item 12, and Citation 2, item 14 (positive pressure, temperature controlled filtered air not provided for cabs of equipment); Citation 1, item 13, and Citation 2, item 15 (stand-by pulpits equipped with positive pressure, temperature controlled air not provided); and Citation 2, item 4 (larry car not equipped with individually operated drop sleeves and slide gates).

[*13]

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This issue centers on the following language from section 1910. 1029(f)(1)(i)(a):

The employer shall institute the engineering and work practice controls listed in paragraphs (f)(2), (f)(3) and (f)(4) of this section in existing coke oven batteries at the earliest possible time, but not later than January 20, 1980, except to the extent that the employer can establish that such controls are not feasible. In determining the earliest possible time for institution of engineering and work practice controls, the requirement, effective August 27, 1971, to implement feasible administrative or engineering controls to reduce exposures to coal tar pitch volatiles, n5 shall be considered. . . . (Emphasis added).

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n5 Coal tar pitch volatiles as used in the 1971 standard are identical to the benzene soluble fraction of total particulate matter used in 1910.1029 as the standard of measurement for the permissible exposure limit. 41 Fed. Reg. at 46752, col. 3.

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USS's primary argument is that, at the time of the inspection, it had not yet been obligated to implement the engineering and work practice controls required by the 1977 standard because the short two-month period between the effective date of that standard and the inspection did not allow it enough time to do so. USS argues that the 1977 standard gave it until January 20, 1980 to install the mandated controls.

USS argues that absent evidence its employees were exposed to CTPV emissions in excess of the 200 ug/m<3> limit in the 1971 standard, it was not obligated to adopt and implement any controls or work practices prior to January 20, 1977. n6 This being so, the Secretary's citation items alleging USS's failure to implement controls like stage charging, modified larry cars, improved steam aspiration systems, mechanized standpipe and gooseneck cleaners, adequate door supplies, and filtered air for cabs and pulpits are improper because the Secretary has never contended that those items could have been implemented in the period between the publication of the 1977 standard and the inspection.

n6 USS contends that the only evidence of record concerning the emissions to which its employees were exposed is contained in a stipulation that, at the time of the inspection, employees were exposed to concentrations in excess of 150 ug/m<3>. [*15]

USS also contends that its failure to install the specific controls mandated by the 1977 standard cannot be considered a violation of the 1971 standard's requirement to install feasible engineering and administrative controls. If such controls had been required by the 1971 standard then, according to USS, there would have been no need to have them spelled out in detail by the 1977 standard.

The Secretary argues that USS failed to implement the engineering and work practice controls required by section 1910.1029 at the earliest possible time. He states that USS has been legally obligated to adopt all feasible engineering controls to reduce coke oven emissions since the effective date of the 1971 standard, and that if USS had begun to implement the controls mandated by the 1977 standard when those controls first became feasible, the controls would have been in place by the time of the inspection. The Secretary maintains that "the obligation to implement all generally feasible engineering or administrative controls under the 'old' standard is the legal equivalent of the responsibility to implement the specifically mandated controls and work practices under the 'new' standard." In [*16] support of this position, the Secretary points to that section of the 1977 standard's preamble that refers to the obligations of employers under the 1971 standard and sets out the view that recalcitrant employers not get the benefit of an extended time frame for institution of controls under the 1971 standard. n7

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n7 The relevant portion of the preamble states:

Finally, a difficult compliance issue presented by the promulgation of the new standard involves its relationship, within the context of enforcement, to the employer's legal obligations under the prior standard (29 C.F.R. 1910.1000, 1002). The present standard, at paragraph (f)(1)(i) requires the implementation of specific engineering controls and work practices at the earliest possible time but not later than January 20, 1980. To this end, employers are presently required to develop written programs and to implement specific controls. However, the agency recognizes that employers had a legal obligation under the prior standard to reduce coke oven emission exposures by means of feasible engineering and administrative controls. It is not the intention of the agency, through the promulgation of this standard, to vitiate the legal requirements under the old standard. Rather, OSHA views the two standards as representing continuum of enforceable obligations which have been crystallized in the standard's promulgation.

More specifically, in evaluating whether the employer has instituted controls at the earliest possible time, OSHA compliance personnel would consider not only the employer's performance under the new standard but also his prior obligations under its predecessor. It is OSHA's view that recalcitrant employers who have implemented only a few or no controls or work practices under the prior CTPV standard should not benefit from a newly extended time frame established under the new standard. Rather, cognizant of their prior legal obligations, such employers would be subject to citation under the new standard for failure to implement controls at the earliest possible time.

41 Fed. Reg. 46773 (October 22, 1976)

[*17]

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B

Judge Brennan agreed with the Secretary's interpretation of section 1910.1029(f)(1)(i)(a). He held that, in determining whether an employer had installed the controls required by the 1977 standard in the "earliest possible time," it was appropriate to consider whether an employer had the obligation to install such controls under the 1971 standard, prior to the 1977 standard going into effect. The judge further concluded that USS had had an obligation to install controls under the 1971 standard. Although the judge conceded the record does not establish that USS failed to comply with the exposure limit in the 1971 standard, he stated that USS's argument essentially asked him to rule that the Fairless coke ovens were in compliance with the 1971 standard. But that claim, the judge concluded, was not supported by the record either. The judge construed USS's argument as an affirmative defense and placed upon USS the burden of proving compliance with the 1971 standard in order to establish the defense. He ruled that USS had not carried that burden, and that in fact the record best supports the contrary [*18] conclusion. The judge stated that it "strains credulity" to conclude that the Fairless batteries had no coke oven emissions on January 19, 1977, while just sixty days later, at the time of inspection, the batteries were producing extensive coke oven emissions. The judge also stated USS had not shown that any of the "feasible engineering or administrative controls" required by the 1971 standard had been implemented prior to the promulgation of the 1977 standard, whereas well-known engineering controls like stage charging and quickly implementable work practices like proper inspections and repairs had not been implemented at the time of the inspection.

On review, the parties adhere to the interpretations of the standard they advanced before the judge. In addition, USS takes particular exception to the judge's conclusion that it had been under an obligation to install controls under the 1971 standard. USS reiterates its argument that there is no evidence it ever violated the 1971 standard, and contends that the judge improperly shifted the burden to USS to prove that it had been in compliance with the 1971 standard. The Secretary, on the other hand, contends that the judge properly [*19] regarded this claim as an affirmative defense. The Secretary contends that it would be nearly impossible for him to now show that USS exceeded the CTPV exposure limits under the 1971 standard, whereas USS could more easily show it had complied with the 1971 standard -- if USS had indeed been in compliance with that standard. Moreover, the Secretary reiterates, the 1977 standard presumes that all coke oven employers had failed to comply with the 1971 standard, citing the preamble to the 1977 standard at 41 Fed. Reg. 46756, col.1:

Although the industry generally has failed to utilize emissions control technology which has been available for some time . . . and have exceeded the existing permissible exposure limit of [200 ug/m3] (Exh. 68), exposure levels below 150 ug/m3 have been reached at various times on various batteries for various job classifications. . . .

The Secretary then points out that USS's Fairfield, Alabama, plant had implemented many of the controls mandated by the 1977 standard and that "[i]t begs credulity to argue that Respondent's Fairless, Pennsylvania Works, which had implemented virtually none of these controls and work practices, was in compliance with the [*20] 200 microgram limit of the old standard particularly in light of the fact that Respondent's engineers had concluded in 1974 that the Fairless batteries had to be rebuilt, as well as the dilapidated condition of the batteries in March 1977." A similar argument is advanced by the Union.

The Union also agrees with the judge's conclusion. It states that the coke oven emissions standard itself and the preamble to that standard create a presumption of noncompliance with the 1971 standard by USS and the other members of the coking industry, citing 41 Fed. Reg. at 46760. In support of this position, the Union advances the following reasons:

1) The evidence relied upon by the Secretary in setting the standard indicates that employee exposures were uniformly in excess of the 1971 standard. This was true even after the implementation of stage charging at USS's model plant in Fairfield, Alabama;

2) If the Fairless plant was in compliance with the 1971 standard, knowledge of such compliance is uniquely with USS;

3) USS introduced evidence showing that its employees were exposed to excessive amounts of CTPV under the 1971 standard when its own witnesses testified that respirators had been [*21] required at Fairless since 1971. USS would not have issued respirators if it had been in compliance with that standard.

The Union also suggests that, rather than vacating for lack of evidence on the issue, the Commission should remand the case for the limited purpose of taking evidence on compliance with the 1971 standard if the Commission finds that further evidence on the issue is required.

C

Prior to the effective date of the 1977 standard, employers whose employees were exposed to coke oven emissions in excess of 200 ug/m<3> were required by the 1971 standard to implement feasible engineering and administrative controls to reduce that exposure. The 1977 standard reduced the exposure limit to 150 ug/m<3>, specified various engineering and work practice controls for achieving this exposure level, and imposed additional obligations that did not exist under the 1971 standard, such as requirements for medical surveillance of employees. Thus, the purpose of the 1977 standard was to strengthen the protection afforded to employees exposed to coke oven emissions. In providing that employers had to install specific controls "at the earliest possible time, but not later than January [*22] 20, 1980," the Secretary did not intend to "wipe the slate clean" for employers who were not then in compliance with the 1971 standard. He made this explicit by also providing that, "[i]n determining the earliest possible time for institution of engineering and work practice controls, the requirement, effective August 27, 1971, to implement feasible administrative or engineering controls to reduce exposures to coal tar pitch volatiles, shall be considered." 29 C.F.R. 1910.1029(f)(1)(i)(a).

The 1971 standard mandated those controls which are feasible but only where controls were necessary to "achieve compliance" with the exposure limit specified in that standard. In this case, USS was required to implement controls between 1971 and 1977 only if, and when, USS's employees were exposed to CTPV in excess of the eight-hour time-weighted average of 200 ug/m<3>. It was employee overexposure that triggered the need to implement controls under the 1971 standard. Judge Brennan found, and the Secretary does not dispute the finding, that the record does not establish USS's employees were exposed to CTPV emissions in excess of the 200 ug/m<3> limit of the 1971 standard. We agree with this [*23] finding of the judge, and reject the argument of the Secretary and the Union that the judge properly characterized as an affirmative defense USS's argument that it was not obligated to implement controls before the effective date of the 1977 standard. The burden of proof rests with the Secretary to prove all essential elements of a violation. See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). In this case, the Secretary must prove that USS failed to implement controls by the earliest possible time. In order to meet this burden, the Secretary would have to show either that USS had sufficient time to install the controls after the effective date of the 1977 standard, a burden the Secretary does not contend he has met, or he would have to show that USS had an obligation to install the controls before the 1977 standard went into effect. To show the latter, the Secretary would have to prove that USS's employees had been exposed to CTPV in excess of the 200 ug/m<3> limit of the 1971 standard. Such proof is an essential element of the Secretary's case, not an affirmative defense.

The only evidence concerning the levels of coke oven emissions [*24] to which USS's employees were exposed at any time is a stipulation of the parties that, at the time of the inspection, the concentrations exceeded 150 ug/m<3> on an 8-hour time weighted average basis. The evident purpose of this stipulation was to establish excessive exposures under the 1977 standard. But such a stipulation cannot give rise to an inference that exposures exceeded 200 ug/m<3> either during the inspection or at any time prior thereto. The Secretary contends that evidence of exposures prior to the inspection is peculiarly within the knowledge of USS and that the burden of proof should therefore be on USS. However, that an employer may have superior knowledge of certain facts does not relieve the Secretary from meeting his burden of proof. If USS has information concerning the levels of CTPV to which its employees were exposed prior to 1977, the Secretary could have sought to obtain this information through discovery. See Commission Rules 52 and 53, 29 C.F.R. 2200.52 and 53. Additionally, levels of exposures at the time of the inspection, coupled with evidence that conditions and practices in USS's coke ovens had remained substantially unchanged over a certain [*25] period of time, could give rise to an inference that the levels of exposures existing at the inspection had also existed prior to the inspection. However, the Secretary did not attempt to prove that the exposures during the inspection exceeded 200 ug/m<3>. We cannot infer that the levels prior to the inspection exceeded those at the inspection.

We also reject the Secretary's argument that the 1977 standard creates a presumption that all coke oven employers had failed to comply with the 1971 standard, in support of which the Secretary has cited that portion of the 1977 standard's preamble which reads, "[a]lthough the industry generally (emphasis added) has failed to utilize emissions control technology . . . and have (sic) exceeded the existing permissible exposure limit of [200 ug/m<3>,] . . . exposure levels below 150 ug/m<3> have been reached . . ." 41 Fed. Reg. 46756 (1976). The Secretary's burden of proof must be discharged in the course of a formal proceeding before the Commission, and the Commission's decision must be made on the record produced in that proceeding. See National Realty, supra. The Secretary's evidence must be introduced under circumstances [*26] that allow USS the opportunity to cross-examine the Secretary's witnesses and put on its own case. Instead, however, the Secretary and the Union would short circuit this process by substituting as proof statemets made by the Secretary in the 1977 standard's preamble which do not specifically address themselves to USS's Fairless Works and which were not tested by the cross-examination of USS's attorneys. That is improper. Further, the statements in the preamble are not written in such definite terms as to make us think that the Secretary ever intended to create an industry-wide presumption on noncompliance with the 1971 standard -- even if he thought he had the power to do so.

We also reject the Union's argument that USS's issuance of respirators to the coke oven workers at Fairless prior to the 1977 standard should be taken as proof that USS was not in compliance with the exposure limits of the 1971 standard. Several courts have held that an employer's own safety precautions, absent other evidence, do not establish that the employer believed that such precautions were necessary in order to comply with a particular standard. S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d [*27] 1273, 1284 (5th Cir. 1981); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978); Cape and Vineyard Division v. OSHRC, 512 F.2d 1148, 1154 (1st Cir. 1975). We agree.

Finally, we reject the Union's suggestion that we should remand for further evidence on whether USS was in compliance with the 1971 standard. The Secretary and the Union either were or should have been aware at the time of the hearing that it was necessary to prove that USS had violated the 1971 standard in order to sustain the allegation that USS had not implemented engineering and work practice controls at the earliest possible time. There is no contention that there has been any newly discovered evidence, nor does the case involve any change in the controlling law since the time of the hearing to justify reopening the record for additional evidence. See Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979). Cf. Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980) (remand to reopen the record when controlling precedent had changed since the hearing). Under the circumstances, the [*28] necessity of bringing an end to litigation is pre-eminent. Seattle Crescent Container Service, supra.

Accordingly, we vacate items 2, 3, 4, 5, 12 and 13 of citation 1 and items 2, 3, 4, 5, 6, 14 and 15 of citation 2. n8

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n8 See note 4 supra.

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IV

In addressing the remaining items in citations 1 and 2, we first consider the argument raised by USS that the Secretary may not issue separate citations of the same alleged violations for batteries 1 and 2. As indicated earlier, in citation 1 the Secretary cited alleged instances of noncompliance with standards at battery 1. In citation 2, the Secretary, for the most part, cited USS for noncompliance with the same standards involved in citation 1, but for instances of noncompliance alleged to have occurred at battery 2. USS contends that this procedure improperly subjected it to being penalized twice for noncompliance with a single standard.

The judge found that the Secretary's action in issuing separate citations for batteries 1 and 2 was a proper exercise [*29] of administrative discretion. Judge Brennan observed that section 1910.1029(b) defines a coke oven battery as a "structure containing a unmber of slot-type coke ovens" and that USS had two such structures at Fairless -- which it had designated as batteries 1 and 2. He also found that the coke oven industry generally considers each battery a distinct entity and noted that section 1910.1029(f)(3)(i)(a) uses the words "each battery." More importantly, observed the judge, each battery is a potential source of emissions and each battery must therefore be equipped with the controls required by the standard. The judge also added that the Secretary could justifiably have cited each oven separately.

USS aruges that the judge erred by refusing to combine citations 1 and 2 on the ground that those citations duplicate one another. It points out that the two batteries are but two parts of a single physical structure and that compliance officer Stranahan testified, "They are like two rectangular boxes placed end to end with a coal bunker separating them. . . . Physically, they are connected. . . ." USS contends that the batteris do not individually meet the definition of a coke oven battery [*30] in section 1910.1029(b): a "structure containing a number of slot-type ovens. . ." The fact that it has itself designated the batteries as 1 and 2 should not be dispositive, USS asserts, because the Commission should not be "overly impressed by nomenclature." To support its argument that the judge erroneously failed to combine citations 1 and 2, USS points to the stipulation of the parties that the involved "batteries" are both Wilputte combination, double-divided under-jet batteris with 87 ovens per battery; that all the ovens are the same size, take the same amount of coal, have the same coal line, and have the same coking temperatures and coking time; that both battereis have double collector mains, three charging holes, larry cars and door machines.

The Secretary argues that differentiation of the violations on a battery by battery basis is within his administrative discretion. Choosing to cite batteries 1 and 2 separately in this case helps assure meaningful penalties designed to effect employer compliance with the standards, the Secretary contends. He also contends that section 1910.1029(f)(1) contemplates the battery as an appropriate unit to which the standard's requirements [*31] apply because it states that employers shall institute the engineering and work practice controls "in existing coke oven batteries."

The Secretary also argues that the structure of USS's coking operations demonstrates the appropriateness of his separate citations. He finds it "significant" that USS designated the batteries as 1 and 2, and even more significant that USS uses two sets of machinery for the two parts of its coking operation. USS was, therefore, able to shut doen and rehabilitate battery 1 while continuing to operate battery 2 in April of 1977.

To the extent that the judge's action on this issue permits the assessment of more than one penalty against USS for the same conduct, the judge's action is reversed by the Commission. In resolving this issue, Chairman Rowland points out that it is necessary to understand the structure of 29 C.F.R. 1910.1029(f). Section 1910.1029(f) is entitled "Means of compliance." Subsection (f)(1) is entitled "Priority of compliance methods," and is itself divided into three subsections: (f)(1)(i) is entitled "Existing coke oven batteries"; (f)(1)(ii) is entitled "New or rehabilitated coke oven batteries"; and (f)(1)(iii) is entitled [*32] "Beehive ovens." Because USS's batteries existed when the standard took effect, subsection (f)(1)(i) is relevant in this case. It provides that the employer "shall institute the engineering and work practice controls listed in paragraphs (f)(2), (f)(3), and (f)(4) of this section in existing coke oven batteries. . . ." Paragraphs (f)(2), (f)(3), and (f)(4) contain a number of specific steps the employer must take to reduce its employees' exposure to coke oven emissions.

The focus of section 1910.1029(f) is thus the controls employers must institute, not the number of batteries in a particular facility. Indeed, the reference to "existing coke oven batteries" in subsection 1910.1029(f)(1)(i) is only to contrast that subsection with those governing new or rehabilitated batteries and beehive ovens, not to indicate a regulatory intent that each separate "battery" within a facility can be the subject of a separate citation involving the same alleged conduct.

Chairman Rowland further notes that the Secretary's position in this case is inconsistent with his own administrative guidelines. The Secretary contends that he has discretion to issue separate citations for each battery, each employee, [*33] or each job classification, and chose the former as a "reasonable" middle ground. However, the Secretary has issued internal guidelines that limit his authority to issue multiple citations and proposed penalties to an employer for a violation of a single standard. Chapter X, sec. C.1(a) of the Secretary's Field Operations Manual provides that "[a]ll violations of a single standard found during the inspection of a single establishment or worksite should be combined into one alleged violation." Similarly, in discussing citations for violations of the air contaminant standard at 29 C.F.R. 1910.1000, the Secretary's Industrial Hygiene Field Operations Manual states that "[w]hen more than one employee is exposed to the same hazard, the operation would be listed as separate instances for the same item." Chapter I, sec. H.2(b). With regard to citations under the coke oven standard, at the time the violations in this case occurred there was in effect a program directive providing that separate citations should be issued for violations of certain sections for each battery inspected, but that only one citation per plant should be issued for violations of other sections. OHSA Program Directive [*34] # 300-10 (Sept. 6, 1977), reprinted in BNA Occ. Saf. & Hlth Rptr Ref. File, p. 21:9107. In arguing that he has unlimited discretion to issue separate citations for each battery, employee, or job classification, the Secretary is ignoring his own guidelines.

Chairman Rowland also believes that the Secretary's Field Operations Manual and Industrial Hygiene Field Operations Manual represent an acknowledgement that it is fundamentally unfair to assess multiple penalties against an employer for the same conduct. Thus, to the extent that the separate citations for batteries 1 and 2 were issued in conformity with Program Directive # 300-10, Chairman Rowland does not agree that the directive is appropriate. He notes that the Secretary's internal instructions and guidelines are not binding on the Commission. George C. Christopher & Sons, Inc., 82 OSAHRC    , 10 BNA OSHC 1436, 1445, 1982 CCH OSHD P25,956 at p. 32,533 (No. 76-647, 1982).

Chairman Rowland would, therefore, in those instances where the Commission finds that USS violated particular subsections of section 1910.1029(f) by failing to implement certain controls in both batteries, combine the items as part of a single [*35] citation and assess a single penalty. See Safeway Stores, Inc., 74 OSAHRC 92/D1, 2 BNA OSHC 1439, 1974-75 CCH OSHD P19,161 (No. 454, 1947), vacated upon reconalderation on other grounds, 75 OSAHRC 54/C2, 3 BNA OSHC 1123, 1974-75 CCH OSHD P19,694 (No. 454, 1975).

Commissioner Cleary finds it unnecessary to consider whether the Secretary's action in issuing separate citations for battereis 1 and 2 was a proper exercise of administrative discretion. Ultimate authority for assessment of penalties lies with the Commission, 29 U.S.C. 666(j), and the Commission may, when it deems it appropriate, assess a single penalty for two or more violations. See H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1981 CCH OSHD P25,711 (No. 76-4765, 1981); Hoffman Construction Co., 78 OSAHRC 2/A2, 6 BNA OSHC 1274, 1978 CCH OSHD P22,489 (No. 4182, 1978). Commissioner Cleary would find it sufficient to assess single penalties in the amounts specified below, for those items which involve identical violations on the two batteries.

V

We will now address the merits of those items in citations 1 and 2 that we have not already vacated on the basis that USS did not [*36] have sufficient time to implement particular controls. We will then address the balance of the contested citation items in the case.

Citation 1, Item 1 and Citation 2, Item 1

These items of serious citations 1 and 2 allege noncompliance with the standard at section 1910.1029(c) n9 in that the following classifications of employees were exposed to coke oven emissions in batteries 1 and 2 at concentrations greater than 150 micrograms per cubic meter of air for an average eight-hour period: (1) the larry car operator, (2) lidmen, (3) the coke side jamb cleaner, (4) the coke side door machine operator, and (5) the push side door machine operator (citation 1 only). A $1000 penalty was proposed for each item.

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n9 The standard at section 1910.1029(c) provides:

1910.1029 Coke oven emissions.

* * *

(c) Permissible exposure limit. The employer shall assure that no employee in the regulated area is exposed to coke oven emissions at concentrations greater than 150 micrograms per cubic meter of air (150 ug/m3), averged over any 8-hour period.

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The parties stipulated that the employees in the cited job classifications "were exposed to coke oven emissions, without regard to the use of respirators, at concentrations greater than . . . 150 ug/m<3> . . . averaged over 8-hour periods. . . ." The judge found that USS violated the standard based on this stipulation and assessed the proposed $1000 penalties for each of these items.

USS contests the judge's action for two reasons: (1) the employees in the cited job classifications were all wearing respirators that brought the level of contaminants actually breathed by the employees to a level below the permissible exposure limit. Thus, there was no violation, USS argues, citing Administrative Law Judge Chaplin's decision in FMC Corp., 74 OSAHRC 80/E2, 2 BNA OSHC 3216, 1974-75 CCH OSHD P18,735 (No. 4871, 1974), and 2) since the Third Circuit found in American Iron and Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978), cert. dismissed, 448 U.S. 917 (1980), that no coke oven battery in the country had ever consistently reduced contaminants to the permissible exposure level, and since USS had until January 20, 1980 under the 1977 [*38] standard to implement all the controls required by that standard, USS should not be cited in 1977 for exceeding the permissible exposure limit.

The Secretary contends that the stipulation referred to above established a prima facie violation of section 1910.1029(c), particularly since section 1910.1029(f)(1)(i)(a) states respirators may be used as supplemental protection only. Even though section 1910.1029(g), entitled engineering or work practice controls. Section 1910.1029(g)(1)(ii), though, effectively stays, in part, the operation of section 1910.1029(g)(1)(i)(a) by the following terms:

Notwithstanding any other requirement of this section, until January 20, 1978, the wearing of respirators shall be at the discretion of each employee where the employee is not in the vicinity of visible emissions.

Therefore, with respect to the cited instances of alleged noncompliance that involve employees overexposed to coke oven emissions, but not exposed to visible emissions, we vacate because section 1910.1029(g)(1)(ii) makes respirators use in such circumstances voluntary only. With respect to instances of alleged noncompliance that involve employees working in visible emissions, [*39] we note that the Secretary has made that same allegation in item 1c of citation 3, n10 where noncompliance with section 1910.1029(g)(2)(i) is alleged. Because the latter standard is more specifically applicable to employees working without respirators in visible emissions, we vacate this remaining portion of the section 1910.1029(c) allegation and address the merits of the visible emissions charge under the section 1910.1029(g)(2)(i) allegation of item 1c in citation 3.

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n10 Item 1c of citation 3, discussed infra, alleges that USS did not select and assure use of appropriate respirators by employees at certain enumerated work stations where they were in the vicinity of visible emissions. Citation 3, item 1c includes some but not all of the work stations alleged in item 1 of citations 1 and 2. Those work stations appearing in the latter items but not in citation 3, item 1c accordingly represent employees whom the Secretary does not allege to have been in the vicinity of visible emissions.

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Citation 1, Items [*40] 6, 7, 9 and Citation 2, Items 7, 8, 10

The Secretary alleges in citation 1, item 6 and citation 2, item 7 that USS failed to comply with section 1910.1029(f)(2)(ii)(d) n11 in that batteries 1 and 2 were not equipped with chuck door gaskets to control door emissions until the chuck doors could be repaired.

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n11 The standard at section 1910.1029(f)(2)(ii)(d) reads:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(2) Engineering controls.

* * *

(ii) Coking. The employer shall equip and operate existing coke oven batteries with all of the following engineering controls to control coke oven emissions during coking operations;

* * *

(d) Chuck door gaskets to control chuck door emissions until such door is repaired, or replaced. . . .

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The judge found noncompliance with the cited standard and assessed $1000 penalties for each item. The judge pointed out that the parties stipulated there were leaking chuck doors at each battery and that USS was not using chuck door gaskets [*41] at the time of inspection. The judge rejected an argument made by USS that it was not using gaskets because it was experimenting with sealing the chuck doors by "luting" them, i.e., applying a tar-like material to joints at which leakage could occur. He stated that luting is not at all experimental, and that it is instead a very old method of plugging leaks.

The Secretary alleges in citation 1, item 7 and citation 2, item 8 that USS failed to comply with section 1910.1029(f)(3)(i)(a)(2) n12 at batteries 1 and 2 in that, prior to each charge, push side and coke side goosenecks and standpipes were not inspected and cleaned to a specified minimum diameter sufficient to effectively remove evolved gases from the ovens to the collector mains and thereby help control emissions during charging operations. A $1000 penalty was proposed for each item.

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n12 The standard at section 1910.1029(f)(3)(i)(a)(2) provides:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(3) Work practice controls. (i) Charging. The employer shall operate existing coke oven batteries with all of the following work practices to control coke oven emissions during the charging operation:

(a) Establishment and implementation of a detailed, written inspection and cleaning procedure for each battery consisting of at least the following elements:

* * *

(2) Inspection and cleaning of goosenecks and standpipes prior to each charge to a specific minimum diameter sufficient to effectively move the evolved gases from the oven to the collector mains.

[*42]

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The judge affirmed both items and assessed a $1000 penalty for each item. He found that USS's work schedule for the inspection and cleaning of standpipes and goosenecks, if carried out, only provided for the inspection and cleaning of each of the 348 goosenecks and standpipes on the 174 ovens at both batteries once per week. Each oven, however, has about ten coking cycles per week. USS's program therefore did not comply with the cited standard, which requires inspection of each standpipe and gooseneck prior to each of the ten charges and requires their cleaning whenever it becomes necessary to maintain unobstructed passages for the evolved gases.

The Secretary alleges in citation 1, item 9 and citation 2, item 10 that USS failed to comply with section 1910.1029(f)(3)(iii)(a) n13 at the push side of coke oven batteries 1 and 2 in that the work practice of shoveling spilled coke into heated ovens was not discontinued to help control coke oven emissions. A $1,000 penalty was proposed for each item.

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n13 The standard at section 1910.1029(f)(3)(iii)(a) provides:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(3) Work practice controls.

* * *

(iii) Pushing. The employer shall operate existing coke oven batteries with the following work practices to control coke oven emissions during pushing operations:

(a) Coke and coal spillage quenched as soon as practicable and not shoveled into a heated oven. . . .

[*43]

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The judge affirmed both items, assessing $1000 penalties for each. He found that when pusher rams were retracted from the ovens after pushing coke, some of the coke spilled as a result of being brought out with the ram. He also found that certain employees were observed shoveling spilled coke back into the ovens, and that USS's instructions to its employees consistently changed. Sometimes those instructions prohibited the proscribed practice; sometimes they sanctioned it.

The Commission affirms all of these items. Chairman Rowland affirms the judge's disposition without reaching the merits of the items. He notes that USS did not brief the items even though it had petitioned for review of them and the items had been included in the direction for review. Chairman Rowland concludes therefore that USS has abandoned any interest in review of the items. Commissioner Cleary affirms the items for the reasons given by the judge. The Commissioners assess a total penalty of $1,800 for these three sets of items, i.e., $600 is assessed for citation 1, item 6 and citation 2, item 7; $600 is assessed for [*44] citation 1, item 7 and citation 2, item 8; and $600 is assessed for citation 1, item 9 and citation 2, item 10.

Citation 1, Item 8 and Citation 2, Item 9

The Secretary alleges USS's failure to comply with section 1910.1029(f)(3)(ii)(d) n14 at batteries 1 and 2 in that the batteries were not operated pursuant to an inspection system and corrective action program designed to achieve maximum control of the emissions from the push side (batteries 1 and 2) and coke side (battery 1 only) oven doors during coking. A $1000 penalty was proposed for each item.

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n14 The standard at section 1910.1029(f)(3)(ii)(d) reads:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(3) Work practice controls.

* * *

(ii) Coking. The employer shall operate existing coke oven batteries pursuant to a detailed written procedure established and implemented for the control of coke oven emissions during coking, consisting of at least the following elements.

* * *

(d) An inspection system and corrective action program to control door emissions to the maximum extent possible.

[*45]

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The judge affirmed each item, assessing $1000 penalties. The judge found that over 50 per cent of all the oven doors on both batteries had been leaking emissions for at least a year prior to inspection. He also found that USS employed only two patchers (each with a helper) working on one shift five days a week to patch defective doors; door leakage was so extensive, however, that the patchers could not keep up with the deteriorated conditions. The judge therefore concluded that although USS did have a functioning door inspection and repair program, the program was not adequate to cope with the badly deteriorated condition of the door frames in both batteries.

USS argues that the judge uses the same evidence in finding noncompliance with this standard as he does in finding noncompliance with section 1910.1029(f)(2)(ii)(c) n15 regarding insufficient spare doors, and that one of these two sets of items should be vacated as being duplicative.

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n15 Noncompliance with section 1910.1029(f)(2)(ii)(c) was alleged in citation 1, item 5 and citation 2, item 6. The latter two citation items were vacated earlier in this decision on the basis that USS did not fail to comply with the "earliest possible time" requirement of 1910.1029(f). Section 1910.1029(f)(2)(ii)(c) provides:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(2) Engineering controls.

* * *

(ii) Coking.

* * *

(c) An adequate number of spare doors available for replacement purposes;

[*46]

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USS concedes that "there was a significant problem with doors," but the problem was "caused not by the conditions of the doors themselves but rather by the condition of the structure of the battery itself, which was coming to pieces. The actual brickwork of the battery was crumbling in various places. This deterioration of the battery caused the door jambs (or door sills) to become warped. Warpage in the door sills, of course, was the direct cause of emissions and an indirect cause as well because damage to the door sills resulted in further damage to the doors, thus giving rise to even more emissions."

USS asserts that the only solution to this problem was to rebuild the battery, replace the brickwork, and thus create a sound foundation for the door sills. USS contends that the battery was rehabilitated in 1977 after the Secretary's inspection, and that plans had been made to shut down the battery for rehabilitation as early as the fall of 1976. A lack of bricks, however, resulted in those plans being postponed for three months to the first quarter of 1977. When that time elapsed, USS had to [*47] order a further postponement of three months because of problems caused by the severity of the winter.

USS argues that its door emissions control program required: (1) the cleaning of all doors before the start of each coking cycle, (2) the adjustment of doors if door emissions were not the result of unclean doors, (3) the replacement of doors and, (4) the replacement of door jamb castings and their underlying brick work.

USS also points out that it even took steps beyond those called for by its program to reduce door emissions: (1) since 1975, an employee had been on special assignment to deal with emission control programs, (2) both an outside contractor and USS's own employees had attempted to eliminate the carbon problem existing between oven walls and door frames and which caused the door frames to bow, (3) a contractor had been hired to clean the doors with high pressure hoses, and (4) USS was working to develop a more effective door.

The Secretary supports the judge's reasoning. He argues that noncompliance with the cited standard is established by the fact that USS was attempting to do patch work on the 41 leaking doors observed during the inspection with just six employees [*48] working on only one shift for five days a week.

Commissioner Cleary would affirm these items and assess a total penalty of $1000. He finds that USS knew the doors were a "significant problem" yet only assigned six employees working five days a week on the 8 a.m. to 4 p.m. shift to work on them while the ovens remained in operation seven days a week, 24 hours a day. Commissioner Cleary concludes that this was not a corrective action program designed to "control door emissions to the maximum extent possible," in spite of the other elements of USS's door repair program. He finds that the Secretary proved noncompliance with the cited standard by establishing the great extent of the door problems and the insufficiency of the number of employees assigned to service those problems.

USS's allegation that the instant items are duplicative of item 5 in citation 1 and item 6 in citation 2 is rejected by Commissioner Cleary. He finds that the latter items (item 5 in citation 1 and item 6 in citation 2) deal only with the number of doors available while the instant items (item 8 in citation 1 and item 9 in citation 2) concern the requirement for an "inspection system and corrective action [*49] program." Further, as noted above, item 5 in citation 1 and item 6 in citation 2 have been vacated in this decision.

Chairman Rowland would vacate this item because he finds the record does not show USS failed to take sufficient steps to control door emissions. He also finds that the record does not show that the doors were not rebuilt to the maximum extent possible. A comparison of exhibit C-18, which lists the number of doors having problems in 1974, with the number of doors stipulated as leaking at the time of the inspection (40 out of the total of 348 doors), demonstrates that the percentage of leaking doors had actually diminished. The judge's finding that 50 per cent of the doors had been leaking does not find support in the record. Although employees Offenheiser and Siminitus testified that 50 per cent of the doors needed replacement, it does not follow as the judge found that 50 per cent of the doors were leaking. Offenheiser based his estimate that 50 per cent of the doors required replacement on two factors: (1) his observation of emissions coming from the doors and (2) USS's replacement of all the doors when the battery was rebuilt. Neither factor supports Offenheiser's [*50] conclusion, however. During the door rebuild, the size of the door plugs and depth of the smoke channels was changed in an effort to produce a door with a more effective seal. It was, therefore, only this attempt at reducing future emissions that necessitated the rebuilding of all the doors. Further, Chairman Rowland would consider it unfair to penalize USS for its decision to rebuild the entire battery. Also, the fact that Offenheiser observed emissions coming from the doors does not establish that any particular door needed replacement. Clearly, a door may leak from causes other than defects in the door itself, such as the presence of deposits which merely need to be cleaned.

It should also be noted that the credibility of both Offenheiser and Siminitus had been downgraded by the judge, who stated that he did not place exclusive reliance on their testimony. Offenheiser had testified that there was no program to adjust the doors, that millwrights were not present to repair and replace doors, that patching was not performed, and that at the time of the inspection USS had no program for adjusting doors. Offenheiser's testimony about the doors not being adjusted at inspection [*51] time even conflicts with that of fellow employee Siminitus. Further, both USS foreman Yuhas and USS superintendent Seidenberger gave testimony contrary to the aforementioned testimony given by Offenheiser. Seidenberger's testimony about USS's door repair program is supported by documentary evidence indicating USS did in fact replace doors and provide patching.

The Secretary's burden of proof under this standard is to show that emissions were not controlled to the maximum extent possible. Obviously, what is possible will depend upon the physical condition of the battery involved. The Secretary presented no evidence to show that the leaks could have been more effectively controlled by assigning more employees to patcher crews. Insofar as the replacement of doors is concerned, USS's facility only had the capability to repair and replace two doors every 16 hours. Exhibit R-14 shows that, generally speaking, doors were in fact replaced at about this level of frequency, although the frequency of actual replacement declined in 1977, as the projected time for the entire battery rehabilitation approached. In this regard, Seidenberger testified that because of the deteriorated condition [*52] of the battery, changing doors would not have materially reduced emissions anyway. Because Chairman Rowland does not construe the standard to require measures which would not reduce emissions, he would not penalize USS for electing not to change doors in view of its impending battery rebuild. Furthermore, Chairman Rowland notes that were it not for intervening factors beyond USS's control, like a brick shortage and an exceptionally cold winter, USS's rehabilitation program would have been in progress at the time of the Secretary's inspection.

Citation 1, Items 10 and 11 and Citation 2, Items 11, 12, 13a, 13b

A

All these items involve different subsections within section 1910.1029(f)(3)(iv)'s maintenance and repair procedures. n16

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n16 The standard at section 1910.1029(f)(3)(iv) reads, in pertinent part:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(3) Work practice controls.

* * *

(iv) Maintenance and repair. The employer shall operate existing coke oven batteries pursuant to a detailed written procedure of maintenance and repair established and implemented for the effective control of coke oven emissions consisting of the following elements:

(a) Regular inspection of all controls, including goosenecks, standpipes, standpipe caps, charging hold lids and castings, jumper pipes and air seals for cracks, misalignment or other defects and prompt implementation of the necessary repairs as soon as possible;

* * *

(c) Regular inspection of the damper system, aspiration system and collector main for cracks or leakage, and prompt implementation of the necessary repairs;

* * *

(e) Prevention of miscellaneous fugitive topside emissions;

* * *

(i) Repairs instituted and completed as soon as possible, including temporary repair measures instituted and completed where necessary, including but not limited to:

(1) Prevention of miscellaneous fugitive topside emissions.

[*53]

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The Secretary alleges in citation 1, item 10 and citation 2, item 12, that USS did not regularly inspect and promptly repair the cracks and leakage in its damper system, aspiration system, and collector main, thereby failing to comply with the maintenance and repair work practice control set forth at section 1910.1029(f)(3)(iv)(c).

The judge affirmed, finding that USS's repair program for certain components of the collector main, the Corliss valves, n17 was not adequate because effective repairs were not promptly made. He assessed $1000 penalties for each item.

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n17 Corliss valves are housed between the goosenecks and the collector mains, and function as part of the damper system to stop gases from going into the collector main.

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In citation 1, item 11 and citation 2, item 13b, the Secretary alleges that USS failed to comply with section 1910.1029(f)(3)(iv)(i)(1) at both batteries in that repairs were not instituted and completed as [*54] soon as possible for the prevention of miscellaneous fugitive topside emissions. In citation 2, item 13a, the Secretary alleges noncompliance with section 1910.1029(f)(3)(iv)(e) in that coke oven battery 2 was not operated under a detailed written procedure of maintenance and repair established and implemented to prevent miscellaneous fugitive topside emissions.

The judge ruled that the evidence established noncompliance with the cited standards as alleged. He assessed a $1000 penalty for item 11 in citation 1 and a $1000 penalty for item 13 (a and b) in citation 2.

The judge accepted as reasonable the Secretary's interpretation of "miscellaneous fugitive topside emissions," i.e., any coke oven emissions "from a source not specifically covered by the standard," including emissions leaking from either door frames or standpipes and rising to the topside of the ovens. He found that, as to battery 1, the evidence establishes that the door frames on ovens B-12, B-13, and C-12 were leaking emissions for weeks and could have been replaced in four or five days, and that the standpipe on the coke side of oven A-5 had also been leaking for weeks and could have been repaired in four [*55] hours.

As to battery 2, the judge found that the push side standpipe caps on ovens C-1, C-3, C-5, C-26 and C-27 were all leaking emissions at least one or more hours after charging, and that the door frame on oven B-26 had been broken and leaking emissions for about six months. He also found that the coke side oven door frames on ovens B-8 and B-14 were broken and leaking emissions.

In citation 2, item 11, the Secretary alleges that at battery 2 USS failed to regularly inspect and promptly repair cracks, misalignment, and other defects in goosenecks, standpipes, standpipe caps, charging hole lids, and castings, as required by section 1910.1029(f)(3)(iv)(a).

The judge, finding that USS had failed to promptly repair certain leaking standpipes and goosenecks, affirmed the item and assessed a $1000 penalty. He found that the standpipe on the coke side of oven B-9 was misaligned, and that this condition had developed over a six-month period; the condition could have been corrected in about four hours. He also found that the goosenecks on the coke sides of ovens B-8 and B-9 and the push side of oven C-29 had been leaking for over a month; they could all have been replaced or repaired [*56] in four or five hours.

B

USS contends that the judge based his findings of noncompliance for these five items on the word of certain employees who testified that noncomplying emissions had existed over a period of time. USS points out, however, that the judge indicated in his decision that he was discrediting the testimony of those same employees. USS also contends that CO Stranahan did not have personal knowledge of the length of time the emissions continued and had to rely, for his conclusion that the leaks had continued for a long time, on the testimony of employee Offenheiser and other employees. USS suggests, therefore, that since these items cannot be affirmed without testimony showing that leakage had existed over a period of time, the items should be vacated. USS contends that it did indeed prove it had both an inspection and corrective action program. It also contends that there is nothing in the cited standard which requires a coke oven operator to make permanent, as opposed to temporary, repairs of a condition, so long as the operator is taking action to eliminate emissions.

With specific reference to citation 2, item 13a, USS asserts that the CO testified he based [*57] this item on the fact that luting materials had not been applied to seal leaking standpipes even thoughthe standpipes had only been leaking since the ovens had been charged. USS argues that its job procedures for lidmen called for standpipe lids to be luted and that just because one of its employees had not done his job that day is no reason for this citation item to be affirmed. USS states that there were buckets of luting material available for the lidman to use on the day of inspection, and that it had issued a written warning to a lidman for failure to lute an emissions source. USS also states that the judge improperly focused on the fact that USS did not require its lidmen to lute standpipe lids until sometime after mid-January 1977 and that therefore the judge was condemning it for not having complied with the 1971 standard.

USS also argues that citation 1, item 11 and citation 2, item 13 should be dismissed as duplicative of the door emissions charges in citation 1, item 8 and citation 2, item 9. It states CO Stranahan testified that the sources of these emissions, with one exception, n18 were all door frames. It then claims that the CO admitted that the door frame emissions [*58] upon which he based these items had also been used by him in citing USS for failing to maintain a door emission control corrective action program. The Secretary, USS states, attempts to justify this action on the ground that door frames or door jambs are not included in the door emission corrective action program. Yet, USS points out that section 1910.1029(f)(3)(ii), which deals with door requirements, specifically covers oven doors, chuck doors and door frames (jambs), and that the coke oven standard's preamble, at 41 Fed. Reg. 46766, states that the "door emission control program includes appropriate maintenance and repair of the metal components on the ovens, the doors and their components (emphasis supplied by USS), door handling machinery and inspection and cleaning methods." Thus, USS argues, door jamb emissions are covered under the door emission section and not the miscellaneous fugitive topside emissions section. Indeed, USS contends, even the Secretary finally conceded that his interpretation of the terms "miscellaneous fugitive topside emissions" was incorrect when he stated at closing argument:

However, in following a philosophy of fundamental fairness, we don't [*59] wish to try to cite Respondent two times for the same problem in that abatement is only needed to be established once, and we would be relying on the door frames in view of the fact that we don't believe that may be otherwise covered.

USS also contends that the miscellaneous fugitive topside emissions standard is impermissibly vague, since not even the CO knew the meaning of the disputed terms.

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n18 One cited emission (citation, 1, item 11) emanated from a standpipe in battery 1. USS argues that if the Commission agrees with it that there is only one battery here and that citations 1 and 2 should therefore be combined, this item more properly belongs under the allegations made in citation 2, item 11 dealing specifically with standpipe emissions.

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The Secretary argues, with respect to citation 1, items 10 and 11 and citation 2, items 11-13, that USS's primary means of attempting to stop the leakage of defective Corliss valves, standpipes, goosenecks and door frames was to apply luting material. The method was not [*60] successful, the Secretary contends, because USS did not have enough employees luting to fully alleviate the emissions problem. Further, the Secretary adds, the patchers assigned to luting were often spending so much time trying to deal with the many leaking coke oven doors that they were unable to lute emissions sources on the topside of the batteries like Corliss valves, standpipes or goosenecks.

The Union states that, contrary to USS's argument, the CO did not base his testimony solely upon the employee representative's statements. Instead, the CO's practice was to record a particular time estimate if the employee representative's estimate was concurred in by the accompanying employer representative. When there were differing time estimates, the CO would record a figure representing a compromise between the estimates of the two representatives. The Union also disputes USS's contention that repair work was being done promptly under its maintenance program.

C

The Commission vacates item 11 in citation 1 and items 13a and 13b in citation 2 but is divided in its action on item 10 in citation 1 and items 11 and 12 in citation 2. To the extent item 11 in citation 1 and items 13a [*61] and 13b in citation 2 (failure to prevent "miscellaneous fugitive topside emissions") are directed at emissions through door frames, both Chairman Rowland and Commissioner Cleary vacate those items as duplicative of item 8 in citation 1 and item 9 in citation 2, as discussed above. Emissions caused by door frame/door jamb leakage are more specifically covered by section 1910.1029(f)(3)(ii)(d)'s "door emissions" language, than by the fugitive emissions language of section 1910.1029(f)(3)(iv)(a) and (i)(1). To the extent item 11 in citation 1 and items 13a and 13b in citation 2 are directed at emissions through standpipes and standpipes caps, Commissioner Cleary would vacate those items as duplicative of item 11 of citation 2, discussed below. Emissions caused by standpipes and standpipe caps are more specifically covered by section 1910.1029(f)(3)(iv)(a).

With respect to item 10 in citation 1 and item 12 in citation 2 (failure regularly to inspect and repair damper systems, aspiration systems, and collector mains for cracks or leakage) and item 11 of citation 2 (failure regularly to inspect and repair all controls, including standpipes and standpipe caps for cracks, misalignment [*62] or other defects), Commissioner Cleary would affirm and Chairman Rowland would vacate. Commissioner Cleary acknowledges Judge Brennan's action in reducing the weight given to employee Offenheiser's testimony and therefore would base his affirmance of these items on the testimony of compliance officer Stranahan, who testified that certain certain Corliss valves had been leaking for over a month and that certain standpipe caps had been leaking for three to fifteen hours. Commissioner Cleary observes that the substantial number of emission leaks is plainly documented by the photographic exhibits and that four to six workers, one shift per day, are not adequate to assure a regular program of inspection and repair for 174 ovens operating seven days a week, twenty-four hours a day.

Chairman Rowland would vacate all three of these latter items (item 10 in citation 1 and items 11 and 12 in citation 2) concerning alleged defects in USS's inspection, maintenance, and repair program because the record clearly shows that USS did have an ongoing inspection and corrective action program and, as a result, only a very small number of Corliss valves, standpipes, standpipe caps, and goosenecks were [*63] observed to have defects. The judge relied on evidence showing that only four Corliss valves were or had been leaking prior to the inspection, yet there were a total of 174 such valves in both batteries. Only two standpipes and five standpipe caps were shown to be leaking out of all those used with USS's coke ovens. Just three goosenecks were found to be defective at the time of inspection out of 174 goosenecks. Chairman Rowland would conclude, therefore, that the fact that the number of leaking Corliss valves, standpipes, standpipe caps, and goosenecks was so small actually establishes the adequacy of USS's repair program. Further, the Chairman would observe that USS's repair program depended on the actions of its employees who did the inspecting, maintaining, and repairing of the different component parts of the battery. Chairman Rowland does not require that an employer insure against every instance of employee noncompliance with an established safety program. Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 (No. 77-2115, 1982) (Rowland, Chairman, disenting), appeal filed, No. 82-1661 (10th Cir. May 26, 1982)

Chairman Rowland would further [*64] observe that the Secretary has not shown that necessary repairs to Corliss valves were not implemented as promptly as required by standard. Section 1910.1029(f)(3)(iv)(i)(1), note 16 supra, specifies the timing for the institution of necessary repairs. As the preamble to the coke oven standard indicates, that section requires repairs be instituted as soon as possible and that temporary repairs be completed before the charging of the ovens for the next coking cycle takes place. See 41 Fed. Reg. 46769. n19 There is no evidence that USS failed to treat leaking Corliss valves prior to charging the ovens for the next cycle. With respect to the standpipes that the judge found were leaking and which he believed could have been replaced in four hours, Chairman Rowland would point out that, contrary to the judge's latter conclusion, Yuhas testified without contradiction that the deteriorated bases of the standpipes were caused by a shift in the battery's collector main and that the leakage problem could only be corrected by rehabilitation of the entire battery. Finally, with respect to the one gooseneck about which Offenheiser testified that permanent repairs were necessary, the [*65] preamble expressly states that permanent repairs do not necessarily have to be completed within any particular period of time. Therefore Offenheiser's testimony alone is not sufficient to show that USS's repair program was inadequate. There is no evidence showing when the condition of this gooseneck was first detected or showing that the gooseneck would not have been temporarily repaired again once detected. Accordingly, Chairman Rowland would vacate these items.

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n19 The pertinent section of the preamble reads:

[Section 1910.1029(f)(3)(iv)(i)] requires that repairs shall be instituted as soon as possible. This is based on evidence in the record which indicated that there is no set time frame applicable to these repairs but rather, because some repairs may require replacement or rebuilding of battery components over a substantial period of time. . . . However, since any delay in the implementation of these repairs can effect employee exposure to coke oven emissions, e.g. leaks from standpipes, chuck doors, or even brickwork, the standard requires that temporary repair measures be instituted prior to charging the oven for the next coking cycle. Examples of the types of repairs contemplated by his section are luting, sealing, or welding of offtake equipment leaks, or installation of chuck door gaskets. . . . While industry representatives generally stated that immediate repairs are not possible, that factor must be balanced against the risk of continued employee exposure in setting a time frame for control of these emissions. Therefore, while acknowledging that permanent repairs may not be capable of immediate implementation, the standard requires both temporary and permanent repairs to be performed as soon as possible.

[*66]

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Citation 3, Item 1a, b and c

Item 1a of serious citation 3 alleges noncompliance with section 1910.134(f)(2)(i), n20 as adopted by section 1910.1029(g)(3), n21 in that all respirators at batteries 1 and 2 were not routinely inspected before and after each use. Item 1b alleges noncompliance with section 1910.134(f)(3), n22 as adopted by section 1910.1029(g)(3) in that provisions were not made for the collection of routinely used respirators, and cleaning or disinfecting agents were not provided for use on respirators at batteries 1 and 2. Item 1c alleges noncompliance with section 1910.1029(g)(2)(i) n23 in that USS did not select and assure the use of appropriate required respirators, in the vicinity of visible emissions, for (subpart a of 1c) the door machine operators on the coke sides of batteries 1 and 2 and (subpart b of 1c) the larry car operator on the topside of battery 1. Subpart c of Item 1c was deleted by stipulation of the parties.

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n20 The standard at section 1910.134(f)(2)(i) provides:

1910.134 Respiratory protection.

* * *

(f) Maintenance and care of respirators.

* * *

(2)(i) All respirators shall be inspected routinely before and after each use. A respirator which is not routinely used but is kept ready for emergency use shall be inspected after each use and at least monthly to assure that it is in satisfactory working condition.

n21 The standard at section 1910.1029(g)(3) provides:

1910.1029 Coke oven emissions.

* * *

(g) Respiratory protection --

* * *

(3) Respirator program. The employer shall institute a respiratory protection program in accordance with section 1910.134 of this part.

n22 The standard at section 1910.134(f)(3) provides:

1910.134 Respiratory protection.

* * *

(f) Maintenance and care of respirators.

* * *

(3) Routinely used respirators shall be collected, cleaned, and disinfected as frequently as necessary to insure that proper protection is provided for the wearer. Each worker should be briefed on the cleaning procedure and be assured that he will always receive a clean and disinfected respirator. Such assurances are of greatest significance when respirators are not individually assigned to workers. Respirators maintained for emergency use shall be cleaned and disinfected after each use.

n23 The standard at section 1910.1029(g)(2)(i) provides:

1910.1029 Coke oven emissions.

* * *

(g) Respiratory protection --

* * *

(2) Selection. (i) Where respirators are required under this section, the employer shall select, provide and assure the use of the appropriate respirator or combination of respirators from Table I below. . . .

[*67]

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The judge ruled that the evidence established noncompliance with 1a, b, and c as alleged. He found the proposed $1000 penalty excessive and assessed $500.

The judge found that USS's respirator training program consisted solely of a slide presentation that was shown to employees. The presentation did not, however, make it clear to employees that the respirators each employee was provided with had to be routinely inspected before and after each use; as a consequence, the employees did not routinely inspect their respirators. Further, the judge stated, employees were observed who were not wearing properly fitted respirators and 50 per cent of the coke oven workers, as well as 25 per cent of the foremen or supervisors, were not wearing respirators at all times within areas designated for their use.

The judge also found that the respirators were neither collected, cleaned nor disinfected by USS, but that these tasks were delegated to individual employees. He stated that USS's training program made no specific mention of cleaning or disinfecting respirators, and that USS's training program was deficient [*68] in not instructing employees on how to clean or disinfect their respirators. The judge also stated the evidence established that the employees mentioned in item 1c were not properly wearing their respirators.

USS argues, with respect to item 1a on the alleged failure of employees to routinely inspect their respirators after each use, the Secretary failed to carry his burden of proving noncompliance. It contends evidence it submitted contains detailed instructions for the inspection and cleaning of respirators before and after each use, and employee Lepionka testified he checked his respirator before using it. USS also contends the judge's finding that employees did not wear respirators at all times does not establish a failure to inspect the respirators before and after each use. Further, USS argues, foreman Yuhas' testimony that he occasionally observed employees wearing respirators whose straps had lost their elasticity does not establish that the straps had failed prior to use, and use of such respirators does not indicate noninspection, since the straps could have lost their elasticity while the respirator was being worn.

With respect to item 1b on the alleged failure to [*69] provide for the collection and cleaning of respirators, USS argues the judge affirmed this item because USS's training program did not require the cleaning and disinfecting of respirators and because some employees only disinfected their respirators eight times a year. USS argues, however, that the judge did find that USS provided both Calgon soap and a disinfecting agent for its employees and that the collection and cleaning of respirators was unnecessary because each employee had his own respirator.

With respect to item 1c on the alleged failure to select and assure the use of appropriate required respirators, USS argues that this item is duplicative of item 1a in citation 4.

The Secretary argues the evidence clearly establishes that employees, even employee Lepionka, did not systematically inspect their respirators for defects prior to each use. The Secretary also agrees with the judge's finding that USS did not provide guidance to its employees on how to conduct routine inspections of their respirators.

The Secretary also argues the Commission should correct an oversight of the judge and affirm subparts a and b of item 1c. The Secretary contends the judge inadvertently vacated [*70] all of item 1c in the order section at the end of his decision after the parties stipulated to vacate only subpart c of item 1c, and after the judge had affirmed subparts a and b of item 1c in the body of his decision.

The Union argues USS had only a paper respiratory program that never operated in fact. It claims "[t]he most vivid illustration of the divergence between the paper program and the actions of Respondent" is in the introductory paragraph to USS's training program slide presentation which refers to the 1977 standard as a "law . . . imposed by the Occupational Safety and Health Administration upon all people who work in coke plants throughout the United States."

The Union contends neither supervisors nor employees were sufficiently trained to be able to implement the requirements in USS's respirator training program. One employee was not convinced that after 25 years of work on the coke ovens a respirator would be of any use to him. Further, although USS did verbally warn employees to use respirators, it did nothing to solve the difficulties encountered in trying to use respirators while talking or while working in extreme heat.

The Union also contends USS allowed [*71] its employees to dispense with respirator use in the foreman's office at bench level between the outer walls of the batteries even though the standard required respirator use there. This exception to the standard's requirements, the Union alleges, further contributed to employee opposition to the respirator requirement.

The Commission is divided in its decision on these subitems. Commissioner Cleary would affirm subitems 1a and 1b for the reasons advanced by the judge. Further, with respect to subitem 1b, Commissioner Clearly would find that section 1910.134(f)(3) is plainly worded to require the collecting, cleaning and disinfecting of respirators even when those respirators are assigned for the use of particular employees.

Chairman Rowland would vacate subitems 1a and 1b. Although the ALJ relied in affirming subitem 1a on the fact that the slide program USS showed its employees on safety did not specify that respirators had to be inspected before and after each use, Chairman Rowland rejects the judge's action because he does not find evidence that the slide program was the only training given to employees. In fact, employee Lepionka stated that he checked his respirator prior [*72] to each use, that he would adjust his respirator if it was leaking, and that he had always been able to eliminate leaks by adjusting the respirator. Lepionka also testified that he would clean his respirator at the beginning of each day, that he would insert a new filter if required, and that he could tell if his respirator was malfunctioning. Chairman Rowland also observes that section 1910.134(f)(2)(i) does not specify the scope or nature of the required inspection. Since the Secretary did not present any evidence to show that the inspection as performed by Lepionka was not sufficient to detect defects affecting the proper operation of the respirator, Chairman Rowland would vacate subitem 1a.

Similarly, Chairman Rowland would vacate subitem 1b. Once again, the judge, in affirming, improperly focused on the supposed defects in USS's formal training program instead of giving proper significance to the program's substance. See Jones & Laughlin Steel Corp., 82 OSAHRC    , 10 BNA OSHC 1778, 1982 CCH OSHD P26,128 (No. 76-2636, 1982). Yuhas testified that he instructed employees on how to clean and disinfect respirators and, indeed, the judge conceded that USS made cleaning [*73] and disinfecting material available to employees and Yuhas and his crew disinfected their respirators eight times a year. There is no evidence to show that more frequent disinfecting was necessary to insure proper protection for employees. Lepionka testified that he had been instructed regarding cleaning and, as mentioned above, Lepionka also testified that he cleaned his respirator daily. Accordingly, the judge's findings are contrary to the record and subitem 1b should be reversed.

With respect to subitem 1c, Commissioner Cleary would affirm the subitem and Chairman Rowland would vacate it. Commissioner Cleary would affirm citation subitem 1c because two of the Secretary's industrial hygienists who inspected the worksite testified they had observed three different employees working in the midst of visible emissions while not wearing respirators. Commissioner Cleary rejects USS's argument that subitem 1c of citation 3 is duplicative of item 1a in citation 4. As will be discussed below, the latter item requires a determination of whether USS had a systematic inspection program to assure that respirators were properly selected, used, cleaned, and maintained. Item 1c of [*74] citation 3, as mentioned above, was proven by the showing that employees worked in visible emissions without respirators. Finally, Commissioner Cleary would correct the judge's action inadvertently vacating all of item 1c in the order section of the judge's decision. The judge's order should properly show, as does the body of his decision, that subparts a and b of subitem 1c are affirmed, while only subpart c of subitem 1c is vacated. n23a

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n23a Chairman Rowland agrees that this clerical correction should be made but vacates subparts a and b on the merits for the reasons that appear in the text.

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Chairman Rowland would vacate the subitem because he finds that USS's program to assure the use of respirators was adequate. The record shows that USS prepared and presented a slide program to its employees emphasizing that respiratory protection would be provided and required. Foreman Yuhas testified that he began enforcing the use of respirators in 1976-77 under the new coke oven standard. He testified that he would inform [*75] an employee not wearing a respirator to put one on unless the employee had removed his respirator to speak to another employee. n24 Yuhas characterized his actions in requiring employees not wearing respirators to put them on as verbal reprimands and stated that because such actions resulted in the employees replacing their respirators, he saw no need for more severe discipline. He concluded that 50 per cent of the employees customarily wore their respirators at all times, other than when it was necessary to remove them.

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n24 Compliance officer O'Malley testified that an employee would have to remove his respirator to talk. The preamble to the coke oven standard recognizes that the need to communicate to insure safe work operations is a limiting factor in the wearability of respirators. See 41 Fed. Reg. at 46773.

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Tellado, another foreman, stated that as a nonsupervisory employee he had been told to put his respirator on by a supervisor who observed him not wearing it. As a supervisor, Tellado testified, he [*76] in turn gave the same admonition to employees under him. As did Yuhas, he estimated that 50 per cent of the employees wore respirators on a regular basis without intervention by the supervisors. Half of the remaining 50 per cent would comply with an instruction to put their respirators on; the balance of the employees tended to be somewhat resistant. In the few cases where verbal warnings had been ineffective, Tellado testified, he issued written warnings to the employees, who had then complied. Finally, employee Lepionka testified that he had been told to wear a respirator while working on the coke oven battery and had worn one "most" of the time, but not when he had to remove the respirator to communicate with a co-worker.

Although two other employees, Siminitus and Offenheiser, also stated that they had been told to wear respirators while working on the battery, both in their testimony disputed the effectiveness of USS's respirator program. Chairman Rowland notes, however, that in response to USS's argument regarding the credibility of the Secretary's witnesses the judge found Siminitus and Offenheiser to be biased and concluded that because of inconsistencies in their testimony [*77] it was not entitled to dispositive weight. Accordingly, the Chairman finds no evidence to rebut USS's showing that it took adequate steps to assure that its employees wore respirators. n25

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n25 Chairman Rowland does not now find it necessary to consider the propriety of Commission precedent giving an employer the duty to enforce as well as to communicate work rules to employees. For a discussion of the question whether an employer should be required to do anything more than give instructions to employees regarding the proper use of safety equipment, see General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976); Borton, Inc., supra.

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Chairman Rowland's conclusion that these items should be vacated is reinforced by the fact that the coke oven standard provides a grace period for the implementation of a respirator program. With the exception of employees located "in the vicinity of visible emissions," the wearing of respirators was voluntary until January 20, 1978 under section 1910.1029(g)(1)(ii). [*78] The preamble to the coke oven standard explains that

it is necessary to mitigate some of the problems associated with implementing a program of respiratory protection such as the fitting and training of employees. . . . The proposal required use of respirators whenever employees were exposed in excess of the permissible exposure limit. This would have essentially required the wearing of respirators by large numbers of coke oven workers for the entire work shift. The one-year period of voluntary respirator use will alleviate this burden while the necessary adjustments for implementation of a respirator program are made.

41 Fed. Reg. at 46775. Since the inspection at issue in this case occurred early within the one-year voluntary period, the degree of efforts undertaken by USS to require respirators to be worn is consistent with the gradual implementation of a respirator program envisioned by the Secretary. Since there is no question that USS selected and provided an appropriate type of respirator, n26 Chairman Rowland finds that USS complied with the requirements of cited section 1910.1029(g)(2)(i). Chairman Rowland moreover would specifically disavow the gratuitous remark made [*79] by the judge that "visible emissions existed . . . throughout the regulated areas at the batteries." (JD 64, n. 20) The Chairman finds the quoted remark not only unsupported by the evidence of record, but also contrary to the Secretary's allegation that visible emissions existed at only a few employee work stations.

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n26 There is no dispute that respirators were adequate to protect employees from emissions levels up to 1500 ug/m3. The Secretary does not contend that emissions levels in the ambient air exceeded this level.

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Citation 3, Item 2

The Secretary alleges USS failed to comply with the standard at section 1910.1029(h)(2)(vi) n27 in that persons who cleaned or laundered the protective clothing required by the cited section were not informed of the potentially harmful effects of exposure to coke oven emissions. The citation specifies in subsections a and b of item 2 that the persons involved were (a) the families of employees in coke oven batteries 1 and 2 and (b) the employees of Arrow Uniform Services [*80] Division of Work Wear Corporation. A $1000 total penalty was proposed.

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n27 The standard at section 1910.1029(h)(2)(vi) reads:

1910.1029 Coke oven emissions.

* * *

(h) Protective clothing and equipment.

* * *

(2) Cleaning and replacement

* * *

(vi) The employer shall inform any person who cleans or launders protective clothing required by this section, of the potentially harmful effects of exposure to coke oven emissions.

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Judge Brennan found the evidence established noncompliance with the cited standard and assessed a total penalty of $1000. With respect to the allegation in subpart a, the judge found USS did not inform its employees of the hazards in handling emissions-contaminated work clothes when, between January 20, 1977 and April 2, 1977, employees took their clothing home for laundering. The judge concluded that if the employees had been warned about the hazards they in turn would have warned their wives about them and thus protected their wives and children. The judge also inferred that [*81] some of the employees may have laundered their own emissions-contaminated clothing.

With respect to subpart b, the judge acknowledged USS's April 3, 1977 contract with Arrow Uniform Service for the laundering of protective clothing contaminated with coke oven emissions. He noted that the purchase order for the laundering contained the following statement in capital letters:

This order is notification to vendor that the protective clothing to be laundered has been used in regulated areas of U.S. Steel's coke oven operations and is designated contaminated from exposure to coke oven emissions and may cause potentially harmful effects such as described in the OSHA standard covering coke oven emissions (29 C.F.R. 1910.1029), effective January 20, 1977.

The judge found that the above paragraph did not notify Arrow of what the potentially harmful effects were, and was therefore inadequate. The judge concluded that the evidence fails to show USS advised Arrow either that skin cancer was a possible hazard, or that there were increased risks of lung and genito-urinary cancer.

The judge rejected USS's arguments that since the preamble to the emissions standard declares there is no [*82] clearly demonstrated excess mortality from skin cancer in coke oven workers and also provides that the word cancer is not required to appear on the label affixed to laundry bags of contaminated clothing, the purchase order statement referred to above is more than sufficient. The judge stated that even though the word cancer is not required on laundry labels, cancer risk information should be conveyed to persons handling contaminated clothing. "Otherwise," the judge continued, "the cited provision of the standard is not only meaningless, but a rather cruel exercise in double talk . . ."

The judge also rejected USS's argument that any provision of the standard which purports to cover a nonemployee is jurisdictionally beyond the provisions of the Act. . . ." The judge stated that USS was required to inform its own employees of the hazard and that if they had been so informed they would have warned their wives. He stated that the wives of the employees stood in essentially the same position as Arrow Laundry, and that USS was obligated to warn Arrow of the hazards because Arrow was its subcontractor.

USS argues in its review brief that the judge found USS guilty of a violation with [*83] which it was not charged when he found it had not told its employees of the hazards of contaminated clothing. Subpart a of this citation item, USS points out, refers only to the "families of employees." USS admits it did not give notice to family members but contends that the standard may not be validly interpreted to require notice to either a nonemployee or the employee of another person. USS states that the Secretary did not intend for notice to go to nonemployees because the Secretary required employers to launder emissions-contaminated clothing by section 1910.1029(h)(2)(ii), which provides: "The employer (emphasis supplied) shall clean, launder, or dispose of protective clothing required by paragraphs (h)(1)(i) and (ii) of this section."

With respect to the sufficiency of its notice to Arrow Uniform Services, USS reiterates the preamble's passages mentioned above concerning the unlikely possibility of coke oven workers contracting skin cancer and the lack of a requirement to put the word cancer on the labels of laundry bags containing contaminated clothing. It then asserts, in contending that its notice to Arrow was sufficient, that the containers for laundry sent to [*84] Arrow were affixed with proper notice under the cited standard, i.e., "Caution. Clothing Contaminated with Coke Emissions. Do Not Remove Dust by Blowing or Shaking." USS also contends that further notice of the contaminated nature of the clothing was contained in the purchase order referred to above as set out in the stipulations of the parties. Finally, USS asserts that management official Seidenberger told one of Arrow's officials that the clothing was contaminated, and that Seidenberger even thought he used the terms "cancer threat."

The Secretary argues that the intent of the cited standard is to apprise persons of the nature of the hazard to which they are potentially exposed so that they will use greater care in handling contaminated clothing. He asserts the information given to Arrow by USS was meaningless in apprising Arrow's employees of the need to handle the clothing with greater care. He argues that even though the preamble to the coke oven standard does not require use of the word cancer on the labels of laundry bags, USS was still required to inform the employees who cleaned contaminated clothing that they were being exposed to a carcinogenic hazard.

The Commission [*85] affirms subpart a and vacates subpart b of citation 3, item 2. With respect to subpart a, the parties' stipulation establishes that at least some USS employees took their contaminated clothing home for laundering. Testimony also shows that some employees were not warned of the potentially harmful effects of laundering their contaminated clothing. We agree with the judge that informing employees of this hazard would have been equivalent to warning the families of those employees. Therefore, although the allegation in the citation is made as to the "[f]amilies of employees," this allegation is sufficiently broad to encompass the employees themselves. Because the Commission's finding of noncompliance is based on USS's failure to warn its own employees, the Commission does not reach USS's argument that the cited standard may not validly refer to "any person." We assess a $250 penalty for noncompliance with subpart a of item 2.

The Commission vacates subpart b because USS did comply with the cited standard by USS's purchase order statement and the notice it affixed to the laundry containers, as quoted above. Although USS might have drafted warning notices more explicitly dwelling [*86] on cancer and carcinogens, the Commission finds, in light of the sections cited by USS from the preamble at 41 Fed. Reg. 46747-48 and, particularly, 46781, the notices USS did provide were sufficient.

Citation 3, Item 3

The Secretary alleges that USS failed to comply with section 1910.1029(i)(3) n28 in that the old lunchroom located at bench level between coke oven batteries 1 and 2 did not have a temperature controlled, positive pressure, filtered air supply. The penalty proposed was $1000.

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n28 The standard at section 1910.1029(i)(3) reads:

1910.1029 Coke oven emissions.

* * *

(i) Hygiene facilities and practices.

* * *

(3) Lunchrooms. The employer shall provide lunchroom facilities which have a temperature controlled, positive pressure, filtered air supply, and which are readily accessible to employees working in the regulated area.

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USS admits it did not provide a temperature controlled, positive pressure, filtered air lunchroom but contends that the item should be vacated because it did [*87] not have sufficient time to do so. USS argues that it diligently attempted to comply with section 1910.1029(i)(3). In December of 1976, USS decided to build a new lunchroom equipped with an air filtered unit in its roof. This decision was subsequently implemented by the following steps: the preparation of design drawings for the new lunchroom, requests made to suppliers on the availability of air filtered units, price quotations received from suppliers, advice requested from USS headquarters on special filtered units, invitations to bid extended to four suppliers, environmental control equipment ordered from supplier Busch, approval of Busch's drawings, and repeated contacts made with Busch to determine why the ordered equipment had not been sent. Busch had the order for an air filtered unit for about eight months without managing to fill it, USS states.

The judge found the evidence established noncompliance and assessed a $500 penalty. He cited the parties' stipulation that the old lunchroom did not have positive pressure, temperature controlled, filtered air at the time of the inspection, and that it was technically feasible to install such a system in the new lunchroom, which [*88] had replaced the old one on May 20, 1977. The judge found that, even though USS decided in December of 1976 of build a new lunchroom, when the new lunchroom was finally built, after a long series of design changes and delays, it too was without filtered air. The judge concluded USS "obviously did not consider this employee protective device something which should have been expedited," and if USS had been interested in expediting the matter it might have called for copies of the plans and specifications of the environmentally controlled lunchrooms at its plants in Fairfield, Alabama; Gary, Indiana; or Clairton, Pennsylvania.

In response to the judge's statement about its failure to study the plans of similar lunchrooms at other USS plants, USS contends that the statement ignores unrefuted testimony of its engineer Orloski, who testified that in ordering the filtered air unit for the lunchroom, he was acting on the advice of officials in USS's Pittsburgh headquarters who were seeking the best units for all of USS's coke operations. Therefore, USS argues, Orloski could have learned nothing further by either visiting the other plants or by examining the plans of their lunchrooms. [*89] USS further argues that each lunchroom has to be designed to fit the particular structure in question. Besides, USS continues, the major delay here was in acquiring the environmental control equipment from the supplier, and USS did not know what the judge expected it to do to expedite delivery from the supplier.

The Secretary argues that the technology to provide employees with a clean environment in which to eat had been available to USS since the early 1960's. He further argues that even though the cited standard is not specifically discussed in the coke oven emissions standard's preamble with respect to the "continuum of obligations" USS was under, USS must be held accountable for failing to comply with the cited standard because it had been obligated by the 1971 standard to implement all feasible controls.

We vacate this item. We reject the Secretary's argument that USS was required to provide an environmentally controlled lunchroom by the 1971 standard. First, as discussed above, the requirement of controls under the 1971 standard was triggered by excessive exposure to CTPV, and there is no evidence of such exposure. Second, the provision in section 1910.1029(f)(1)(i)(a) [*90] that requires the employer's obligation under the 1971 standard to be considered only applies to the controls listed in the subsections (f)(2), (f)(3), and (f)(4). The requirement for an environmentally controlled lunchroom is not found in those subsections.

Thus, whether USS may be found in violation of section 1910.1029(i)(3) must be based on whether USS could have complied with the standard in the two-month period between the standard's effective date and the Secretary's inspection. We find that USS has established it could not have provided the required environmentally controlled lunchroom in that relatively short period of time. USS diligently took the series of steps listed above to achieve compliance with the cited standard. The fact that the diligence reflected by those steps was not successful in gaining compliance demonstrates that it was not possible to comply with the cited standard before the Secretary's inspection.

Citation 3, Items 4 and 5

Item 4 alleges USS's noncompliance with section 1910.1029(i)(4)(i) n29 in that employees working in the regulated areas of coke oven batteries 1 and 2 did not wash their hands and face before eating. Item 5 alleges USS's [*91] noncompliance with section 1910.1029(i)(5)(i) n30 in that USS did not assure that food and/or smoking products were not consumed in two different regulated areas, the old lunchroom and the topside of batteries 1 and 2. Penalties of $1000 for each item were proposed. USS moved to withdraw its notice of contest to the merits of these items, but did contest the penalties. The judge granted USS's withdrawal-of-contest motion and assessed the proposed $1000 penalties.

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n29 The standard at section 1910.1029(i)(4)(i) reads:

1910.1029 Coke oven emissions.

* * *

(i) Hygiene facilities and practices.

* * *

(4) Lavatories. (i) The employer shall assure that employees working in the regulated area wash their hands and face prior to eating.

n30 The standard at section 1910.1029(i)(5)(i) reads:

1910.1029 Coke oven emissions.

* * *

(i) Hygiene facilities and practices.

* * *

(5) Prohibition of activities in the regulated area. (i) The employer shall assure that in the regulated area, food or beverages are not present or consumed, smoking products are not present or used, and cosmetics are not applied, except that these activities may be conducted in the lunchrooms, change rooms and showers required under paragraphs (i)(1)-(i)(3) of this section.

[*92]

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With respect to item 4, the judge acknowledged that USS's training program directed employees to wash their face and hands before eating, drinking, or using tobacco products after being in a regulated area, but stated that the directive was not enforced. He also stated that the employees, including "foreman" Lepionka, did not always follow the directive. The judge further found that the lack of not water during some periods in winter served to discourage employees from washing.

With respect to item 5, the judge also found that although USS did have a section of its training program drafted to obtain compliance with the cited standard, USS failed to establish enforcement of that section.

USS argues that the judge made two clearly erroneous factual findings in his consideration of the appropriate penalty figures: 1) although the judge found Lepionka was a foreman, Lepionka was only a bargaining unit employee, and 2) although the judge found that hot water was not always available, the evidence on the lack of hot water relates to a lavatory at the east side of the coke oven battery, quite distant from [*93] the lunchroom, and there is no evidence that employees used that particular lavatory prior to eating lunch. Both the Secretary and the Union argue that the judge's penalty assessments were proper.

We believe that the judge's penalty assessments are inappropriately high. With respect to item 4, the judge substantially downgraded USS's good faith as a result of his belief that employee Lepionka was a foreman. However, Lepionka was shown to be an employee but not a foreman. USS's contention that the judge's factual finding about the unavailability of hot water being clearly erroneous is rejected, however. Lepionka's testimony is that only cold water was provided for the wash facilities in the patcher's lunchroom located on the ground level between the two batteries. We assess a $150 penalty based on the low gravity of this violation.

With respect to item 5, a full page of text and two slides in USS's training program cautioned employees against eating and smoking in regulated areas. This demonstrates a significant measure of good faith on USS's part even though enforcement of the smoking and eating prohibitions presented obvious difficulties among employees who found it difficult [*94] to refrain from smoking or eating over any extended period of time. n31 The gravity of this violation was low, and we assess a $150 penalty.

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n31 Since USS contests only the penalties and not the merits of items 4 and 5, Chairman Rowland does not find it necessary to consider the propriety of Commission precedent giving an employer the duty to enforce as well as to communicate work rules to employees. See General Electric Co. v. OSHRC, supra; Borton, Inc., supra.

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Citation 3, Item 6b and 6c n32

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n32 The Secretary withdrew item 6a.

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Item 6b alleges noncompliance with section 1910.1027(f)(7) n33 in that written procedures and schedules required under section 1910.1029(f) were not incorporated into USS's information and training program mandated by section 1910.1029(k). Item 6c alleges noncompliance with section 1910.1029(k)(1)(iv)(d) [*95] n34 in that USS's training program did not include a review of the following written procedures and schedules required by section 1910.1029(f):

a) the written inspection and cleaning procedure for each battery, as required by sections 1910.1029(f)(3)(i)(a)(1) - (7);

b) the written charging procedure for each battery, as required by sections 1910.1029(f)(3)(i)(b)(1) - (3);

c) the written procedures for the control of coke oven emissions during coking, as required by sections 1910.1029(f)(3)(ii)(a) - (e);

d) the written procedure for the control of emissions during pushing, as required by sections 1910.1029(f)(3)(iii)(b)(1) - (3);

e) the written procedure of maintenance and repair for coke oven batteries, as required by sections 1910.1029(f)(3)(iv)(a) - (i);

f) the written program and schedule to reduce exposures solely by means of engineering and work practice controls, as required by sections 1910.1029(f)(6)(i) and (ii)(a) - (e).

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n33 The standard at section 1910.1029(f)(7) reads:

1910.1029 Coke oven emissions.

* * *

(f) Methods of compliance.

* * *

(7) Training in compliance procedures. The employer shall incorporate all written procedures and schedules required under this paragraph (f) in the information and training program required under paragraph (k) of this section and, where appropriate, post in the regulated area.

n34 The standard at section 1910.1029(k)(1)(iv)(d) reads:

1910.1029 Coke oven emissions.

* * *

(k) Employee information and training -- (1) Training program.

* * *

(iv) The training program shall incluce informing each employee of:

* * *

(d) A review of all written procedures and schedules required under paragraph (f) of this section. . .

[*96]

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After comparing USS's training program with section 1910.1029(f), the judge found the program did not include the written procedures regarding work practice controls from the following parts of the standard:

1) section 1910.1029(f)(3)(i)(a)(1),

2) section 1910.1029(f)(3)(i)(a)(2),

3) section 1910.1029(f)(3)(i)(a)(5),

4) section 1910.1029(f)(3)(i)(a)(7),

5) section 1910.1029(f)(3)(i)(b)(1),

6) section 1910.1029(f)(3)(i)(b)(2),

7) section 1910.1029(f)(3)(i)(b)(3),

8) section 1910.1029(f)(3)(ii)(b),

9) section 1910.1029(f)(3)(iii)(b)(1),

10) section 1910.1029(f)(3)(iv)(a),

11) section 1910.1029(f)(6)(i),

12) section 1910.1029(f)(6)(ii)(6)

He, therefore, found noncompliance with the cited standard and assessed a total penalty of $1000. In response to USS's argument that the deficiencies in its training program were corrected after the inspection, the judge stated that they were required as of the time of inspection.

USS admits that the initial version of its training program did not include all the required work practices, but it contends the September 20, 1977 revised version of its training [*97] program did. USS notes Seidenberger's unrebutted testimony that the more detailed information contained in the latter program was not included in the initial program because USS had not had time to write up all the operating procedures in question. According to USS, Seidenberger testified that its training program was not the only method used to train employees on the work practices required by the standard. Rather Seidenberger stated that employees were given standard operating procedures which described some of the work controls and that employees were also individually trained with respect to certain work practices through the use of safe job procedures. USS asks dismissal of these items on the basis of not having had adequate opportunity to comply with the requirements of the standards and of having made a good faith effort at compliance.

The Secretary points out that USS admits its original training program, in effect during the period of inspection, did not comply with section 1910.1029(k)(1)(iv)(d). In addressing USS's argument that the defects in its training program were cured by other training methods, such as its standard operating procedures, the Secretary contends [*98] that these procedures were not communicated to the employees in any systematic fashion that would indicate all employees received such communications.

We vacate items 6b and 6c. USS has established that it did not have sufficient time to comply with the cited standards. Section 1910.1029(f) encompasses more than 525 lines of regulations in the Code of Federal Regulations. Although USS made good faith efforts at compliance, USS could not realistically have incorporated into its training program by the time of inspection all the written procedures and schedules, together with a review of these procedures and schedules, required under section 1910.1029(f). Chairman Rowland further concludes, for the reasons stated in his discussion of items 8, 10, and 11 of citation 1 and items 9, 11-13 of citation 2, supra, that USS adequately implemented its program for controlling coke oven emissions.

Citation 4, Items 1a and 1b

Item 1a alleges USS's failure to comply with section 1910.134(e) (4), n35 as adopted by section 1910.1029(g)(3), n36 in that frequent random inspections were not conducted by qualified individuals to assure that respirators were properly selected, used, cleaned, [*99] and maintained.

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n35 The standard at section 1910.134(e)(4) reads:

1910. 134 Respiratory protection.

* * *

(e) Use of respirators.

* * *

(4) Respiratory protection is no better than the respirator in use, even though it is worn conscientiously. Frequent random inspections shall be conducted by a qualified individual to ensure that respirators are properly selected, used, cleaned, and maintained.

n36 The standard at section 1910.1029(g)(3) reads:

1910.1029 Coke oven emissions.

* * *

(g) Respiratory protection.

* * *

(3) Respirator program. The employer shall institute a respiratory protection program in accordance with section 1910.134 of this part.

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Item 1b alleges USS's failure to comply with section 1910.134(e)(5) (i), n37 as adopted by section 1910.1029(g)(3), in that every respirator wearer was not given demonstrations and practice in how respirators should be worn, and was not given instructions in how respirators were to be adjusted and in how to determine if respirators fit [*100] properly. A total penalty of $1400 was proposed for items 1a and 1b.

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n37 The standard at section 1910.134(e)(5)(i) reads:

1910.134 Respiratory protection.

* * *

(e) Use of respirators.

* * *

(5) For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.

(i) Every respirator wearer shall receive fitting instructions including demonstrations and practice in how the respirator should be worn, how to adjust it, and how to determine if it fits properly. Respirators shall not be worn when conditions prevent a good face seal. Such conditions may be a growth of beard, sideburns, a skull cap that projects under the facepiece, or temple pieces on glasses. Also, the absence of one or both dentures can seriously affect the fit of a facepiece. The worker's diligence in observing these factors shall be evaluated by periodic check. To assure proper protection, the facepiece fit shall be checked by the wearer each time he puts on the respirator. This may be done by following the manufacturer's facepiece fitting instructions.

[*101]

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The judge found that, as to item 1a, the evidence conclusively establishes there were no frequent, random inspections conducted to determine if the respirators were properly cleaned, used, and maintained. As to item 1b, the judge found the evidence supports the charges made. He stated that the two fit tests specified by USS in its respirator program were neither effective nor appropriate for the Dustfoe 66 type of respirator supplied the employees by USS. He also stated that the evidence fails to reveal any opportunity afforded the workers to practice the fit tests under proper supervision, and that at least one employee had devised his own test. Finally, the judge modified the citation from repeated to serious and reduced the proposed penalty to $1000.

USS contends that insofar as item 1a relates to the usage of respirators, it is duplicative of item 1 in citation 3. Insofar as it is non-duplicative, USS argues the record does not support the judge's findings, but shows instead that its program for ensuring the maintenance and cleaning of respirators was adequate.

USS argues that no compliance [*102] officer testified to seeing any employee wearing a respirator which was improperly cleaned or maintained. USS states that the only evidence on the point was testimony by witnesses Siminitus, that no one ever checked his respirator, and Offenheiser, that supervisory employees were not taking action to see if respirators were cleaned and maintained. Siminitus' evidence is of questionable value, USS argues, because he never constended that he failed to regularly clean and maintain his respirator, and Offenheiser's testimony is directly contradicted by witness Yuhas. The latter testified, USS asserts, that he checked for defects in the respirators of his crew, and that he instructed certain employees about how to remove patching material stuck on respirators. Further, the Secretary's witness Lepionka testified USS's training program "did show to remove the rubber face piece and to wash it out with warm soapy water and to reassemble it."

With respect to item 1b, USS argues that the negative pressure and positive pressure fit tests contained in its training program and used with its Dustfoe 66 respirators complied with the requirements of the cited standard. USS states that witness [*103] Baumann, an industrial hygienist with 38 years of experience, testified that even though there were better tests available for use with the Dustfoe respirators, USS's tests had been recommended by the manufacturer of the respirators and were adequate. USS also argues that the standard as construed by the Secretary would permit the use of only two specified fit tests on the Dustfoe respirators, yet nowhere does the standard contain such a restriction.

The Secretary argues that, with respect to item la, the testimony of USS foreman Yuhas establishes USS had no systematic inspection program, and that all Yuhas did was to require employees to fix or replace respirators with obvious defects. The Secretary also argues that proof any particular employees maintained their respirators properly does not establish the presence of a systematic inspection program required by the cited standard.

The Secretary also contends the judge properly affirmed subitem 1b and the judge properly credited witness O'Malley who testified that the fitting instructions given employees by USS were inappropriate. The Secretary also contends USS industrial hygienist Baumann admitted the negative pressure test [*104] recommended by USS was somethat difficult for him to perform, and that the test would be even more difficult for an unsupervised employee to perform. Also, the Secretary argues that there is no evidence of adequate training, and that USS did not have an industrial hygienist capable of providing such training at Fairless.

The Commission is divided in its action on these items. Commissioner Cleary would affirm both item 1a and item 1b, while Chairman Rowland would vacate both items. With respect to item 1a, Commissioner Cleary points to the testimony of USS foreman Yuhas, who stated that it was part of his job to observe whether employees were wearing respirators and whether the straps of the respirators were in place. Yuhas testified that the problems he detected were all "visual problems, a broken strap or a missing clip. . . ." It was not his practice, however, to request an employee who was wearing a respirator to take it off so that he (Yuhas) could examine it. Yuhas also testified that he never went into the men's locker room to examine the condition of the respirators. Yuhas further testified that he never examined any of the respirators to see if all their parts were [*105] properly in place. Finally, employee Siminitus testified that management personnel never checked his respirator to see that it was properly used, cleaned or maintained. Commissioner Cleary finds, therefore, the USS did not have the systematic program of inspection required by the cited standard to assure that employee respirators were properly selected, used, cleaned, and maintained. As mentioned above, Commissioner Cleary also finds that subitem 1a of citation 4 is not duplicative of subitem 1c of citation 3. The Secretary proved noncompliance with the citation 3 subitem by showing that employees worked in visible emissions without respirators; the Secretary proved noncompliance with the citation 4 subitem by showing the inadequacy of USS's respirator inspection program.

Chairman Rowland would vacate item 1a. He observes that the cited standard is not specific as to the frequency of inspections, the percentage of employees who must be inspected, and the scope of the required inspection. As USS correctly observes, there is no evidence that any employee's respirator ever was dirty, defective, or improperly used. Therefore, Chairman Rowland finds that the testimony by foreman [*106] Yuhas is sufficient to demonstrate that respirators were inspected for proper use, cleanliness, and maintenance. Yuhas testified that he would see each employee at least once during each shift and, based on a visual inspection of each employee, Yuhas would be able to tell if the straps of a respirator were tight and if the filter was secure. Yuhas also instructed employees regarding the use of cleaning fluid to clean respirators whenever he observed an employee wiping a dirty respirator with a paper towel. Chairman Rowland further observes that the employees who testified to the contrary, Siminitus and Offenheiser, have been discredited by the judge.

With respect to item item 1b of citation 4, Commissioner Cleary, who would affirm the item, observes that not only was there no adequately trained industrial hygienist at Fairless of give instructions on fit and to check employees for properly fitted respirators, but supervisory personnel who were responsible for inspecting respirators, like Yuhas, did nothing more than check respirators for readily observable defects.

Commissioner Cleary does not base his finding of noncompliance on the alleged inadequacy of the fit tests suggested [*107] for use by USS with its Dustfoe 66 respirators. Those fit tests were undisputedly recommended by the manufacturer of the respirators, and he does not interpret the cited standard to require USS to reevaluate the manufacturer's recommendations. In fact, he observes that the last sentence in cited section 1910.134(e)(5)(i) provides that "the manufacturer's facepiece fitting instructions" may be followed to check proper fit.

Chairman Rowland would vacate item 1b. He points out that the cited standard requires respirator instructions be given by "competent persons," but does not define "competent persons." He also finds that no evidence was presented by the Secretary to show that an industrial hygienist or evironmental engineer is required under the standard. The Chairman further finds that USS's safety slide program did in fact provide employees with the instruction required by the cited standard. USS's company-wide industrial hygienist, Baumann, whose competence was established, assisted in the development of that program and there is no evidence in the record to show that those administering the slide program at Fairless were not competent to read the instructions developed by [*108] Baumann while the slides were being shown. n38 Further, the Chairman does not agree that USS failed to comply with the cited standard by not evaluating or checking the adequacy of the fit of the respirators on each employee. He finds that this conclusion goes beyond the Secretary's allegation on this item.

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n38 Chairman Rowland agrees with Commissioner Cleary that the instructions USS gave its employees on proper fit of the Dustfoe 66 respirators were in compliance with the terms of the standard, since those instructions were recommended by the manufacturer of the respirators.

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Nonserious Citation 5, Item 1

The Secretary alleges noncompliance with the standard at section 1910.141(d)(2)(ii) n39 in that USS failed to provide hot and cold or tepid running water for the lavatory on the east side of the coke battery. The Secretary does not propose a penalty.

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n39 The standard at section 1910.141(d)(2)(ii) reads:

1910.141 Sanitation.

* * *

(d) Washing facilities --

* * *

(2) Lavatories.

* * *

(ii) Each lavatory shall be provided with not and cold running water, or tepid running water.

[*109]

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The judge found the Secretary's allegations supported by the evidence. He referred first to an amended stipulation of the parties that the lavatory at the cited location had only cold water, and that its hot water pipe was not operative on the day it was inspected. The judge found that the water pipes servicing the lavatory frequently froze up during cold weather, stopping all the lavatory's water supply. He also found that, occasionally, the water pipes would be shut off purposely to prevent their freezing, and that this condition probably existed for over a year.

Although the Secretary did not propose any penalty, the judge assessed $250. The judge found that the nonfunctioning water pipes made cleaning respirators and washing before eating, as required by the standards cited for items 1b and 4 of citation 3, impossible or inconvenient and forced employees to go elsewhere to wash.

USS concedes that the lavatory's hot water pipe froze up frequently. It argues, however, that the evidence does not support a finding by the judge that the lavatory's water supply would be shut off deliberately to [*110] prevent freezing, and cites hearing testimony implying possible vandalism. USS argues for reversal of the judge's penalty assessment. It states that the employees did their washing in the lunchroom and cleaned their respirators in the shower room, and that, therefore, the lavatory's frozen pipes did not prevent employees from complying with the hygiene requirements of other standards.

We affirm item 1. The judge's ruling of noncompliance is supported by the amended stipulation referred to above. His finding that the water pipes were shut off to prevent freezing, however, is neither supported by the record nor necessary to the establishment of noncompliance with this standard, and therefore is rejected. Finally, we agree with the Secretary that the violation does not warrant the assessment of a penalty.

VI

Severity of the Violations and Propriety of the Penalty Assessments

A

The judge found that all the violations set forth in citations 1, 2, 3, and 4, as modified by him, are properly denominated as serious because of the cancer and other health risks inherent in coke oven emissions. He found citation 5 was properly denominated as nonserious. In conjunction with his [*111] penalty assessments, the judge addressed each of the four penalty factors enumerated in section 17(j) of the Act. n40 With respect to size, he stated that USS is the nation's largest steel producer, with approximately 167,000 employees and 1976 gross sales of about nine billion dollars. He also stated that USS is a large, if not the largest, coke oven operator in the country.

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n40 Section 17(j) of the Act, 29 U.S.C. 666(i), provides:

Sec. 17. PENALTIES

* * *

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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The judge found that the gravity of the violations was high. He relied on the preamble to the coke oven standard to conclude that overexposure to coke oven emissions results in an increased risk of cancer to the genito-urinary [*112] and pulmonary systems, skin cancer, and other harmful pulmonary conditions. He found the Fairless employees had been exposed to "massive and continuous" coke oven emissions for at least a year after USS's own engineers had recommended the rebuilding of the Fairless batteries. He added that the "emissions were so massive that visibility atop the batteries, at times, was so reduced that the workers could not see."

With respect to good faith, the judge found that Fairless's management had shown a "striking" lack of good faith, and that there was "interminable" delay and "resistance" in complying with the 1977 standard. He found that USS's Clairton facility had implemented stage charging in 1973, that mechanized gooseneck cleaners had been in use at other USS plants for years but had not been installed at Fairless, that airconditioned booths and standby pulpits had been installed at other USS plants but not at Fairless, and that years had gone by before Fairless detected that subcontractor work done on its aspiration system was faulty. The judge found that Fairless's failure to rebuild its batteries for over a year after its engineers had recommended rebuilding meant that oven doors, [*113] jambs, and frames become so badly deteriorated that it was impossible to produce adequate spare doors or to make many of the existing doors seal properly. The judge further found that USS's corrective action program of patching the ovens to keep them going was carried out by a totally inadequate number of employees and was a "desperate effort to get more coke from the ovens -- regardless of the amount of coke oven emissions caused by the holes, cracks, broken frames, and smoking and burning doors and frames."

Also on the question of whether USS exhibited good faith, the judge stated that USS failed to enforce the use of respirators, and that USS dispensed Dustfoe respirators without providing its employees with adequate use instructions. He cited as an example of bad faith the opening paragraphs of USS's training program:

You are here to be informed about a new federal law. . . This law was imposed by the Occupational Safety and Health Administration upon all people who work in coke plants throughout the United States.

They say there is an increased risk of acquiring cancer for those who are exposed to coke emissions, and this is an attempt to reduce this risk.

The judge stated [*114] that the quoted paragraph had "obvious" implications, and that the result was "a lack of conviction by the employees that real hazards exist at the coke ovens. . ." Finally, the judge stated that USS's lack of concern for the health of its employees was expressed by USS's failure to warn them of the dangers inherent in laundering their work clothes.

With respect to history, the judge concluded that USS had "a rather poor record. One hundred four citable conditions (not counting the violations in this case -- approximately 40), found in five years, can not realistically or reasonably be labeled 'excellent,'" as USS claims.

B

USS argues that citations 1, 2, 3 and 4 should be design ted nonserious. It calls the Commission's attention to Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978), a case dealing with employee exposure to excessive levels of silica dust. USS alleges the court there rejected the Secretary's argument that to prove a serious violation he need only show that silica existed in excess of the TLV, that employees had been exposed to silica, and that exposure to silica can cause death or serious physical harm. Rather, USS asserts, the court said [*115] the issue is whether the degree of exposure experienced by employees in the particular plant could result in silicosis.

Applying the court's test to this case, USS argues that the Secretary presented no evidence with respect to the length of time USS's employees had been exposed to any specific amount of CTPV. Further, the Secretary presented no evidence as to what amount of CTPV one must be exposed to -- and for what period of time such exposure must last -- for it to be concluded there is a substantial probability that death or serious physical harm could result from such exposure. USS also contends that its employees were only exposed to excessive amounts of coke oven emissions temporarily, that the violative conditions were corrected long before the hearing, and that the period of temporary overexposure did not cause "any real cancer threat."

USS contends that the judge erred in upholding the Secretary's penalty proposals. It reasserts that the gravity of the alleged violations is not high because there is no evidence that any particular violation had the possibility of causing exposed employees to get cancer. With respect to past history, USS alleges that its Fairless Works [*116] had been inspected 33 times between mid-1973 and mid-1977 and that as a result of all those inspections, the Secretary only alleged 104 violations of the Act. The Secretary had alleged only eighteen serious violations and eighty-six nonserious violations, USS asserts. Further, USS states, penalties had only been proposed for eighteen of the nonserious allegations, with the highest penalty being $130. USS argues that this past history constitutes an excellent record, and that the judge's finding its history was "poor" should be reversed.

USS argues it acted in good faith because of the actions it took to abate conditions giving rise to the citations. Those actions include: 1) the call in its compliance program for implementation of all engineering controls required by the standard except mechanized standpipe cleaners, which USS considers infeasible, 2) the use of chuk door gaskets to replace the luting of chuck doors, 3) the termination of the practice of shoveling coal back into the ovens and the installation of chutes on the pusher side door machines to funnel coal directly into the ovens, 4) the installation of a new door rebuild facility, 5) goosenecks and standpipes being [*117] cleaned more frequently, 6) the September 20, 1977 revision in its training program to include all required practices, and 7) written warnings issued to employees not using their respirators.

USS states it disagrees with the judge's finding that USS's "interminable" delays in complying with the new standard demonstrate its lack of good faith. Although the judge downgraded its good faith bacause other USS plants had implemented stage charging before Fairless, USS points out that it has seven plants with coke batteries and that not everything could be done everywhere concurrently. USS also states that even though the judge sought to create the impression that Fairless was always the last USS plant to acquire controls required by the standard, such was not the case. Fairless was not the last plant to get either stage charging or air filtration units, and Fairless was one of five other plants that had not obtained mechanized gooseneck cleaners. It also reasserts that its delays in rehabilitating the coke oven battery were caused by its inability to obtain bricks and by its need to have an energy source to operate the plant in the cold winter of 1977-1978.

With respect to respirators, [*118] USS argues that it could hardly have been in bad faith by virtue of its having instructed employees to use a fit test recommended by the manufacturer of the respirators and that it had made efforts to get employees to wear respirators but that resistance was widespread, as exemplified by the testimony of Siminitus who stated, "If I can get away with it, I won't wear it [his respirator]." In spite of employee recalcitrance, USS argues, it had been effective in getting 50 per cent of the employees to wear respirators when required.

USS adds that the laundering of employees' work clothes was done by the families of employees for only the brief January 20 - April 4, 1977 period before plans for the commercial laundering of those clothes had been implemented, and that its training program statement about the coke oven standard being "imposed" on employees was accurate and not indicative of bad faith.

The Secretary relies on the judge's discussion of the penalties' appropriateness. The Secretary argues that lower penalties would be inappropriate in light of USS's size and the gravity of the violations.

The Union argues that the judge's penalty assessments are proper. It states that [*119] the test for whether a particular violation is serious is set forth in California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975):

Where violation of a regulation renders an accident resulting in death or serious physical injury possible, however, even if not probable, Congress could not have intended to encourage employers to guess at the probability of an accident in deciding whether to obey the regulation. When human life or limb is at stake, any violation of a regulation is "serious."

The Union argues that the Hermitage case, supra, does not support USS's argument that citations 1-4 should be designated nonserious. The Union reads Hermitage as holding that the decision whether a violation is serious is within the Commission's discretion under the substantial evidence test. The Union also argues that the record in this case does contain evidence on the questions raised in Hermitage about proof of the length of employee exposure to a harmful substance and about proof of the duration of employee exposure needed to create the possibility of death or serious harm. On the former question, the Union contends, employee exposure commenced when [*120] the batteries started operations in 1952 and 1953 and continued through the date of inspection. On the latter question, the Union contends that there is really no safe exposure limit for a carcinogen, but that the Secretary has established 150 ug/m<3> as the feasible CTPV limit to which employees can be exposed without suffering material impairment of health. The Union states that the exposure limit was arrived at under the section 6(b) standard-setting procedure of the Act, as discussed in the coke oven emission standard's preamble, and that USS's breach of that limit constitutes a per se serious violation.

The Union then seeks to refute USS's argument that the respirator penalties should be reduced because of employee resistance to wearing respirators. The Union states that 75 per cent of the employees wore respirators, and that USS's claim of employee resistance to respirators is not supported by the record. The Union asserts that USS has failed to deal fairly with the employees on the matter of respirators, and that the reason supervisors gave employees for wanting them to wear respirators was that the government was "getting on their [USS's] tails."

C

The Commission [*121] is divided in its characterization of citations 1-4. Commissioner Cleary concludes that the citations are properly characterized as serious. Commissioner Cleary notes that the violations contained in these citations resulted in the overexposure of USS's employees to carcinogenic coke oven emissions and therefore to the possibility of life-threatening cancer, the disease which the coke oven emissions standard was primarily promulgated to protect employees against. Commissioner Cleary also finds that the condition of the coke ovens was poor during the period of inspection, that the condition had been poor over an extended period of time -- so poor that employees had sometimes to work in areas of visible coke even emissions -- and that USS knew about the poor condition of the ovens for an extended period of time. Commissioner Cleary further finds that the Secretary has proven the exposures existing during the inspection, stipulated by the parties to be in excess of 150 ug/m<3>, were representative of typical exposures experienced by the employees. See Hermitage Concrete Pipe Co., 82 OSAHRC    , 10 BNA OSHC 1517, 1982 CCH OSHD P25,975 (No. 4678, 1982). Consequently, because [*122] the carcinogenic nature of the coke oven emissions threatened employees with the possibility of contracting cancer and because the exposures in excess of 150 ug/m<3> existing during the inspection were proven to be representative of the exposures suffered by employees over the extended past, Commissioner Cleary would find that these violations are serious in nature. See Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1477, 1981 CCH OSHD P25,300 at p. 31,349 (No. 13102, 1981); Hermitage Concrete Pipe Co., supra.

Chairman Rowland would find the violations in citations 1-4 to be nonserious. He does not agree with the presumption stated in Anaconda Aluminum Co., supra, that any overexposure to a carcinogen which is life-threatening is serious in nature. Instead, the Chairman would require the Secretary in all instances to demonstrate under section 17(k) n41 of the Act that a substantial probability exists that a life-threatening disease could result from the exposure of the employees in question. The Chairman notes that the preamble to the coke oven standard specifically states that duration of exposure is a significant factor in determining the risk [*123] that an employee will contact cancer. 41 Fed. Reg. at 46745-46. The record in this case shows only that employees were exposed to coke even emissions in excess of 150 ug/m<3> at the time of the inspection. There is no evidence concerning the duration of employee exposure to coke oven emissions in excess of the limit provided in the standard. There is also no evidence regarding the amount or duration of exposure to coke oven emissions that would render substantially probable the contraction of cancer. Thus, the Chairman would conclude that none of the violations were shown to be serious in nature. The Chairman would also observe incidentally that citation 4 was affirmed as a serious violation by the judge even though the citation issued by the Secretary was designated repeated, not serious. On its face, this result appears contrary to Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975).

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n41 Section 17(k) of the Act, 29 U.S.C. 666(j), provides:

Sec. 17. PENALTIES

* * *

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.

[*124]

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In setting the penalties, we have not relief on the judge's finding that USS acted in bad faith and that its prior history was poor. Instead, we believe that USS's good faith and history are neither remarkably good nor bad. USS faced obvious problems in complying with all of the detailed requirements of the 1977 standard at an old facility. As we have noted, immediate compliance with many of the requirements would not have been feasible and was not required. In general, the steps USS took toward compliance, while certainly not "heroic," did demonstrate a certain amount of diligence. The penalty assessments are therefore based primarily on the gravity of the violations and on the large size of USS. For violations of lesser gravity, such as that involving the failure to assure that employees wash their hands and face before eating, we assess lesser penalties.

VII

Was USS Accorded a Fair Hearing?

USS argues that the "hostility and prejudice" of the judge deprived it of a fair hearing. It contends that the hearing resembled "a grand inquisition in which the . . . Judge assumed the role of [*125] Troquemada," and that the judge's decision is based on "twisted logic, strained interpretations of the law, distortion of evidence, and general capricious and arbitrary disregard of the facts." It states that the judge's cross-examination of its witness Seidenberger goes of for thirty pages in the transcript and was conducted in a heavy-handed manner. USS contends that the judge asked USS witnesses 1045 questions during the four days in which they testified and claims that the judge asked its witnesses and counsel questions about their personal beliefs on certain matters in the hope of using the information to justify his decision.

USS argues that the judge's questioning reveals a "sarcastic hatred and contempt for large corporations" and illustrates with the following remark made by the judge while asking about USS's corporate hierarchy: "To what corporate officer do you believe that Mr. Smith reports to, or does he report right to God?" USS also argues that the judge identified himself with the Secretary and the Union by making complimentary statements about the Union's attorney. USS states that one of the most glaring examples of the judge's prejudice is revealed in the disparate [*126] treatment he accorded to witnesses Offenheiser and Siminitus, who testified for the Secretary, and witness Seidenberger, who testified for USS. Although the judge finds that Offenheiser and Siminitus gave contradictory testimony, USS states, the judge tended to excuse them for doing so because they were upset about USS's lack of concern for employee safety. When Seidenberger gave what the judge considered to be "evasive and nonresponsive answers," however, USS states that the judge exhaustively grilled him on cross-examination.

Although the Secretary does not brief the fair hearing issue, the Union argues that Commission procedural rule 66(j), 29 C.F.R. 2200.66(j), authorizes the judge to "[c]all and examine witnesses and to introduce into the record documentary or other evidence" and that rule 66(f) allows the judge to regulate the course of the hearing. In a complex case like this one, the Union continues, the judge's questions were needed for the preparation of a clear, complete record. With respect to the judge's questioning of USS's witnesses about their "personal beliefs," the Union contends that it was important to certain issues in the case, like good faith, for the [*127] judge to learn how USS personnel viewed the coke oven problem. The Union also states that judges are allowed to have their own opinions, citing United States v. Morgan, 313 U.S. 409, 421 (1941).

USS's contention that it did not receive a fair hearing is rejected. We have reviewed the entire transcript and conclude that the judge did accord USS a fair hearing. Although some of the statements made by Judge Brennan deserve to be characterized as intemperate and devoid of judicial decorum, we find that the judge did not prejudge any specific issue in this case but did rely on the proofs presented at the hearing to resolve the disputed issues for him. See United States v. Morgan, supra; United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980).

The transcript reveals that Judge Brennan was almost invariably courteous to all those who participated in the case's nine-day evidentiary hearing. His questioning of witnesses and attorneys was, in the vast majority of instances, designed to elicit necessary material that the attorneys had not obtained, give him a better understanding of the coke manufacturing process, and assemble a more complete record [*128] in this complex case. Also, although the judge did compliment the Union's attorney, we view the compliment as a tribute to the attorney's competence rather than an illustration of the judge's predisposition for her side of the case. Further, the judge's allegedly disparate treatment of the Secretary's witnesses Offenheiser and Siminitus as opposed to USS's witness Seidenberger does not bear out a charge of prejudice. The judge acknowledged that Offenheiser and Sminitus made some contradictory statements and downgraded their credibility somewhat as a result. The fact that the judge might have spent more time cross-examining Seidenberger than Offenheiser or Siminitus does not sustain USS's prejudice allegation.

As mentioned above, however, the judge did make certain ill-considered remarks. Such remarks have no place in our proceedings and we admonish Judge Brennan to comport himself in a manner more compatible with his judicial office.

VIII

Where the Commission members are divided on the disposition of an item, they agree to affirm the judge's disposition of that item. See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert. denied, 449 [*129] U.S. 1061 (1982). The following items are affirmed and penalties assessed:

Citation 1, item 6; Citation 2, item 7

$ 600

Citation 1, item 7; Citation 2, item 8

$ 600

Citation 1, item 8; Citation 2, item 9

$1000

Citation 1, item 9; Citation 2, item 10

$ 600

Citation 1, item 10; Citation 2, item 12

$1000

Citation 2, item 11

$1000

Citation 3, items 1a, 1b, 1c (a and b)

$ 500

Citation 3, item 2a

$ 250

Citation 3, item 4

$ 150

Citation 3, item 5

$ 150

Citation 4, items 1a and 1b

$1000

The Commission also affirms item 1 of other than serious citation 5, but does not assess any penalty. The total of the penalties assessed in the decision is $6,850.

The following citation items are hereby vacated:

Citation 1, items 1, 2, 3, 4, 5, 11, 12, 13;

Citation 2, items 1, 2, 3, 4, 5, 6, 13a, 13b, 14, 15;

Citation 3, items 1c(c), 2b, 3, 6b, 6c.

SO ORDERED.