SECRETARY OF LABOR,

Complainant,

v.

SMITH STEEL CASTING COMPANY,

Respondent.

OSHRC Docket Nos. 80-2069 & 80-2322

_DECISION_

BEFORE:  FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.
BY THE COMMISSION:

These consolidated cases involve issues under the Secretary's standard
governing exposure to air contaminants, 29 C.F.R. § 1910.1000.  The
Secretary alleges in item 2F of citation 1 and item 2 of citation 2 that
Smith Steel Casting Company ("Smith Steel") violated the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the Act"), because
its employees were exposed, respectively, to silica dust and copper fume
in excess of the limits set forth in that standard.  In item 2G of
citation 1 the Secretary alleges that Smith Steel had not implemented
feasible engineering or administrative controls required by the standard
to reduce the excessive silica dust exposure.  The questions before us
are whether § 1910.1000 is unenforceable for having been invalidity
promulgated and whether the record supports the judge's finding on the
economic feasibility of the engineering controls sought by the
Secretary. [[1/]]

In his initial decision on the merits of the alleged violations,
Administrative Law Judge Edwin G. Salyers affirmed the Secretary's
citations.  _Smith Steel Casting Co._, 83 OSAHRC 1/A2 (ALJ, 1982). 
Following subsequent decisions by both the Commission and the Court of
Appeals for the Fifth Circuit on an issue no longer before us relating
to the Secretary's inspection warrant, the Fifth Circuit issued a
further decision remanding these cases for consideration of Smith
Steel's argument that § 1910.1000 was invalidity promulgated.  The court
also set aside Judge Salyers' decision ordering Smith Steel to implement
engineering controls.  Finding the evidence on economic feasibility to
be insufficient to support the judge's conclusion that controls were
economically feasible, the court remanded for additional evidence. 
_Smith Steel Casting Co. v. Brock_, 800 F.2d 1329 (5th Cir. 1986).  The
Commission in turn remanded these cases to the judge for action in
accordance with the court's remand.  _Smith Steel Casting Co_., 12 BNA
OSHC 2200, 1986-87 CCH OSHD ¶ 27,758 (Nos. 80-2069 & 80-2322, 1986).  In
his decision now before us, Judge Salyers found the standard valid and,
after receiving additional evidence on economic feasibility, found that
"without further input from respondent [the financial data in the record
does] not establish that implementation of the proposed controls [is]
beyond respondent's financial reach or would result in forcing
respondent into bankruptcy."  For the reasons that follow, we affirm the
judge's decision.

I. _Background_

The standard at issue in these cases is a generic standard setting forth
permissible exposure limits ("PEL's") for a large number of substances. 
At the time these cases arose, [[2/]] the standard included three
separate listings designated as Tables Z-1, Z-2, and Z-3. Table Z-1
prescribed short-term exposure limits ("ceiling values") for some
substances and 8-hour time-weighted average exposure limits for other
substances.  The PEL for copper fume was an 8-hour time-weighted average
of .1 mg/m3. Table Z-3, entitled "Mineral Dusts," prescribed exposure
limits for silica dust that varied depending upon the amount of quartz
present in the dust in question.  That table also contained separate
limits on total airborne silica dust and on respirable silica
dust.[[3/]]  For respirable dust, which is at issue here, the formula
for determining the PEL for silica was 10mg/M^3 divided by "SiO_2 + 2,"
that is, 10 milligrams per cubic meter of air divided by the sum of two
plus the percentage of all respirable dust that is silica.  To achieve
the specified exposure limits, the standard also required the employer
to implement administrative or engineering controls "whenever
feasible."[[4/]]

Industrial Hygiene Compliance Officer Jack M. Matthews, Jr., testified,
and it is undisputed, that silica dust emanates from the sand which
Smith Steel uses to form "cores" that it places in the molds from which
it makes castings.  Sand is mixed in three machines known as "sand
mullers," which are essentially metal tanks about 3 1/2 feet in
diameter, open at the top, and unventilated. Employees referred to as
"sand bin attendants" use wheelbarrows to bring the sand from the bins
in which it is stored and then load the sand into the mullers.  Matthews
also observed an employee operating the electric arc-welder, or "arc air
gouger," which removes flaws from finished castings.  Because the
electrode of this welder was coated with copper to improve conductivity,
operation of the welder produced copper fume.

Matthews conducted personal sampling of six employees for exposure to
respirable dust, using a "cyclone separator," a device which employs air
velocity to separate respirable from non-respirable particles.  He sent
the samples to the OSHA Laboratory in Salt Lake City for analysis of the
percentage of silica in each sample.  Once the percentage of silica was
determined, Matthews applied the formula specified in the standard to
compute the permissible exposure limit (PEL) for each employee.  He then
compared that limit to the employee's actual time-weighted average
exposure.  He determined that three employees, i.e. , two muller
operators and one sand bin attendant, had eight-hour time-weighted
average exposures between 1.43 and 3.24 times greater than the PEL
calculated under the formula set forth in the standard for respirable
silica dust.   In addition, Matthews sampled one operator of the arc air
gouger for exposure to copper fume.  After the OSHA lab determined the
amount of copper collected in the samples, Matthews computed the
employee's 8-hour time-weighted average exposure. The result showed that
the employee had been exposed to .143 mg/m^3 of copper fume, 43 percent
above the PEL of .1 mg/m^3 .[[5/]]

II. _Validity of the Standard_

Smith Steel does not deny that its employees were exposed to excessive
levels of silica dust and copper fume.  Rather, Smith Steel challenges
the Secretary's citations on a threshold legal issue-whether § 1910.1000
was properly promulgated in accordance with the requirements of the
Act.  It is to this issue that we now turn.

The standard cited in these cases was promulgated under section 6(a) of
the Act, 29 U.S.C. § 655(a).  That provision authorized the Secretary,
during the first two years after the Act took effect (1971-73), to adopt
existing occupational safety and health standards issued by either other
Federal agencies or private standards-setting organizations.   Because
Congress presumed that these existing standards were issued in
accordance with procedures that allowed those affected by such standards
to participate in their formulation, section 6(a) authorized the
Secretary to forego notice and an opportunity for comment when adopting
these standards. [[6/]]  _General Motors Corp_., 9 BNA OSHC 1331, 1337,
1981 CCH OSHD ¶ 25,202, p. 31,124 (No. 79-4478, 1981).  For this reason,
when adopting standards under section 6(a) of the Act, the Secretary was
not empowered to make substantive modifications in their content.  While
the Secretary did not have to promulgate the source standard literally
word-for-word, Simplex Time Recorder Co., 12 BNA OSHC 1591, 1593 n.4,
1984-85 CCH OSHD ¶ 27,456, p. 35,569 n.4 (No. 82-12, 1985), she could
not make any material alteration from the source document in adopting
the standard under section 6 (a).  _Senco Products, Inc_., 10 BNA OSHC
2091, 2093, 1982 CCH OSHD ¶ 26,304, p. 33,269 (No. 79-3291, 1982). 
Changes from a source standard that did not affect or heighten the
employer's duties or obligations were permissible.  _Deering Milliken,
Inc_., 6 BNA OSHC 2143, 2146, 1978 CCH OSHD ¶ 23,191, p. 28,039 (No.
12597, 1978), _aff'd_, 630 F.2d 1094, 1100 (5th Cir. 1980); _American
Can Co_. 10 BNA OSHC 1305, 1311-13, 1982 CCH OSHD ¶ 25,899, pp.
32,414-15 (Nos. 76-5162 _et al_., 1982).

Smith Steel contends that the cited standard is invalid because its
language differs from that of its source.  Smith Steel also argues that
the standard is invalid for additional reasons not associated with
specific language variations.  We reject these contentions.

A. _History of the Cited Standard_

The Secretary's air contaminant standard was originally promulgated on
May 29, 1971, when it was codified as 29 C.F.R. § 1910.93.  36 Fed. Reg.
10466, 10503 (1971).  The source for § 1910.93 was 41 C.F.R. §
50-204.50, a standard entitled "Gases, vapors, fumes, dusts, and mists,"
which the Secretary had previously adopted under the Walsh-Healey Public
Contracts Act, 41 U.S.C. §§ 35-45, on May 20, 1969.  34 Fed. Reg. 7953
(1971).  _See Senco Products_, 10 BNA OSHC at 2092-93, 1982 CCH OSHD at
pp. 33,268-69.

The Walsh-Healey source standard limited exposure to hazardous
substances according to the following provision:

(a) Exposures by inhalation, ingestion, skin absorption, or contact to
any material or substance (1) at a concentration above those specified
in the "Threshold Limit Values of Airborne Contaminants for 1968" of the
American Conference of Governmental Industrial Hygienists, except for
the USASI Standards listed in Table I of this section and except for the
values of mineral dusts listed in Table II of this section, and (2)
concentrations above those specified in Table I and II of this section,
shall be avoided, or protective equipment shall be provided and used.

41 C.F.R. § 50-204.50(a).  Thus, the Walsh-Healey standard, in part,
required that an employer comply with the exposure levels set forth in a
health code developed by a private standards-setting organization, the
American Conference of Governmental Industrial Hygienists ("ACGIH"). 
The 0.1 mg/m3 exposure limit for copper fume appeared in this
publication, whereas an exposure limit for silica was set forth in Table
II, entitled "Mineral Dusts."

The Walsh-Healey standard also imposed a requirement that "feasible"
controls be used to bring exposure to within the limits prescribed in
paragraph (a):

(b) To achieve compliance with paragraph (a), feasible administrative or
engineering controls must first be determined and implemented in all
cases.  In cases where protective equipment, or protective equipment in
addition to other measures[,] is used as the method of protecting the
employee, such protection must be approved for each specific application
by a competent industrial hygienist or other technically qualified source.
41 C.F.R. § 50-204.50(b).

When the Walsh-Healey standard was adopted as § 1910.93 on May 29, 1971,
its reference to the 1968 edition of the ACGIH Threshold Limit Values
("TLV") pamphlet was changed to refer to the 1970 edition.  Furthermore,
while the Walsh-Healey standard simply incorporated by reference the TLV
values contained in the ACGIH publication, § 1910.93 expressly set forth
the 1970 TLV's in a new list labeled "Table G-1."   Tables I and II as
they appeared in the Walsh-Healey standard were renumbered as Tables G-2
and G-3.  Table G-1 included the same numerical limit for copper fume
(0.1 mg/m^3 ) that appeared in the 1968 ACGIH TLV publication to which
the Walsh-Healey standard referred.  As in the 1968 ACGIH list, this
figure was _not_ preceded by the letter "C," indicating that the limit
was an 8-hour time-weighted average exposure limit and not a ceiling
value.  The formula for determining the limit value for respirable
silica also was identical in Tables II (Walsh-Healey standard) and G-3
(29 C.F.R. § 1910.93).

On August 13, 1971, the Secretary revised § 1910.93.  36 Fed. Reg. 15101
(1971).   She eliminated the phrase "by inhalation, ingestion, skin
absorption, or contact" that modified "exposures" in paragraph (a) of
the Walsh-Healey standard and the first version of § 1910.93 and also
deleted the phrase "or protective equipment shall be provided and used"
from the standard's initial paragraph. Furthermore, the references to
the various tables were considerably revised, and the provision relating
to administrative and engineering controls was slightly rewritten. 
However, the exposure limits themselves for copper fume and respirable
silica dust were not changed.  When the Secretary subsequently
recodified § 1910.93 as § 1910.1000, she redesignated Tables G-1, G-2,
and G-3 as Tables Z-1, Z-2, and Z-3, respectively.  40 Fed. Reg. 23073
(1975).

B. _Summary of Smith Steel's Arguments_

Smith Steel challenges the change in reference from the 1968 edition of
the ACGIH code in the original Walsh-Healey standard to the 1970 edition
of the ACGIH code in the first version of § 1910.93 and also argues that
the changes in phrasing between the May and August versions of § 1910.93
render it invalid.  Smith Steel has the burden to demonstrate that
modifications to the standard on which it relies are substantive in
nature.  _George C. Christopher & Sons_, 10 BNA OSHC 1436, 1443, 1982
CCH OSHD ¶ 25,956, p. 32,531 (No. 76-647, 1982).  In examining whether
Smith Steel has sustained this burden, we will address the specific
differences Smith Steel cites only as they bear on the issues in this
case.[[7/]]

In essence, there are four major themes to Smith Steel's argument:

1) The Secretary impermissibly substituted the 1970 ACGIH TLV values for
the 1968 version;
2) The Secretary improperly deleted an "option," available to employers
under the Walsh-Healey standard and the original version of § 1910.93,
to protect employees by respirators alone, without first implementing
engineering or administrative controls;
3) The Secretary improperly converted the TLV'S of the ACGIH into
permissible exposure limits ("PEL's"); and
4) The Secretary added time-weighted average limits for copper fume and
silica dust that did not appear in the source standard.
Judge Salyers rejected Smith Steel's arguments without discussing them
individually.   The judge summarily concluded that the validity of §
1910.1000 had previously been upheld both by the Fifth Circuit, where
these cases arise, in _Deering Milliken, Inc. v._ _OSHRC_, 630 F.2d 1094
(5th Cir. 1980) and by the Commission in several decisions.   Smith
Steel disputes the judge's reliance on these cases, and we agree.

In a prior decision in these cases, the Fifth Circuit plainly stated
that its precedents are binding on the Commission in cases arising in
that circuit.  _Smith Steel Casting Co. v. Donovan_, 725 F.2d 1032, 1035
(5th Cir. 1984).  _Deering Milliken_, however, disposes only of some and
not all of Smith Steel's arguments.  As for the Commission decisions
Judge Salyers cites, they do not address any of the particular
contentions Smith Steel raises.[[8/]]

Accordingly, we affirm the judge's decision that § 1910.1000 is valid,
but for the reasons that follow.

C. _Analysis of Smith Steel's Claims__
_
1. _Change from 1968 to 1970 TLV's_

There are two aspects to this argument.  First, Smith Steel contends
that the substitution of the 1970 ACGIH TLV's for the 1968 values was a
substantive change because the 1970 values differ from those the ACGIH
adopted in 1968.

We reject this claim.  As Smith Steel asserts, a comparison of the 1968
edition of the ACGIH publication with Table G-1 of §1910.93 does reveal
differences in exposure limits for some substances.  However, as
previously indicated, the limit for copper fume is the same in both the
1968 ACGIH list and Table G-1.  Therefore, insofar as the cited exposure
limit is concerned, no substantive change was made to Smith Steel's
obligation to protect its employees against copper fume.[[9/]]  Other
changes in uncited exposure limits are simply not relevant to these
proceedings.  _See Senco Products_, 10 BNA OSHC at 2095, 1982 CCH OSHD
at p. 33,271 (if employer's compliance responsibilities are not altered,
the standard is valid as to that employer).

The second facet of Smith Steel's argument is not based on any
substantive differences between § 1910.93 and its Walsh-Healey source
but rather on perceived irregularities in the promulgation of the
Walsh-Healey standard.  Smith Steel argues that even if the OSHA
standard had set forth the 1968 ACGIH TLV's rather than the 1970 limits,
the standard would still have been invalid.  In Smith Steel's view, the
Secretary could not have merely republished the 1968 values without
notice-and-comment rulemaking because the incorporation by reference of
the 1968 TLV's in the Walsh-Healey standard did not conform to the
requirements for incorporation by reference prescribed by the office of
the Federal Register.[[10/]]  In other words, Smith Steel in effect
contends that the Secretary could not have adopted _any_ ACGIH list of
TLV's under section 6(a) because she could not have properly used the
Walsh-Healey standard as the source for such a list.   Smith Steel
alludes to section 3(10) of the Act, which defines an "established
Federal standard" as any "operative occupational safety and health
standard established by any agency of the United States and presently in
effect, or contained in any Act of Congress in force on the date of
enactment of this Act."  Because the Walsh-Healey standard did not
validly incorporate the ACGIH table, Smith Steel contends that there was
no "operative" source for Table G-1 that was "in effect" when the
Secretary promulgated § 1910.93.

The Commission has previously ruled that the procedural validity of the
promulgation of a standard under the Walsh-Healey Act may not be
challenged in an enforcement proceeding before the Commission.  _General
Motors_, 9 BNA OSHC at 1337, 1981 CCH OSHD at p. 31,124.  Because
Congress made an explicit determination that established Federal
standards, including standards issued under the Walsh-Healey Act, are
valid and enforceable occupational safety and health standards under the
Act, the Commission reasoned that reviewing the promulgation process
occurring under another Federal statute would be tantamount to
questioning the judgment of Congress.  In the same vein, the Commission
concluded that to regard a Walsh-Healey standard as not "operative"
under section 3(10) because of some defect in its promulgation under the
Walsh-Healey Act would likewise disregard the plain intent of Congress. 
_Id_. at 1335 & n.11, 1981 CCH OSHD at p. 31,122 & n.11.  _See American
Can_, 10 BNA OSHC at 1310, 1982 CCH OSHD at p. 32,413 (Commission will
not consider argument that a source standard lacked a statement of basis
and purpose when it was adopted under the Walsh-Healey Act). [[11/]] 
Accordingly, we reject this portion of Smith Steel's argument.

2. _Deletion of Protective Equipment "Option" as a Means of Compliance_

Smith Steel contends that when the standard was originally promulgated,
it allowed personal protective equipment (respirators) as an equally
acceptable alternative to engineering or administrative controls as a
means of compliance.  Thus, in Smith Steel's view, the Secretary
substantively modified the standard by removing the phrase "or
protective equipment shall be provided and used" from paragraph (a) when
she revised § 1910.93 in August 1971. See Part II.A, _supra_. 
Similarly, Smith Steel asserts that the substitution of the phrase "an
employee's exposure to any material listed in [the tables] shall be
_limited_ in accordance with the requirements of [paragraphs (a), (b),
and (c)]" for the phrase exposures by inhalation, ingestion, skin
absorption or contact to any material or substance above [the specified
concentration] shall be avoided" (emphasis added) also improperly
eliminated respirators as an alternative means of compliance.

In _Deering Milliken_, the Commission rejected a similar argument based
on the premise that the original version of § 1910.93 did not require
administrative or engineering controls as the preferred means of
compliance with exposure limits.   While conceding that paragraph (a) of
that version might have been ambiguous, the Commission ruled that any
ambiguity was cured by the specific requirement of paragraph (b) that
"feasible administrative or engineering controls must first be
determined and implemented in all cases."  The Commission found this
language indistinguishable from the requirement of paragraph (e) of the
August 1971 amended version that controls are to be determined and
implemented "whenever feasible."  Therefore, the Commission held that
when read in its entirety, the original §1910.93 imposed the same duty
on employers to comply by using controls to the extent possible as does
the August 1971 standard.  6 BNA OSHC at 2145-46, 1978 CCH OSHD at p.
28,039.

The court of appeals affirmed the Commission.  In rejecting the same
argument made here, that the deletion of the disjunctive "or protective
equipment shall be provided and used" was a substantive change, the
court specifically held that "feasible engineering and administrative
controls were mandatory under Walsh-Healey; protective equipment, when
used, was not a substitute for feasible alternative means of air
contaminant control, but rather a means of compliance available when
engineering or administrative controls were infeasible, or only
partially effective."  630 F.2d at 1101.

However, _Deering Milliken_ is not dispositive of the issue before us
now because it focuses only on the "or protective equipment . . . "
language.  Neither the court nor the Commission decisions explicitly
address Smith Steel's additional contention that the Walsh-Healey phrase
"shall be avoided" and the modifier "by inhalation, ingestion. . . "
also provide an option to comply by using protective equipment alone
that was deleted when this language was changed in the August 1971
revision of § 1910.93.  We reject the argument because there is nothing
in this terminology that is inconsistent with a preference for
engineering controls as the primary method of compliance.  In any event,
Smith Steel's argument that this language allowed an employer to comply
by using respirators alone would render superfluous the explicit
statement in paragraph (b) of the Walsh-Healey standard and the first
version of § 1910.93 that controls must be implemented "first."  It is a
basic rule of construction that a standard must be read as a harmonious
whole, with every word or phrase given meaning to the extent possible. 
_Simplex_, 12 BNA OSHC at 1594 n.6, 1984-85 CCH OSHD at p. 35,569 n.6. 
Accordingly, we conclude that the specific language changes Smith Steel
cites did not alter the employer's basic duties of compliance under the
standard.

3. _Conversion of TLV's Into PEL's_

Smith Steel contends that the threshold limit values established in the
Walsh-Healey standard through its adoption of the ACGIH TLV list do not
constitute legally binding and enforceable exposure limits.  Smith Steel
acknowledges that in _Deering Milliken_ the Fifth Circuit characterized
the TLV's adopted in the Walsh-Healey standard as "specified exposure
limits," 630 F.2d at 1101, but asserts that the court erred.   Smith
Steel claims that the Commission subsequently distinguished a TLV from a
PEL in _Bunge_ _Corporation_, 12 BNA OSHC 1785, 1986-87 CCH OSHD ¶
27,565 (Nos. 77-1622 _et al_., 1986) and therefore contends that the
Commission should not follow _Deering Milliken_.

Smith Steel plainly misreads _Bunge_.  The Commission simply observed in
that case that the phrase "threshold limit value" has no specific
meaning in law but rather is an industrial hygienist's term referring to
the concentration of an airborne contaminant to which an employee may be
exposed without adverse effect.  The decision does not in any way
suggest that the Secretary was required to provide notice and an
opportunity for comment in order to promulgate a TLV as an enforceable
exposure limit in a section 6(a) standard.  On the contrary, the
Commission specifically held that when the Secretary incorporated the
ACGIH TLV's into § 1910.1000, she "thereby transformed the TLV's into
legally enforceable PEL's."  12 BNA OSHC at 1788 n.10, 1986-87 CCH OSHD
at p. 35,803 n.10.  Accordingly, Smith Steel's argument that the
Secretary could not properly adopt a TLV as a PEL is contrary to
Commission precedent, as well as the case law in the Fifth Circuit.

4. _Addition of Time-Weighted Average Limits for Copper Fume and Silica__
_
The ACGIH publication incorporated by reference in the Walsh-Healey
standard distinguishes exposure levels measured over the period of an
entire day (time-weighted average concentrations) from immediate,
short-term exposures (ceiling values).  As the preface to the 1968 TLV
list states:

The values not given a "C" listing refer to time-weighted average
concentrations for a conventional 7 or 8 hour workday.

Time-weighted average concentrations permit excursions above the limit,
provided they are compensated by equivalent excursions below the limit
during the work day....

_Ceiling vs. Time-Weighted Average Limits_.  Although the time-weighted
average concentration provides the most satisfactory, practical way of
monitoring air-borne agents for compliance with the limits, there are
certain substances for which it is inappropriate.  In the latter group
are substances which are predominantly fast acting and whose threshold
limit is more appropriately based on this response.   Substances with
this type of response are best controlled by a ceiling "C" limit that
should not be exceeded.

Smith Steel contends that the Walsh-Healey standard did not establish a
time-weighted average limit for either copper fume or silica dust and
that the Secretary therefore substantively amended the Walsh-Healey
standard when she adopted such exposure limits in § 1910.93.

We conclude, however, that because the entry in the ACGIH list for
copper fume is not accompanied by a "C" notation, it therefore
establishes an 8-hour time-weighted average limit.  Smith Steel does not
expressly dispute that the ACGIH listing prescribes a time-weighted
average limit for exposure to copper fume but asserts that because the
Walsh-Healey source standard did not properly incorporate the ACGIH
limits, it failed to set forth the time weighted average limit for
copper fume that appears in the ACGIH list.  Since this argument
challenges the procedural validity of the Walsh-Healey standard, we
decline to address it for the reasons given previously.

Smith Steel's contention that the Walsh-Healey standard did not
establish a time-weighted average limit for silica dust presents a more
substantial issue.  As previously indicated, the silica dust limit in
Table II of the Walsh-Healey standard is not taken from the ACGIH TLV
list.  And as Smith Steel correctly points out, the term "time-weighted
average" or any other words indicating a time limitation do not appear
in Table II.  Thus, the question before us is whether the silica TLV
formula is a time-weighted average limit even though the standard lacks
specific language to that effect.

A review of the history of the Walsh-Healey standards reveals that the
Walsh-Healey exposure limit for silica dust has always been a
time-weighted average limit.  When the Walsh-Healey standards were
originally promulgated on December 28, 1960, they included a provision
then codified at § 50-204.275, which required employees to use
respirators when exposed to air contaminants above the limits specified
in another provision, § 50-204.276, "on an average basis for an
eight-hour workday."  Exposures exceeding such limits "temporarily,
without exceeding them on a daily average basis" required an industrial
hygienist's approval in lieu of respirators. Section 50-204.276
prescribed limits for mineral dust containing various percentages of
silica.   25 Fed. Reg. 13809, 13823-24 (1960).  Therefore, at the very
outset the Walsh-Healey standards distinguished time-weighted average
from ceiling limits and provided a time-weighted average limit for silica.

On September 20, 1968, the Secretary proposed to revise Part 50-204,
adding a new section, § 50-204.50, consisting of two tables, Table I
labeled "Threshold Limit Values" and Table II labeled "Ceiling Values." 
A portion of Table I entitled "Respirable Dusts Evaluated by Count"
included a formula for determining the limit for silica dust.  As
proposed, § 50-204.50(b) described the limits prescribed in Table I as
8-hour time-weighted averages:

Excursion of concentration above these levels may be permitted provided
that they are compensated by equal excursions below the listed levels
and that in any one day the sum of all the products of concentration
multiplied by time in minutes does not exceed the product of the listed
concentration multiplied by 480.

33 Fed. Reg. 14258, 14268-70 (1968).  When § 50-204.50 was adopted in
its final form, it was restructured, and the portion of Table I that
included the respirable silica dust exposure limit was redesignated as
Table II, entitled "Mineral Dusts."   Therefore, while Table II did not
expressly state that its exposure limits were time-weighted average
limits, it originated from a provision of the proposed § 50-204.50 that
clearly did set forth time-weighted average limits.  There is nothing in
the preamble accompanying the adoption of § 50-204.50 to indicate that
the Secretary intended to change the nature of the exposure limits as
set forth in the proposal.   Accordingly, we conclude that the
sliding-scale PEL for respirable silica dust is and always was a
time-weighted average limit.  We therefore reject Smith Steel's
contention that the Walsh-Healey standard did not establish a
time-weighted average limit for exposure to silica dust.

Having disposed of Smith Steel's challenges to the validity of the
standard, we turn to the remaining issue before us.

III. _Feasibility of controls for Silica Dust_

A. _Background_

The Secretary's witness, Robert A. Ressl, an environmental engineering
consulting firm engineer with experience designing ventilation control
systems, testified regarding feasible engineering and administrative
controls based on his inspection of Smith Steel's plant and on his
subsequent report.  Essentially, he proposed two alternative methods of
engineering controls:  a fairly comprehensive modification of Smith
Steel's entire system for storing and handling sand and a less complex
addition of only a ventilation system.  Since Ressl regarded the mullers
and sand-handling system to be the major source of the dust in the
plant, he testified that his first proposal would decrease the amount of
ambient dust to "very, very low levels."  He also stated that either of
his proposals would be able to reduce the employees' exposure to a level
within the PEL for silica dust.

Because Ressl's first proposal would allow Smith Steel to move sand by
mechanical means, he testified that Smith Steel could eliminate the
position of sand bin attendant and operate the mullers with only 5
rather than the 10 workers it then employed in those duties.  He
estimated the capital cost of this system at $281,300, which he
amortized over a period of 20 years, the life span customarily assumed
for this type of equipment.   The total annual cost, including the
amortized portion of the initial capital expense, would be $74,100. 
Factoring in the reduction in payroll costs, he projected annual savings
of $66,300.  This system would therefore have a net annual cost of $7800.

Ressl' s less elaborate alternative proposal would have an installation
cost of $145,300, again amortized over 20 years, with a total annual
cost of $41,100.  This proposal would not reduce the number of employees
and therefore would not provide any savings in labor costs.

Ressl stated that although he was neither an economist nor an accountant
by profession, he had received some training in "economic evaluation,"
as is customary for engineers.  He had also performed a "fair amount of
costing type work to develop costs of systems."  Judgments as to cost
recovery and interest rates are a typical part of this work.  In
developing his cost estimates, he used figures for interest rates
similar to those he or his company had applied on other projects.  
Ressl conceded that in actuality a business would not amortize capital
investment in "exactly" the way he proposed.  Although he was not asked
what the differences might be, he did say that a business might not be
able to borrow money at the interest rate he projected.  Furthermore, he
did not consider Internal Revenue Service rules for writing off
equipment purchases.  However, he emphasized that his figures are based
on the methodology normally used by engineers for estimating capital
costs and insisted that he had established economic feasibility "from an
engineering evaluation standpoint."

Also relevant to the issue of economic feasibility are Smith Steel's
answers to the Secretary's interrogatories regarding Smith Steel's
financial condition, which were introduced into evidence.  Smith Steel's
answers establish that it had gross revenue of $7,096,499.55 and a net
profit before taxes of $480,316.85 for 1979, the year preceding the
inspection.

In his first decision on the merits of the citations, Judge Salyers
found that either of the two systems Ressl proposed would "significantly
reduce the exposure of employees to silica dust perhaps, as indicated by
the expert, to a level within the limits permitted by the standard."  83
OSAHRC 1/A2 at 22.  Since Ressl's testimony was undisputed, the judge
concluded that the Secretary had shown that controls to reduce silica
exposure were technologically feasible.  _See Continental Can Co_., 4
BNA OSHC 1541, 1546, 1976-77 CCH OSHD ¶ 21, 009, p. 25,255 (Nos. 3973
_et al_. , 1976) (controls are technologically feasible when the
technology exists to accomplish a significant reduction in exposure
levels).  In addition, the judge noted that in _Continental Can_ and
_Samson Paper Bag Co_. 8 BNA OSHC 1515, 1980 CCH OSHD ¶ 24,555 (No.
76-222, 1980), the Commission had ruled with respect to the Secretary's
noise exposure standard, 29 C.F.R. § 1910.95, that feasibility also
requires consideration of the costs of controls in relation to the
expected reduction in exposure levels.  As the Commission stated in
_Samson Paper Bag_, "the cost of controls must bear a reasonable
relationship to the benefits to be achieved."  8 BNA OSHC at 1521, 1980
CCH OSHD at p. 30,045 (lead opinion). [[12/]]

While noting that the Secretary presented no evidence to establish
economic feasibility other than Smith Steel's gross income and net
profit for 1979, the judge also observed that Smith Steel made no
showing that it was "unable to afford the controls."   The judge
concluded that "[i]n the absence of a showing that implementation of the
controls [is] beyond the financial means of the Respondent and, in view
of the obvious benefits to be derived by reducing to a significant
degree the exposure of employees to toxic substances the Secretary has
carried her burden."  83 OSAHRC 1/A2 at 23.   In short, the judge held
both that the costs of the controls Ressl proposed were reasonable in
light of the improvement to employee health that those controls would
achieve and that Smith Steel could afford to pay the costs of the controls.

B. _The Court's Method for Determining Economic Feasibility _

In its review of this decision, the Fifth Circuit held that the
Secretary had not met her burden of proof on the economic feasibility
issue.  First, the court briefly commented that the content of Ressl's
report describing his recommendations and their costs, together with his
responses on cross-examination, left "doubt" as to the accuracy of his
cost figures, which the court characterized as "preliminary
guesstimations."  Second, it concluded that the record did not present a
sufficiently "complete" picture of Smith Steel's financial condition. 
The court stated as follows:

Without a more complete picture of Smith's financial condition, we
cannot uphold Judge Salyers's conclusion that the Secretary has proven
economic feasibility as supported by substantial evidence.  Our problem
is not so much insubstantial evidence as insufficient evidence.  We have
no way of knowing whether these gross income and net profit figures
represent a typical year for Smith.  For all we know, Smith may have
operated at a loss for the three preceding years or for the three
succeeding years.   We are vitally concerned with the health of the
three out of 250 Smith employees who are over-exposed to silica dust,
but we are unwilling to risk putting Smith Steel out of business or into
our overcrowded bankruptcy courts by forcing Smith to revamp its sand
handling system completely without any real idea whether Smith can
survive such a costly renovation.  If it cannot, the law as it presently
stands allows Smith to protect its employees from the harmful silica
dust in the foundry by implementing an effective respirator program.
Therefore, we remand Items 2F and 2G of Citation 1 to the Commission for
the receipt of additional evidence on the issue of economic feasibility.

800 F.2d at 1339 & n.9.  The court's order did not dispute the judge's
conclusion that Ressl's testimony and report met the Secretary's burden
of proving that there were available technologically feasible controls
capable of producing significant reductions in the exposure of Smith
Steel's employees to silica dust, and that question is not before us.[[13/]]

After the Commission in turn remanded to the judge for further
proceedings in accordance with the court's order, the parties agreed
that a further evidentiary hearing would not be necessary.  Instead, the
Secretary sent Smith Steel a second set of interrogatories regarding its
gross revenue and net profit before taxes for the years 1976-1978 and
1980-1982.  In answering these interrogatories, Smith Steel also
supplied the same information for three additional years, 1983-1985. 
The following chart summarizes Smith Steel's answers:

Year Gross Revenue Net Profit Before Taxes

1976 	$5,301,887.35 	$89,957.16
1977 	$4,842,199.76 	$70,710.06
1978 	$6,331,728.37 	$441,864.70
1980 	$9,703,537.56 	$662,351.47
1981 	$12,888,298.88 	$1,072,935.31
1982 	$6,789,075.28 	$87,972.08
1983 	$1,143,074.75 	$(-632,581.09)
1984 	$2,678,126.86 	$(-547,890.70)
1985 	$2,660,152.00 	$269,352.00


The judge rejected Smith Steel's contention that he could not consider
these answers as part of the record because the Secretary had not moved
to admit them into evidence.   He further faulted Smith Steel for not
presenting evidence pertaining to its financial circumstances.  Based on
the data presented by Smith Steel for the 1976-1985 period, Judge
Salyers concluded that without further input from respondent [these
figures] do not establish that implementation of the proposed controls
[is] beyond respondent's financial reach or would result in forcing
respondent into bankruptcy."   The judge did not address the court's
concern regarding the accuracy of Ressl's cost data.  The judge's
decision on remand is now pending before us for review.

C. _The Cost of Engineering Controls__
_
At the outset, we find Ressl's projections for the cost of his suggested
controls to be adequately supported.  Both his testimony and his written
report describe in some detail the methodology he used to arrive at his
cost estimates.  While Ressl conceded on cross-examination that in
practice an employer might not apply the same cost factors he described
or might apply them in a different way, Smith Steel made no attempt to
establish how much of an effect these differences might have on the cost
figures themselves. Furthermore, Smith Steel did not challenge Ressl's
basic methodology either on cross-examination or with evidence of its
own.  In our view, the Secretary did not have the burden to establish
Smith Steel's costs of compliance to a definitive degree of certainty;
rather, absent rebuttal evidence, the Secretary was only obligated to
adduce enough evidence to support a prima facie case.  _See_ _American
Petroleum Inst. v. OSHA_, 581 F.2d 493, 503 (5th Cir. 1978), _aff'd sub
nom. on other grounds_, _Industrial Union Dep't_, _AFL-CIO v. American
Petroleum Inst._, 448 U.S. 607 (1980) (court holds that Secretary's
estimate of costs based on analysis by a consulting firm adequately
establishes the cost of compliance with a standard regulating exposure
to benzene).  Considering that Ressl had training and experience in
developing engineering cost projections and that he testified, without
rebuttal, that he applied generally accepted principles in arriving at
his estimates, we find his testimony sufficient to satisfy the
Secretary's burden of proving the cost of her suggested controls.  We
further note that the court did not vacate the judge's decision on the
ground that Ressl's cost figures were unpersuasive; rather, the court
remanded these cases, and it limited its remand to the matter of Smith
Steel's financial condition.

D. _The State of the Evidentiary Record_

The only evidence adduced on remand concerning the issue of Smith
Steel's financial condition is the second set of interrogatories and
answers.  We agree with Judge Salyers that these interrogatories and
answers may be considered evidence of record.   As a general rule,
answers to interrogatories are not evidence unless they are formally
offered and admitted.  4A J. Moore, J. Lucas & D. Epstein, _Moore's
Federal Practice_ § 33.29 [1.-2] (2d ed. 1988).  _See Jones v. Diamond_,
519 F.2d 1090, 1098 & n.13 (5th Cir. 1975).  However, for all practical
purposes, the parties have treated these interrogatories and answers as
part of the evidentiary record.[[14/]]

Smith Steel initially raised the issue of the admission into evidence of
its answers to the Secretary's interrogatories when it objected that the
Secretary's brief before the judge on remand improperly relied on those
answers.[[15/]]  In response, the judge wrote to the parties as follows:

After receipt of the remand, this matter was discussed with the parties,
and a consensus was reached that no further hearing was needed and that
_the record would be supplemented by means of interrogatories_. 
Thereafter, interrogatories seeking respondent's gross sales and net
profits for the fiscal years 1976 through 1982 were propounded and have
been answered.  However, this information without further explanation or
development appears inadequate to resolve the issue of economic feasibility.

I Plan to conduct a further hearing in this case and will place a
conference call to the parties on July 10, 1987, to determine a time,
date, and place mutually convenient to the parties.  [emphasis added].

Nevertheless, Smith Steel opposed a further hearing, reminding the judge
that the parties had already decided to submit the remanded issues for
disposition without an additional hearing.  Significantly, Smith Steel
expressed no objection to the judge's statement that the second set of
interrogatories would be part of the record to be considered on remand
_and that the parties had so_ _agreed_.  Furthermore, both the
interrogatories and answers were filed directly with the judge, at the
same time the filing party served a copy on the opposing party.  Since
the filing of interrogatories and answers with the judge is not required
by the Commission's rules, the fact that the parties followed this
procedure supports our conclusion that they regarded those documents as
part of the record.

E. _Compliance with the Court's Remand Order_

In view of this conclusion, the question before us is whether the
limited information presented in Smith Steel's answers to the
Secretary's interrogatories is sufficient to satisfy the requirements of
the court's remand order.  The court could not determine whether fiscal
year 1979 was a representative or typical year for Smith Steel; hence it
could not be sure that Smith Steel could "survive" the renovations
required.   The court stated that Smith Steel "may have operated at a
loss for the three preceding years or for the three succeeding years"
and was concerned that Smith Steel not be forced into a financially
untenable position.

While the additional figures the Secretary presented show a wide
variation from year to year in Smith Steel's gross revenue and net
profit before taxes, it is clear that Smith Steel had positive earnings
for several years preceding the inspection and that Smith Steel had its
highest earnings in 1980 and 1981, the year of the inspection and the
year immediately thereafter.  Its net profit before taxes in those years
exceeded Ressl's cost figure for the more expensive control system by a
wide margin.  Subsequently, in 1982, Smith Steel's net profit dropped
dramatically but still exceeded the cost of those controls.  The two
succeeding years of negative profit before taxes were followed by a
sharp rebound to a profit of approximately $269,000 in 1985, the last
year of the period covered by the Secretary's interrogatories.  That
figure is about 360 percent greater than the cost of the more expensive
controls.  Furthermore, Smith Steel's average annual net profit over the
entire 10-year period comes to approximately $250,000, only slightly
less than its net profit for 1985.  In his decision on remand, Judge
Salyers examined this financial data and found that the cost of the
controls would not exceed Smith Steel's ability to pay for them and
would not force Smith Steel into bankruptcy.   We conclude that these
findings are supported by a preponderance of the record evidence and
fully comply with the court's remand order.  We therefore affirm the
judge's decision on the economic feasibility issue.

We emphasize, however, that our holding is based on the limited scope of
the court's remand order.  The court did not take issue with Judge
Salyers' conclusion that the costs of controls were not unreasonable in
light of the amount of reduction in exposure they would achieve. 
Rather, the court focused on the question of whether the evidence
establishes that Smith Steel could afford those costs.  An employer's
ability to afford the cost of controls may be among the relevant factors
for determining economic feasibility under the air contaminant standard
at issue here.  However, it may be appropriate for other elements,
including but not necessarily limited to the reasonableness of the costs
in light of their expected benefit to be taken into consideration as
well.  We need not decide now what test for economic feasibility should
be applied under this standard.  That is because the Fifth Circuit's
remand order is binding on the Commission as the law of the case and
does not require us to make that determination at this time.  _See_
_Schuylkill Metals Corp_., 13 BNA OSHC 2174, 2176 n.4, 1989 CCH OSHD ¶
28,520, p. 37,844 n.4 (No. 81-856, 1989), _on_ _remand from United
Steelworkers v. Schuylkill Metals Corp._, 828 F.2d 314 (5th Cir. 1987);
_Mountain States Tel. & Tel. Co_., 9 BNA OSHC 2151, 2153 n.2, 1981 CCH
OSHD ¶ 25,597, p. 31,931 n.2 (No. 13266, 1981), _on remand from_ 623
F.2d 155 (10th Cir. 1980).

IV. _The Commission's Order on Remand_

We have concluded that the provisions of 29 C.F.R. §1910.1000 at issue
here were validly promulgated and that the Secretary has demonstrated
the economic feasibility of engineering controls for silica dust,
applying the test for economic feasibility stated by the court.  We
therefore affirm item 2F of citation 1 and item 2 of citation 2 alleging
excessive exposure to copper fume and silica dust, as well as item 2G of
citation 1 alleging that feasible controls were not used to reduce the
silica dust exposure. [[16/]]

The violations alleged in citation 1 were characterized as serious
violations, and the violations charged in citation 2 were alleged as
other than serious.[[17/]]  The Secretary proposed an aggregate penalty
of $640 for the entirety of item 2 of citation 1, which also includes
violations of the respirator standard, 29 C.F.R. § 1910.134, not
involved in these proceedings.  The Secretary did not propose any
penalty for citation 2.  In his earlier decision, Judge Salyers affirmed
the other allegations of item 2 of citation 2, as well as the
allegations at issue here.  He accepted the Secretary's
characterizations and penalty proposals, and no issue is presented
before us now with respect to either the characterization of the
violations or the amount of penalty to be assessed.  Since there is no
basis on which to disturb the judge's findings, we adopt that portion of
his decision assessing an aggregate penalty of $640 for the serious
violations set forth in item 2 of citation 1 and assessing no penalty
for the other than serious violation in citation 2.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: April 24, 1991

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

SECRETARY OF LABOR,

Complainant,

v.

SMITH STEEL CASTING COMPANY,

Respondent.

OSHRC Docket Nos. 80-2069 and 80-2332

DECISION AND ORDER

SALYERS, Judge:  This case, which arises out of respondent's contest of
citations issued by the Secretary pursuant to the Occupational Safety
and Health Act (29 U.S.C. § 651,_et seq_.) following a 1980 inspection
of respondent's foundry in Marshall, Texas, is presently before this
tribunal on remand from the Fifth Circuit.  _Smith Steel Castings Co. v.
Brock_, 800 F.2d 1329 (5th Cir. 1986).  The court remanded items 2F and
2G, Citation No. 1, and item 2, Citation No. 2, for consideration of
respondent's argument that 29 C.F.R. § 1910.1000 is invalid and
unenforceable because it was improperly promulgated.  The court also
remanded items 2F and 2G of Citation No. 1 for the receipt of additional
evidence on the issue of economic feasibility.

_Validity of § 1910.1000_

Respondent contends that 29 C.F.R. § 1910.1000 was not adopted pursuant
to the rulemaking procedure provided for in 29 U.S.C. § 655(b).  The
history of this standard is recited in _Deering-Milliken, Inc. v.
OSHRC_, 630 F.2d 1094, 1097 (5th Cir. 1980):

On May 29, 1971, acting pursuant to section 6(a), the Secretary of Labor
promulgated 29 C.F.R. § 1910.1000 as an OSHA requirement.  This
regulation, dealing with permissible levels of exposure to air
contaminants . . . was based upon 41 C.F.R. § 50-204.50, an established
federal standard under the Walsh-Healy Public Contracts Act.  
Subsequently, on August 13, 1971, the Secretary published a revision of
29 C.F.R. § 1910.1000 stating that "Section 1910.93 (air contaminants)
[presently designated as 29 C.F.R. § 1910.1000 . . . .] has been revised
in its entirety, in the interest of greater intelligibility and
accuracy.  36 Fed. Reg., 15101 (August 13, 1971).   This revision was
achieved pursuant to section 6(a) and thus without regard to the
Administrative Procedure Act or to the notice and comment procedures of
section 6(b) of OSHA.  (Footnotes omitted)

In _Deering-Milliken_, _supra_, the court found that the Secretary did
not materially alter the provisions of the standard and that the
standard's revision was not new and was not improperly promulgated.  The
court expressly rejected the argument that respondent now makes, as did
the Review Commission in the following cases:  _Fieldcrest Mills, Inc._,
2 BNA OSHC 1143, 1974-75 CCH OSHD ¶ 18,471 (No. 5625, 1974); _Hermitage
Concrete Pipe Co_., 76 OSAHRC 2/C1, 3 BNA OSHC 1920, 1975-76 CCH OSHD ¶
20,298 (No. 4678, 1976); _Senco Products, Inc_., 82 OSAHRC 59/E9, 10 BNA
OSHC 2091, 1982 CCH OSHD ¶ 26,304 (No. 79-3291, 1982).

Accordingly, respondent's argument that § 1910.1000 was improperly
promulgated is without merit and is rejected.

_Economic Feasibility_

Section 1910.1000(e) provides in pertinent part:  "To achieve compliance
with paragraphs (a) through (d) of this section, administrative or
engineering controls must first be determined and implemented whenever
feasible."  This standard contemplates that exposure to excessive levels
of toxic substances will be abated primarily by administrative or
engineering controls and that personal protective equipment will be
employed only in the event that such controls are not "feasible."   The
meaning of the term "feasible" has been the subject of controversy in
the Review Commission among the various circuit courts of appeal and in
the Supreme Court, but there is a consensus that this term encompasses
both technological and economic feasibility.  _See United_ _Steelworkers
v. Marshall_, 647 F.2d 1189, 1264 (D.C. Cir. 1980), _cert. denied_, 453
U.S. 913, 101 S. Ct. 3148; _Diversified_ _Industries Division,
Independent Stave Co. v. OSHRC_, 618 F.2d 30, 32 (8th Cir. 1980);
_American Iron and Steel Institute v_. _OSHA_, 577 F.2d 825, 832 (3d
Cir. 1978).

In this case the Secretary established in the initial proceeding that
two proposed engineering plans were "technologically feasible." One of
these plans would cost $281,300 to purchase and install with annual
operating costs of approximately $74,100.   The other system would cost
approximately $145,300 to install with a yearly operating cost
approximating $41,100.  The engineer who designed these systems was
convinced that the implementation of these plans would significantly
reduce employee exposure to respirable quartz.  It was his considered
opinion that the controls when implemented "would reduce employee
exposure to within the OSHA permissible exposure limit for respirable
quartz" (Tr. 723-724).  The testimony of the Secretary's expert was
sufficient to establish "technological feasibility," was not countered
by any evidence offered by respondent, and was not challenged on review
by the Review Commission or the Fifth Circuit.

The crucial question remaining in this case is whether the engineering
controls recommended by the Secretary under section 6(b)(5) [[1/]] of
the Act are "economically feasible" as that term is now construed by the
Review Commission and the courts.  On this issue, neither party has
rendered substantial assistance to the undersigned during the remand
process.

In its remand order, the Circuit expressed its concern that the evidence
offered in the initial proceedings [[2/]] was insufficient to support a
finding that the plans proposed by the Secretary were economically
feasible and commented that the "problem is not so much insubstantial
evidence as insufficient evidence."  The Circuit further observed:

We have no way of knowing whether these gross income and net profit
figures represent a typical year for Smith.  For all we know, Smith may
have operated at a loss for the three preceding years or for the three
succeeding years.  We are vitally concerned with the health of the three
out of 250 Smith employees who are over-exposed to silica dust, but we
are unwilling to risk putting Smith Steel out of business or into our
overcrowded bankruptcy courts by forcing Smith to revamp its sand
handling system completely without any real idea whether Smith can
survive such costly renovation.   If it cannot, the law as it presently
stands allows Smith to protect its employees from the harmful silica
dust in the foundry by implementing an effective respirator program. 
800 F.2d at 1339

Following receipt of the remand order, this Judge conducted a conference
call with the parties and was advised additional evidence required by
the remand order would be adduced by means of interrogatories.  The
record now contains the following information (Ex. J-41, J-45) [[3/]]
reflecting respondent's gross sales and net profits for the
corresponding years:

Year 	Gross Sales 	Net Profit
1976 	$ 5,301,887 	$ 89,957
1977 	4,842,199 	70,710
1978 	6,331,728 	441,864
1979 	7,096,499 	480,316
1980 	9,703,537 	662,351
1981 	12,888,298 	1,072,935
1982 	6,789,075 	87,972


In addition, respondent has volunteered information for subsequent years
as follows:

Year 	Gross Sales 	Net Profit
1983 	$ 1,143,074 	$ 632,581 (Loss)
1984 	2,678,126 	547,890 (Loss)
1985 	2,660,152 	269,352


The Secretary's interrogatories and respondent's answers thereto
constitute the entire effort made by the parties to comply with the
dictates of the remand order.  This scant information did not resolve
the questions still pending for determination and leaves the record in
this case in much the same posture as before.  Accordingly, this Judge,
by letter dated June 30, 1987 (Ex. J-55), advised the parties of his
intention to conduct a further hearing in the matter.  Contrary to
assumptions made in respondent's reply letter of July 7, 1987 (Ex.
J-56), that this action was intended to provide the Secretary an
opportunity to correct deficiencies in his case, the purpose of this
letter was to afford respondent the opportunity to supplement the record
by showing the impact these proposals would have upon respondent's
economic health, or to suggest alternative, but less expensive, methods
of abatements.

In a telephone conference call conducted with the parties on July 10,
1987, this Judge discussed his concern that the interrogatories and
answers did not provide an adequate basis for resolving the issue of
economic feasibility and specifically directed the attention of the
parties to the burden of proof question as set forth in
_Sherwin-Williams Company_, 84 OSAHRC 28/A2, 11 BNA OSHC 2105, 1984-85
CCH OSHD ¶ 26,986 (No. 14131, 1984) (which will be discussed _infra_). 
However, this effort was met with resistance by both parties (Ex.
J-57).  In view of this development, this case will be decided on the
record as presently constituted.

"Economic feasibility" was first addressed by the Review Commission in
_Continental Can Company_, 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77
CCH OSHD ¶ 21,009 (No. 3973, 1976), wherein the Commission vacated a
citation which charged an employer with failure to institute feasible
engineering controls to reduce noise levels, holding that the Secretary
failed to prove these controls were economically feasible.  This case
required that expected benefits must be weighed against costs. 
Succeeding cases, all of which involved the noise standard, reached
similar results.  _Castle & Cooke Foods_, 77 OSAHRC 87/A2, 5 BNA OSHC
1435, 1977-78 CCH OSHD ¶ 21,854 (No. 10925, 1977); _West Point
Pepperell, Inc_., 77 OSAHRC 48/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD ¶
21,751 (No. 8255, 1977); _Carnation Company_, 78 OSAHRC 54/D9, 6 BNA
OSHC 1730, 1978 CCH OSHD ¶ 22,837 (No. 8165, 1978); _Sampson Paper Bag
Co_., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ¶ 24,555 (No.
76-222, 1980).

In 1981 the Supreme Court decided _American Textile Mfgrs. Institute,
Inc. v. Donovan_ (ATMI), 101 S. Ct. 2478, a case challenging the
validity of the cotton dust standard promulgated under section 6(b)(5)
of the Act on the grounds that the Act required the Secretary to show a
reasonable relationship between the costs of implementing the
requirements of the standard and the expected benefits to employees. 
After reviewing the language of the Act and its legislative history, the
court concluded that the term "feasible," as used in section 6(b)(5) of
the Act, means "capable of being done" or "achievable" and held that
Congress did not intend to require cost-benefit analysis in promulgating
standards dealing with toxic substances or harmful physical agents.  The
court observed:

Congress specifically chose in § 6(b)(5) to impose separate and
additional requirements for issuance of a subcategory of occupational
safety and health standards dealing with toxic materials and harmful
physical agents:  it required that those standards be issued to prevent
material impairment of health to the extent feasible. (Emphasis in
original) _Id_. at 2492

* * *

The congressional Reports and debates certainly confirm that Congress
meant "feasible" and nothing else in using that term. Congress was
concerned that the Act might be thought to require achievement of
absolute safety, an impossible standard, and therefore insisted that
health and safety goals be capable of economic and technological
accomplishment.  Perhaps most telling is the absence of any indication
whatsoever that Congress intended OSHA to conduct its own cost-benefit
analysis before promulgating a toxic material or harmful physical agent
standard.  The legislative history demonstrates conclusively that
Congress was fully aware that the Act would impose real and substantial
costs of compliance on industry, and believed that such costs were part
of the cost of doing business.  _Id_. at 2493

Not only does the legislative history confirm that Congress meant
"feasible" rather than "cost-benefit" when it used the former term, but
it also shows that Congress understood that the Act would create
substantial costs for employers, yet intended to impose such costs when
necessary to create a safe and healthful working environment. Id. at 2496

* * *

When Congress passed the Occupational Safety and Health Act in 1970, it
chose to place pre-eminent value on assuring employees a safe and
healthful working environment, limited only by the feasibility of
achieving such an environment.  We must measure the validity of the
Secretary's actions against the requirements of that Act.  _Id_. at 2506

Following ATMI, the Review Commission reconsidered its previous position
on cost-benefit in _Sun Ship, Inc_., 83 OSAHRC 49/D1, 11 BNA OSHC 1775,
1983 CCH OSHD ¶ 26,353 (No. 16118, 1983), another noise case involving a
standard promulgated under section 6(a) of the Act, and adopted the
position that Congress did not intend to require cost-benefit analysis
in dealing with toxic substances or harmful physical agents except in
those cases where implementation of controls "would seriously jeopardize
the cited employer's long-term financial profitability and
competitiveness."  1983 OSHD at 33,422.   It further reasoned that while
"the Supreme Court decided only the meaning of section 6(b)(5) and not
whether cost-benefit analysis might be required for standards
promulgated under other sections (of the Act)," it would employ the same
reasoning in a section 6(a) case since "the identical question of
legislative intent is presented in interpreting the noise standard." 
_Id_. at 33,420.

In the opinion of this Judge, the Supreme Court opinion in ATMI is
controlling in the case at bar, dealing as it does with a standard
promulgated under section 6(b)(5) of the Act.   I do not read the Review
Commission decision in _Sherwin-Williams_, _supra_, as requiring a
contrary result.

In _Sherwin-Williams_, _supra_, the Secretary proceeded under section
6(a) of the Act and 29 C.F.R. § 1910.95(b)(1) to require the abatement
of excessive noise levels.   In overruling _Sun Ship_, _supra_, and
reinstating a cost-benefit requirement for actions pursued under section
6(a) of the Act, the Commission was careful not to expand its ruling
into the realm of section 6(b)(5) cases.  The Commission noted its
reliance on the Ninth Circuit decision in _Castle & Cooke Foods_, 692
F.2d 641 (9th Cir. 1982), which observed that the ATMI decision limited
its construction of "feasible" to standards promulgated under section
6(b)(5)of the Act "a distinct 'species of the genus of standards
governed by the basic requirements' of the Act," 692 F.2d at 648,
quoting _Industrial_ _Union Department v. American Petroleum Institute_,
448 U.S. 627, 642 (1980).  I find nothing in either of these decisions
nor in any other decisions emanating from the Review Commission [[4/]]
or the circuit courts subsequent to ATMI which conflicts with the view
that section 6(b)(5) cases do not require a cost-benefit test.

Despite the holding in ATMI, however, it is reasonable to conclude that
neither the Secretary nor the courts would impose the implementation of
controls where such action would clearly result in forcing an employer
out of business or into bankruptcy.  This concern was articulated in the
circuit's remand order and requires treatment in this decision.

The respondent did not present any evidence bearing on its financial
circumstances during the initial hearing or on remand despite the clear
admonition in the remand order that such evidence was germane to a
resolution of the issue.  This passive, unresponsive approach was
maintained even after this Judge specifically indicated a need for such
evidence in a conference call to the parties and called respondent's
attention to the following quote from _Sherwin-Williams_, _supra_:

To prove a violation, therefore, the Secretary must prove that proposed
engineering and administrative controls are both technologically and
economically feasible.  As the Ninth Circuit recognized in _Castle &
Cooke_, "realism and common sense should dictate how the Secretary may
meet his burden of providing substantial evidence of feasibility."  692
F.2d at 650 [10 OSHC at 2175].  _After the Secretary proves that
controls are technologically feasible, the burden of producing evidence
shifts to the employer who may raise the issue of economic feasibility
and go forward with evidence of the cost of controls and personal
protective_ _equipment_.  The burden of producing evidence then returns
to the Secretary "who must establish that the benefit of the proposed
engineering controls justifies their relative cost in comparison to
other abatement methods."  _Id_.  The ultimate burden of persuasion on
the feasibility issue nevertheless remains with the Secretary.  11 OSHC
2110.  (Emphasis supplied)

While the Secretary may bear "the ultimate burden of persuasion on the
issue of feasibility," it is clear that this burden is not foisted
solely on his shoulders even in a case brought pursuant to section
6(a).  This point was made clear in the Ninth Circuit's decision in
_Castle & Cooke Foods_, _supra_, cited by both parties and relied upon
by the Review Commission in _Sherwin-Williams_, _supra_, as follows:

We therefore hold that when the Secretary seeks enforcement of a
citation alleging a violation of 29 C.F.R. § 1910.95(b)(1), he bears an
initial burden of showing that technologically feasible engineering
controls are available to the cited employer.   Although the Secretary
will generally have access to information on the average development and
installation cost of the proposed controls, he will not have knowledge
of the specific economic impact implementation of the controls will have
on the cited employer.  Therefore, once the Secretary meets his initial
burden, the burden must shift to the employer, who may raise the issue
of economic feasibility.  The employer may satisfy this burden of
production with evidence of the relative cost to him of various methods
of noise control.  That is, the employer may compare the costs of
implementing engineering controls, administrative controls, or personal
protective equipment at a specific employment location.  If the employer
raises the question of economic feasibility in this manner, the burden
of proof returns to the Secretary, who must establish that the benefit
of the proposed engineering controls justifies their relative cost in
comparison to other abatement methods.  692 F.2d at 650.

In this case the Secretary has provided information relative to
respondent's gross sales and net profits.  The record now reflects gross
sales for the period 1976 through 1985 approximate $59,000,000.  Net
profits (after taking into account losses reflected during 1983 and
1984), approximate $2,600,000. [[5/]]  The record does not contain
respondent's current sales and profits for 1986 or 1987.  These figures
on their face, and without further input from respondent, do not
establish that implementation of the proposed controls are beyond
respondent's financial reach or would result in forcing respondent into
bankruptcy.  While the costs of effectuating controls are considerable
in this case, they are not exorbitant when viewed in light of the damage
they seek to prevent.

The difficulty with this case, as expressed in this Judge's initial
decision, results from respondent's failure to come forward with any
evidence to show a responsible recognition of, or concern for, the
hazardous circumstances existing in its foundry or the steps it has
taken or proposes to take to rectify a serious, life-threatening
condition.  This continued silence leads to a presumption that
respondent has either taken no action to cope with the reality of silica
exposure or that it has no evidence to present that would be favorable
to its case.  Under these circumstances, items 2F and 2G of Citation No.
1 are affirmed.

_ORDER_

In keeping with the foregoing, it is hereby ORDERED:

Respondent will immediately evaluate the hazard of silica dust exposure
as it relates to employees working in its sand handling and muller
operations with a view to reducing this exposure by means of engineering
controls to a level within the limits set by 29 C.F.R. § 1910.1000,
Table Z-1.  Implementation of appropriate engineering controls will be
effectuated within a three-month period from the date of this order.

EDWIN G. SALYERS
Judge

Date: November 18, 1987


FOOTNOTES:
[[1/]] Feasible engineering or administrative controls are only in issue
with respect to the silica dust exposure.  The Secretary previously
withdrew an allegation that Smith Steel had failed to use feasible
controls to reduce the levels of copper fume.   Another allegation, that
the employee exposed to copper fume was not wearing the proper kind of
respirator, was affirmed by the Fifth Circuit and is no longer before
us.   Therefore, the only issue with respect to copper fume is whether §
1910.1000, which prescribes the exposure limit, is a valid standard.

[[2/]] The standard has since been substantially amended.  54 Fed. Reg.
2332 (1989).

[[3/]] Regardless of whether the sampling is for total airborne silica
dust or respirable silica dust, the sampling device will collect all
kinds of airborne particulate matter, not just silica.  However, if the
sampling is for respirable silica dust, only particles 10 microns or
less in length will be collected.  _See Bunge Corp_., 12 BNA OSHC 1785,
1786 n.4, 1986-87 CCH OSHD ¶ 27,565 at p. 35,801 n.4 (Nos. 77-1622 _et
al_., 1986).

[[4/]] At the time these citations were issued, the relevant provisions
of the cited standard read as follows:

§ 1910.1000 *Air contaminants*.

An employee's exposure to any material listed in table 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:
(1) _Materials with names preceded by "C"-"Ceiling Values_.  An
employee's exposure to any material in table Z-1, the name of which is
preceded by a "C" (e.g., C Boron trifluoride), shall at no time exceed
the ceiling value given for that material in the table.
(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 a "C", in any 8-hour work shift of a 40-hour work week, shall not
exceed the 8-hour time-weighted average for that material given in the
table.
. . . .
(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 paragraphs (a) through (d) of this
citation, administrative or engineering controls must first be
determined and implemented whenever feasible . . . .

[[5/]] Table Z-1 allows a higher exposure level, 1 mg/m3, for copper
"dusts and mists."  Matthews explained that copper "fume" consists of
very small particles, less than one micron in "size," whereas "mist"
refers to a "liquid aerosol" or liquid medium containing copper.  He did
not define copper "dust," but stated that a welding operation normally
would produce fume and not dust or mist.

[[6/]] Section 6(a) provides, in pertinent part:

Without regard to chapter 5 of title 5, United States Code, or to the
other subsections of this section, the Secretary shall, as soon as
practicable during the period beginning with the effective date of this
Act and ending two years after such date, by rule promulgate as an
occupational safety and health standard any national consensus standard,
and any established Federal standard, unless he determines that the
promulgation of such a standard would not result in improved safety or
health for specifically designated employees. . . .

Section 3 (9) of the Act defines a "national consensus standard" as any
occupational safety and health standard or modification thereof which
(1), has been adopted and promulgated by a nationally recognized
standards-producing organization under procedures whereby it can be
determined by the Secretary that persons interested and affected by the
scope or provisions of the standard have reached substantial agreement
on its adoption, (2) was formulated in a manner which afforded an
opportunity for diverse views to be considered and (3) has been
designated as such a standard by the Secretary, after consultation with
other appropriate Federal agencies.

Section 3(10) of the Act defines an "established Federal standard" as
"any operative occupational safety and health standard established by
any agency of the United States and presently in effect, or contained in
any Act of Congress in force on the date of enactment of this Act."

[[7/]] When review was directed, the statement of issues to be
considered on review was expressly limited to the economic feasibility
issue discussed infra and validity challenges that are directly related
to the facts of these cases.  The direction for review itself cited
_DeKalb Forge Co_., 13 BNA OSHC 1146, 1151, 1986-87 CCH OSHD ¶ 27,842,
p. 36,449 (No. 83-299, 1987), in which the Commission indicated that it
would consider arguments that a standard is invalid only as they relate
to the citation items in question.  Thereafter, when it requested
briefs, the Commission directed that briefs be filed "with respect to
the issues stated in the direction for review."   Despite these express
limitations on the scope of the validity issue to be considered on
review and the explicit citation to DeKalb Forge in the direction for
review, Smith Steel's review briefs discuss language changes to the
Walsh-Healey standard that have no relationship to the alleged
violations.  To the extent Smith Steel's arguments are unrelated to the
specific violations charged in these cases, we decline to consider them.

[[8/]] The judge cited _Senco Products, Inc_., 10 BNA OSHC 2091, 1982
CCH OSHD ¶ 26,304 (No. 79-3291, 1982); _Hermitage_ _Concrete Pipe Co_.,
3 BNA OSHC 1920, 1975-76 CCH OSHD ¶ 20,298 (No. 4678, 1976), _rev'd and
remanded on other grounds_, 584 F.2d 127 6th Cir. 1978); and _Fieldcrest
Mills, Inc_., 2 BNA OSHC 1143, 1974-75 CCH OSHD ¶ 18,471 (No. 5625,
1974). _Senco_ involved a provision of § 1910.1000 concerning mixtures
of air contaminants that is not in question here.  In _Hermitage_
_Concrete Pipe Co_., 76 OSAHRC 2/D1 (ALJ, 1974), and _Fieldcrest Mills,
Inc_., 2 BNA OSHC 1143 (ALJ, 1974) (excerpt), two Commission judges
generally concluded that the changes made in the August 1971 revision
were substantive in nature.  However, with one exception dealing with a
respirator requirement that is not at issue here, neither judge
specified the language changes he considered to be substantive.  Without
any discussion, the Commission summarily reversed the judges' decisions
in both cases. Therefore, Smith Steel is correct that these prior cases
cannot be construed as stating the Commission's position on the issues
now before us.

[[9/]] Smith Steel's argument that the 1970 ACGIH TLV's differ from
those in the 1968 list relates only to the copper fume citation. The
PEL's for silica dust did not originate in the ACGIH TLV list
incorporated by reference in the Walsh-Healey standard but rather were
set forth in a separate table both in the Walsh-Healey standard and in §
1910.93.   Therefore, any changes to the TLV list the Secretary may have
made when she issued § 1910.93 have no bearing on the silica dust
allegations.

[[10/]] These regulations, which have been amended since these cases
arose, now appear in 1 C.F.R. Part 51.  Smith Steel contends that the
Walsh-Healey standard did not contain the proper statement of
incorporation by reference, did not properly identify the referenced
material, and did not describe its availability.  _See George C.
Christopher & Sons_, 10 BNA OSHC 1436, 1441, 1982 CCH OSHD ¶ 25,956, p.
32,529 (No. 76-647, 1982).

[[11/]] Smith Steel further challenges the validity of the incorporation
of the ACGIH TLV values into the Walsh-Healey standard on the grounds
that the incorporation violates the ACGIH's copyright and ignores an
admonition in the preface to the TLV publication that if its values are
used in legislative codes, they should be kept current.  It is not clear
whether these are procedural or substantive challenges to the validity
of the Walsh-Healey standard.  _See National Industrial Constructors,
Inc. v. OSHRC_, 583 F.2d 1048, 1052 (8th Cir. 1978) (distinguishing
compliance with procedural requirements for promulgating a standard from
the reasonableness or feasibility of the standard).  Nevertheless,
regardless of how they are classified, we do not consider Commission
review of these arguments in these proceedings to be appropriate.  The
general proposition expressed in _General Motors_ that Congress mandated
the adoption of Walsh-Healey standards indicates that the Commission
should not consider the contention that the incorporation of an ACGIH
TLV list in a Walsh-Healey standard was inconsistent with conditions or
stipulations set forth by the ACGIH.

[[12/]] The Commission has since reaffirmed the principle that the
relative costs and benefits of controls must be taken into account in
determining feasibility under the noise standard.  _Sherwin Williams
Co_., 11 BNA OSHC 2105, 1984-85 CCH OSHD ¶ 26,986 (No. 14131, 1984).

[[13/]] On review, Smith Steel contends that the evidence does not
support Judge Salyers' findings regarding the amount of reduction in
exposure.  The issue of the technological feasibility of Ressl's
proposed controls was not raised either in the Fifth Circuit's remand
order to the Commission, the Commission's subsequent remand order to the
judge, or the Commission's direction for review of the judge's
decision.  In the absence of any compelling reason to address this issue
at this stage in the proceedings, we decline to do so.  _See_ Commission
Rule 92(a), 29 C.F.R. § 2200.92(a) (Commission has authority to limit
the issues considered on review).

[[14/]] This holding is strictly limited to the circumstances of these
cases.   No party should assume that answers to interrogatories will
automatically be considered part of the record.  Ordinarily, the party
seeking to use answers to interrogatories as evidence must formally move
for their introduction into the record.   _Power Fuels, Inc._, No.
85-166 (April 17, 1991).

[[15/]] Smith Steel raises and objection to the procedures that were
followed on remand when the parties filed their briefs before the
judge.  The Secretary's opening brief addressed only the validity of the
standard and not the feasibility issue.  The Secretary claimed that she
was waiting to receive Smith Steel's answers to her interrogatories
before presenting arguments on feasibility.  When the Secretary failed
to respond even after Smith Steel filed its answers, the judge requested
the Secretary to state her position on the feasibility question.  The
Secretary replied that she had not intended to abandon the feasibility
issue, and the judge allowed the Secretary and additional period of time
to present arguments of feasibility.

We reject Smith Steel's argument that the judge acted improperly by
alerting the Secretary to the incompleteness of her opening brief and
affording the Secretary an opportunity to file a second brief.  Smith
Steel was partially responsible for the delay in the completion of
briefing because it did not file its answers to the interrogatories
until the very last day of the briefing period.   While we do not excuse
the lack of diligence on the part of the Secretary's counsel in failing
to request an extension of time to file her brief, we do not find that
the judge demonstrated bias in favor of the Secretary, as Smith Steel
claims.  In any event, Smith Steel has neither argued nor established
that it was prejudiced by the fact that the parties' briefs on the
feasibility question were not simultaneous.

[[16/]] Smith Steel objects to a provision of Judge Salyers' decision
directing it to "evaluate" the hazard and implement "appropriate"
engineering controls within a three-month period.  Smith Steel claims
that this instruction violates the court's remand order and deprives it
of due process because the judge states no criteria for determining what
may be "appropriate."  In addition, Smith Steel argues that there is no
evidence to support the three-month requirement.

We agree with Smith Steel that the remand order precluded the judge from
considering any potential abatement methods other than Ressl's proposed
controls.  To the extent the judge instructed Smith Steel to investigate
other means of reducing the silica dust exposure, we set aside his
order.  However, Smith Steel is not precluded from using other means of
engineering or administrative controls if it so chooses, so long as
those means reduce the level of silica dust at least to the same extent
as Ressl's proposed controls.  We further note that the only evidence as
to the time needed to accomplish abatement is Ressl's estimate that the
methods he described could be installed in six to eight weeks.  We
therefore establish an eight-week abatement period, beginning with the
date of entry of this order.  Should Smith Steel require additional time
to install controls, it may file for an extension of the abatement date
under section 10(c) of the Act.

[[17/]] Section 17(k) of the Act, 29 U.S.C. § 666(k), defines a serious
violation as one presenting "a substantial probability that death or
serious physical harm could result."

[[1/]] This section provides:

(5) The Secretary, in promulgating standards dealing with toxic
materials or harmful physical agents under this subsection, shall set
the standard which most adequately assures, to the extent feasible, on
the basis of the best available evidence, that no employee will suffer
material impairment of health or functional capacity even if such
employee has regular exposure to the hazard dealt with by such standard
for the period of his working life.  Development of standards under this
subsection shall be based upon research, demonstrations, experiments,
and such other information as may be appropriate.   In addition to the
attainment of the highest degree of health and safety protection for the
employee, other considerations shall be the latest available scientific
data in the field, the feasibility of the standards, and experience
gained under this and other health and safety laws.  Whenever
practicable, the standard promulgated shall be expressed in terms of
objective criteria and of the performance desired.

[[2/]] In the initial proceedings, the only evidence bearing on this
issue was respondent's gross income ($7,096,499.55) and net profit
($480,316.85) for 1979, the year preceding the Secretary's inspection.

[[3/]] Respondent, by letter dated June 1, 1987 (J-54), objects to
consideration of this information on the grounds that the
interrogatories and answers have not been offered or received in
evidence.  This tactical maneuver by respondent may be technically
correct but hardly serves to aid in a resolution of the issue. 
Accordingly, under Rule 102 of the Federal Rules of Evidence, the
interrogatories and answers are received by the court "to the end that
the truth may be ascertained and proceedings justly determined." 
Furthermore, the interrogatories were answered by respondent without
objection.  Considering the fact that these answers constitute the only
new information received by this Judge after this case was remanded with
an order to receive additional evidence on the issue of economic
feasibility, respondent's objection is disingenuous.

[[4/]] The Review Commission has held employers to a higher duty to
protect employees from the effects of toxic substances (which lead to
serious or death-dealing consequences) as opposed to hazards created by
noise which do not present a life-threatening risk.   _Harmony Blue
Granite Co_., 83 OSAHRC 45/A2, 11 BNA OSHC 1277, 1983-84 CCH OSHD ¶
26,467 (No. 14189, 1983).

[[5/]] It is significant to note that gross sales during the period 1979
through 1982 (the period immediately preceding and following the 1980
inspection) approximate $36,000,000 with net profits in excess of
$2,000,000.