EMPIRE-DETROIT STEEL DIVISION, DETROIT STEEL CORPORATION

OSHRC Docket No. 7737

Occupational Safety and Health Review Commission

March 31, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William Kloepfer, Associate Regional Solicitor, USDOL

Hayes C. Stover, for the employer

Daniel W. Hannan, Staff Representative, Safety & Health Department, United Steelworkers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION: A December 9, 1974, decision of Review Commission Judge James D. Burroughs, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i).

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n1 Chairman Barnako does not agree with this attachment.

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Having examined the record in its entirety, we find that item 1 of the citation was properly vacated for the reasons assigned by the Judge. We also find that he correctly accepted respondent's concession on items 2 and 3 of the citation. Accordingly, we affirm the Judge's disposition of this case.

APPENDIX A

December 9, 1974

Theodore J. Pethia, and William Curphey, III, for complainant

Hayes C. Stover, for respondent

James D. Burroughs, Judge

DECISION AND ORDER

STATEMENT [*2] OF CASE

On April 5, 1974, complainant issued a non-serious citation to respondent, pursuant to section 9(a) of the Occupational Safety and Health Act of 1970 ("Act"), 29 U.S.C. 651 et seq., 84 Stat. 1590, alleging three violations of section 5(a)(2) of the Act. No penalties were proposed for the alleged violations. The respondent, by letter dated April 25, 1974, and received on April 26, 1974, timely advised complainant that it desired to contest the citation before this Commission in accordance with the provisions of section 10(c) of the Act.

The citation emanates from an inspection conducted on March 18, 1974, by complainant of respondent's plant and facilities located at 3879 Rhodes Avenue, New Boston, Ohio. Respondent is engaged in the manufacture of steel at its New Boston, Ohio, plant.

The citation alleges that respondent violated three standards properly promulgated under the Act. The alleged violations, descriptions as set forth in the citation, and the specified abatement dates are as follows:

Standard

Item

Allegedly

Abatement

No.

Violated

Description

Date

"1

29 CFR

Failure to use feasible engineer-

April 5,

1910.93

ing controls to reduce concentra-

1975

tion of coal tar pitch volatiles

where concentration exceeds 0.2

mg/m<3> at these workplaces: (a)

Larry car operator. (b) lid man.

(c) door cleaner (back). (d) door

machine operator. Use of effective

respiratory protection shall be

continued as long as the concentra-

tion of coal tar pitch volatiles

exceeds 0.2 mg/m<3>.

"2

29 CFR

Failure to use feasible engineer-

October 5,

1910.93

ing controls to maintain concen-

1974

tration of inert dust at or below

limit set in Table G-3 at the

workplace of the bulldozer opera-

tor in the open hearth plant.

Use of effective respiratory pro-

tection shall be continued during

the abatement period.

"3

29 CFR

Failure to use feasible engineer-

January 5,

1910.95

ing controls to reduce sound level

1975

exposure where exposure exceeds

limits set in Table G-16 at work-

place of the stove tender in the

blast furnace area.

Personnel protective devices shall

be used as long as the sound

level exceeds the limits set

in Table G-16."

[*3]

The complaint was received by the Commission on May 15, 1974. An answer was received on June 3, 1974. The answer denied that there had been any violation of the standards, denied that feasible engineering controls existed to comply with the standards and raised an affirmative defense with respect to item 1 of the citation (excessive coal tar pitch volatiles). The affirmative defense alleges that complainant is estopped from citing respondent for excessive coal tar pitch volatiles because of a ruling or directive (hereinafter referred to as a ruling) issued by complainant on September 1, 1971, n1 and because it was in compliance with an amended citation issued to it on September 1, 1972. The amended citation alleged a violation of 29 CFR 1910.93(a) as it pertains to excessive coal tar pitch volatiles. The amended citation specified that abatement was to be in accordance with the ruling issued on September 1, 1971. Respondent states that it has relied upon the ruling and complied fully with its provisions.

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n1 Published on September 9, 1971, in the Federal Register, Volume 36, No. 175, at page 18128 et seq. The ruling was signed by G. C. Guenther, who at that time was Assistant Secretary of Labor in charge of the Occupational Safety and Health Administration.

[*4]

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A hearing was held in this case on August 13, 1974, in Portsmouth, Ohio. No additional parties desired to intervene in the proceedings.

At the outset of the hearing, complainant moved to modify item 1 by withdrawing the allegations pertaining to the larry car operator, the door cleaner (back), and the door machine operator. The motion was granted. (Tr. 3-4) This limited item 1 to the lid man job classification. Respondent stipulated that as to this operation the exposure limitation of 0.2 mg/m<3> had been exceeded. (Tr. 4). This narrowed the issue as to item 1 to the question of whether feasible engineering controls existed to reduce the concentration of coal tar pitch volatiles at the lid man operation.

The parties also concluded an understanding with respect to items 2 and 3 that resulted in respondent conceding those items. As to item 2, respondent agreed to examine and attempt to utilize an enclosed air system suggested by complainant to reduce the concentration of inert dust affecting the bulldozer operator in the open hearth plant. Employees are presently protected by respiratory equipment. [*5] With respect to item 3, respondent agreed to undertake immediate steps to correct causes of noise arising from wear and tear which can be corrected by regular maintenance. Major corrections are to be made whenever the blast furnace facility involved in the citation is rebuilt. Signs have been posted warning of the excessive noise level and protective equipment is being furnished employees. Complainant agreed to consent to requests for reasonable extensions of the abatement dates for items 2 and 3 when, and if, such extensions are necessary. (Tr. 5-9)

Following the concessions and stipulations, respondent filed a written motion to vacate item 1. The motion was premised on respondent's belief that the method of compliance with 29 CFR 1910.93 was revised by the complainant by the Guenther ruling issued on September 1, 1971, and that it was in compliance with the measures specified in the ruling. Judgment was reserved on the motion. (Tr. 10)

JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the [*6] subject matter herein. (Pars. II, IV, Complaint and Answer)

The issues for decision are:

(1) Is complainant estopped from citing respondent for a violation of 29 CFR 1910.93 because of the issuance of a ruling by the Assistant Secretary of Labor for the Occupational Safety and Health Administration on September 1, 1971?

(2) Do feasible engineering controls exist to bring the coal tar pitch volatiles within the level specified by 29 CFR 1910.93?

FINDINGS OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving the issues in this case:

1. Respondent is a Delaware corporation licensed to do business in Ohio. It maintains and operates a steel mill facility at 3879 Rhodes Avenue, New Boston, Ohio. Approximately 1,834 persons are employed at the mill. (Par. III, Complaint and Answer)

2. On March 18, 1974, complainant, through a duly authorized industrial hygienist, conducted an inspection of the New Boston, Ohio, facility. (Par. V, Complaint and Answer; Tr. 13)

3. The concentration of coal tar pitch volatiles at the lid man position when tested on March 18, 1974, exceeded 0.2 mg/m<3>. [*7] (Stipulated, Tr. 4)

4. Allied Chemical eliminated the need for a lid man on one of its batteries at its Ironton, Ohio, plant by pipeline charging. The coal is preheated in another part of the plant and forced by steam jet through a pipe into the coke oven. The coal never touches the open air and charging emissions are eliminated. (Tr. 14-15, 17)

5. The "pipeline charging" method works by means of divertor valves on the ovens. An operator opens and shuts the valves. (Tr. 30-31)

6. In a typical coke plant, a larry car loaded with coal delivers the coal to the oven by means of hoppers or chutes. (Tr. 15, 31) Allied Chemical utilizes this system as a back-up means of feeding the battery on which pipeline charging is utilized. (Tr. 31)

7. A larry car designed so that there is an automatic lid removal and replacement is under construction at Allied Chemical's plant in Ironton, Ohio. (Tr. 15)

8. Sequential or stage charging is one means of possible control of the exposure to a lid man. Instead of opening all the hoppers of the larry car at once, the openings are staggered to control the level of coal in the oven. (Tr. 17-18)

9. A room or enclosure containing filtered [*8] air can be provided for the lid man when he is not removing and replacing the lids. (Tr. 19-20)

10. Respondent presently provides a rest area for its employees. The air for the room is filtered and looks clean. Complainant made no tests of the air to determine if the coal tar pitch volatiles had been eliminated. (Tr. 22)

11. When coal is poured into the oven, the intense heat causes the volatiles to be released into the atmosphere. An aspirator system is used by respondent to reduce the vapors in the atmosphere directly over the coal. Sometimes an increase in steam pressure can draw off more of the volatiles. (Tr. 20).

12. A lid man works on the ovens approximately four hours during his normal work shift. (Tr. 30)

13. On September 1, 1972, respondent was issued an amended citation for serious violation of 29 CFR 1910.93(a) (as it pertains to coal tar pitch volatiles). Abatement was specified as follows: (citation issued September 1, 1972)

"Abatement shall be in compliance with conditions specified in the Federal Register, Volume 36, Number 75 (sic), pages 18128-18129, dated Thursday, September 9, 1971, and signed by G. C. Guenther."

LAW AND OPINION

Paragraph [*9] 6 of respondent's answer, and its motion to vacate citation and dismiss complaint, raised the defense that the complainant is estopped from citing respondent as a result of a ruling issued by Assistant Secretary of Labor G. C. Guenther, on September 1, 1971, and published in the Federal Register, Volume 36, No. 175, on Thursday, September 9, 1971, at page 18128 et seq.

The ruling was issued as the result of a petition filed on June 8, 1971, by the American Iron and Steel Institute for relief from 29 CFR 1910.93. The ruling concluded, among other things, that the standard was properly promulgated, and that further research should be undertaken before a rule-making proceeding under section 6(b) of the Act could be usefully commenced to develop a differing standard for coal tar pitch volatiles. The ruling then turned to the question of whether it was possible for coke oven operators to meet the present standard. The ruling pointed out a difference of opinion on the question and stated:

"Compliance can be achieved by utilizing all of the following protective measures in combination:

(1) The employer should require coke oven employees to use high efficiency respirators of [*10] a type developed by Burgess of the Harvard School of Public Health (exhibit J) or equivalent respirators of an efficiency adequate to protect coke oven employees against exposure to coal tar pitch volatiles. The requirements of 29 CFR Part 1910, Subpart I should be consulted regarding the selection and use of respirators.

(2) The employer should require that coke oven employees use protective skin creams of a type designated by the establishment medical advisor.

(3) The employer should provide for the medical examinations by a licensed physician of all persons considered for employment in or about coke oven operations. Examinations should include such tests as the establishment medical advisor deems necessary. Persons with skin, lung, or liver disorders should be excluded from employment in or about coke oven operations at the discretion of the establishment medical advisor.

(4) The employer should provide for the periodic examination by a licensed physician of all employees engaged in or exposed to coke oven operations. The examinations should be at least on an annual basis and the examining physicians should give particular attention to the skin and lungs of employees. Chest [*11] X-ray examinations should be given at least once annually.

Compliance by coke oven operators with these protective measures will satisfy the requirements of the Act and of 1910.93. Pending completion of NIOSH research and its recommendations, and pending any rule-making proceedings, it is expected that" "coke oven operators will continue to implement and develop feasible engineering controls and other administrative controls whereby emissions in coke oven operations will be brought within the value stated by the standard for coal tar pitch volatiles."

Respondent takes the position that the ruling makes it clear that the standard is satisfied if the four procedures quoted therein are implemented. It further asserts that it has utilized all of the four protective measures set forth in the ruling of September 1, 1971. n2

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n2 Complainant concedes on page 6 of its brief that respondent has utilized all of the four protective measures set forth in the ruling.

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Subsequent to the hearing and filing of briefs, the Commission [*12] decided the primary question raised by respondent with respect to the September 1, 1971, ruling. The decision rejected respondent's arguments and held that 29 CFR 1910.93 had not been amended nor had a variance been granted by the ruling. Administrative or engineering controls are still required if they are feasible. See Secretary v. United States Steel Corporation,    OSAHRC   , (Docket Nos. 2975 and 4349, November 14, 1974).

Respondent anticipated the possibility of an adverse ruling by the Commission and submits that complainant should be estopped because it is in compliance with a prior citation issued for the same condition. On September 1, 1972, an amended citation for serious violation was issued to respondent alleging that it violated 29 CFR 1910.93(a) as it pertains to coal tar pitch volatiles. Abatement was specified in the amended citation as follows:

"Abatement shall be in compliance with conditions specified in The Federal Register, Volume 36, No. 75 (sic), Pages 18128-18129, dated Thursday, September 9, 1971 and signed by G. C. Guenther."

The amended citation was not contested, and became a final order of the Commission. Under the abatement provisions of [*13] the citation, respondent was directed to comply with the September 1, 1971, ruling. Respondent has complied with the requirements set forth in the ruling and submits that complainant should be estopped from citing it for the same violation and specifying a different compliance procedure.

It would seem that the Area Director mistakenly interpreted the ruling of September 1, 1971, in the same manner as respondent and amended the earlier citation to specify compliance with the ruling. While one can certainly sympathize with the respondent, this is not grounds for estoppel. As the court in National Labor Relations Board v. Baltimore Transit Co., 140 F.2d 51, 55 (4th Cir. 1944) stated:

* * *

"An administrative agency, charged with the protection of the public interest, is certainly not precluded from taking appropriate action to that end because of mistaken action on its part in the past."

"Cf. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 84 L.Ed. 656; Houghton v. Payne, 194 U.S. 88, 100, 24 S.Ct. 590, 48 L.Ed. 888. Nor can the principles of equitable estoppel be applied to deprive the public of the protection of a statute [*14] because of mistaken action or lack of action on the part of public officials. United States v. San Francisco, 310 U.S. 16, 32, 60 S.Ct. 749, 84 L.Ed. 1050; Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; United States v. City of Greenville, 4 Cir., 118 F.2d 963, 966."

Respondent's argument implies that once an employer has complied with a citation it can never be cited for the same violation in the future. Such a position would ignore the purpose of the Act and deny employees the benefit of research being conducted on many of the health standards, including coal tar pitch volatiles. The object of research is to improve working conditions. Section 20 of the Act recognizes the importance of research to the health and safety of employees and specifically authorizes that the Secretary of Health, Education, and Welfare shall conduct research, experiments, and demonstrations relating to occupational safety and health. Obviously, the Act recognizes that today's inadequate methods of protection in many work areas will be improved by future research. It also would seem undisputed that the Act contemplated that changing technology would require [*15] new innovations by employers to insure the safety of their employees. As the court noted in Maxwell Company v. N.L.R.B., 414 F.2d 477, 479 (6th Cir. 1969):

"The right to make such changes is essential. Without it agency law could never be improved as a result of experience but would be burdened forever with its encrusted errors. Without the right to make changes agency law could not adjust to varying social and economic conditions or to the impact of the continuing technological revolution."

Respondent's arguments on estoppel are rejected and its motion to dismiss which was premised on the ruling of September 1, 1971, is denied.

The merits of the case must now be determined. The three major sources of harmful emissions from coke ovens result from the "charging" process, the "pushing" process and leakage. This case involves the "charging" process. During the "charging" process, a "larry car" loaded with coal moves along a track on top of a battery of coke ovens and pours coal down chutes into each oven. The lid man is responsible for removing and replacing the lids to the chutes or charging holes. Respondent has stipulated that test results by complainant's industrial [*16] hygienist showed exposure of coal tar volatiles in excess of 0.2 milligrams in a cubic meter of air, time weighted over an eight-hour period. Complainant withdrew the allegations with respect to the larry car operator, door cleaner, and door machine operator.

In view of the stipulations, the only portion of 29 CFR 1910.93 pertinent to a determination of the issue is subpart (e), which provides:

"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 measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and technical measures used for this purpose must 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."

Complainant has not offered any evidence to show that the exposure level can be reduced within the limits of the standard by administrative controls. The exact level of coal tar [*17] pitch volatiles was not stipulated by the parties, but complainant's industrial hygienist indicated that the level of coal tar pitch volatiles was such that it would permit exposure of a lid man for only one hour during an eight-hour shift.

Complainant relied on the testimony of Mrs. Mary Fulmer, the industrial hygienist who conducted the inspection, to establish that feasible engineering controls existed to lower the exposure level of the lid man to coal tar volatiles. She has never received any instruction in the design and operation of coke ovens and has seen only one coke oven operation besides the respondent's facilities at New Boston, Ohio. She has studied the toxicological part of coke ovens. (Tr. 21)

Mrs. Fulmer suggested several possible means of lowering the level of coal tar volatiles to which the lid man is exposed. The methods suggested by her were: (1) pipeline charging; (2) design of the larry car so that there is an automatic lid removal and replacement; (3) stage or sequential charging; (4) increase the steam pressure in the aspirator system to draw off more of the vapors, and (5) use of a room or enclosure containing filtered air by the lid man when he is not [*18] removing and replacing the lids.

The first two methods would eliminate the job of the lid man and would eliminate the violation in this case. Pipeline charging was observed by Mrs. Fulmer in Allied Chemical's plant at Ironton, Ohio. In pipeline charging, the coal is preheated in another part of the plant and forced by steam jet through a pipe into the coke oven. The coal never touches the air and charging emissions are eliminated. The automation of the larry car was described to Mrs. Fulmer by Allied Chemical. Such a system is also under construction at Allied Chemical's plant. She observed the pipeline charging process but has not seen a larry car designed to automatically remove and replace the lids.

While Mrs. Fulmer was familiar with "pipeline charging" she was frank to admit that she was not sure it was feasible at respondent's plant. She testified: (Tr. 24, lines 8-20)

"Q Would you say whether or not it would be feasible to install a system like that in in the respondent's coke oven?

A I believe it would require a drastic redesign of the coke oven to do so."

"Q Is it fair to say we are really talking about two totally different types of coke ovens? They both make [*19] coke, but we are talking about entirely different systems?

A The coke oven in Ironton and the one at Empire Detroit are quite different, but I am proposing, perhaps, this could be considered to using this existing coke oven and attaching this idea.

Q You don't know whether it would be feasible?

A That's correct. I don't really know."

The elimination of the lid man by "pipeline charging" also appears to expose a new employee who operates a divertor valve in the system. Mrs. Fulmer was unfamiliar with the divertor valve (Tr. 24-25), but respondent's superintendent testified that the divertor valve operator was exposed to emissions similar to the exposure to the lid man. (Tr. 30-31) If such is the case, "pipeline charging" as it applies to respondent would only substitute the exposure of the divertor valve operator for the lid man. n3 The record in this case fails to establish that "pipeline charging" is possible or feasible at respondent's plant.

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n3 Pipeline chargings would also eliminate the larry car operator. However, there is no violation as to the larry car operator in responent's plant.

[*20]

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There has been no showing as to how the larry car on respondent's ovens could be modified to automatically remove and replace the lids. This system was described to Mrs. Fulmer by Allied Chemical. She possessed no first-hand knowledge of the system since it is presently under construction. There is no evidence that such a system would work with the efficiency that would permit the elimination of the lid man position.

The third method suggested by Mrs. Fulmer involved sequential or stage charging. This method involves the controlling of the piles of coal by staggering the openings of the hoppers of the larry car into the holes on a coke oven in lieu of opening all of them at once. The aim is to achieve a smokeless charge. Mrs. Fulmer had not personally observed the stage charging operation and her knowledge was based on readings done by her. (Tr. 17-18) The record does not indicate how effective such a system would be in reducing exposure or whether production would be reduced. There is also no evidence to indicate if the larry car would have to be modified and, if so, the cost of such modification. [*21]

A fourth method suggested by Mrs. Fulmer to possibly reduce exposure was to increase the steam pressure to draw off more of the volatiles. Respondent has an aspirator system on one side of its ovens to draw off the hot gases when coal is poured into the oven during the charging process. (Tr. 20). There has been no showing as to what steam pressure is essential to draw off the vapors and no evidence to indicate whether increasing steam pressure would lower the exposure level. Mrs. Fulmer conceded that she had not given any serious study as to what problems might be encountered in increasing the steam pressure and was not sure that the steam pressure could be increased. Mrs. Fulmer testified: (Tr. 25, lines 7-25; Tr. 26, lines 1-13)

"Q As far as the increased pressure of the steam, does that reduce the emissions down to standard?

A At this Ironton plant, it didn't bring it down to less than 0.2mg/m<3>. It doesn't mean that by using increased amounts of steam you can bring it down to standard.

Q It doesn't bring it down to the standard?

A No, not in this particular case.

Q Do you know how much it brought it down to?

A I saw before and after mesurements. The reason I am [*22] hesitating, I don't know if this is public information.

RECESS

(DISCUSSION OFF THE RECORD)

A They maintained a steam pressure and measured volume to 170% of what it was, and they took two tests before they measured the steam and three tests after. Two of the tests took after were significantly lower as far as the larry car operator than the two previous tests, but one was higher."

Q The steam you are talking about really had nothing to do with the lid man?

A In this case it was the larry car operator.

Q So, we don't really know what effect that would have on the lid man, right?

A The tests weren't for the lid man, correct.

Q Again, from you knowledge of the Respondent's coke plant, could this type of increased steam pressure be put into their coke plant?

A Based on general engineering knowledge, I would certainly think so by increasing steam on steam.

Q You haven't made a serious study about problems there might be?

A No."

The tests run by Allied Chemical must be regarded as inconclusive.

The last method suggested by Mrs. Fulmer involves the use by lid men of a room or enclosure with filtered air while they are not removing lids. Yet, she admitted that volatiles [*23] are quite visible and that the air looked clean in the rest area provided for employees. She testified: (Tr. 22, lines 13-25; Tr. 23, lines 1-5)

"Q Let's pursue that. Did you ever make any measurements of the rest area for the Respondent's coke employees?

A No I didn't.

Q You have no knowledge whether or not there are any emissions in this room, is that correct?"

A The filters they use are in this room. The air in this room passes through these filters, and the air looks clean. Coal tar pitch volatiles are quite visible. They are yellow in color.

Q The room they presently use, to your knowledge, has no coal tar pitch volatiles, is that correct?

A I wouldn't say there are none, but they are certainly reduced.

Q You don't know for a fact one way or another whether or not there are any in there?

A I would certainly not say there are none in there. I would definitely feel I can say it is considerably reduced in there."

There has been no evidence to indicate that the filters used by the respondent in the rest area do not eliminate the coal tar volatiles. No tests were made of the air in the rest room. Thus, there is not one scintialla of evidence to support the conclusion [*24] that a different room with filtered air for lid men would reduce their exposure.

Feasible engineering controls may very well exist to lower the exposure of the lid man to coal tar volatiles, but complainant has failed to establish that fact in this case. Mrs. Fulmer was not qualified as an expert. She did little more than suggest possible methods for reducing exposure to the lid man. She possessed little knowledge of the design and construction of coke ovens and offered no evidence as to the adoption and feasibility of her suggested methods to the respondent's plant. She acknowledged that she had not stated that any of the methods would "bring them [volatiles] down to the standard." (Tr. 22, lines 4-5) She further testified that the filtered room was probably the only one of the suggested methods that could be constructed in the facilities of the respondent. (Tr. 22, line 12) The issue must be decided for respondent.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the [*25] standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Respondent violated section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1910.93, as it pertains to inert dust, and 29 CFR 1910.95.

4. Respondent did not violate section 5(a)(2) of the Act by failing to comply with 29 CFR 1910.93, as it pertains to coal tar pitch volatiles, since complainant failed to meet its burden establishing that feasible administrative or engineering controls existed to lower the exposure level.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

That items 2 and 3 of the citation issued to respondent on April 5, 1974, are affirmed, and that item 1 is vacated.

Dated this 9 day of December 1974.

James D. Burroughs, Judge, OSAHRC