“SECRETARY OF LABOR,Complainant,v.AMAX LEAD COMPANY OF MISSOURI,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 7447-J,Authorized EmployeeRepresentative.OSHRC Docket No. 80-1793SECRETARY OF LABOR,Complainant,v.SCHUYLKILL METALS CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8394,Authorized EmployeeRepresentative.OSHRC Docket No. 81-0856SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8183,Authorized EmployeeRepresentative.OSHRC Docket No. 81-2267_DECISION_BEFORE: BUCKLEY, Chairman, RADER and WALL, Commissioners.BUCKLEY, Chairman;These consolidated cases[[1]] are before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”). It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions. See section 10(c) of the Act, 29U.S.C. ? 659(c).These cases involve the interpretation of the medical removal protectionbenefits (\”MRP benefits\”) provision of the standard at 29 C.F.R. ?1910.1025, which regulates occupational exposure to lead. The leadstandard primarily seeks to protect workers from the adverse effects oflead on their health by limiting the amount of lead they inhale andingest. The MRP provision is a \”backup\” requirement that is intended toprotect employees who are not adequately protected by the otherprovisions of the standard. If an employee’s blood lead level exceedscertain limits or if the employee would otherwise experience certainrisks to his health from continued lead exposure, the standard requiresthe employer to remove the employee from excessive lead exposure. For anemployee transferred under this requirement, the MRP benefits provisionrequires the employer to \”maintain the earnings, seniority and otheremployment rights and benefits of an employee as though the employee hadnot been removed . . . .\” 29 C.F.R. ? 1910.1025(k)(2)(ii). In thesecases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, andSt. Joe Resources Company transferred certain employees who had elevatedblood lead levels from jobs with high lead exposures to positionsoutside high lead areas. The employers paid the transferred employeestheir regular wage rate for the 40-hour weeks the employees workedduring the periods of transfer. The Secretary of Labor alleges that theemployers violated the MRP benefits provision by not paying thetransferred employees for potential overtime, production bonuses, shiftdifferentials, and paid lunch periods that were incidents of the jobsthey held before their transfers but not of the jobs to which they weretransferred. We conclude that the employers complied with the standardby paying the employees their regular wage rate for a 40-hour week, andwe therefore vacate the citations.IIt has long been known that lead is highly toxic to humans. Lead that isinhaled or ingested enters a person’s bloodstream, where it is carriedto the various organs throughout the body. In excessive amounts, leadcan damage vital organs, notably the kidneys, the reproductive system,and the central nervous system.Before 1975, an OSHA standard limited the amount of airborne lead towhich an employee could be exposed to 200 micrograms per cubic meter ofair (\”ug\/m3\”) averaged over an 8-hour day.[[2]] In 1975, the Secretaryof Labor, believing the existing standard was not sufficientlyprotective, proposed a new standard thatwould both lower the permissible exposure limit and adopt a number ofother provisions intended to protect lead-exposed employees. 40 Fed.Reg. 45934 (Oct. 3, 1975). Following lengthy rulemaking proceedings, theSecretary promulgated the standard here at issue. 43 Fed. Reg. 52952(Nov. 14. 1978).[[3]]Because lead reaches vital organs through the bloodstream, much of theSecretary’s rulemaking effort focused on controlling the amount of leadin workers’ blood. The Secretary first attempted to determine themaximum concentration of lead in the blood that would not producematerial impairment of workers’ health. He found that serious leadpoisoning occurs at blood lead levels of 80 micrograms per 100 grams ofblood (\”ug\/100g\”), 43 Fed. Reg. at 52954, but that other adverse healtheffects occur at lower blood lead levels. These levels were referred toin the rulemaking proceedings as \”subclinical effects,\” and can bedefined as \”physiological changes which can be detected by sophisticatedlaboratory tests, but not by either ordinary clinical examination or bythe patient himself, which may be irreversible, and which likely bear acausal relationship with overt lead disease.\” United Steelworkers ofAmerica, AFL-CIO v. Marshall, 647 F.2d 1189, 1249 (D.C. Cir. 1980),cert. denied, 453 U.S. 913 (1981) (\”Steelworkers\”). The Secretary foundthat these subclinical effects become significant at blood lead levelsof 40 ug\/100 and higher. 43 Fed. Reg. at 52954-60. Finding that thepresence of subclinical effects constituted material impairment ofhealth, the Secretary established the objective of maintaining the bloodlead levels of lead-exposed workers at no higher than 40 ug\/100g. Id.The Secretary also found, however, that a blood lead level at or below40 ug\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particularlevel of airborne lead a group of workers will exhibit a range of bloodlead levels. The Secretary found that the lowest airborne level themajor lead-based industries could feasibly achieve was 50 ug\/m3 and hetherefore established that level as the permissible exposure limit forairborne lead.[[4]] 43 Fed. Reg. at 52963. He also found thatapproximately 30% of workers would have blood lead levels over 40ug\/100g when uniform compliance with the 50 ug\/m3 permissible exposurelimit was achieved. Id.In order to protect the health of employees who would not be adequatelyprotected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance. 29 C.F.R. ?1910.1025(j). The key to medical surveillance is blood testing, whichthe employer must offer to all employees exposed to an \”action level\” of30 ug\/m3 for 30 or more days per year. Subsections 1910.1025(j)(1) and(2). If an employee is found to have a blood lead level exceeding acertain amount–50 ug\/100g when the standard becomes fullyeffective–the medical removal protection provisions of the standardcome into play. Subsection 1910.1025(k). The employer must remove theemployee from exposure to lead above the action level until twoconsecutive blood tests show that the employee’s blood lead level hasreturned to no more than 40 ug\/100g. Subsections 1910.1025(k)(1)(i) and(iii). An employee must also be removed from exposure to lead above theaction level without regard to his blood lead level if it is determinedthat \”the employee has a detected medical condition which places theemployee at increased risk of material impairment to health fromexposure to lead.\” Subsection 1910.1025 (k)(1)(ii). Such an employee canbe returned to his previous position if it is found that his medicalcondition has changed such that exposure to lead no longer places him atincreased risk of material health impairment. Subsection1910.1025(k)(1)(iii)(A)(4).If an employee is removed from exposure to excessive lead due to anelevated blood lead level or other medical condition, the employer mustpay the employee MRP benefits. Subsection 1910.1025(k)(2)(ii) provides:For the purposes of this section, the requirement that an employerprovide medical removal protection benefits means that the employershall maintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.The employer is required to provide MRP benefits, i.e., \”maintain theearnings, seniority and other employment rights and benefits of anemployee,\” for up to 18 months on each occasion an employee is removedfrom excessive lead exposure. Subsection 1910.1925(k)(2)(i). TheSecretary included this requirement in the standard in order to induceemployees to cooperate with medical surveillance. He was concerned thatemployees, faced with the possible loss of their income if medicalsurveillance showed they should be removed from lead exposure, wouldrefuse to cooperate with the standard’s medical surveillance provisionsand thereby risk endangering their health. Thus, \”MRP was included inthe final standard as a means of maximizing meaningful participation inmedical surveillance provided to lead-exposed workers.\” 43 Fed. Reg. at52973.II.A. _Amax lead Company, Docket No. 80-1793_Amax operated a primary lead smelter in Missouri. In late 1979 and early1980, the company transferred six employees from areas of high leadexposure to low exposure areas[[5]] due to their elevated blood leadlevels. After about three months, the blood lead levels of theseemployees returned to acceptable levels. Four of the employees returnedto their previous jobs while two bid for and won other jobs in the facility.Before their transfers, the six employees worked in positions that hadto be filled during the plant’s entire 24-hour workday. For such jobs,the day was divided into three 8-hour shifts. Each employee was paid fora full 8 hours but was allowed a half-hour for lunch. The six employeeswere transferred to the mine\/mill unit, which did not operate during theentire 24 hour day. Workers in this unit therefore worked 8 1\/2 hourshifts, getting paid for 8 hours but not for their half-hour lunch break.The transferred employees were paid for their 40-hour work week at theirregular base rate of pay. In their regular jobs, they would also havehad the opportunity to work overtime. The collective bargainingagreement between Amax and the United Steelworkers of America providedthat overtime would be distributed \”as equitably as practical\” amongemployees in each job classification. Available overtime was offered toemployees in order of seniority. They could either accept or refuse whentheir turn came. The company kept and posted records showing for eachemployee the hours of overtime worked, the hours refused, and the total.Employees unavailable when overtime was offered, including thosetransferred to low exposure jobs, were considered to have refused offersof overtime work. Thus, for each of the six transferred employees, thecompany had records showing the amount of overtime they \”refused\” duringtheir transfers.B. _Schuylkill Metals Corporation, Docket No. 81-856_Schuylkill operated a secondary lead smelter in Louisiana. The plant’sproduction department had a high airborne lead concentration, while thechange house had a low lead concentration. Employees in the change houseperformed janitorial duties such as washing work clothes and repairingrespirators.Under the normal work schedule in the production department, employeesworked six 40-hour weeks and two 48-hour weeks in any 8-week period.They thus averaged two hours of overtime per week. Production departmentemployees were also eligible to receive production incentive bonuses,which were based on the daily amount of production in excess of acertain base amount. Production incentive bonuses varied among theworkers on a shift based on performance criteria unique to theindividual. In the change house, employees worked a 40-hour week. Theydid not work overtime and were not eligible for production incentivebonuses.Between January 1, 1980 and December 4, 1981, Schuylkill temporarilytransferred a number of employees from the production department to thechange house.[[6]] While in the change house the employees were paid atthe hourly wage rate they had earned in the production department. Theydid not, however, receive either overtime pay or production incentivebonuses.C. _St. Joe Resources Company, Docket No. 81-2267_St. Joe operated a zinc smelter in Pennsylvania. In 1981, the companytransferred one employee– Simpson Butler–pursuant to the MRP provisionof the lead standard. Butler had been hired in 1980 as a laborer, aposition that did not involve excessive lead exposure. On April 2, 1981,he was awarded the position of \”weighman\” but, on July 17, 1981, he wasreturned to the laborer position due to an elevated blood lead level.The plant operated 24 hours per day, seven days per week, and theweighman job had to be covered at all times. To accomplish this, theweighman were divided into four shifts that worked 20-week rotatingschedules. Each shift included various amounts of night, weekend, andovertime work, but the actual schedule would vary during the 20-weekrotation.St. Joe’s collective bargaining agreement provided that weighman wouldreceive 1.5 times their base rate fur scheduled Sunday and sixth daywork (\”scheduled overtime\”). The agreement further provided for extrahourly pay (\”shift differentials\”) for scheduled evening and night work.A weighman who worked all of his scheduled time during a 20-weekrotation would thus receive, a total amount of compensation, includingscheduled overtime and shift differentials, that would exceed theemployee’s base rate of pay multiplied by the number of hours actuallyworked. However, each employee’s pay during any particular two- week payperiod would depend on the hours actually worked during that period,including the scheduled overtime and shift differentials actually earned.Employees were also given the opportunity to work voluntary overtime.The amount of such overtime available varied with the needs of theplant. Employees signed up if they were interested in voluntary overtimeand would be offered such overtime as the plant’s needs and their skillsallowed. Voluntary overtime did not necessarily involve the employee’sregular duties. During his 16 weeks as a weighman, Butler worked all ofhis regular shifts and also worked 45 hours of voluntary overtime.When Butler was transferred, he was assigned duties as a laborer for an8 hour per day, 40 hour per week shift. As a laborer, Butler was paidthe base rate he received as a weighman, but he worked no scheduledovertime or night shifts and received no overtime pay or shiftdifferentials. He refused the one offer of voluntary overtime he received.III.The MRP benefits provision requires that employers maintain the\”earnings, seniority and other employment rights and benefits of anemployee\” who is transferred under the standard’s M.RP provisions. Thequestion presented by these cases is what an employer must pay atransferred employee in order to maintain that employee’s \”earnings.\”The employers contend that they need only pay an employee who works anormal 40-hour week after being transferred his regular hourly rate ofpay or those 40 hours, while the Secretary and unions claim theprovision requires the employer to also pay additional amounts theemployee could have earned if he hid not been transferred. In theirview, Amax, Schuylkill, and St. Joe violated the standard by not payingtheir transferred employees for potential overtime, shift differentials,production incentives, and paid lunch periods (collectively, \”premiumpayments\”) they would have received but for the transfers.In interpreting a standard, the Commission employs the same rules ofconstruction that are used to discern the meaning of statutes. SungeCorp., 86 OSAHRC , 12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHC ?27,565, p. 35,804 & n. 12 (No. 77-1622 et al,1986). Ultimately, we mustdetermine the intent of the standard’s drafter, in this case theSecretary, at the time the standard was adopted. The most compellingevidence of a drafter’s intent. is, of course, the plain meaning of thewords he used. Id. In this case, however, the meaning of the crucialword \”earnings\” is not so plain as to enable us to resolve the disputebetween the parties. \”Earnings\” is not a word of art but is a generalterm broad enough to encompass the interpretations offered by all of theparties. One dictionary defines \”earnings\” as \”money earned, wages;profits.\” Random House Dictionary of the English Language 448 (1971).Another defines it as \”something (as wages or dividends) earned ascompensation for labor or the use of capital.\” Webster’s Third NewInternational Dictionary 714 (1971). Because the issue cannot beresolved on the basis of the word’s plain meaning, we must look to thelegislative history of the standard to discern the Secretary’s intentwhen he promulgated the standard.The lead standard was the first, and is still the only, OSHA standardcontaining a comprehensive MRP benefits provision. However, in adoptingthe standard, the Secretary did not write on an entirely clean slate.The issue of MRP benefits had previously been addressed in severalcontexts, and these provide a background for examining the Secretary’sintent when he included the MRP benefits provision in the lead standard.The first federal law containing a MRP benefits provision was theFederal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Nine Act\”).[[7]] That statute provides that any miner showingevidence of black lung disease be given the opportunity to transfer to aposition for which the dust level is sufficiently low to prevent furtherdevelopment of disease. 30 U.S.C. 5? 843(b)(1) and (2). Any miner sotransferred must be compensated at \”not less than the regular rate ofpay received by him immediately prior to his transfer.\” 30 U.S.C. ?843(b)(3). This provision has been interpreted to mean that a miner needonly be paid at the same daily rate he was receiving just prior totransfer, not the amount he would have, earned if he had not beentransferred. Higgins v. Marshall, 584 F.2d 1035 (D.C. Cir. 1978), cert.denied, 441 U.S. 931 (1979). When he adopted the OSHA lead standard, theSecretary was aware of both this provision of the Mine Act and of theinterpretation placed on it in Higgins v. Marshall, for he discussedthese matters in the preamble to the OSHA standard. 43 Fed. Reg. at54447-49.The Secretary considered MRP benefits in rulemaking proceedings for twoother standards before the adoption of the lead standard. One of thefirst standards issued by the Secretary after notice-and-commentrulemaking regulated occupational exposure to asbestos. 29 C.F.R. ?1910.1001. That standard contains a limited MRP provision, applicableonly to employees who would be required to wear respirators but who aremedically incapable of doing so.Such employee shall be rotated to another job or given the opportunityto transfer to a different position whose duties he is able to performwith the same employer, in the same geographical area and with the sameseniority, status, and rate of pay he had just prior to such transfer,if such a different position is available.29 C.F.R. ? 1910.1001(d)(2)(iv)(c) (emphasis added). Subsequentrulemakings continued the practice of considering MRP protection asmaintenance of the employee’s \”rate of pay.\” The term \”rate retention,\”implying maintenance of an employee’s \”rate of pay,\” was often used as asynonym for medical removal protection. In promulgating a standardregulating exposure to coke oven emissions, the Secretary considered arecommendation that he adopt a MRP provision. The recommendation wasthat removal of an employee from exposure should \”not result in loss ofearnings or seniority status to the affected employee.\” (Emphasisadded.) The Secretary referred to this recommendation as a \”rateretention provision.\” 41 Fed. Reg. 46780 (Oct. 22, 1976). The Secretarydid not, however, include such a provision in the coke oven standard. 29C.F.R.? 1910.1029.The next standard promulgation proceeding in which the Secretaryconsidered MRP protection involved the lead standard at issue here. TheSecretary first proposed a standard that did not contain a MRPprovision. 40 Fed. Reg. 45934 (Oct. 3, 1975). After receiving commentsand holding informal public hearings on the proposed standard, theSecretary announced an additional comment period for the submission ofwritten data, views, and arguments on medical removal protection. 42Fed. Reg. 46547 (Sept. 16, 1977). The announcement stated:The medical surveillance provisions of the lead standard should includea requirement for medical removal protection. This requirement wouldmaintain the rate of pay, seniority, and other rights of an employee forthe time period, or a portion thereof, that the employee is transferredor removed from his or her job as a result of an increased health riskfrom exposure to lead. After a follow-up medical examination andopinion, the following options would be available with no loss ofearnings or rights: Return to the original job, assignment to adifferent job (transfer), or continuation of the transfer or removal.Id. at 46548 (emphasis added). Another passage in the same announcementstated: \”Ninety days was mentioned as one time period for earningsprotection (‘rate retention’).\” Id. at 46549. Thus, the announcementgave notice that the Secretary was considering the traditional type ofMRP protection in which the employee’s rate of pay would be maintainedduring removal. It used the words \”earnings\” and \”earnings protection\”synonymously with \”rate of pay\” and \”rate retention.\”When he issued the lead standard, the Secretary did not use the terms\”rate of pay\” or \”rate retention,\” but mandated that employers maintainthe \”earnings\” of transferred employees. The Secretary contends that hischoice of the word \”earnings\” instead of \”rate of pay\” is significant.He asserts that if he intended to limit MRP benefits to \”rate of pay,\”he would have included language such as is found in the Mine Act insteadof the language he actually chose.We cannot conclude that the Secretary deliberately used the word\”earnings\” in the final standard to indicate that he intended somethingdifferent than \”rate of pay.\” As we have noted, in the announcement inwhich MRP protection was injected into the rulemaking proceeding, theSecretary used \”earnings\” synonymously with \”rate of pay.\” Therefore,when he used \”earnings\” in the final standard, the most logicalconclusion is that he was again using it as a synonym for \”rate of pay,\”particularly since he did not express any different intent. As St. Joepoints out, the Secretary is sophisticated in labor matters and knowsthat compensation issues often involve overtime and other premiumpayments. Thus, if the Secretary made a deliberate decision that premiumpayments were to be included in MRP benefits, it is reasonable to inferthat he would have made such an intent explicit. See United States v.American Trucking Associations, 310 U.S. 534, 544 (1940) (I’d few wordsof general connotation appearing in the text of statues should not begiven a wide meaning, contrary to a settled policy, ‘except as adifferent purpose is plainly shown’.\”)A further indication that \”earnings\” was not meant to include premiumpayments is the absence of evidence that the subject of premium paymentsreceived any attention in the rulemaking proceedings. As noted above,the announcement that injected MRP into the rulemaking indicated that atraditional \”rate retention\” rule was being considered. The commentssubmitted in response to this announcement reflect that employees hadone overriding concern: that their cooperation with the medicalsurveillance provisions of the standard not lead to the loss of theirjobs. The Secretary cited the testimony of Anthony Mazzocchi, vicepresident of the Oil, Chemical and Atomic Workers Union, that theabsence of an MRP provision would force employees to choose betweentheir jobs and their health. 43 Fed. Reg. at 54442. In the preamble tothe lead standard the Secretary noted that the potential loss of one’sjob will create a substantial deterrent to an employee’s cooperationwith the standard’s medical surveillance provisions. However, there isnothing in the preamble to indicate that the Secretary also believedthat the potential loss of premium payments would create a comparabledeterrent. The Secretary simply did not address the subject of premiumpayments.The only indication in the standard’s legislative history that thesubject of premium payments was considered at all was a suggestion bythe United Steelworkers of America that the Secretary include adefinition of \”earnings\” in the standard. The Secretary declined thisinvitation, saying:The United Steelworkers of America urged that the standard include adetailed definition of the term \”earnings,\” listing all the possibleforms of direct and indirect compensation which an employer might havenormally given a worker in the absence of a removal. (Ex. 452, p. 44.)OSHA ..rejected the adoption of such a detailed definition because itwould likely be confusing to some employers in light of the manycontexts in which the standard will apply. To comply with the standard,an employer need only maintain the removed worker as though no removalhad occurred.43 Fed. Reg. at 54466. If the Secretary truly intended that \”earnings\”would include premium payments, the suggestion by the Steelworkers thathe define \”earnings\” gave him the opportunity to explicitly state thatintent. His failure to include a definition of \”earnings\” is a furtherindication he intended it to mean no more than his announcementoriginally indicated. i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence in the above quotation and astatement elsewhere in the preamble that the MRP provision \”uses theall-encom-passing phrase ‘earnings, seniority and other employmentrights and benefits’ to assure that a removed worker suffers neithereconomic loss nor loss of employment opportunities due to removal,\” 43Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intentionthat MRP benefits include premium payments. We do not agree. In light ofthe Secretary’s failure to include a definition of \”earnings\” in eitherthe standard or the preamble, and the absence of any discussion in thepreamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefitsinclude premium payments.Finally, if the Secretary did intend \”earnings\” to have a broadermeaning than \”rate of pay,\” his action would be contrary to the spirit,and possibly the letter, of notice-and-comment rulemaking. In conductingsuch a rulemaking, an agency is required to give the public fair noticeof the rule it proposes to adopt. so that persons affected by the rulewill have an adequate opportunity to make their views known. See Chamberof Commerce of the United States v. OSHA, 636 F.2d 464, 470-71 (D.C.Cir. i98O). As discussed above, the Secretary gave the public noticethat he was considering adopting a \”rate retention\” provision. Had theSecretary given notice that he was also considering a broader MRPprovision, one which would also require premium payments, it could beexpected that he would have received comments addressing the necessityand propriety of such payments. As it was, nothing in the preamble orthe standard indicates that the Secretary received any commentsaddressed to premium payments, with the possible exception of the UnitedSteelworkers’ general request, which the Secretary rejected, to includea definition of \”earnings\” in the standard.An agency can, of course, deviate from a proposed rule when it issues afinal rule, as long as the final rule is a \”logical outgrowth\” of therulemaking proceeding. Steelworkers, 647 F.2d at 1221. In order tojustify such a deviation, however, there must be evidence in therulemaking record that warrants the change. Id. If there was evidence inthe record of the lead rulemaking to justify inclusion of premiumpayments in MRP benefits, the Secretary did not mention it or rely onit. Thus, even if the Secretary did use the word ‘\”earnings\” because hemeant MRP benefits to include premium payments, it is highly doubtfulwhether the standard, as so interpreted, would be valid in light of theabsence of his reliance on any record evidence justifying the change.See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982)(interpretation of statute is favored that avoids question of statute’svalidity).We conclude that Amax, Schuylkill, and St. Joe complied with the MRPbenefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees workedduring the periods of transfer. Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY. H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 25 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidatedby order of the Commission. Because Docket No. 81-856 involves questionsof law and fact similar to those in the other two cases, we consolidateall three cases for decisional purposes. Commission Rule of Procedure 9,29 C.F.R. ? 2200.9.[[2]] The pre-1975 standard was derived from a standard issued by theAmerican National Standards Institute. The Secretary promulgated itunder section 6(a) of the Act, 29 U.S.C. ? 655(a), which authorized theSecretary to adopt national consensus standards as OSHA standardswithout notice- and-comment rulemaking proceedings within two years ofthe Act’s effective date.[[3]] In promulgating the new standard, the Secretary acted undersection 6(b) of the Act, 29 U.S.C. ? 655(b), which authorizes theSecretary to promulgate occupational safety and health standardsfollowing notice-and-comment rulemaking proceedings.[[4]] Due to feasibility constraints, certain of the standard’sprovisions, including the permissible exposure limit, are phased in overa period of time. In our description of the provisions of the standard,we have for the sake of clarity used those numerical values that are ineffect after the standard is fully phased in. Certain of the valuesgiven were not in effect at the time the alleged violations in thesecases occurred, but this is not significant for purposes or this decision.[[5]] The words \”high\” and low\” are, of course, relative. For purposesof this decision, we use them to distinguish between airborne leadconcentrations from which employees with elevated blood lead levels mustbe removed, and concentrations to which such employees may permissiblybe exposed.[[6]] The employees Schuylkill transferred did not have blood leadlevels sufficiently high to require their removal under the standard.They did, however, have blood lead levels higher than the plantwideaverage. According to Schuylkill, the company measured the blood leadlevel of employees and, when a particular employee was found to have alevel above average, the employee was observed closely to determine thecause of the increase. If it was found that the increase was due to poorhygiene habits or failure to wear a respirator properly, the employeewas transferred from the production area to the change house forpurposes of discipline and retraining.The Secretary contends that Schuylkill was required to pay MRP benefitseven though the transferred employees did not have blood lead levelshigh enough to require their removal. The Secretary points to subsection1910.1025(k)(2)(vii), which provides:Where an employer, although not required by this section to do so,removes an employee from exposure to lead or otherwise placeslimitations on an employee due to the effects of lead exposure on theemployee’s medical condition, the employer shall provide medical removalprotection benefits to the employee equal to that required by paragraph(k)(2)(i) of this section.The Secretary argues that the employees Schuylkill transferred weretransferred because they had rising blood lead levels, that thetransfers were therefore a result of the effects of lead exposure on theemployees’ medical condition, and that this section therefore requiresSchuylkill to pay MRP benefits to the employees. Schuylkill argues thatthe transfers were for the purpose of discipline and retraining, and nota result of the effects of lead exposure on the employees’ medicalcondition. Schuylkill points to the testimony of its plant physicianthat none of the employees had primary conditions associated withoccupational lead exposure and none were at an increased risk to theirhealth if they had continued in their jobs.We find it unnecessary to resolve this dispute. Under our interpretationof the standard, even assuming Schuylkill was required to pay MRPbenefits, the payments it made to the transferred employees wereadequate to discharge that obligation.[[7]] The Mine Act was subsequently amended and redesignated the FederalMine- Safety and Health Act of 1977. Pub.L. 95-164, 91 Stat. 1290 (Nov.9, 1977). The amendments did not affect the Act’s MRP provision.[[8]] We also note that, if the Secretary intended \”earnings\” to includepremium payments, his statement that he did not include such adefinition because it would be likely to confuse some employers isdifficult to credit. About a year after he adopted the lead standard,the Secretary published appendices that were intended to summarize keyprovisions of the standard for employees. 44 Fed. Reg. 60980 (Oct. 23,1979). Section IX of Appendix B discusses medical removal protection andstates: \”Earnings includes more than just your base wage; it includesovertime, shift differentials, incentives, and other compensation youwould have earned if you had not been removed.\” Id. at 60987. TheSecretary’s ability to draft such a clear and concise definition for theinformation of employees suggests he could have also drafted adefinition that would not have confused employers if he indeed intendedto include premium payments in \”earnings\” when he adopted the standard.Thus we conclude, from the fact that he did not do so when adopting thestandard, that he did not intend \”earnings\” to include the premiumpayments to which he later referred in this summarization for employees.We do not accord dispositive weight to this summarization because it wasnot composed when the standard was promulgated and thus is not acontemporaneous explanation and interpretation. L.E. Myers Co., 86OSAHRC ____, 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p.35,604 n.9 (No. 82-113T. 1986). Moreover, it is inconsistent with thehistory of the standard we have cited.[[9]] Amax and St. Joe argue that the lead standard is invalid and thatpramuation of the MP provision exceeds the Secretary’s authority. TheSecretary counters that the principle of collateral estoppel precludesthe employers from challenging the standard’s validity in thisproceeding, pointing out that the D.C. Circuit in Steelworkers rejectedthe employers’ validity arguments and arguing that Amax and St. Joe wereeither parties to Steelw3rkers or were in privity with parties to thatcase. Because of our disposition, we need not reach either the validityarguments raised by the employers or the collateral estoppel argumentmade by the Secretary.”