“Docket No. 79-4786 SECRETARY OF LABOR,Complainant,v.CF&I STEEL CORPORATION,Respondent.UNITED STEEL WORKERS OF AMERICA,AFL-CIO, LOCAL 2102,Authorized Employee Representative.OSHRC Docket No. 79-4786DECISION BEFORE: BUCKLEY, Chairman; RADER AND WALL, Commissioners. BY THE COMMISSION:This case if before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678(\”the Act\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).CF&I Steel Corporation (\”CF&I\”) operates a steel plant near Pueblo,Colorado. At this plant, CF&I also operated a coke oven facility to produce coke foruse in its steelmaking. Following an inspection of its coke oven facility, severalcitations were issued to CF&I that alleged violations of the coke oven emissionsstandard. CF&I contested these citations and the case was assigned to formerAdministrative Law Judge Quentin P. McColgin, Jr. After a hearing on the merits, the judgeaffirmed some citations and affirmed some in part. CF&I and the authorized employeerepresentative, the United Steelworkers of America, AFL-CIO, Local 2102 (\”theUnion\”) obtained review of the judge’s decision.[[1]]Background1. CF&I’s Coking OperationCF&I produced coke in three adjoining batteries: Battery B, containing 65 ovens, waslocated at the south end of the configuration; Battery C, containing 47 ovens, was in themiddle; and, Battery D, containing 31 ovens, was on the north end. Each oven contained inthe batteries was approximately 2 feet wide, 20 feet high and 120 feet long. Pinion walls,made of masonry, were located at the ends of each battery. These pinion walls extendedvertically from ground level and served as structural supports for the series of ovenscontained within each battery. The pinion walls ranged in width from three to six feetthick. Intermediate pinion walls were located between B and C and between C and D. Theouter pinion walls were at the ends of batteries B and D. There were coal bins or bunkersadjacent to and beyond the outer pinion walls on the north and south ends of thebatteries. Door repair shops were also located beyond the outer walls, below the coal binson what is known as the \”bench level\” of the battery.The coking cycle begins with the introduction of coal into the coke oven. This procedure,called charging, is carried out by a larry car which operates on rails that run the lengthof the top or \”topside\” of the battery. The larry car receives coal from one ofthe coal bins or bunkers located south of the outer pinion wall on Battery B and north ofthe pinion wall on Battery D. The larry car then moves along topside to the oven to becharged, the lids on the tops of ovens are removed, and the coal is dropped into the oven.After the lids are replaced, the coal is heated for 16 to 20 hours at approximately 1100 C(2000 F). When the coal is coked, it is then ready to be pushed from the oven. Doors onboth sides of the oven, the \”push side\” and the \”coke side,\” areremoved. A \”pusher machine\” then travels along tracks on the \”pushside\” of the battery and uses a mechanical ram to push the coke into the quench car,located on the tracks on the \”coke side\” of the oven.The coke is then removed from the battery area, cooled, and transferred to the coke wharf.It then is stored for use in steelmaking. After the push, the oven doors on both sides ofthe battery are inspected to determine whether their emission-limiting seals have beendamaged during the coking. Damaged doors are returned to one of the door repair shopslocated below the coal bunkers at bench level.2. OSHA’s Coke Oven Emissions StandardThe coke oven emissions standard was adopted by OSHA after extensive rulemakingproceedings. It was published on October 22, 1976, and became effective on January 20,1977. 41 Fed. Reg. 46,742-90 (1976). The standard that finally was adopted was publishedwith an extensive preamble. The standard that finally was adopted was published with anextensive preamble. The preamble explained the standard, discussed how it differed fromthe standard originally proposed, and summarized the comments received during thenotice-and-comment rulemaking proceedings.The final standard requires employers to establish engineering controls and work practicesto reduce employees’ exposure to coke oven emissions to 150 micrograms per cubic meter(150 ug\/m3) averaged over any eight-hour period. This 150 ug\/m3 permissible exposure limit(PEL) may not be exceeded in specific \”regulated areas\” on and near the battery.Although other standards regulating toxic and hazardous substances in substances inSubpart Z of 29 C.F.R. Part 1910 use the term \”regulated area,\” the coke ovenemissions standard is unique in its definition of the term. It identifies specific workareas on the coke oven battery as regulated areas. In contrast, other standards in SubpartZ define a \”regulated area\” as one where the substance being regulated is\”manufactured, processed, used, repackaged, released, handled or stored,\” e.g.,29 C.F.R. ? 1910.1003-1910.1016, or where employee exposure to the substance in questionexceeds the PEL for that substance. E.g., 29 C.F.R. ? 1910.1018, 1910.1044, 1910.1045,1910.1047. This decision not to define a \”regulated area\” on the basis ofambient coke oven emission levels was deliberate.[[2]]The coke oven emissions standard also provides that if the prescribed engineering and workcontrols do not reduce emission levels in the regulated area to the PEL, employers mustsupply employees with respirators. The preamble to the coke oven emissions standard statesthat the fit of respirators is to be tested qualitatively and quantitatively. 41 Fed. Reg.46,773-74. Respirator fit testing was discussed extensively by the parties in this case.The record shows that a qualitative fit test is subjective in that leakage is detected bythe wearer of the respirator. A quantitative fit test is more precise in that leakage ismeasured by an instrument that compares the contaminant level inside and outside therespirator face piece. The preamble confuses these tests and describes qualitative testingas quantitative testing. 41 Fed. Reg. 46,774.The validity of the coke oven emissions standard was challenged in the United States Courtof Appeals for the Third Circuit by several members of the coke-producing industry,including CF&I. The Third Circuit generally upheld the validity of the standard;however, the provision of the standard that required annual \”quantitativetesting\” of respirators which bears our resolution of one citation here, wasinvalidated by the court. American Iron and Steel Institute v. OSHA, 577 F.2d 825, 838-9(3d Cir. 1978) (\”AISI\”). OSHA subsequently amended the standard to delete thequantitative fit test requirement. 50 Fed. Reg. 37,352-54 (1985).3. Enforcement of the standard at CF&I’s plant During review of the standard, the Third Circuit lifted a temporary stay of enforcement ofthe standard. During May and July of 1977, OSHA inspected CF&I’s coking operation. Asa result of the inspection, CF&I was cited for several violations of the cokeemissions standard. The parties entered into a settlement agreement that resolved alldisputed issues. The settlement was approved by the Commission and became a final order onJune 14, 1979.On August 1, 1979, after the abatement date agreed upon in the settlement had passed, OSHAconducted a follow-up inspection to determine if the previously cited conditions had beenabated. As a result of inspection, OSHA issued the citations now before us.Citation 1: 29 C.F.R. ? 1910.1029(d)(2)(i), \”Battery Ends\”The citation alleges that CF&I violated section 1910.1029(d)(2)(i) by failing toestablish certain areas and machinery of the coke plant as \”regulated areas.\”These were the topside north and south coal bin areas, the bench level north and southdoor repair facility, and nos. 1-3 push cars and larry cars. Section 1910.1029(d)(2)(i)provides:(d) Regulated areas.(2) The employer shall establish the following as regulated areas:(i) The coke oven battery including topside and its machinery, pushside and its machinery,coke side and its machinery, and the battery ends; the wharf; and the screening station;(Emphasis added.)There is no dispute that CF&I did not establish the north and south coal bin areas andthe north and south door repair facilities as regulated areas. As already noted, thesecited areas were beyond the outermost pinion walls. There also is no dispute that thelarry cars and push cars were not designated as regulated areas when located beyond thepinion walls. The parties do dispute, however, whether the cited work areas and machineryare part of the \”battery ends\” and, thus, part of the regulated area. As we havealready noted, if an area or machinery is designated as a \”regulated area,\”employees in the area may not be exposed to coke oven emissions in excess of the 150 ug\/m3PEL, and the employer must take other protective measures, including medical surveillanceand provision of protective equipment.[[3]]1. FactsCompliance officer Gerald Ryan conducted the initial inspection as well as the follow-upinspection that resulted in the present citations. Based on conversations with CF&I’smanagement and his review of CF&I’s records, Ryan determined that CF&I \”nolonger\” considered the cited areas to be regulated areas. It appears that when theinitial inspection was conducted, the cited areas were designated as regulated areas byCF&I. Compliance officer Ryan thought that CF&I had misinterpreted OSHA’s\”respirator break\” policy, described in OSHA Instruction STD 1-4.3, and that asa result, it had deregulated areas on the battery where emissions sampling showed that thePEL was not exceeded.[[4]] These deregulated areas were described by CF&I as\”respirator break areas.\” In Ryan’s view, respirator break areas were still partof the regulated area.John Winkley, CF&I’s Manager of Air and Water Quality Control, and James Oliver,assistant superintendent of the Coke Plant, testified that the steelmaking industryconsidered the \”battery end\” to be the pinion wall. Winkley stated: \”[t]omy knowledge, the ends of the batteries are defined by location of the pinion walls at theend of the series of [coke] ovens.\” His definition was based on his engineeringexperience and conversations \”with other coke plant operating personnel.\”According to Oliver, \”[t]he end of the battery is customarily defined as being…thepinion walls, the extremity of the pinion wall.\” Oliver’s definition was apparentlybased on observation of numerous batteries.Winkley and Oliver also testified that the coal bin and the door repair facility were notincluded in the regulated area because they were \”beyond the ends of thebattery.\” According to assistant superintendent Oliver, these areas were alsodesignated as \”respirator break areas\” because sampling in these areas showedthat emissions were \”consistently\” below the PEL. CF&I required employees inthe cited \”respirator break areas\” to wear protective clothing. Respirators wereto be worn only in the presence of visible emissions. The consumption of food and drinkswas prohibited in these but smoking was allowed.The parties did not focus very closely on whether CF&I was required to designate thecited push cars and larry cars as regulated areas. The compliance officer testified thatthis machinery should have been designated as regulated areas when located beyond thepinion walls because it was contaminated with coke oven emissions when present on thebattery. Assistant superintendent Oliver stated that when the cited cars were not in useor were being repaired, they were beyond the pinion walls and therefore not consideredpart of the regulated area. He stated that when these cars were within the battery wallsthey were considered part of the regulated area.2. The judge’s decisionThe judge concluded that CF&I had violated the standard by failing to designate thecited locations and machinery as regulated areas. Although the judge found that\”[t]he battery end is considered throughout the industry to be the pinion wall,\”he concluded that the Secretary did not use the term in the sense understood by industryand therefore that facilities and machinery located beyond the pinion walls must beconsidered part of the regulated area.Based on an aerial photo of the coke plant, the judge reasoned that \”anyone, exceptpossibly a member of the coke oven industry\” would consider CF&I’s series of cokebatteries as a \”single structure.\” Because of the proximity of the cited areasto the coke ovens, he concluded that these areas should be considered part of the\”battery ends\” and therefore a regulated area.Citing the preamble to the standard, the judge further found that \”[i]t [was] theexpress intention of the promulgators of the standard to include within the regulatedareas, all work areas wherein the permissible exposure limit to coke oven emissions couldbe exceeded.\” Although he found no evidence of sampling results taken at the doorrepair facilities and coal bins, the judge did find that samples taken in the immediatevicinity of these areas approached or exceeded the PEL. See note 5, infra. He concludedthat the PEL \”could\” have been exceeded in these locales and, thus, that theyshould have been designated as regulated areas. He also found that a statement in thepreamble–that \”[t]he larry car receives a load of coal bunker at the end of thebattery\”–provided \”[m]ajor support\” for concluding that, in using the term\”battery ends,\” OSHA intended to include facilities beyond the pinion walls,such as coal bunkers, as part of the regulated area.The judge rejected CF&I’s argument that the larry cars and push cars should not beconsidered part of the regulated areas when positioned beyond the pinion walls. Accordingto the judge, this machinery could be contaminated by coke oven emissions even when movedbeyond the pinion walls. Without explanation, he concluded that there was \”need forsome, but not necessarily all, the protective requirements that come into play bydesignating the machines as regulated areas.\”3. The parties’ argumentsCF&I argues that the judge’s broad interpretation of the term \”battery ends\”is contrary to the industry’s definition of the term and violates the rule of constructionthat the words of a regulation should be given their \”commonly understood\”meaning. In this regard, CF&I points out that the judge explicitly found that\”[t]he battery end is considered throughout the industry to be the pinion wall.\”According to CF&I, the other reasons advanced by the judge for broadly interpretingthe term \”battery ends\” are unfounded. CF&I first argues that the judge’sfinding that the battery \”looks\” like a single structure represents a layman’sview of the structure that disregards industry’s view. It next contends that, contrary tothe judge’s findings, the preamble does not provide support for a broad interpretation ofthe term \”battery ends.\” CF&I concedes that the preamble does state that\”coal bunkers\” are located at the \”end of the battery\” but argues thatthis statement was taken out of context by the judge and that it merely reflected a verygeneral statement used in discussing the choking process and not a definition of the term\”battery end.\”CF&I next contends that section 1910.1029(d)(2) specifically enumerates the areas thatmust be regulated under the standard. It asserts that the judge misread the standard byfinding that a regulated area exists wherever the PEL could be exceeded. CF&I assertsthat this approach to designating a regulated area was not followed in the final standardand cites the language from the preamble in support. In any event, CF&I contends thatthe record contains sampling results from both door repair facilities and that theseresults were both below the PEL>The union argues that the pinion walls are not the \”battery ends.\” It assertsthat \”if the Secretary had intended the regulated area to be defined by the pinionwall[,] that is what the regulation would have said since that is the term used by theindustry.\” In the union’s view, \”battery ends\” refers to the area andstructures attached to the pinion walls that contain the cited coal bins and door repairareas. The union points out that the pinion walls are three to six feet thick and thatthey are not work areas.Relying on the preamble, the union further asserts that OSHA excluded areas on and nearthe battery from the regulated area coverage only where there was no epidemiologicalevidence of excess health risk. It contends that the preamble and standard require thatcertain job classifications must be monitored quarterly because they are associated withexcess health risks. Since certain of the employees in these positions–such as coke ovenpatchers, repairmen, and maintenance personnel–work on the batteries as well as in citedareas beyond the pinion walls, it submits the cited areas should also be considered partof the regulated area. The union also argues that evidence showing that the PEL could beexceeded in the disputed areas demonstrates the need for establishing these areas asregulated.Finally, the union contends that even if the Commission narrowly construes \”batteryends\” as pinion walls and concludes that the door repair facilities and coal bunkerswere not regulated areas, the citation must be affirmed as to the cited larry cars andpush cars because the standard requires \”topside and its machinery [and] pushside andits machinery\” to be established as regulated areas without reference to the\”battery ends.\”Although the Secretary concedes that the term \”battery ends\” has no plainmeaning and is undefined by the standard, he submits that language contained in thepreamble to the coke oven standard demonstrates that it was OSHA’s \”clearintention\” to include facilities and machinery located beyond the pinion wall withinthe regulated area. Like the union, the Secretary contends that the preamble’s statementthat \”[t]he larry car receives a load of coal from the coal bunker at the end of thebattery\” (emphasis supplied by the Secretary) demonstrates the intent to includeareas such as the coal bunkers within the regulated areas. He further asserts the preambleand the standard’s definition of regulated area show that OSHA intended to include largeareas on and near the battery in the regulated area and not a three-to six-foot wide wall.According to the Secretary, a broad interpretation of battery ends also is appropriatebecause CF&I’s sampling results show that coke oven emissions \”can and do exceedthe [PEL] in areas beyond the pinion walls.\” He points out that CF&I recognizedthat the disputed areas and machinery were part of the regulated area because, prior tothe issuance of OSHA Instruction Std. 1-4.3 (see note 4, supra) and when the initialinspection of its facility was conducted, CF&I had designated these areas as regulatedareas. Finally the Secretary argues that his construction of the standard should becontrolling because it is reasonable.4. DiscussionTo determine whether CF&I violated the standard by failing to establish the doorrepair and coal hin areas as \”regulated areas,\” we must determine whether theywere part of the \”battery ends.\” In construing the standard, we are mindful ofseveral principles. We must look first to the language of the standard. See Bunge Corp.,86 OSAHRC _\/_, 12 BNA OSHC 1785, 1789, 1986 CCH OSHD ? 27,565, p. 35,804 (No. 77-1622,1986), and cases cited. Second, although legislative history and other extrinsic aids tointerpretation may be used to determine the intent of the drafter, standards should beconstrued in a way that does not deprive employers of fair of the requirements of the law.See id., 12 BNA OSHC at 1790-91, 1986 CCH OSHD at p. 35,806, and cases cited. See alsoUsery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir.1977); Bethlehem SteelCorp. v. OSHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); Diamond Roofing Co. v. OSHRC, 528F.2d 645, 650 (5th Cir. 1976); Lisbon Contractors, Inc., 84 OSAHRC 19\/A2, 11 BNA OSHC1971, 1973-74, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984). We find that thelanguage of the standard and its legislative history shed no light on the question beforeus, and that the construction of the standard for which the Secretary argues would depriveemployers of the fair notice of their obligations that due process of law requires. Wetherefore construe the term in the manner that this record shows it is understood by thecoke oven industry.The standard does not define the term \”battery ends.\” Moreover, as the Secretaryobserves, the term has no plain meaning. Yet, the judge found, and neither the Secretarynor the union disputes, that \”[t]he ‘battery end’ is considered throughout theindustry to be the pinion wall.\” The judge and the parties have, however, looked toother sources as interpretive aids.A.Relying on the preamble to the standard, the union and the Secretary argue, and the judgefound, that OSHA intended to establish regulated areas wherever the PEL for coke ovenemissions was exceeded. Because of the proximity of the cited areas to the coke ovens andbecause CF&I’s monitoring data purportedly showed that the PEL \”could beexceeded\” in the cited areas, the judge determined that the cited areas should beconsidered regulated areas.This argument is directly contrary to the legislative history of the standard. The portionof the preamble relied on by the Secretary, the union, and the judge states:Both the proposed standard and the Advisory Committee report also established \”anycoke plant area where the [PEL] is exceeded as an RA [regulated area] (Ex. 1a, p. 322278;3, p. 15). The final standard does not follow that approach. The permissible exposurelimit of this standard only applies in the RA. (See discussion Permissible ExposureLimit). Any area where the permissible exposure limit could be exceeded, would, bydefinition already be a part of the RA. Areas of the coke plant outside of the RA arecovered by the existing CTPV standard. (See discussion of Scope and Application).41 Fed. Reg. at 46,757 (emphasis supplied). As can be seen from this except, regulatedareas under the final standard were to be established by work areas and not by whether thePEL is or \”could be\” exceeded. Although the approach followed by the judge andurged by the Secretary and the union is consistent with the proposed standard and withother OSHA health standards, it is clearly inconsistent with the coke oven emissionsstandard as finally adopted. See note 2, supra. Finding the preamble very clear on thispoint, we must reject this basis for concluding that the cited areas are encompassed bythe term \”battery ends.\”[[5]]We also do not find that the preamble’s isolated statement that coal bunkers are \”atthe end of the battery,\” provides \”[m]ajor support\” for concluding that, inusing the term \”battery end,\” the Secretary intended to regulate facilitiesbeyond the pinion walls. This statement is contained in a general description of a typicalcoking operation and clearly is not definitional. It is the only instance of such usage inthe 43-page, triple-columned preamble to this standard. We decline to wring an inferenceof intent from such an offhand and isolated statement.OSHA Instruction STD 1-4.3, a policy directive on respirator programs for coke ovenbatteries, see note 4, supra, also fails on this record to convincingly show an intent bythe drafters to encompass areas beyond outer pinion walls within the \”batteryends.\” This directive discusses at length when \”respirator break areas\” maybe established in a regulated area. In discussion that subject, it also states that:Battery ends include, but are not limited to, the coal loading area between batteries ontopside and bench level (and not just pinion wall to pinion wall). In general, all partsof the battery above ground level are within the regulated area.(Emphasis added.) This brief passage cannot be said on this record to be controlling.First, the record here contains no evidence that OSHA Instruction STD 1-4.3 reflects theintent of the drafters of the coke emissions standard. The instruction was issued overthree years after standard was published. Neither the instruction nor the record shows,and the Secretary’s brief does not represent, that the drafters of the instruction werealso the drafters of the standard or that they consulted with the standard’s drafters.Like the respirator break-area policy it established (see note 4, supra), theinstruction’s discussion of the term \”battery ends\” was only a brief digressionfrom the rest of the instruction, and could well have been only an afterthought byenforcement personnel. Second, the instruction does not address the situation posed by thefacts of this case. Although the instruction states that battery ends include coal loadingareas outside pinion walls, the battery ends being discussed are those between batteries,a configuration that is far different than that existing at CF&I’s plant. At best,this view would mean that coal loading areas between operating cokes ovens would beregulated. It provides no support, however, for an argument that the term \”batteryends\” encompasses exterior coal loading areas beyond the outer pinion walls. Indeed,the very fact that the instruction stated that interior coal loading areas were within thebattery ends, but did not say the same bout exterior coal loading areas, would tend toindicate that the author of the instruction understood that the standard did not encompassexterior coal loading areas.We also decline to ascribe significance to the interpretation of the standard proffered inthe brief submitted by the Secretary. This standard is one of the few standards that wasdrafted by OSHA.[[6]] Inasmuch as the intent of OSHA in drafting the standard must beconsidered along with considerations of fair notice in construing the standard, we cannotignore the construction placed on a standard by those in OSHA who drafted it. Such aconstruction would obviously have considerable probative value in determining the effectof the standard. However, the brief does not represent that it was written or reviewed bylawyers who consulted with the drafters of the standard or participated in the drafting ofthe standard. See New England Telephone & Telegraph Co. v. Public UtilitiesCommission, 742 F.2d 1, 11 (1st Cir. 1984) (on rehearing) (\”[The FCC’s] ‘views’ heredo not reflect agency policy after debated among staff or commissioners. Rather, as far aswe can tell, they simply represent the General Counsel’s interpretation of the statute;they are contained only in his brief.\”). Cf. Investment Company Institute v. Camp,401 U.S. 617, 626-28 (1971) (counsel’s efforts in litigation are \”hardly tantamountto an administrative interoperation\” of a statute).Finally, we cannot agree with the judge’s view that the cited areas are part of thebattery ends because the coke oven facility–extending from the north door repair and coalbin area to the south door repair and coal bin areas– \”looks like a singlestructure.\” Acknowledging that he was adopting the \”single structure\”interpretation advanced by the Secretary and the union, the judge found that\”[a]nyone, except possibly a member of the coke oven industry…would likely viewsuch facilities as one structure….\” As CF&I points out, however, the judge’sinterpretation is based on a layman’s view of its facility. Neither the judge’sobservation as to the physical continuity of the facility nor his resultant interpretationof the term \”battery\” ends reflects industry’s understanding or usage of thisterm, but instead employs an untutored observation to supplant the meaning of a term thatis well-understood by individuals who are intimately familiar with coking operations andwho, ultimately, are responsible for complying with the standard. Given the unrebuttedevidence that industry considered the battery ends to be the pinion walls, we cannot adoptan interpretation that is based solely on the appearance of a coke oven to untutored eye.B.We shall therefore apply the usual canons of construction here. Two well-settled rules ofinterpretation guide our decision. The first rule is that a word that is a term of art ina particular discipline should be construed accordingly where the statute or regulationbeing construed applies to the particular discipline. Corning Glass Works v. Brennan, 417U.S. 188, 201, 94 S.Ct. 2223, 2231 (1974). See United States v. Cuomo, 525 F.2d 1285, 1291(5th Cir. 1976), and cases cited therein. See also 2A C. Sands ed., Sutherland onStatutory Construction ? 45.08 at 23, 47.7 at 137, 47.29 at 150 (1973). The second ruleis that which we have noted above–that standards ought not be construed in a manner thatdeprives employers of fair notice of the requirements of the law.The record here amply demonstrates that the only individuals who readily understood theterm \”battery ends\” were coke producers. They considered the \”batteryends\” to be the pinion walls. The Secretary and the union argue that the cokeproducers’ reading of these terms yields an incongruous result because employers wouldthen be required to designate a three-to-six-foot wide wall as a regulated area. However,given the rather formidable evidence of industry’s understanding of this term and OSHA’sfailure to inform employers that it intended this term to be applied in a different sense,it is inappropriate to construe \”battery ends\” in a sense that differs fromindustry’s understanding of the term. As already stated, employers are entitled to fairnotice of their responsibilities under the Act. Standards cannot be construed to mean whatan agency intended but did not adequately express. Diamon Roofing, 528 F.2d at 649.\”The test is not what [the Secretary] might possibility have intended but what hesaid.\” Bethehem Steel, 573 F.2d at 161. As Justice Frankfurter observed with regardto the interpretation of statutes:Even when it has spoken, it is as true of Congress as of others that what is said is whatthe listener hears.Some Reflections of the Reading of Statutes, 47 Colum.L.Rev. 527 (1947). Here, the recordshows that when OSHA said \”battery ends,\” the employer heard \”pinionwalls\” because its industry considers these terms synonymous and because OSHA gavethe industry no notice in the standard that the term was not used in the sense itunderstood.The Secretary asserts that CF&I heard and understood precisely what he claims OSHAintended by \”battery ends\” because the record also shows that the cited areasand equipment had at one time been designated as regulated areas. It appears that whenCF&I was first inspected by OSHA in 1977, the cited areas and equipment weredesignated as regulated areas; however, following this inspection, CF&I departed fromthis policy. The assistant superintendent of the coke plant, Oliver, testified that sometime after the standard was promulgated, on a date that he could not recall, adetermination was made that the cited areas were not part of the regulated area. Thisevidence, it is submitted to us, demonstrates that the employer understood precisely whatthe standard required.An employer who is actually aware of a standard’s requirements may not claim that thestandard fails to provide adequate notice of its requirements. See Diebold, Inc. v.Marshall, 585 F.2d 1327 (6th Cir. 1978). We do not, however, find that evidence that thecited areas were once designated as regulated areas is sufficient to overcome CF&I’sand the coke oven industry’s contrary interpretation in this case.Accordingly we find that the standard does not require areas beyond the outermost pinionwalls to be designated as regulated areas, and we reverse the judge’s finding ofviolation.We next consider whether CF&I violated the standard by failing to designate the pushcars and larry cars as designated areas. Neither the parties nor the judge focused closelyon this aspect of the citation. The record shows that CF&I considered these cars partof the regulated areas when they were between the pinion walls. They were not designatedas regulated areas when they were positioned beyond the pinion walls, in the vicinity ofthe door repair and coal bin areas. The judge found that CF&I violated the standard byfailing to regulate these cars because they \”could be expected to be contaminatedwith coke oven emissions even when they have moved beyond the pinion walls….\”Without elaborating, he noted, \”there is need for some, but not necessarily all, theprotective requirements that come into play by designating the machines as regulatedareas.\”We reject the judge’s adoption of an intermediate position–declaring that some but notall of the protections applicable to regulated areas shall apply when machinery is beyondthe outer pinion walls. The Commission cannot construe this standard to require less ormore than the protections imposed by its words without substituting its view ofoccupational health policy for that of the Secretary. See generally Lisbon Contractors, 11BNA OSHC at 1973, 1984 CCH OSHD at p. 34,500. The question is instead controlled by thelanguage of the standard and the standard’s definition of \”coke oven battery.\”In describing the machinery that is to be included in the \”regulated area,\” thestandard refers to \”[t]he coke oven battery including topside and its machinery, pushside and its machinery, coke side and its machinery….\” Although the standard thusrefers to coke oven machinery such as the larry cars and push cars, it does so inconnection with the topside, the pushside and the coke side. The standard does not statethat the larry cars and push cars are themselves \”regulated areas\” when they areno longer in the coke oven battery–defined by section 1910.1029(b) as \”a structurecontaining…slot-type coke ovens\”–or the battery ends. We therefore find that thejudge erred in concluding that the standard required this machinery to be regulated whenpositioned beyond the pinion walls.Here the record shows that CF&I treated the machinery as part of the regulated areawhen it was positioned between the outer pinion walls on the three batteries operated atits facility, Batteries B, C, and D. This is all that the terms of the standard require.Accordingly, we vacate the portion of the citation alleging that CF&I violated thisstandard by failing to designate this machinery as regulated areas.Citation 2: Sections 1910.1029(g)(3) and 1910.134(e)(5), Respiratory Program.CF&I was also cited for a violation for 29 C.F.R. ? 1910.1029(g)(3), whichincorporates by reference 29 C.F.R. ? 1910.134.[[7]] The citation alleges that:The employer did not institute a respiratory protection program in accordance with1910.134 of this part, in that: have their respirator fitted properly and test itsface-piece-to-face seal:a) 28 coke oven employees working in the regulated area exposed to coke oven emissionsfailed their respirator fit test and were not provided with a different respirator whichwould fit.The specific provision of the respirator standard that allegedly was violated is section1910.134(e)(5), which states:? 1910.134 Respiratory protection.(e) Use of respirators.(5)For safe use of any respirator, it is essential that the user be properly instructed inits selection, use, and maintenance. Both supervisors and workers shall be so instructedby competent persons. Training shall provide the men an opportunity to handle therespirator, have it fitted properly, test its face-piece-to-face seal, wear it in normalair for a long familiarity period, and, finally, to wear it in a test atmosphere.Compliance officer Ryan testified that before they were assigned to the regulated areas,CF&I employees were given a respirator, told when to use it, and shown how to performa positive-negative pressure test.[[8]] They were also shown a film illustrating thevarious types of respirators, their use and proper function, use of a banana oil (isoamylacetate) atmosphere for fitting, and how to place and fasten a respirator properly,including tightening for good fit. Ryan testified that CF&I also gave the employees abanana oil test. Ryan stated that at the settlement conference that followed his 1977inspection, he told CF&I that respirators should be fitted in banana oil or irritatesmoke. He testified that the training film shown to newly hired CF&I employees statedthat if an employee detected the presence of banana oil, a new respirator would besupplied. During the inspection, Ryan learned that this was not being done. He stated thatCF&I’s plant superintendent and safety director told him that employees who detectedbanana oil while wearing their respirators in the test atmosphere[[9]] were neverthelesssent to work in the regulated area without being fitted with a different respirator.According to Ryan, CF&I’s management told him that this practice was followedthroughout the coke oven industry. Ryan also stated that records supplied to OSHA byCF&I’s industrial hygiene staff showed that prior to the inspection, twenty-eightemployees, who worked in the regulated area, smelled banana oil while wearing respiratorsin a test atmosphere but were not supplied with different respirators.In his brief, the Secretary argues that section 1910.134(e)(5), as incorporated by section1910.1029(g)(3), requires the employer to assure that the respirators worn by itsemployees are \”fitted properly.\” He maintains that a qualitative fit testconducted conducted in a test atmosphere of irritant smoke or banana oil is required. Ifthe employee fails the test because he can detect the substance surrounding therespirator, the Secretary states that the employer must then provide the employee with aproperly fitting respirator or remove him from the workplace. The union agrees with thisargument.CF&I contends that neither a banana oil or irritant smoke test is mandatory undersection 1910.134(e)(5). In its view it complied with the standard by providing apositive-negative pressure test to employees at the outset of their employment.The judge found that CF&I willfully violated section 1910.1029(g)(3) by failing toprovide respirators with a different size facepiece to employees who failed the banana oiltest. The judge rejected CF&I’s argument that administration of a positive-negativepressure test complies with section 1910.134(e)(5) since this test is not done in a testatmosphere as required by the standard. He also reasoned that by failing to replace therespirators of those employees who failed the banana oil test, CF&I had failed tocomply with the \”fitted properly\” requirement of section 1910.134(e)(5).The gravamen of the alleged violation is CF&I’s failure to assure that employees inthe regulated area were equipped with respirators that fit, which the Secretary assertsmust be determined through use of a test atmosphere. The Secretary cites section1910.1029(g)(3), which is part of the \”Respiratory protection\” section of thecoke oven emissions standard. However, section 1910.1029(g)(4)(i), which is also a part ofthe general \”Respiratory protection\” section specifically covers the fit ofrespirators. It provides that \”the section specifically covers the fit ofrespirators. It provides that \”the employer shall assure that the respirator issuedto the employee exhibits minimum facepiece leakage and that the respirator is fittedproperly.\” In our opinion, section 1910.1029(g)(4)(i) is specifically applicable tothe cited condition and should have been cited by the Secretary instead of section1910.1029(g)(3).We read section 1910.1029(g)(3) as a training standard; it does not require the employerto assure proper fit of an employee’s respirator. Section 1910.1029(g)(3) requires theemployer to establish a respiratory protection program in compliance with section1910.134. Section 1910.134(b), entitled \”Requirements for a minimal acceptableprogram,\” states that the user shall be \”instructed and trained in the properuse of respirators and their limitations.\” (Emphasis added.) At no place does section1910.134(b) state that the employer must assure proper fit of respirators. The Secretarynevertheless refers to language in section 1910.134(e)(5) concerning proper fit and a testatmosphere in support of his argument that section 1910.1029(g)(3) requires the employerto assure proper respirator fit. We do not agree. Section 1910.134(e)(5) requiresinstruction to users in the selection, use , and maintenance of respirators. It thenstates that training shall provide the employees \”an opportunity,\” to amongother things, \”handle the respirator, have it fitted properly, test itsface-piece-to-face seal,…[and] wear it in a test atmosphere.\” We interpret section1910.134(e)(5) as requiring the employer to instruct employees during training in suchthings as how to select a respirator, how to put on a respirator, how to achieve a properfit and how to obtain a face-piece seal. The employees must also be givenhands-on-experience with the respirator and the opportunity to wear it, including thechance to wear the respirator in a test atmosphere, during training. However, section1910.134(e)(5) does not, as the Secretary asserts, require that the employer assure properfit of the respirator or specify how this is to be done. As we noted previously, section1910.1029(g)(4)(i) covers this safety requirement.[[10]]It is well established principle of statutory construction that a statute or regulationmust be read as a whole and that all parts of a statute or regulation must be read as awhile and that all parts of a statute, if at all possible, are to be given effect. SeeSimplex Time Recorder Co., 85 OSAHRC_\/_, 12 BNA OSHC 1591, 1594 n.6, 1986 CCH OSHD ?27,456, p. 35,569 n.6 (No. 82-12, 1985); Northwest Airlines, Inc., 80 OSAHRC 87\/B5, 8 BNAOSHC 1982, 1989, 1980 CCH OSHD ? 24,750, p. 30,487 (No. 13649, 1980). Here theSecretary’s own standards make a distinction between training in respirator use andassurance of proper fit: Section 1910.1029(g)(3) requires the establishment of arespirator protection program while section 1910.1029(g)(4)(i) requires respirators to befitted properly. It would therefore be anomalous to equate training with proper respiratorfit. See United States Steel Corp., 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, 1296, 1977-78 CCHOSHD ? 21,795, p. 26,225 (Nos. 10825 & 10849, 1977). Indeed to interpret section1910.1029(g)(3) as requiring the employer to assure proper respirator fit would read outof the standard any meaning to 1910.1029(g)(4)(i).Moreover, the source standard from which section 1910.134 was derived makes clear that useof a test atmosphere to determine respirator fir is not mandatory. In this case, thesource standard is ANSI Z88.2- 1969. Like section 1910.134(e)(5), the ANSI source standardrequires the use of a test atmosphere for the training of employees. ANSI Z88.2-1969, ?7.4. However, the ANSI source standard does not state the employer must assure properrespirator fit during training; it also makes clear that a test atmosphere is notmandatory for the determining facepiece fit.[[11]] The ANSI provision states that\”[p]otential users of respirators should also be required to test their facepiece fitby wearing the respirator under realistic test conditions.\” (Emphasis added.) ANSIZ88.2-1969, ? 7.5. Like most ANSI standards, ANSI Z88.2-1969 contains a provisionexplaining the significance of the words \”shall\” and \”should.\” Section1.3 states:1.3 \”Shall\” and \”Should\”. The provisions of this standard aremandatory in nature where the word \”shall\” is used and advisory in nature wherethe word \”should\” is used.Since the ANSI source standard does not require the use of a test atmosphere to determinerespirator fit, we do not interpret the OSHA standard to require use of a test atmosphereto determine respirator fit.[[12]]In the instant case, CF&I raised the applicability of section 1910.1029(g)(4)(i), andthe compliance officer acknowledged that it applied. He also acknowledged that he mighthave cited the wrong standard.[[13]] The Secretary, however, did not move to amend, see note 15, infra, and continues to allege a violation ofsection 1910.1029(g)(3).[[14]] We therefore must address whether the Secretary has provena violation of section 1910.1029(g)(3).The Secretary alleges a violation of section 1910.1029(g)(3) because twenty-eightemployees were not given a proper fitting respirator after failing the banana oil test.The mere fact that employees entered a test atmosphere and encountered facepiece leakagedoes not mean, however, that their training was inadequate. Indeed the Secretary’srespirator expert, Dr. Pritchard, testified that every respirator leaks to one degree oranother and that the odor threshold between individuals for detecting banana oil varies.Dr. Pritchard also noted that an employee could smell banana oil because he does not placethe mask on his face properly, and not because the mask size is incorrect. In order toprove a violation of section 1910.134(e)(5) the Secretary must show that employees werenot adequately instructed in the proper selection, use, and maintenance of respirators orwere not permitted to handle the respirator under certain conditions. CF&I had atraining program that included instruction in the selection and use of respirators and theavoidance of facepiece leakage. Employees were given an opportunity to handle therespirator under various conditions and to wear it in a test atmosphere under the guidanceof an industrial hygienist. The fact that some employees detected the banana oil while inthe test atmosphere does not establish by itself that the instructions or trainingotherwise provided were inadequate. We thus conclude that the Secretary failed toestablish a violation of 29 C.F.R. ? 1910.1029(g)(3). Accordingly, we vacate the citationfor violation of this standard.[[15]]Citation 3: Smoking and Training.Items two and three of this citation are in dispute. Item 2 of the citation alleges thatCF&I violated 29 C.F.R. ? 1910.1029(i)(5)(i) by allowing two employees to smoke inthe north and south coal bin and door repair areas during OSHA’s inspection. This standardstates:(i) The employer shall assure that in the regulated area, food or beverages are notpresent or consumed, smoking products are not present or used, and cosmetics are notapplied, except that these activities may be conducted in the lunchrooms, change rooms andshowers required under paragraphs (i)(1)-(i)(3) of this section. (Emphasis supplied.) There is not dispute that the employees in question were smoking inthese areas. There also is no dispute that these areas are beyond the pinion wall. Thejudge affirmed this item based on his conclusion that these areas were part of the\”battery ends\” and, thus, part of the regulated area. As explained above, weconclude that the areas in question–the north and south door repair and coal binfacilities–are not part of the \”regulated area\” because they are beyond the\”battery ends.\” Accordingly, we reverse the judge’s decision and vacate thisitem.Item 3 of this citation involves an alleged violation of the employer training standard at29 C.F.R. ? 1910.1029(k)(1)(ii). Item 3 alleges: 29 CFR 1910.1029(k)(1)(ii): The employer did not institute an effective training programfor Coke oven employees working in the regulated area or at the time of initial assignmentto the regulated area, in that:a) New employees, with no prior work experience in the regulated area, did not receiveadequate on-the-job training on the proper work practice and written procedures tominimize Coke oven emissions prior to assignment in the regulated area.c) Employees with experience in the regulated area, did not receive adequate instructionsand on-the-job training in the proper work practices and written procedures to minimizeCoke oven emissions prior to assignment to a new job position they have not worked before.The cited standard provides:(k) Employee information and training–(1) Training program.(ii) The training program shall be provided as of January 27, 1977 for employees who areemployed in the regulated area at that time or at the time of initial assignment to aregulated area.Essentially, this item alleges that CF&I violated the standard by failing to provide\”written instructions\” and \”on the job\” training to new employees uponassignment to the regulated area as well as to \”experienced\” employees uponre-assignment in the regulated area. The judge determined that the standard requiredemployers only to provide written instructions to employees upon their \”initialassignment to the battery.\” He therefore affirmed this citation to the extent that italleged that CF&I violated the standard by failing to provide written instructions toemployees who were newly-assigned to the regulated area. He vacated this item to theextent that it alleged that CF&I violated the standard by failing to provide (1)\”on-the-job\” training to employees newly assigned to the regulated area, (2)written instructions to experienced employees who were re-assigned to different positionson the battery, and (3) \”on-the-job\” training to experienced employees who werereassigned to new positions on the battery.CF&I does not take issue with the judge’s partial affirmance of this item.[[16]]Relying on various portions of the preamble, the union, however, asserts that the standardrequires more extensive training for newly-assigned and experienced employees.[[17]]Although it concedes that the standard does not state all of the types of training thatemployers must provide, it asserts that \”reasonable and feasible\” training mustbe made available and cites several cases, including Horne Plumbing & Heating Co. v.OSHRC, 528 F.2d 564 (5th Cir. 1976), for support. The Secretary also asserts that thestandard requires on-the-job training for new and experienced employees. He also relies onthe preamble and argues that only through such training can the employer be assured theemployees knew the proper work practices.As the judge found, the text of the standard requires that employees be provided withwritten instructions only upon their \”initial assignment\” to the regulated area.The preamble to the standard also does not state or imply that employer’s are required toprovide anything more than initial training to employees who are newly assigned to theregulated area. We therefore agree with the judge’s conclusion that CF&I did notviolate the standard by failing to provide on-the-job training to new employees andwritten instruction as well as on-the-job training to experienced employees.The cases cited by the union in support of its argument also are inapposite. In none ofthe cases did the Commission or the courts read an additional training requirement into anadditional training requirement into an employee training standard. Rather, these casesheld that in order to sustain a defense that it neither knew nor could have known of theoccurrence of a violation, an employer must show that it provided \”reasonable andfeasible\” training to its employees. Based on the foregoing, we affirm the judge’sdecision to vacate that portion of the citation which alleged that CF&I violatedsection 1910.1029(k)(1)(ii) by failing to provide on-the-job training to new andexperienced employees and written instructions to experienced employees.Accordingly, we vacate citations 1, 2, item 2 of citation 3, item 3 of citation 3 to theextent that it alleged that the employer was required to do more than allow employees toreview the written procedures for their job when initially assigned to the regulated area.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: SEP 12 1986WALL, Commissioner, dissenting in part:I agree with the Commission’s disposition of citations 1 and 3. I respectfully dissent,however, from the decision to vacate citation 2, concerning training in the wearing ofrespirators. I conclude that section 1910.134(e)(5) applies, that it was violated, andthat the violation was willful.To restate the facts of this issue, during the course of training in the wearing ofrespirators, some of CF&I’s employees wore respirators in a test atmosphere of bananaoil. Twenty-eight of the employees reported smelling the banana oil, which indicated thattheir respirators did not fit properly. They were not supplied with respirators that didfit; rather they were sent to work in a toxic atmospheres wearing respirators that weredemonstrably unsuited for the purpose.The majority emphasizes that the standard in question, continued in paragraph1910.134(e)(5), is a training standard. I don’t take serious issue with this because,whether it is a training standard or a use standard the evidence clearly demonstrates thatit was violated. The governing standard, paragraph 1910.1029(g), is headed\”Respiratory Protection.\” Paragraph (g)(3) requires that \”The employershall institute a respiratory protection program in accordance with ? 1910.134 of thisPart.\” Paragraph 134(b) is headed \”Requirements for a Minimal AcceptableProgram.\” Paragraph 1910.134(e)(5), the standard which was cited in the case, isheaded \”Use of Respirators.\” Paragraph (e)(5), in its pertinent part, statesthat \”For safe use of any respirator, it is essential that the user be properlyinstructed in its…use….Training shall provide the men an opportunity to handle therespirator, have it fitted properly,…and…to wear it in a test atmosphere.\”(Emphasis added)CF&I does not deny that 28 employees failed a so-called \”banana oil test,\”and were then sent into the area of coke oven emissions with respirators that obviouslydid not fit. This clearly establishes that the 28 employees were not provided withrespirators that fit, were not trained to comprehend the proper fit of respirators, or touse the use of respirators. Nor could it seriously be argued that this was a minimalacceptable program.The suggestion that CF&I could have been cited under paragraph 1910.1029(g)(4) doesnot affect my conclusion. CF&I may have breached another respirator standard as well,but this does not mean that it was not properly cited under paragraph 1910.134(e)(5). The1910.134(e)(5) citation alleged a failure to train in the use of respirators and,expressly, that employees did not have an opportunity to have their respirators fittedproperly. The gravamen of the charge concerns the initial fitting of respirators; aprocess that is ordinarily associated with the indoctrination or training phase ofrespirator use. Although the facts of this case might also support a violation of1910.1029(g)(4), the respirator usage standard, the Secretary has a legitimate concernabout the initial fit of respirators, and chose to allege that the employees were nottrained properly under paragraph 1910.134(e)(5). This is within his prosecutorialdiscretion, and is not grounds for vacating the citation.Regarding the use of banana oil, the question of whether a banana oil test was required,or what test is required, is beside the point. Whether Respondent was required to use thebanana oil test, it did use the banana oil, and it demonstrated that the respirators didnot fit. Given this knowledge, by whatever test the knowledge was obtained, it can hardlybe said that the employees were properly trained in the use of respirators. The purpose ofparagraph 1910.134(e)(5) is to ascertain whether the respirator provides protection (haveit fitted properly), and to prepare employees to work and function in a toxic environment.This is clear not only from the language of the test atmosphere provision of1910.134(e)(5), but also from the ANSI standard which is the source of the OSHA standard.As the majority notes, we may generally not construe an OSHA standard adopted undersection 6(a) of the Act, 29 U.S.C., ? 665(a), in a way that is different from its ANSIancestor. Under the 1969 ANSI standard, the positive and negative pressure tests were onlyfield tests. Section 7.5 of the ANSI standard states that \”[t]o assure properprotection, the facepiece fit shall be checked by the wearer each time he puts on therespirator. This may be done by following the manufacturer’s facepiece- fittinginstructions such as these simple field tests:….\” (Emphasis added.) What thenfollows in sections 7.5(1) and (2) are detailed descriptions of the positive and negativepressure tests. The test atmosphere procedure is described next as a means for employees\”to test facepiece fit by wearing the respirator under realistic testconditions.\” ANSI section 7.5, third paragraph (emphasis added). The passage goes onto state that if an employee does not detect the odor of banana oil, \”he has a goodfit.\” Thus, the ANSI standard contemplates that the \”test atmosphere\”provision of the training standard is a means for fitting a respirator properly duringtraining. Another portion of this same paragraph demonstrates that training the employeein the achievement of proper fit is not all that the standard expects. The third paragraphof section 7.5 makes clear that the results of a banana il test could well require theemployer to provide another respirator to the employee if the first allows the employee tosmell banana oil. That paragraph states in part:If [the respirator wearer] detects the odor [of banana oil], he should retreat to freshair, readjust the facepiece, and repeat the test. If leakage is still noted, it can beconcluded that this particular respirator will not protect the wearer. The wearer shouldnot continue to tighten the headband straps until they are uncomfortably tight, simply toachieve a gas-tight fit. If fitted too tightly, the wearer will not wear the respirator orwill wear it fitting comfortably loose and will not have a gas-tight seal. (Emphasisadded)That a respirator’s straps may not be tightened by the employee after a point means thatunless the employer monitors the result of the banana oil test and provides a differentrespirator, there can be no assurance that any amount of employee training will help anemployee achieve proper fit.I also find that the violation was willful. A violation is willful if it is committedvoluntarily with either an intentional disregard for the requirements of the Act or plainindifference to employee safety. Simplex Time Recorder Co., 85 OSAHRC_, 12 BNA OSHC 1591,1595, 1985 CCH OSHD ? 27,456, p. 35,571 (No. 82-12, 1985). In a training film, CF&Iinformed employees that they would be provided with a different respirator if they failedthe banana oil test. It clearly understood that the fit of respirators was to be evaluatedin a \”test atmosphere.\” It administered banana oil tests, yet failed to providedifferent to at least 28 employees who failed. These 28 employees then were sent to theregulated area and in several instances were exposed to toxic coke oven emissions abovethe permissible exposure limit without proper respiratory protection. This conductdemonstrates, at the very least, plain indifference to employee safety.\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0\u00a0\u00a0FOOTNOTES: [[1]]CF&I ceased operations at this coke plant on or about December 31, 1982. Whilethis case was pending on review, we granted the Secretary’s motion to withdraw a citationin another case involving this employer. CF&I Steel Corp., OSHRC Docket No. 81-454.Our order in that case based in part on the Secretary’s assertion that he was\”informed by counsel for [CF&I] and the authorized employee representative that[CF&I] has permanently ceased operation of its coke oven facility in [Pueblo,Colorado.]\” In a notice filed with all parties in this case, we requested informationon: (1) whether the coke ovens involved here had ceased operations; (2) whether theabatement requirements of these citations were moot: and (3) what issues, if any, remainedin dispute. By joint stipulation of the parties, we were informed that the coke ovenfacility cited in the case has ceased operation and that CF&I had \”nointention\” of resuming operations in the \”foreseeable future.\” The partiesalso stipulated the abatement requirements of the citations were moot but that \”[t]hecitations upon review, themselves, and the corresponding penalties are the only issuessubject to continuing dispute.\”[[2]]The final standard’s treatment of regulated areas differs significantly from theapproach of the standard originally proposed by the Secretary. 40 Fed. Reg. 32,268-77(1975). The originally proposed regulated area provision did not mention the battery endsor the screening station. The preamble does not explain why \”battery ends\” wasadded to the final standard. It does state generally that all areas specified as\”regulated areas\” in the final standard were associated with increased healthrisk. 41 Fed. Reg. 46,756 (1976). In addition to designating specific work areas asregulated areas, the proposed standard also provided that a regulated area be establishedin \”any other coke plant work area where the permissible exposure limit isexceeded.\” The preamble to the final standard stated that this approach todesignating regulated areas was deleted because \”[a]ny area where the permissibleexposure limit could be exceeded, would, by definition already be a part of the [regulatedarea]. 41 Fed. Reg. 46,757. It is quite clear therefore that under the final standard,regulated areas must be designated in specific work areas and not by reference to whetherthe PEL is exceeded.[[3]]The standard requires employers to provide quarterly monitoring of the exposurelevels of employees in the regulated area, ? 1910.1029(j)(1)(i) and (iii), and monthlymedical surveillance for these employees, ? 1910.1029(j)(1)(i). Employees who work in thearea work must wash their hands and face before eating, and shower at the end of theirshift. Section 1910.1029(i)(2)(i) & (i)(4)(i), These employees also must be trainedregarding the hazards of emissions and the protective measures required by the standard.Section 1910.1029(k)(1)(i). Smoking and drinking are prohibited in the regulated areas.Section 1910.1029(i)(5)(i).[[4]]Instruction STD 1-4.3 was issued on April 19, 1979, approximately three months beforethis inspection. 1978- 79 CCH Developments Binder ? 11,678. Its purpose was to\”clarify the compliance procedures for determining an effective respirator programfor the coke oven emissions standard.\” This Instruction states in part:1. At this time any employee in the regulated area must wear a respirator except in thelunch rooms or in filtered air locations and except as provided below.a. Employees in the regulated area need not wear a respirator in clearly delineated areasthat have been shown by air sampling to be consistently below the permissible exposurelevel (PEL) of 150 ug\/m3 (8 hour TWA). Such locations may include large areas, such as thepush side bench or small areas, such as the bench level between batteries.The instruction also states that due to the discomfort and inconvenience associated withwearing a respirator, wearers could remove respirators for a \”brief rest period\”or for \”essential work conversations\” in areas that were not below the PEL solong as the respirator was worn for a sufficient period to reduce exposure below the PEL.Finally, the instruction states the following regarding \”battery ends\”:Battery ends include, but are not limited to, the coal loading area between batteries ontopside and bench level (and not just pinion wall to pinion wall). In general, all partsof the battery above ground level are within the regulated area.[[5]]Based on this record, it is far from clear whether the PEL was consistently exceededin the cited areas. Relying on Exhibit C-22, the judge stated that no sampling resultswere produced for either the door repair or coal hin areas but that samples taken in thenorth and south lunchrooms \”could\” and did exceed the PEL. Contrary to what thejudge found, there are sampling results in evidence for the north and south door repairareas. See Exhibit R-70. These results show that on four separate dates in the latter partof 1979, the door repair facilities were sampled. Of the 16 samples reported, none exceedthe 150 ug\/m3 PEL–the highest being 123 ug\/m3. These records also show that the north andsouth lunch rooms were sampled 24 times between April, 1979 and December, 1979. Although asample taken at the south lunchroom was 250 ug\/m3, as found by the judge, the remaining 23samples were below the 150 ug\/m3 PEL with 16 of this total below 50 ug\/m3.[[6]]The vast majority of the standards adopted under the Act were drafted by privateorganizations rather than by OSHA. OSHA was required by section 6(a) of the Act to adoptprivately-drafted standards without substantive change. See note 12 infra and accompanyingtext. Many of the standards that had been drafted by OSHA or the old Bureau of LaborStandards and adopted under section 6(a) of the Act as established federal standards werealso derived largely from privately- drafted standards. See generally Dun-Par EngineeredForm Co., No. 79-2553 (July 30, 1986) (slip op. at 11, 14 & n.10, surveying thehistory and derivation of OSHA standards).[[7]]Section 1910.1029(g)(3) provides:? 1910.1029 Coke oven emissions.(g) Respiratory protection.(3) Respiratory program. The employer shall institute a respiratory protection program inaccordance with ? 1910.134 of this part.[[8]]Section 7.5 of ANSI Z88.2-1969, entitled \”Practices for RespiratoryProtection,\” explains how to test for facepiece leakage with a positive or negativepressure test. It states:(1) Positive Pressure Test. Close the exhale gently into the facepiece. The face fit isconsidered satisfactory if a slight positive pressure can be built up inside the facepiecewithout any evidence of outward leakage of air at the seal. For most respirators, thismethod of leak testing requires that wearer first remove the exhalation valve cover andthen carefully replace it after the test.(2)Negative Pressure Test. Close off the inlet opening of the canister or cartridge(s) bycovering with the palm of the hand(s) or by replacing the seal(s), inhale gently so thatthe facepiece collapses slightly and hold the breath for ten seconds. If the facepieceremains in its slightly collapsed condition and no inward leakage of air is detected, thetightness of the respirator is probably satisfactory.[[9]]A test atmosphere is \”an enclosure in which (1) the user can enter with theequipment on, and (2) a ‘test’ contaminant (of low toxicity) can be placed.\” NIOSH,Respiratory Protection…An Employee Manual, at 76 (1978).[[10]]A second sentence in section 1910.1029(g)(4)(i) had provided that the quantitativefit tests shall be performed annually for each employee who uses a non-powered,particulate filter respirator. This provision was struck down by the AISI court and wasdeleted by the Secretary after the AISI litigation. 50 Fed. Reg. 37352 (1985). It has notbeen repromulgated by the Secretary.[[11]]The successor to ANSI Z88.2-1969, ANSI Z88.2-1980, requires for the first time thatwearers of negative pressure respirators be given either a qualitative fit test, such as abanana oil test (see ANSI Z88.2-1980, Appendix ? A5.2), or a quantitative fit test, whichtests fit by numerical measurement with instruments that compare contaminant levels insideand outside the respirator. See ANSI Z88.2-1980, ? 6.11 and Appendix ? A.6.[[12]]Section 1910.134(e)(5) was adopted under section 6(a) of the Act without regard tothe comment and notice rulemaking provisions of section 6(b) and the AdministrativeProcedure Act, 5 U.S.C. ? 553. For this reason it cannot be substantially modified fromits source. Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); George C.Christopher & Son, Inc., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1442-43, 1982 CCH OSHD ?25,956, pp. 32,530-31 (No. 76-647, 1982).[[13]]The compliance officer did not cite section 1910.1029(g)(4)(i) because it was his\”understanding\” that after the quantitative fit test provision was stricken bythe AISI court, an agency policy statement directed inspectors not to enforce section1910.1029(g)(4)(i). The compliance officer’s belief, however, was erroneous. Thecompliance officer apparently based his belief on OSHA’s Program Directive 300-10(revision No. 1 dated October 30, 1978). This directive states: (7)Respirator Fit Test (g)(4)(1). Coke oven employers are required to perform respiratorfit tests annually for each employee who uses a non-powered, particulate filterrespirator. The preamble of the standard incorrectly describes the procedure forquantitative fit test. Since the record does not support the requirement for annualquantitative respirator fit testing, OSHA intends to conduct a separate rulemaking on thatissue in the near future. In the interim, only a requirement for qualitative fit testingwill apply.The directive does not state that the first sentence of section 1910.1029(g)(4)(i), whichrequires that employers assure that respirators are \”properly fitted,\” is not tobe enforced. In any event, the first sentence of the standard had not been struck down bythe AISI court. It therefore continued to be in effect when the citations in this casewere issued and the directive indicates that it continued to require qualitative fittesting.[[14]]The Secretary has taken inconsistent positions regarding the interpretation ofsection 1910.134(e). In the 1979 version of OSHA’s Industrial Hygiene Field OperationsManual, Ch. XII, section E (text as of January 1, 1979), reproduced in CCH EmploymentSafety & Health Guide, OSHA Field Operations Manual and Industrial Hygiene FieldOperations Manual, ? 4488.40 (1979), OSHA instructed its compliance officers that\”respirator fit\” can be checked by one of the following methods:(i) Positive Pressure Test:….[Detailed instructions omitted.](ii) Negative Pressure Tests:….[Detailed instructions omitted.](iii) Manufacturer’s Instructions. Follow the directions provided by the respiratormanufacturer. The [compliance officer] is not permitted to used irritating chemicals totest facepiece fit.(iv) Chemicals. Some employers may use irritant smoke or isoamyl acetate [banana oil] forthe respirator fitting test….Although OSHA does not recommend using chemicals, it is acommon practice and no standard directly prohibits it unless the permissible exposurelimits are exceeded.The Manual instructed the compliance officer that when he observes employees to determineproper fitting, he is to see if fitting \”is done by either negative or positivepressure test or other methods as used by the employer as described in paragraph(2)(b)(iii) and (iv)….\”After the hearing in this case, the Secretary, prompted in part by \”a request forcompliance procedures\” and what he characterized as \”litigationactivities,\” issued a policy directive on section 1910.134(e)(5) to \”clearlyestablish enforcement policy on the fit-testing issue.\” That directive is InstructionCPL 2-2.29 (Oct. 27, 1980), reproduced at 1980-81 CCH Developments ? 12,107. It statesthat \”[a] ‘test atmosphere’ must be applied to assess the quality of fit.\” Id.,? F.2.[[15]]Since the parties did not expressly or impliedly consent to try a violation ofsection 1910.1029(g)(4), we conclude it would be improper to amend to allege a violationof this standard. See McWilliams Forge Co., 84 OSAHRC_\/_, 11 BNA OSHC 2128, 1984 CCH OSHD? 26,979 (No. 80-5868, 1984).[[16]]The Secretary did not petition for review of the judge’s partial vacation of theitem.[[17]]The union cites the following language from the preamble in support of its claimthat more extensive training was required:\”A major portion of the effort in the control of coke oven emissions involves workpractices. These include repair inspection, maintenance, cleaning and repair of all theequipment and strict adherence to prescribed schedules. Employees must be properly trainedin such work practices and their importance. The proper training of all employees willrequire time.\”41 Fed. Reg. at 46,761 (emphasis supplied by union). \”Such a written program assures that all the elements are considered and can be usednot only to evaluate the effectiveness of the program but also to train employees. Forexample, in implementing the cleaning requirement, the written program could specify jobassignments, cleaning tools and a checkoff or reporting system for the operating crewdepending on the needs of that particular plant.\”41 Fed. Reg. at 46,767 (emphasis supplied by union).”