“SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,Respondent.INDUSTRIAL UNION OF MARINE ANDSHIPBUILDING WORKERS OF AMERICA,LOCAL 24,Authorized EmployeeRepresentative.OSHRC Docket No. 78-3512_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge William E. Brennan is before theCommission pursuant to section 12(j), 29 U.S.C. ? 661(i), of theOccupational Safety and Health Act of 1970, 29 U.S.C ?? 651-678 (\”theAct\”). Judge Brennan vacated that part of a citation issued by theSecretary of Labor (\”the Secretary\”) to Respondent, Bethlehem SteelCorporation (\”Bethlehem\”), alleging a violation of the Act For failureto comply with the standard at 29 C.F.R. ? 1915.33(c)(1).[[1]] TheSecretary had proposed a $640 penalty for this alleged violation and hadcharacterized it as serious.[[2]] Commissioner Cottine granted in partthe Secretary’s petition for discretionary review, directing review onthe following limited issue:Whether the Administrative Law Judge erred in not considering evidenceof employee reactions symptomatic of exposure to the byproducts ofwelding, cutting, or heating surfaces coated with a toxic preservativeas a basis for a violation of 29 C.F.R. ? 1915.33(c)(1)?Commissioner Cleary also directed review on the following issues:Whether the Administrative Law Judge erred in vacating the allegedserious violation of 29 C.F.R. ? 1915.33(c)(1) on the ground that theSecretary introduced uncorroborated hearsay evidence insufficient toestablish a violation of the cited standard?andWhether in alleging the serious violation of 29 C.F.R. ? 1915.33(c)(1)the Secretary must prove that concentrations of zinc oxide fumesexceeding 5 mg\/M3 are present in the enclosed work space?For the reasons set forth below, we conclude that the Secretarysustained his burden of proving Bethlehem’s noncompliance with section1915.33(c)(1), but that he failed to prove that this violation of theAct was serious.IThe relevant facts may be summarized as follows. A number of Bethlehem’semployees engaged in welding operations while replacing steel plates invarious cargo tanks aboard a crude oil tanker that was berthed forrepairs at Bethlehem’s shipyard in Baltimore, Maryland. The new steelplates were coated with an anti-corrosive, inorganic coating calledRust-Ban 191. A document titled \”Material Safety Data Sheet\” obtainedby the Secretary from Bethlehem and admitted in evidence indicates thatRust-Ban 191 is 80% zinc. During the course of the month-long repairactivities, welding was performed upon steel surfaces coated withRust-Ban 191. This welding produced zinc oxide fumes which were detectedin measurable concentrations in the cargo tanks as a result of airsampling by a Bethlehem environmental health technician.[[3]] Theinhalation of zinc oxide fumes can cause a condition known as metal fumefever. The \”Material Safety Data Sheet\” recommends that respiratoryprotection be provided. Bethlehem’s employees were not provided withair line respirators, although some fume-filter cartridge respiratorswere available during part of this period and mechanical exhaust fanswere located on deck to help circulate air down in the bottom of the tanks.One of the welders, Ochs, testified that, after he had noticed thatseveral other employees engaged in the welding operation were missingwork due to illness, he spoke with 29 co-workers who told him that theyhad experienced nausea, chills, headaches, bronchial and chest crampsand pains, and sore throats while welding in the tanks. Ochs filed acomplaint with the Occupational Safety and Health Administration(\”OSHA\”) after a Baltimore physician, Dr. Keogh, had reviewed themedical records of those affected and had concluded that a majority ofthose who became ill had a syndrome compatible with metal fume fever. By the time OSHA received the complaint, however, the tanker had leftthe shipyard and, therefore, the OSHA compliance officer was unable toinspect it. Later, at the hearing before Judge Brennan, the complianceofficer testified that he had been told by three industrial hygienistsat the OSHA office that they considered Rust-Ban 191 to be a toxicpreservative. The compliance officer — who conceded that he had nobackground in medicine, toxicology, or pharmacology — accepted thehygienists’ assessment regarding the toxicity of the coating, as well astheir opinion that metal fume fever could cause serious physical harm. He also testified that he believed that metal fume fever lasts a day ortwo and that zinc remains in the body about one day.In his decision, Judge Brennan determined that Bethlehem had beenproperly cited under section 1915.33(c)(1). He then turned to thequestion of whether the Secretary had established that Bethlehem’semployees were exposed to \”toxic\” concentrations of zinc oxide whileworking in the vessel’s tanks, thereby implicitly holding that theSecretary was required to make such a showing in order to establishnoncompliance with the cited standard. The judge noted that, accordingto the standard at 29 C.F.R. ? 1910.1000(a)(2), Table Z-1, zinc oxide isa toxic substance in concentrations exceeding an 8-hour time-weightedaverage of 5 mg\/M3.[[4]] The judge found that no quantitative data hadbeen introduced to establish that the threshold limit value (TLV) forzinc oxide set forth in section 1910.1000 had been exceeded. Hecharacterized the only evidence directly relevant to this issue, i.e.,the testimony of Bethlehem’s environmental health technician concerningthe samples he had taken, as \”not conclusive.\” The judge noted that theSecretary had attempted to bridge \”a substantial evidentiary gap\” byintroducing the compliance officer’s testimony relating the opinion ofthe three OSHA industrial hygienists, Ochs’ testimony describing thesymptoms reported to him by the 29 employees, and a letter by Dr. Keoghstating his evaluation of the symptoms which the employees had relatedto him. The judge found that none of this hearsay evidence wascorroborated at the hearing and he indicated that such uncorroboratedhearsay could not support a finding of noncompliance. Having concludedthat the Secretary had failed to establish that the employees wereexposed to toxic concentrations of zinc oxide while welding, JudgeBrennan vacated this item of the citation.IIBethlehem endorses Judge Brennan’s determination that, in order toestablish the alleged violation at issue, the Secretary had the burdenof proving that the concentration of zinc oxide fumes exceeded 5 mg\/M3in the enclosed spaces in which welding was performed. [[5]] Bethlehemrefers to the alternative tests set forth in 29 C.F.R. ?1910.141(a)(2)(viii), which defines \”toxic material\” as \”a material inconcentration or amount which exceeds the applicable limit establishedby a standard, such as ?? 1910.1000 and 1910.1001 or, in the absence ofan applicable standard, which is of such toxicity so as to constitute arecognized hazard that is causing or is likely to cause death or seriousphysical harm.\” Bethlehem asserts that, once the + 25% sampling errorfactor is applied to the results of the samples taken by itsenvironmental health technician, there is no record evidence to showthat the 5 mg\/M3 TLV was exceeded. Moreover, it continues, by failingto show exposure to zinc oxide fume in excess of 5 mg\/M3, the Secretaryhas also failed to establish that the employees were exposed to anyhazard, because, in Bethlehem’s view, no adverse health effects could beexpected as a result of exposure to concentrations below 5 mg\/M3. Bethlehem argues that the concentrations shown in this case cannot besaid to cause death or serious physical injury because the recordestablishes the relatively brief duration of metal fume fever. Accordingly, Bethlehem concludes, Rust-Ban 191 does not constitute atoxic material under either part of the definition set forth in section1910.141(a)(2)(viii).IIIThe cited standard, a specification standard, requires that employeesengaged in welding, cutting or heating in enclosed spaces on surfacescovered with toxic preservatives must be protected by air linerespirators or that the toxic coating must be stripped at least fourinches from the area of heat application. It is not seriously disputed– and Judge Brennan so found — that air line respirators were notprovided and that welding was performed in enclosed spaces on surfaceswhich had not been stripped of coating. Thus, the matter fundamentallyat issue before us is whether the unstripped coating on the steel plateswas a \”toxic preservative coating\” within the meaning of the citedstandard, note 1 supra.Bethlehem contends that Judge Brennan properly held that the Secretaryfailed to prove that Rust-Ban 191 is a toxic preservative coating. Wedisagree. The Material Safety Data Sheet indicates that thepreservative coating Rust-Ban 191 is 80% zinc. It also prescribes theuse of respiratory protection and urges the use of adequate ventilationwhile welding coated surfaces. The record evidence, particularly thefour samples collected by Bethlehem’s own environmental healthtechnician, establishes that welding upon steel surfaces coated withRust-Ban 191 produces measurable concentrations of zinc oxide fume. Under the ship repairing standards Bethlehem was expressly required toascertain the threshold limit value for zinc oxide. 29 C.F.R. ? 1915.57provides in pertinent part:? 1915.57 Health and sanitation.(a) No chemical product, such as a…preservative; [and] no structuralmaterial, such as… zinc coated steel … which is a hazardous materialwithin the meaning of ? 1915.2(s), shall be used until the employer hasascertained the potential fire, toxic, or reactivity hazards which arelikely to be encountered in the handling, application, or utilization ofsuch a material.(b) In order to ascertain the hazards, as required by paragraph (a) ofthis section, the employer shall obtain the following items ofinformation which are applicable to a specific product or material to beused:(7) Health hazard data, including threshold limit value, in appropriateunits, for a single hazardous chemical or for the individual hazardousingredients of a mixture, as appropriate; ….Section 1915.2(s), cited in section 1915.57(a), defines \”hazardousmaterial\” as having any of seven characteristics, including \”…athreshold limit value… below 500 mg\/M3 for fumes …. \” The thresholdlimit value for zinc oxide fumes is set forth in Table Z-1 of section1910.1000, the roster of toxic and hazardous substances. Table Z-1applies in this case because there is no specific reference in or tosection 1915.57(a) regarding any other source for threshold limitvalues. The low TLV for zinc oxide fume found in Table Z-1, 5 mg\/M3,establishes the characterization of these fumes as \”hazardous.\” [[6]] We also note that metals coated, as here, with zinc-bearing materialsare deemed to be \”of toxic significance\” pursuant to section1915.31(c)(1), a companion standard to section 1915.33(c)(1) in SubpartD–Welding, Cutting and Heating, of the Safety and Health Regulationsfor Ship Repairing under Part 1915. Based on the foregoing evidence aswell as the Secretary’s regulations, we conclude that Rust-Ban 191 is a\”toxic preservative coating\” within the meaning of the cited standard.We reject Bethlehem’s argument that, in order to establish a violationof section 1915.33(c)(1), the Secretary had the burden of proving thepresence of zinc oxide fume in excess of the levels set forth in TableZ-1.[[7]] The plain meaning of the cited standard is that employeesmust be protected by air line respirators unless \”all toxic coatings\”have been stripped for a distance of at least 4 inches from the area ofheat application. The standard applies to all surfaces covered by atoxic coating. Its application is not determined by the level of aircontaminants produced by welding, cutting or heating these surfaces.[[8]]Bethlehem’s interpretation also is contrary to the standard’spreventative intent. The standard requires either the stripping ofcoating away from the area of heat application, which would prevent thecreation of any toxic air contaminants, or the use of air linerespirators, which would assure protection from any toxic aircontaminants that were created. The interpretation advocated byBethlehem would permit employees to be exposed to toxic air contaminantscaused by welding upon surfaces coated with a toxic preservative for aslong a period as is necessary to extrapolate an 8-hour time-weightedaverage. Indeed, such exposure could continue until the ever-changingconcentration of zinc oxide fume created by the process of welding in anenclosed space reached the point where the TLV was exceeded. In ourview, Bethlehem’s interpretation contravenes the clear intent of thestandard, which is to protect employees from any exposure to the aircontaminants created by welding on a toxic preservative coating bytaking precautions before welding ever begins.In Anaconda Aluminum Co., 81 OSAHRC 27A\/A2, 9 BNA OSHC 1460, 1480, 1981CCH OSHD ? 25,300, p. 31,352 (No. 13102, 1981), the Commission held that29 C.F.R. ? 1910.1001(c)(2)(iii) is not limited in its application tothose situations in which the permissible exposure limit for asbestos isexceeded. In essence, the Commission concluded that the standard citedin that case was a work practices standard that required employees touse supplied-air respirators and special clothing whenever they engagedin the specified activities of spraying, demolition, or removal ofasbestos. We conclude that the standard at issue in this case issimilar to the standard at issue in Anaconda, i.e., both standardsrequire specified precautions to be taken whenever employees are engagedin specified activities. Therefore, the cited standard like thestandard at issue in Anaconda is not limited in its application tosituations where a showing is made that permissible exposure limits havebeen exceeded. Inasmuch as Bethlehem failed to provide air linerespirators when its employees welded upon surfaces which had not beenstripped of a toxic preservative coating, we further conclude thatBethlehem failed to comply with 29 C.F.R. ? 1915.33(c)(1).[[9]]The citation alleged that the violation was serious in nature. Viewingthe evidence in the light most favorable to the Secretary, it could beconcluded that some of the affected employees contracted metal fumefever as the result of exposure to zinc oxide fumes in the cargo tanks. Also, the compliance officer reported the hearsay opinion of three OSHAindustrial hygienists that metal fume fever could cause serious physicalharm and Dr. Keogh’s report indicated that some of the workers exposedhad persistent symptoms. Nevertheless, Dr. Keogh noted that thesepersistent symptoms are \”clearly not typical of the course reported inthe literature for metal fume fever.\” Moreover, the ACGIH documentationregarding zinc oxide fume states that \”[m]ost authorities agree thatmetal fume fever itself is a relatively innocuous condition. It hasbeen described as temporary and never serious, of brief duration andwithout aftereffects, never fatal . . . . \”[[10]] There is no argumentor evidence that employees were exposed to the hazard of contractingmetal fume fever other than during this one welding operation or thatthe metal fumes were contaminated with any other substance that couldaggravate the resulting symptoms. Thus, the Secretary’s case rests onthe effects of metal fumes during the limited period of welding involvedin this case.We conclude that the Secretary’s evidence does not establish aprobability that metal fume fever could result in prolonged or seriousphysical harm in light of the references by Dr. Keogh and ACGIH to thewidely-held scientific opinion to the contrary.As to the appropriate penalty, the gravity of the violation wassubstantial because a great number of employees were exposed to the zincoxide fumes. Bethlehem is a large company with many prior violations. Though Bethlehem showed a degree of good faith by monitoring someemployees’ exposure levels, it took no action after those readingsrevealed exposure to measurable concentrations of zinc oxide fume. Inaddition, the inadequate metal fume filter respirators were not alwaysprovided. In consideration of these factors we assess a $300 penalty.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: FEB 28 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The standard provided as follows:? 1915.33 Welding, cutting and heating in way of preservative coatings.(c) Protection against toxic preservative coatings. (1) In enclosedspaces all surfaces covered with toxic preservatives shall be strippedof all toxic coatings for a distance of at least 4 inches from the areaof heat application or the employees shall be protected by air linerespirators meeting the requirements of ? 1915.82(a).The Secretary recently has consolidated and revised the standards thatpreviously were published at 29 C.F.R. Parts 1915, 1916 and 1917. Theserevised standards have been promulgated as a new 29 C.F.R. Part1915–Occupational Safety and Health Standards for Shipyard Employment.47 Fed. Reg. 16984-17013 (April 20, 1982). The standard cited in thiscase and set forth above is now found at 29 C.F.R. ? 1915.53(d)(1). 47Fed. Reg. 16995. In this decision, we will use the old designation forthe cited standard, as well as for the other standards and regulationsthat formerly were published in Part 1915–Safety and Health Regulationsfor Ship Repairing.[[2]] Section 17(k), 29 U.S.C. ? 666(j), of the Act provides:[A] serious violation shall be deemed to exist in a place of employmentif there is a substantial probability that death or serious physicalharm could result… unless the employer did not, and could not with theexercise of reasonable diligence, know of the presence of the violation.[[3]] The Bethlehem environmental health technician testified that hetook samples in the tanker but did not use any breathing zone monitoringdevices because none of the employees he approached were willing to wearthem. Therefore, instead of attaching sampling devices to individualemployees, he took sampling pumps and placed them in pairs in differentareas where employees were working. He collected four samples whichyielded zinc oxide in the following concentrations:Sample# Sample Duration Zinc-OxideConcentration1 36 minutes .74 mg\/M3 3 15 minutes 5.67 mg\/M35 10 minutes 1.14 mg\/M36 30 minutes 3.66 mg\/M3test, so he was unable to state at what level inside the tanker thesamples had been taken.At the hearing the technician initially testified that he had computedthe exposure level in terms of a time-weighted average by adding theconcentration level figures determined by the samples taken and thendividing that total by the number of samples. However, he later admittedthat the figure he had computed could not be equated with an 8-hourtime-weighted average.[[4]] The standard at 29 C.F.R. ? 1910.1000(a)(2) requires employeeexposure to specified air contaminants to be limited to the applicable8-hour time-weighted average as listed in Table Z-1.[[5]] Both Bethlehem and the Secretary frame their arguments in terms ofwhether the samples taken by the environmental health technicianindicated a concentration of zinc oxide fume in excess of 5 mg\/M3 forthe brief period of time sampled. They overlook the fact that this TLVfor zinc oxide fume is an 8-hour timeweighted average.[[6]] Commissioner Cleary does not rely on the listing of zinc oxidefumes in Table Z-1 of ? 1910.1000 as a basis for concluding thatRust-Ban 191 is a toxic preservative coating. Instead, he notes thatthe American Conference of Government Industrial Hygienists, in itspublication, Threshold Limit Values, has set a TLV for zinc oxide fumesof 5 mg\/M3, and that ? 1915.5 specifically incorporates this publicationinto ?? 1915.11(a)(3) and (b)(3) and 1915.21(b). Accordingly,Commissioner Cleary concludes that the references to threshold limitvalues in ?? 1915.2(s) and 1915.57 refer to the TLVs as established andpublished by the ACGIH.[[7]] The definition of \”toxic material\” at 29 C.F.R. ?1910.141(a)(2)(viii) cited by Bethlehem is by its terms applicable onlyto 29 C.F.R. Part 1910, Subpart J, and does not control the meaning of\”toxic coating\” under the cited standard.[[8]] Commissioner Cottine notes that the dissent at n.15, infra,overlooks the elementary distinction between a permissible exposurelevel and a work practice. See 29 C.F.R. ? 1910.1001(b)(1), (c)(2)-(iii)(asbestos standard: separate requirements for permissible exposure leveland work practices), ? 1910.1029(c), (f)(3) (coke oven emissionsstandard: same), ? 1910.1043(c), (g) (cotton dust standard: same). InBethlehem Steel Corp., 82 OSAHRC 31\/A2, 10 BNA OSHC 1673, 1982 CCH OSHD? 26,083 (No. 77-1807, 1982), the standard specifically required amechanical ventilation system adequate to maintain welding fumes andsmoke \”within safe limits\” unless alternative protection was provided.29 C.F.R. ? 1916.31(a), (b). However, the citation in this caseinvolves the work practices provision of ? 1915.33(c)(1). Thisprovision specifically mandates protection unless all toxic coatings areremoved from the area of heat application. Therefore, this provisionrequires specific work practices regardless of air contaminant levelswhen welding is to be done on surfaces covered with toxic preservativecoatings. These work practices are supplemented by the requirement ofadequate ventilation or alternative protection when welding smoke andfumes exceed \”safe levels.\” Work practices are dependent on aqualitative criterion–\”metals of toxic significance\” on the surface ofthe material to be welded–and by a quantitative criterion–the \”safelimits\” established by the permissible exposure levels for toxic aircontaminants. Accordingly, Commissioner Cottine adheres to his fullyconsistent view that the threshold limit values of Table Z-1 of ?1910.1000 are an appropriate quantitative reference for a standardrequiring the measurement of air contaminants, Bethlehem Steel Corp., 10BNA OSHC, at 1677 n.9, 1982 CCH OSHD at p. 32,832 n.9, but that thisquantitative reference is irrelevant to a standard that requires aspecific work practice regardless of the air contaminant levels.[[9]] Our finding that the coating before us is a \”toxic preservativecoating\” within the meaning of the cited standard is not based upon anyof the evidence which the judge characterized as \”uncorroboratedhearsay.\” Therefore, we need not reach the evidentiary issues directedfor review in order to dispose of this case. It is, of course,well-settled that hearsay evidence is admissible in Review Commissionproceedings and that hearsay evidence may be probative. E.g. UltimateDistribution Systems, Inc., 82 OSAHRC 22\/B12, 10 BNA OSHC 1568, 1982 CCHOSHD ? 26,011 (No. 79-1269, 1982).[[10]] ACGIH, Documentation of the Threshold Limit Values 284 (3d ed.1971)(citations omitted); see also Id. 446 (4th ed. 1980).”