SECRETARY OF LABOR,
Complainant,

v.

SEABOARD FOUNDRY, INC.,
Respondent.

OSHRC Docket No. 77-3964

_DECISION_

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the
Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of
the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
("the Act").  Judge Furcolo vacated one subitem and affirmed the
remaining four subitems of a serious citation issued by the Secretary of
Labor alleging that Seaboard Foundry, Inc. failed to comply with
occupational safety and health standards concerning exposure to
excessive levels of silica dust, implementation of engineering controls,
and use of respirators.  For the following reasons, we modify the
judge's decision as follows.

I

During a 1977 inspection of Seaboard's gray iron foundry in Johnston,
Rhode Island, an industrial hygienist employed by the U.S. Department of
Labor, Occupational Safety and Health Administration ("OSHA"), measured
Seaboard employees' exposure to silica dust in the "snagging and
grinding room."  Samples obtained revealed that five employees were
exposed to silica levels ranging from as much as three to fifteen times
permissible limits, as provided in 29 C.F.R. § 1910.1000, see note 1
infra.   Certain engineering controls which Seaboard had implemented in
the room were not in operation or not being properly used on the day
that the silica dust level measurements were made.  Also, the industrial
hygienist and an OSHA compliance officer who accompanied him believed
that there were additional feasible engineering controls.   Various
employees were not wearing respirators, used worn and defective
respirators, or used a type of respirator which was incapable of
protecting against exposure to silica dust.  Accordingly, OSHA issued
the serious citation alleging violations of 29 C.F.R. §§ 1910.1000(c),
1910.1000(e), 1910.134(a)(2), 1910.134(b)(2), and 1910.134(b)(7). [[1]]

Seaboard contested the citation and a hearing was held.  At the hearing,
Seaboard did not dispute that the five employees were exposed to
excessive silica dust levels on the day the OSHA industrial hygienist
took samples.  However, Seaboard presented evidence to show that the
measured levels were not representative of typical exposure.  The
evidence concerned problems with an employee's conduct and with the
operation of certain engineering controls or devices for minimizing the
amount of airborne silica dust.

In Seaboard's snagging and grinding room where the exposure to excessive
levels was found, the employees were engaged in cleaning
castings--removing sand which had fused with the castings when the
molten iron was poured into the molds, which were made of sand. 
Generally, the castings were first cleaned in "wheelabrators," large,
box-like pieces of equipment in which sand was shaken from the castings.
  Seaboard had two wheelabrators, one which tumbled castings around and
another which instead rotated the castings while they were bombarded
with steel shot.  After the castings had been cleaned in the
wheelabrators, employees used chipping and grinding equipment to remove
extraneous ridges or protrusions of iron from the castings and to remove
a final, thin layer of the sand fused with the iron.  Small castings
which could be lifted were placed on pedestal or stand grinders for this
final cleaning.   Larger castings were cleaned with hand grinders or
chippers in booths.  The largest castings were cleaned with these tools
on the floor.

According to the OSHA industrial hygienist and compliance officer, the
wheelabrators were the primary source of the excessive levels of silica
dust detected on the day of sampling.  The hand grinding or chipping
operations for the larger castings, Seaboard's practice of dry-sweeping,
and the pedestal grinder operations on the smaller castings were all
secondary or, as in the instance of the pedestal grinding, minor sources.

Seaboard had been aware for several years that there was a hazard of
exposure to excessive silica dust in its snagging and grinding
operations.  Accordingly, Seaboard had installed a ventilation system,
consisting of two devices called "smoke eaters," in the ceiling near the
hand grinding floor areas.  Also, the wheelabrators were equipped with
internal ventilation systems to exhaust sand to bag houses outside the
foundry, and wheelabrator operators were instructed to leave the
wheelabrator doors shut for two or three minutes after the end of a
cleaning cycle to permit the exhaust systems to exhaust the sand. 
According to Seaboard's assistant manager, when this instruction was
obeyed, there were no silica dust clouds like the ones observed by the
OSHA industrial hygienist and compliance officer on the day of sampling.
  Finally, Seaboard inspected and maintained the wheelabrators on a
weekly schedule to minimize silica dust leakage through holes and cracks
caused by heavy wear and tear.  Seaboard also replaced badly damaged
parts, such as doors too badly warped to be straightened and used.

However, on the sampling day there were substantial deficiencies in
Seaboard's precautions.  The wheelabrator operator was opening the
wheelabrator doors too soon, contrary to Seaboard's instruction. 
Seaboard had communicated the instruction to him but, for several months
prior to the sampling day, the employee had been failing to obey this
and other instructions because of preoccupation with personal problems. 
Seaboard management employees knew of this and had talked several times
to the employee about rectifying his conduct.  Finally, Seaboard
disciplined the employee by laying him off, first for one day and then
for two weeks.  The second lay-off occurred after the inspection, and
the employee was not rehired as a wheelabrator operator when he returned
to work.  There was no evidence as to when the first lay-off occurred.

Additionally, silica dust was leaking from one of the wheelabrators
through a warped door.  Seaboard management employees did not know how
long this condition had existed.  They only testified in general that
delivery of a replacement door could take weeks or months.  A canvas
barrier had been installed in front of the opening in this instance to
keep steel shot from coming out and hitting employees.

Also, the smoke eaters were not working on the sampling day and
Seaboard's assistant manager, who oversaw the snagging and grinding room
operations, did not know how long they had been out of operation.  The
smoke eaters were supposed to be repaired by an outside maintenance
contractor, not Seaboard personnel.

According to Seaboard's assistant manager, the overexposure found on the
sampling day was not typical because of the problems with the
wheelabrators and the smoke eaters.   However, the company did not
present any evidence showing what the silica dust levels were when the
existing controls were operating properly.  Again according to the
assistant manager, Seaboard never made any measurements.

In addition to properly maintaining and using the existing controls, the
Secretary proposed that Seaboard use local ventilation involving exhaust
vents in booths and tables, as well as portable tubes called "elephant
trunks" which could be placed at the point where the hand grinders were
being used on the largest castings.  The parties presented evidence
bearing on the feasibility of these controls.   Their evidence concerned
technological feasibility and some costs.  The evidence as to cost
consisted mainly of very general estimates or guesses and there was no
evidence about the costs of some controls and about indirect costs. 
Also, there was no evidence relating to Seaboard's financial capacity to
implement the proposed controls.

II
Judge Furcolo vacated the alleged violation of section 1910.1000(c)
because he determined that, as Seaboard argued, the overexposure
detected by OSHA was only "a temporary condition."  The judge determined
that Seaboard had taken all reasonably necessary and appropriate steps
against overexposure to silica dust.  However, the judge also determined
that Seaboard's "equipment and ventilation system need repairs and
maintenance to prevent leakage; and the work practices should have
included a system of 'wetting down' before sweeping."  Therefore the
judge affirmed the alleged violation of section 1910.1000(e), even
though he also determined that the Secretary had not established the
feasibility of the proposed additional local ventilation.  Finally, on
the basis of evidence about noncompliance with the cited requirements
for respirators, Judge Furcolo affirmed the alleged violations of
sections 1910.134(a)(2), (b)(2), and (b)(7).

The Secretary filed a petition for review.  He argued that the judge was
inconsistent in vacating the alleged violation of section 1910.1000(c)
for overexposure to silica dust while affirming the alleged violations
of sections 1910.1000(e) and 1910.134(a)(2), (b)(2), and (b)(7)
requiring engineering controls and personal protective equipment for
protection against overexposure.  The Secretary also argued that the
judge erred in failing to find the additional ventilation feasible.
Commissioner Cleary granted the Secretary's petition and stated the
following issues:

1) Whether the Judge erred in vacating the alleged violation of 29 CFR §
1910.1000(c)?

2) Having vacated the above item, whether the Judge erred in affirming
violations of the standards at 29 CFR § 1910.1000(e), 29 CFR §§
1910.134(a)[(2)], 134(b)(2), and 134(b)(7)?

3) Whether the Judge erred by failing to order respondent to implement
certain abatement measures, and in his characterization of those
measures as infeasible?

Seaboard argues on review that the judge's decision should be upheld
because, among other things, the detected exposures were atypical and
the additional engineering controls proposed by the Secretary were
infeasible.[[2]]  The Secretary argues that, because the one-time
exposures were excessive and Seaboard knew of the need for precautions
and controls, there was a violation.  The Secretary maintains that
Seaboard failed to establish any defense with its evidence relating to
the possibility of atypical conditions. [[3]]

III
The first matter for consideration is whether the judge correctly
determined that the one day of overexposure was a temporary condition. 
Section 1910.1000(c) proscribes the exposure of employees to excessive
levels of air contaminants such as silica dust "in any 8-hour work shift
of a 40-hour work week."  See note 1 supra.   Therefore, as an element
of his proof of a violation, the Secretary need only show overexposure
on one day.  See Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC
1460, 1473 n.34, 1981 CCH OSHD ¶ 25,300, p. 31,346 n.34 (No. 13102,
1981); see also General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722,
1981 CCH OSHD ¶ 25,345 (No. 13732, 1981) (OSHA measurements on one day
are probative of levels in the same operations performed on other days);
cf. Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982
CCH OSHD ¶ 25,975 (No. 4678, 1982), on remand from 584 F.2d 127 (6th
Cir. 1978) (where a serious characterization is in question, the
employer may rebut the presumption which arises that one-time exposures
are representative of typical exposures). Where, as in this case, the
employer claims that the levels detected on the one day were
unrepresentative of typical levels, it is the employer who must
establish, as a matter of rebuttal to the Secretary's case, that the
typical dust levels complied with the requirements of the standard.  To
establish this, the employer must ordinarily present evidence consisting
of measurements. See Anaconda Aluminum Co., 9 BNA OSHC at 1464-66, 1981
CCH OSHD at pp. 31,337-31,338.  Because Seaboard did not present this
type of evidence in this case, Seaboard has not rebutted the Secretary's
evidence of overexposure based on the one day's exposures.  We therefore
conclude that the Secretary has established employee exposure to
excessive levels of silica dust.

We turn now to the issues involving protection of the employees from the
overexposure to the silica dust.  Because Seaboard has never disputed
that it committed violations of the cited respirator standards, see note
1 supra, and the record supports the Secretary's allegations, we affirm
those violations.  Also, because the record demonstrates and Seaboard
has never disputed the feasibility of its existing control measures, we
find that these controls were feasible. [[4]] The focus of the parties'
arguments on review is the feasibility of the additional controls
proposed by the Secretary--the local ventilation.  In view of an
intervening change in law concerning proof of feasibility, see note 4
supra, we set aside the judge's decision insofar as it concerns the
additional controls proposed by the Secretary and we remand this case
for further proceedings regarding their feasibility.  See Harmony Blue
Granite Co., OSHRC Docket No. 14189 (March 24, 1983). [[5]]

In addition to establishing the existence of noncomplying conditions,
the Secretary must show that the employer knew or, with the exercise of
reasonable diligence, could have known of the noncomplying conditions. 
Delta Field Erection, Inc., 82 OSAHRC 10/A2, 10 BNA OSHC 1391, 1982 CCH
OSHD ¶ 25,939 (No. 76-4153, 1982); General Electric Co., supra (majority
and separate opinions)  In this case, the question is whether Seaboard
knew or could have known of the one instance of overexposure and the
problems with the existing controls and personal protective equipment.

When an employer knows that an air contaminant covered by section
1910.1000 is generated in the workplace, reasonable diligence requires
the employer to make measurements to determine whether and how much the
employees are overexposed.  See General Electric Co., supra; see also
Mahone Grain Corp., 81 OSAHRC 108/B8, 10 BNA OSHC 1275, 1982 CCH OSHD ¶
25,836 (No. 77-3041, 1981); GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451,
1981 CCH OSHD ¶ 25,281 (No. 77-1811, 1981), appeal withdrawn, No.
81-4091 (2d Cir. Sept. 30, 1981).  When an employer who knows of a
problem with excessive amounts of a regulated air contaminant takes
measures to reduce the overexposure, reasonable diligence also requires
measurements to determine whether and how much the employees are still
overexposed. See General Electric Co., supra.  The employer must also
inspect and maintain the engineering controls.  See Union Boiler Co., 83
OSAHRC , 11 BNA OSHC 1241, 1983 CCH OSHD ¶ 26,453 (No. 79-232, 1983);
Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384,
1980 CCH OSHD § 24,495 (No. 76-5089, 1980). Where the employer relies on
employee adherence to a workrule for the efficacy of engineering
controls, the employer must adequately supervise the employees to assure
that the workrule is properly implemented.  Cf. United States Steel
Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ¶ 25,282 (No.
76-5007, 1981), and Ulysses Irrigation Pipe Co., OSHRC Docket No.
78-0799 (March 24, 1983) (an employer who implements a workrule to free
the workplace of a recognized hazard must adequately implement the
workrule).  The same is true with respect to reliance on respirators.

The record in this case reveals that Seaboard knew that its operations
for cleaning sand off castings generated excessive levels of silica dust
and as a consequence had instituted certain control measures to reduce
the levels.  However, Seaboard admittedly never monitored to determine
either the initial levels or the levels which resulted after the control
measures were implemented.  Thus, Seaboard did not exercise reasonable
diligence to learn how effective the controls were and how critical it
might be to assure their continued efficacy.  The record further reveals
that, on the day that the OSHA measurements were made, problems had
developed with the smoke eaters and the wheelabrator operation, the
company did not know how long the smoke eaters had been inoperable and
how long the wheelabrator door had been warped, and the company had not
disciplined the wheelabrator operator to enforce compliance with the
workrule even though the company knew of the employee's continued
misconduct.  The record also reveals obvious misuse or nonuse of
respirators.  All of this evidences lack of reasonable diligence to
prevent overexposure to silica dust and demonstrates that Seaboard could
have known of the noncomplying conditions on the one day during the
inspection.

The Secretary characterized the violations as serious.  Because the
compliance level specified in section 1910.1000 for silica dust was set
with the object of preventing the contraction of a life-threatening
disease, these violations involving employee exposure to excessive
levels are serious as alleged.  See Hermitage Concrete Pipe Co., 10 BNA
OSHC at 1520, 1982 CCH OSHD at p. 32,575. The judge assessed a penalty
of $100 for the four subitems which he affirmed.  Having considered the
record relating to Seaboard's size, prior history, and good faith, and
the evidence concerning the gravity of the four violations which we
affirm in this decision, we assess a penalty of $100.

IV
In summary, we reverse the judge's decision and affirm the subitem
alleging that Seaboard violated section 1910.1000(c).  We affirm the
judge's decision affirming the subitems alleging violations of sections
1910.134(a)(2), (b)(2) and (b)(7) involving respirators.   We classify
the violations as serious and assess $100 in penalty.  With respect to
the subitem alleging a violation of section 1910.1000(e), we conclude
that the engineering controls which Seaboard had implemented were
feasible and we remand the case to the judge for further proceedings
consistent with this opinion regarding the additional engineering
controls consisting of local ventilation proposed by the Secretary.  
Accordingly, we set aside that part of the judge's decision which holds
that the additional controls were infeasible.  SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 27 1983

------------------------------------------------------------------------

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FOOTNOTES:

[[1]] The occupational health standards in 29 C.F.R. § 1910.1000 provide
in pertinent part:

§ 1910.1000 Air contaminants.
***
(c) Table Z-3:  An employee's exposure to any material listed in table
Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed
the 8-hour time weighted average limit given for that material in the table.
***
(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.

The standards in 29 C.F.R. § 1910.134 provide, in pertinent part:

§ 1910.134 Respiratory protection.
(a) General.
***
(2) Respirators shall be provided by the employer when such equipment is
necessary to protect the health of the employee.  The employer shall
provide the respirators which are applicable and suitable for the
purpose intended.  The employer shall be responsible for the
establishment and maintenance of a respiratory protective program which
shall include the requirements outlined in paragraph (b) of this section.
***
(b) Requirements for a minimal acceptable program.

***
(2) Respirators shall be selected on the basis of hazards to which the
worker is exposed.
***
(7) Respirators used routinely shall be inspected during cleaning.  Worn
or deteriorated parts shall be replaced.  Respirators for emergency use
such as self-contained devices shall be thoroughly inspected at least
once a month and after each use.

[[2]] Seaboard presents some argument in support of the judge's decision
on all of the items, as affirmed and vacated, but also maintains that,
if the Commission determines that the company is not responsible for the
overexposure detected by OSHA on the ground that the one day's
overexposure was atypical, then the respirator and engineering control
violations should be vacated. Seaboard additionally argues that the
local ventilation proposed by the Secretary was infeasible. 

Seaboard also contends that the Secretary's petition for review was
insufficient in that it did not state proper bases for review. Seaboard
argues that the petition did not urge that any material factual finding
was unsupported, that the judge's decision was contrary to law or
Commission precedent, that the case involves a substantial question of
law or policy or that the judge abused his discretion, or that a
prejudicial procedural error was committed. See 29 C.F.R. § 2200.92(b). 
However, the Commission has held that issues stated in a direction for
review are properly before the Commission despite any possible
noncompliance with requirements for a petition for review.   United
States Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ¶
25,282 (No. 76-5007, 1981).  In addition, Seaboard does not allege that
it suffered any prejudice from the claimed noncompliance. See Little
Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1809-10
n.4, 1982 CCH OSHD ¶ 26,125, p. 32,878 n.4 (No. 77-2096, 1982).

[[3]] The Secretary also argues that he established the feasibility of
the additional controls.

[[4]] Controls are feasible within the meaning of 29 C.F.R. §
1910.1000(e) if they are technologically and economically achievable or
capable of being done.  Harmony Blue Granite Co., OSHRC Docket No. 14189
(March 24, 1983), relying on Sun Ship Inc., 82 OSAHRC , 11 BNA OSHC
1028, 1983 CCH OSHD ¶ 26,353 (No. 16118, 1982), appeal filed, No.
83-3081 (3rd Cir. Feb. 14, 1983), which overruled the cost-benefit test
of feasibility stated in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA
OSHC 1541, 1976-77 CCH OSHD ¶ 21,009 (No. 3973, 1976), appeal withdrawn,
No. 76-3229 (9th Cir., April 26, 1977).  Moreover, controls which are
capable of achieving a significant reduction in air contaminant levels
will be considered technologically feasible, even if they are or may
prove to be incapable of achieving permissible levels.  Harmony Blue
Granite Co., supra; Sun Ship, Inc. supra; GAF Corp., 81 OSAHRC 29/A2, 9
BNA OSHC 1451, 1981 CCH OSHD ¶ 25,281 (No. 77-1811, 1981), appeal
withdrawn, No. 81-4091 (2d Cir. Sept. 30, 1981).

On review, Seaboard argues in support of the judge's decision to order
repairs to the existing ventilation system.  Also, by arguing throughout
the case that the OSHA measurements were atypical, Seaboard has
maintained that the levels on the one day were excessive only because of
temporary deficiencies in the existing controls.   This is tantamount to
an admission that the existing controls were at least capable of
achieving a significant reduction in the silica dust levels.  And the
record indicates that this was the case.  The primary source of
excessive silica dust was the wheelabrators and, although there were
problems with the wheelabrators on the day of the OSHA measurements, the
silica dust clouds were significantly reduced or eliminated when the
wheelabrators were operated properly.  Because these controls were also
clearly technologically capable of being implemented and economically
achievable, their feasibility has been established.

[[5]] We emphasize that Seaboard is required to determine and implement
feasible controls of any type and in whatever combination is necessary
to achieve compliance levels.  See Kelly Springfield Tire Co., 82 OSAHRC
47/B6, 10 BNA OSHC 1970, 1975 n.5, 1982 CCH OSHD ¶ 26,223, p. 33,114 n.5
(No. 78-4555, 1982), appeal filed, No. 82-4389 (5th Cir. Oct. 6, 1982). 
If the existing controls are actually capable of achieving compliance,
then it will be unnecessary to try the feasibility of the proposed
additional controls.